What If Masterpiece Cakeshop Loses?

on September 20, 2017

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.

  1. Comment by Michael Cullinan on September 20, 2017 at 8:21 pm

    Very well thought out and reasoned piece. Thank you.

  2. Comment by Blake Paine on September 21, 2017 at 12:17 pm

    Why do you think Masterpiece Cakeshop or Arlene’s Flowers will close? Neither has sold custom wedding services for over 4 years and doing fine. The details are foggy but Jack Phillips says he has made over 200 wedding cakes at his business but it had been open 19 years at the time of his illegal discrimination and so that’s less than one a month. Both businesses could just continue not offering custom wedding services so that they continue operating both legally and according to the owner’s religious ‘conscience’.

    The need to religiously discriminate against customer is theirs, its up to them to manage their beliefs and the law.

  3. Comment by Palamas on September 21, 2017 at 3:35 pm

    Everything done in Nazi Germany and the Soviet Union was “legal.” Legality does not make an action right, and curtailing the First Amendment freedoms of religious people (not just Christians, but Orthodox Jews, conservative Muslims and others) to refuse to serve in situations where they would abet immorality is just plain wrong.

  4. Comment by Rick Plasterer on September 21, 2017 at 5:31 pm

    Your apparent suggestion that theologically and morally orthodox Christians can be bakers if they do not provide custom work illustrates a major point of the article, that under the sexual orientation and gender identity (SOGI) regime, Christians will have to be an underclass, excluded from more and more occupations. Many people do have a need to “religiously discriminate,” but it is the business of the state to protect religious exercise.

    Another major problem, in addition to violating religious freedom, is what was identified in the article, giving civil rights protection to behaviors rather than persons identified by immutable characteristics (such as race or sex; although I do not believe that sex should be an antidiscrimination category, at is too deeply a real difference between people). This then allows the state to require people to facilitate activities people believe are evil.

    Jack Phillips is reasonably selling his artistic expression, which is not his if it is coerced by the state. The state should not require speech or action believed to be evil.

  5. Comment by Blake Paine on September 22, 2017 at 12:35 pm

    Please, sexual orientation is no more a ‘behavior’ than the drive to church on Sunday is a ‘religion’. There is no behavior going on at a wedding where the couple is the same séx that doesn’t go on at one where they aren’t.

    And Jack’s ‘artistic’ expression was offered to all, he said they could find a basic cake model and then they could customize it to exactly how they wanted it. This was no more ‘artistic’ than a car salesman helping you get the model, color and accessories package you wanted on your new car.

    This has been dealt with by the SCOTUS before, Amish business owner thought it was a sin to collect Social Security taxes. They were told they had to decide between their concept of ‘sin’ and having employees because to let him treat employees like they shared his faith would be imposing his faith on them.

    Ditto for customers and same standard applies, he can’t invite the public, i.e. everyone, and then tell them after the invite they can only buy wedding cakes if they have beliefs about marriage he approves of.

    Sorry, he has the same decision the Amish business owner had – follow his faith and just stop doing the illegal thing or respect the public’s civil rights as Americans to have different beliefs about marriage.

  6. Comment by RickPlasterer on September 23, 2017 at 4:01 pm

    See my reply to Kevin below. It expands on my reply to your original comment – Rick

  7. Comment by Don Zlaty on September 23, 2017 at 9:17 am

    Just a thought… when these businesses opened, did they specifically open to cater to a particular portion of the population and further more was this intent made public as part of their establishing their business initially?
    Is it not our duty as Christians to help transform the culture around us rather than stand apart from it shaking our fists? How does not serving someone reflect the love that Jesus told us to have EVEN for our enemies….
    I suppose tye biggest questiin of all is how does our response to the LGBTQ community glorify God if it is based on personal bias? Are we then willing to take tye judgments we are dishing out because we are certainly standing on some pretty high pedestals.

    The problem with these court cases is not about religious freedom. Christ told us that we would be hated necause He first was hated. The purpose of following Jesus is to LOVE. I just do not see this happening here.

  8. Comment by Rick Plasterer on September 23, 2017 at 3:37 pm


    If we love Jesus, we are to obey his commandments. One of those is to love our enemies. Another is to not to cause our neighbor to stumble (Matt. 18:7). We are clearly causing our neighbor to stumble if we contribute to homosexual or other sinful behavior.


  9. Comment by Don Zlaty on September 27, 2017 at 10:55 am

    I agree, however this business was set up as a secular business. In other words, they are there to make money. I relate this to Paul. He was a tent and sail maker. My guess is that he made tents amd sails for everyone. It was how he lived. He offered the Light of Christ through his interactions eith tue people and culture present. In other words, he sought to transforn the culture around him. Though he taught the gospel, he still kept connections with tue world around him. Protesting by refusing service does not share the gospel. It solidifies tue fact that Christians judge. How we live and love is what will vause a person to stumble. In this case, professing that we are right and they are wrong does not bring them closer to Jesus. This action will not reverse their emotions or life choices. Recognizing that this is where they are at and building a relationship of trust and honesty is the only way to address this situation. It is not up to is to change them. That job belings to the Holy Spirit.

