Faithfully Looking to an Uncertain Future Beyond Masterpiece Cakeshop

While we may hope and pray for a favorable outcome to the Masterpiece Cakeshop case, and may hope that a government favorable – indeed, seeking to advance – religious freedom may remain in power, everyone concerned should understand that religious conservatives do not advocate for religious freedom for fear that we will have to live in disobedience to God’s commands, as the secular law might prescribe. Rather we struggle to ensure a society where the gospel may be heard and freely practiced, for the greater glory of God and the advance of his kingdom. If religious liberty does not prevail, faithful Christians will not live in disobedience, but always in obedience to God, and take whatever penalty there is for being faithful, which could mean to live as an underclass. Regardless of what future losses of religious freedom may occur, what individual or organizational defections there may be from the social conservative world, or how much in disarray conservative America might become, uncompromising faithfulness must be our response whenever we are required to compromise or surrender our commitment to God.

As this writer indicated in an earlier article, the Masterpiece Cakeshop case could (and should) be a watershed for religious freedom, just as the Hobby Lobby decision was, although Hobby Lobby relied on statutory law. The Masterpiece Cakeshop decision on the other hand could well be made on the basis of constitutional law, and so could prove more binding. This would head off several disasters for religious liberty that could happen with a more liberal administration and Congress. The Religious Freedom Restoration Act, which was the basis of the Hobby Lobby decision, could be amended, as the political left wants to do, to exclude protection of conscientious objection from homosexuality and abortion. And as was also pointed out in an earlier article on crucial cases before the Supreme Court, sexual orientation and/or gender identity could be given “protected” status by judicial fiat as part of the Civil Rights Act of 1964’s prohibition of sex discrimination. Unlike many state laws, the federal civil rights act has few exemptions – even its religious exemption protects only religious organizations on the basis of religious affiliation, but not clearly religious behavior. However unlikely it is that sexual orientation and gender identity were part of the legislative intent of Congress in prohibiting sex discrimination, sexual orientation has already been recognized as protected in the Seventh federal circuit, and quite likely would as well by a liberal Supreme Court.

But these possibilities would all be impacted, and decisively impacted, by a constitutional decision favoring liberty of conscience for Masterpiece Cakeshop. Recognizing the right of conscientious objection from facilitating sexual behavior (but not from general service to persons) would bind even a future amendment of RFRA. It could also alter the interpretation of sexual orientation and gender identity (SOGI) laws to distinguish between sexual identity and personal behavior, something social conservatives have long sought, and would go a long way to alleviating the threat to religious freedom. Providing a constitutional basis for conscientious objection to personal behavior would also be important – extremely important – if sexual orientation is declared a protected status nationally, either by Congressional action or judicial expansion (really extrapolation) of the meaning of the Civil Rights Act of 1964, which, as noted above, could easily happen with a liberal Congress, President, and/or Supreme Court.

We are moving into a very uncertain future of indefinite duration. Several principles should guide us as we argue for the freedom to live by God’s commands. The first is that we have an absolute duty to obey God, and thus not to facilitate sin (Matt. 18:7), regardless of the law of this or any other country. We should defend this to the wider world by pointing out the obvious wrong – which should be apparent to people in any culture – of requiring actions believed sinful or evil. However much the partisans of the cultural left insist that their own pain at others’ conscience convictions control other people’s behavior, it should be obvious to anyone, even those hostile to traditional sexual morality, that their own convictions should not be imposed on others, requiring action against conscience. It is the “free exercise” of religion which is explicitly guaranteed in the text of the Constitution, not mere belief. And as Ilya Shapiro of the Cato Institute pointed out in his analysis of the issues in Masterpiece Cakeshop the day after the Supreme Court heard the case, abstaining from action is the least action possible. There is a difference between forbidding action which is religiously required – which may be necessary for a religiously neutral state – and requiring action which is religiously forbidden, which is repugnant to basic morality, and should never be done.

Although the Masterpiece Cakeshop case has the potential to be a major decision, an undesirable outcome (which still is not as undesirable as a clear decision against religious liberty) would be to somehow lighten the penalty against the store’s owner, Jack Phillips, perhaps rebuking the Colorado Civil Rights Commission (which Associate Justice Kennedy already did in the hearing of the case on December 5), and deciding the case very narrowly on free speech grounds, while still leaving Phillips with some small penalty. This would be consistent with the sense that some Americans seem to have (including perhaps Kennedy himself) that civil rights laws protect “dignity,” and so cannot be infringed, although Phillips, and other such religious merchants, are being treated too harshly. This would leave the nation essentially where it is now, with SOGI laws understood to protect personal behavior, not just persons. Religious merchants and professionals will still be at risk for following their consciences on their jobs. Religious organizations will still face pressure to alter their standards of behavior through such weapons as the loss of tax exempt status, accreditation, state aid, and the general police power of the state.

A favorable outcome of the Masterpiece Cakeshop case would indeed go a long way to secure America’s gravely threatened religious freedom. But the depth of hostility of part of the public, particularly in its educational, entertainment, and legal sectors toward traditional Christianity guarantees continued struggle over religious freedom in this country – even if its enemies are much more limited in the tools that they can use. And a very narrow decision in favor of Jack Phillips, or one broadly written that goes significantly against him, would guarantee years of intense assault. Christians should be prepared never to acquiesce or compromise in sin, regardless of the penalty, but always to obey God rather than men.