After years of struggle, it appears that we face another decisive moment in the conflict between homosexuality and Christian commitment to God. The case of Masterpiece Cakeshop v. Colorado Civil Rights Commission will be heard and decided by the U.S. Supreme Court in its next term. Masterpiece Cakeshop’s owner, Jack Phillips, declined to bake a cake for a same-sex ceremony, although he expressed willingness to sell the customer any other cake.
This comes after years of court rulings mandating acceptance of homosexuality in law. These rulings were far more than mere decrees overruling democracy, but moral judgments against what the court and the protagonists of sexual liberation believe is oppressive religious and moral doctrine.
It also comes after several years of high profile public conflict in which religious defendants, pleading that they are entirely willing to serve homosexual customers, but not to facilitate homosexual behavior, have lost legal battles because the U.S. Supreme Court declares that people have the right to define their own reality. This is interpreted to mean that discrimination against sexual behavior is discrimination against persons, because sexual behavior is part of personal identity. In the meantime, public opinion has shifted under the weight of judicial defeats, as well as militant support for the acceptance of homosexual behavior by the mass media, the entertainment industry, the academy, and now — decisively in legislative religious freedom struggles — by the corporate world. It has come down to the demand that behavior God declares in Scripture to be vile depravity be accepted personally, from the heart, and shown to be accepted by words and deeds. And that demand can never be accepted by anyone who is obedient to God.
Much of the battle has to do with the refusal to accept the orientation/behavior distinction, which would allow discrimination against behavior but not against persons. Requiring action believed to be evil contradicts the native human fair-mindedness present in any culture, and so the enemies of religious liberty cannot let the matter rest here. They gloss over the distinction if possible, and deny it if pressed, as the New Mexico Supreme Court did in the Elane Photography v. Willock case. Another example of this was the Public Religion Research Institute (PRRI) survey of a sample of religious Americans earlier this year, finding that majorities supported same-sex marriage and opposed the right of business owners to refuse service to homosexual customers. But the real question is the right of conscientious objection against homosexual behavior, or the more narrow objection to same-sex marriage.
In contrast, a 2015 Marist poll showed that the majority of Americans favor religiously-based conscientious objection to the provision of particular goods and services pertaining to homosexuality. An analysis by the Catholic News Service pointed out that while younger persons were more likely to agree with exemptions from generally applicable laws, they were less likely to agree with exemptions that pertained to homosexuality. A recent Christianity Today article about LifeWay Research’s 2016 survey confirmed that there is still broad public support for legal protection for conscientious objection from homosexual behavior.
The survey shows that even among groups that that tend to think sexual liberation should prevail over religious freedom, this opinion is only held by minorities (e.g., 30 percent of men, 33 percent of respondents in the Northeast). The group with the greatest support for sexual liberation over religious freedom (49 percent) was nonreligious respondents. On the other hand, among groups which favored religious freedom over sexual liberation, substantial majorities favored religious freedom (68 percent of Protestants, 55 percent of those over 55 years old, 90 percent of those with Evangelical beliefs). Interestingly as well, a four category scale from “always support” sexual liberation to “always support” religious freedom showed increasing agreement (in a range of 10 percent to 31 percent) as the response categories moved from sexual liberation to religious freedom. If a “not sure” category is included among the response categories, it was the second most popular (28 percent) after “always support” religious freedom.
On the other hand, age breakdowns indicated a marked shift away from religious freedom, with ever younger categories less supportive as one moves from the oldest category (over 65 years of age, at 56 percent support for religious freedom) to the youngest (18-24 years of age, at 33 percent support for religious freedom). But despite this, Christians must communicate, by words and deeds, that it is wrong to require action believed to be sinful or evil because other people are pained. This may or may not be successful, but it is the only course of integrity left open.
The balance on the U.S. Supreme Court is at best precarious, and finally unclear. It will be true with Masterpiece Cakeshop, as it has been for the last twenty years, that Anthony Kennedy, who sits in the seat that Robert Bork would have held, and who authored all the pro-homosexual rulings during that time, will likely have the deciding vote. These decisions, as noted above, were most basically bitter moral attacks against opposition to homosexuality, and laws that implement it. In particular, both the Romer v. Evans case (1996) and Lawrence v. Texas decision (2003) deplored the private discrimination against homosexuality which is at the heart of the current conflict. On the other hand, Kennedy cast the deciding vote in the Boy Scouts of America v. Dale case (2000), which allowed the Boy Scouts to prohibit homosexual scoutmasters as an “expressive association.”
It seems to this writer that freedom of expression is the most promising defense for Jack Phillips of Masterpiece Cakeshop. Phillips is selling his own expression, and has refused cakes that celebrate Halloween and a lewd bachelor party. Freedom of expression as a minimal defense against the demands of homosexual liberation would at least protect against being required to condone homosexual relations in government agencies and state institutions (especially colleges and universities), discourage forced speech in private corporations, which is an increasing problem, and of course, help protect those who sell their expressive talents in vocations of art and counselling.
But the real issue in this and other conscience cases involving sexual orientation and gender identity (SOGI) laws is the right not to be complicit in activities deemed sinful or evil. It is really on this basis that Jack Phillips should prevail. The Constitution guarantees the “free exercise” of religion, using the action word “exercise.” Contrary to the misguided Reynolds v. the United States (1878) and Employment Division v. Smith (1990) decisions, and the enemies of religious liberty, this cannot reasonably be interpreted as protecting only belief. Further, the action protected is the least action possible, namely, the right to decline to take action. Victory in the Masterpiece Cakeshop case on this basis would put an effective end to the spate of lawsuits against Christians in business, protect Christian professionals, especially in the health professions, and likely greatly enhance protection for the integrity of Christian educational and other institutions.
And so success using the free speech defense in the Masterpiece Cakeshop case will stop some of the momentum against religious freedom; success using freedom of religion will be more effective. Statutory law should not prevail against the intent of the Constitution. Contrary to the anti-religious freedom polemic, protecting the religious conscience against the sexual revolution is unlikely to lead to success in religious claims for racial discrimination, since that, at least for Christians, was a cultural preference, not a religious precept. Racial claims of other religious groups could be considered and protected, if they are shown to be integral to religious doctrine.
On the other hand, loss of the Masterpiece Cakeshop case by Jack Phillips will likely mean an all-out assault of religious freedom, as is now being pressed by the cultural left. Not only will there be no protection against having to facilitate homosexuality by businessmen and professionals, but Christian institutions will come under ever more intense pressure for “discriminatory” policies, and there will be intensified pressure against conscientious objection from abortion. Free speech in support of Christian morality against abortion, homosexuality, or the sexual revolution in general will come under assault. But that will not be the signal for Christians to abandon the morality revealed by God, but to be faithful to him and avoid complicity in sin, regardless of the consequences.Google+