  10. Comment by Dn on May 2, 2018 at 4:30 pm

    What nonsense.

  11. Comment by Kevin on September 23, 2017 at 9:29 am

    Focus is on same-sex activity claiming religious liberty but what of other beliefs. So I believe women shouldn’t be pastors so can I refuse to serve them if asked to dry clean their pastor robes? Many Christians believe they are the only true believers, so couldn’t the baker refuse wedding cakes for any couple who believed differently? The bottom line is if the government gives you a business license, the determine the terms and you agree.

    If the above article was a paper in my law class, I would give it an ‘F’ as the logic and arguments were so faulty!

  12. Comment by Bob on September 23, 2017 at 1:33 pm

    Kevin, I’m interested in where your “law class” is located; which law school?

  13. Comment by Rick Plasterer on September 23, 2017 at 3:12 pm


    Your comment gives me an opportunity to improve on my reply to Blake Paine, whose question I didn’t directly answer. It’s very reasonable that Arlene’s Flowers and Masterpiece Cakeshop will close, both because of the emotional impact in a case they have been invested in for many months, and also because of the likelihood of further civil rights complaints. Their problem is not solved by not making wedding cakes or flowers for weddings. This in itself is a reduction of their civil liberties (religion and speech), but other kinds of custom work could be requested which would involve contributing to activity the courts understand to be protected by SOGI laws. Jack Phillips has, as I noted in an earlier article, refused a Halloween cake and a cake with a lewd theme for a bachelor party. A similar cake with sexual themes could be requested for a homosexual party.

    Nor is his problem solved by ceasing to do any custom work and offering only standard lines of merchandise. This is another reduction in civil liberties, but in that case Phillips, Barronelle Stutzman, and others have now been identified as religious conservatives who will decline work they deem immoral and are thus a target for activists. A customer could make a point of specifying it will be used to accommodate an LGBT activity.

    People do not normally specify to merchants what they want goods for unless it is custom work. In our country, many persons are Christians and they should follow Paul’s instruction in regard to meat possibly offered to idols, and ask no question for conscience sake (I. Cor. 20:25).

    I see the central problem as far as our Constitution is concerned as picking out a category of people by behavior (or inclination, although that is more workable) and then declaring them “equal” and “free” according to the Fourteenth Amendment. This allows the Supreme Court to make moral decrees, which it is not competent to do. Surely there are people just as well informed and intelligent with a different opinion.

    Without a state religion (which I am not advocating), it may be necessary for the state to restrict religious activity, but it should never require action believed sinful or evil. It is the individual of whom action is required, not the one demanding action, who is being imposed on. Conscience can say anything, but as the favorable commenter, Palamas, noted, so can the law say anything. One should not be required to sell or service a clerical vestment to a church practicing women’s ordination if one believes that is sinful, nor should the Amish be required to contribute to Social Security if they believe it to be sinful. I understand that Social Security is legally a contribution, not a tax. If they want freedom from general taxes, they have no religious basis for that, and one could easily question the sincerity of anyone else.

    In no case should we sin. Not to obey any law of the state, regardless of what the penalty is, up to and including death by burning (which it might be in North Korea or ISIS territory). This was understood in Biblical times and has been understood for centuries. It is just as binding a rule as it ever was, and it always will be. One is not a faithful Christian taking any other position.


  14. Comment by Blake Paine on September 24, 2017 at 6:45 pm

    all just speculation and erroneous assumptions. If they don’t make erotic cakes or Halloween themed decorated cakes for anyone there is no civil rights discrimination. And if they had just said we won’t offer their wedding services to the public these wouldn’t have even made the news. And since there is no ‘right’ to behave illegally no right is being infringed. If they still want to sell the wedding items they can do so as a private membership business.

    Sorry, not convincing. The people of Colorado have recognized the right to be free from civil rights discrimination in the public arena, it’s every sellers obligation to respect those rights whatever they are selling.

  15. Comment by Rick Plasterer on September 26, 2017 at 6:58 pm

    I’m not clear on how you believe declining a homosexual wedding cake is illegal discrimination. Jack Phillips is willing to serve homosexual customers, but not to accommodate homosexual behavior. So evidently, it is behavior, rather than persons, who have civil rights protection. Also, is declining a Halloween cake illegal discrimination against neo-pagans? (it would be, by the same logic). And of course, Christians in Colorado have had requests for cakes with Bible verses supporting traditional marriage refused by a homosexual baker, and lost their case, although by the same logic as the first two cases, it was illegal religious discrimination.


