Although the oral arguments and decision in the crucial case of Masterpiece Cakeshop vs. the Colorado Civil Rights Commission, discussed by this writer last month, are months away, it is not too soon to consider what the response of Christians should be if Jack Phillips loses his case, or if in prevailing the principle the court lays down is so narrow it does not provide protection in future similar cases, or in markedly different cases where religious freedom is the basic factor.
That we have Masterpiece Cakeshop and similar cases at all is due to very bad mangling of law and logic by the Supreme Court in an effort to relieve the suffering of homosexuals under traditional morality. The court has used the Fourteenth Amendment’s guarantees of “liberty” and “equality” to reason that laws that penalize homosexuality (as in the Lawrence vs. Texas decision in 2003) or which deny special protected status to homosexuals (as in the Romer vs. Evans case in 1996) are violations of “liberty” and “equal protection.”
But this depends on reasoning that homosexual behavior and inclination are characteristics that mark out a particular class of people who constitutionally must be “equal” to all others. All behaviors and inclinations clearly are not equal, and to legally require that all behaviors be equal would make all crimes legal, since any crime might be taken as a basis of personal identity, and accorded “equal” or “protected” status. This writer’s recent summary of Prof. Michael Stokes Paulsen’s discussion of opposition to religious liberty noted that once a right is established in law, we must “endure the costs.”
The only way the Supreme Court’s jurisprudence supporting the sexual revolution makes sense is if it has a special power to discern moral truth, which it plainly does not have. That people are entitled to the sexual behavior they want is a moral intuition offered as the basis of the contraception decisions (Griswold vs. Connecticut and Eisenstadt vs. Baird) – and expanded to cover what we now call LBGT issues – it is not reasonably implied by constitutional guarantees of “liberty” or “equality.”
Nevertheless, this horrible reasoning is firmly ensconced in recent constitutional decisions, with the Romer and Lawrence decisions going beyond the legalization of homosexuality to deplore discrimination against it by private citizens. If Masterpiece Cakeshop wins, Justice Kennedy will have to go against his previous reasoning, which has been followed by almost all lower courts. Only freedom of expression, which unlike freedom of religion has (in this country at least) commonly survived the anti-discrimination regime seems to offer hope of vindication for Masterpiece Cakeshop.
And so we must turn to the possibility that Masterpiece Cakeshop will lose. This will likely mean that, in addition to taking whatever penalty the law prescribes, that Masterpiece Cakeshop and Baronelle Stutzman’s florist shop will close, just as Elaine Photography closed in New Mexico after the loss of that case. There will be no protection for conscience against accommodating homosexuality – or now, transgenderism – wherever sexual orientation and gender identity (SOGI) laws apply. Fallout will include not only the wedding industry, but with ever greater force many businesses and professions will be closed to faithful Christians, because accommodating homosexual behavior may be involved in the provision of goods and services. This would include counseling professions, where assisting with homosexual relationships or behavior may be wanted; health professions, where surgery or treatment to change sexual anatomy is wanted; legal occupations, where assistance with same-sex marriage or divorce is wanted; teaching professions with respect to what may or must be said in the classroom, regardless of factual truth or the instructor’s conviction; and even religious counseling with respect to SOGI issues, which may be restricted as “harmful.”
Even in occupations and organizations not directly connected with anything sexual may be closed to faithful Christians (and to serious adherents of other religions), where people are expected to declare themselves “allies” of the LGBT cause (as in Obama’s Justice Department), or are penalized for what they say (or have said in the past) in support of traditional morality. Another possibility is that a pro-LGBT “loyalty oath” might be required of public servants, as is being proposed in Britain. And of course, specifically religious organizations, especially if they are not houses of worship, will come under enormous pressure to accept the LGBT revolution, as they can no longer offer religious conscience as a justification against attempts to take away their accreditation, licensing, tax exemption, or even free association against law suits.
We can now see how wrong assurances were that no one but people desiring freedom from traditional morality would be affected by homosexual (and now transgender) liberation promoted by the sexual revolution. It defines as “violence” any disagreement with its claims to the righteousness of homosexuality or transgenderism. And the key to that is the identification of persons with their inclinations and behaviors, rather than as beings with a fixed nature. Yet behavior cannot categorically be accorded either liberty or equal protection, for reasons already given. Opponents of the sexual revolution were not Chicken Littles, as boys in girls restrooms now attest. “No one will be inconvenienced” subtlety, and quickly, became “no one should be inconvenienced.”
The loss of talent and service to society will be great, if the many persons (although indeed a minority of the general public) decline to be part of occupations that require accommodation to homosexuality and transgenderism. This ought to be an argument against the draconian SOGI laws, and insofar as much of the non-ideological public is concerned, it may carry weight. Exceptional performers in certain work situations may also have a degree of security from being penalized for their convictions. But the argument in the ongoing morality struggle will of course be that religious dogma is to blame. Arguments that religious doctrine is justified by reason, evidence, and common sense will not avail; the fact that religious doctrine is unalterable and the real reason for believers’ conscientious objection will be held to make any other argument irrelevant.
In responding, we must point out that the sexual revolutionaries’ commitment sexual self-determination is just as dogmatic, enshrined in court decisions as an absolute right independent of any other consideration. No principled appeal to “equality” or “liberty” can be consistently be made in support of this dogma, since all behaviors cannot be consistently protected. Religious and moral integrity, however pained anyone is, must be the continual response of Christians to our disfavored status in society on sexual issues. We can add to this the classic freedoms of religion, speech, and association that were core American values until attacked by the sexual revolution.
It will be vital in any case, but especially if the Masterpiece Cakeshop case is lost, that Christians not acquiesce in sinful laws and requirements. To do so is wrong in itself, contrary to Jesus’ commandment not to contribute to sin (Matt. 18:7), not justified by any good that might result, and also will have – as it is intended to have – a tendency to change belief. Forced into underclass status – a status that may also result if the case is won and the Trump administration turns out to be a mere reprieve from a future socially-liberal administration – with even the right of churches and families to maintain their integrity before God threatened, it may be that life will be difficult for years, and for more than this generation. But the cost of discipleship is unconditional obedience to God.