  16. Comment by nzchicago on September 29, 2017 at 11:34 pm

    As soon as a cake or any other item has a message written on it – Bible verses, lewd comments or gay rights slogans – it becomes “speech” and the 1st amendment should guarantee the right to refuse.

    A cake without such a message but merely intended to be used at a same-sex wedding reception is not speech and does not invoke 1st amendment protections.

  17. Comment by Rick Plasterer on October 12, 2017 at 4:54 pm

    In replay to nzchicago, for whom I don’t see a tab to respond, I would say that the claim that words make the difference in First Amendment protection is a idea that people have, with some support from current jurisprudence that favors free speech rather than freedom of religion. But a hard line anti-conscience claim would be that merchants doing custom work have “speech for sale,” and so they cannot object to the words customers require them to use.

    Alternatively, a cake tailored to express homosexuality but without words, such as a multi-layed cake in different colors, could be understood as expression and thus declined, if speech in custom work may be declined.

    The correct position in terms of the tradition of liberty of conscience is that people should not be required to take action believed sinful or evil, and thus work that facilitates homosexuality may be declined on that basis.

    Rick Plasterer

  18. Comment by Ted R. Weiland on September 23, 2017 at 10:51 am

    The reason this case exists is because of the rights culture created by the 18th-century founding fathers when they replaced Biblical responsibilities with Enlightenment rights.

    Had the constitutional framers (like their 17th-century Christian Colonial forbears) established government and society upon Yahweh’s immutable moral law (including Leviticus 18:22 and 20:13), there would be no homosexual agenda in America period because no sodomite or lesbian would dare risk exposing themselves (pun intended) to petition government for their “rights.”

    For more, see blog article “America’s Road to Hell: Paved With Rights” at http://www.constitutionmythbusters.org/americas-hell-paved-with-rights/.

    Find out how much you really know about the Constitution as compared to the Bible. Take our 10-question Constitution Survey in the left-hand sidebar and receive a complimentary copy of a book that examines the Constitution by the Bible.

  19. Comment by Ted R. Weiland on September 23, 2017 at 11:41 am

    By the way, precedent for this case was already set in 1879 in what is arguably the most consequential Supreme Court decision of all time:

    “…If we believe the law of WE THE PEOPLE is supreme, then all law that contravenes the Constitution, including Yahweh’s commandments, statutes, and judgments, is null and void. Reynolds v. United States (1879) addressed the Mormon Church’s claim that polygamy was a right afforded them under Amendment 1. Because most Americans find polygamy repugnant, the magnitude of Supreme Court Justice Morrison R. Waite’s decision is lost on them [note especially the first and last sentences]:

    ‘Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under
    which he lived could not interfere to prevent a sacrifice?… So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land.’12

    “Contrary to Matthew 7:21-27 and James 1:22-25, the Supreme Court ruled that a man’s actions can be severed and isolated from his faith and judged illegal according to the Constitution and its supplemental edicts. This precedent paved the way for any Christian action based upon a Biblical conviction – such as preaching against sodomy [or baking wedding cakes for two sodomites] – to be arbitrarily outlawed in the same fashion. Had the framers established Yahweh’s immutable law and its predetermined morality as the supreme law of the land, polygamy and human sacrifice (and all other issues) would have fallen under its jurisdiction and thereby determined to be either lawful or unlawful….”

    For more, see online Chapter 9 “Article 6: The Supreme Law of the Land” of “Bible Law vs. the United States Constitution: The Christian Perspective” at http://www.bibleversusconstitution.org/BlvcOnline/biblelaw-constitutionalism-pt9.html.

  20. Comment by Penny on September 25, 2017 at 12:41 am

    Your explanation of the situation (and the coming storm) is appreciated. When I was in high school and read the verse about the day when evil would be called good and good evil, I laughed within myself because it made no earthly sense. But God has always known.

  21. Comment by Shield on November 30, 2017 at 1:52 am

    How exactly is anyone supposed to take this fearmongering indulgence of the Right’s institutional victim complex seriously when the writers of this blog regularly bemoan the Lawrence v. Texas decision for marking what they think of as the end of legal persecution of gay people? The United States is comprised mostly of Christians, and if being told that you have to provide the services you advertize yourself as being able to provide to anyone with enough money to pay you fairly for those services constitutes oppression in your mind, you can count yourself the most lucky person on the planet.

  22. Comment by Carol on December 12, 2017 at 5:49 am

    Will a Christian baker be forced to make a cake that says “Satan Rules”??
    They won’t..period..
    Looks like Christians will be forced out of certain creative public services..so sad..

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