From Thomas Jefferson to Justice Thomas, the Legal Protection of Religious Freedom

Thomas Jefferson requested that just three accomplishments be listed on his tombstone: the Declaration of Independence, the University of Virginia, and the Virginia Statute for Religious Freedom. He noted that “by these, as testimonials that I haved lived, I wish most to be remembered.”

The Supreme Court’s ruling last week in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission showed the continued impact of Jefferson’s writings in the Virginia Statute for Religious Freedom, and many of his sentiments were echoed in Justice Clarence Thomas’ concurrence. Jefferson was writing at a time when the state’s official connection to the church had not yet been clearly defined and the Virginia House of Delegates was poised to be an example for other states to follow at the upcoming Constitutional Convention.

In a brief but powerful bill, Jefferson, with the support of James Madison, championed freedom of religion, arguing that any limitation on the mind by government is “a departure from the plan of the Holy author of our religion.” The law dictated that “All men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.”

These sentiments went on to influence the First Amendment three years later, and their impact can be felt in the jurisprudence of the Masterpiece Cakeshop decision. The details of the case center around Jack Phillips, a Colorado baker who declined to make a custom-designed cake for a same-sex wedding because it went against his Christian beliefs. In an op-ed Phillips wrote he stated “My religious convictions on this are grounded in the biblical teaching that God designed marriage as the union of one man and one woman.” As a result, the Colorado Civil Rights Commission cracked down on him accusing him of discrimination and comparing his religious beliefs to “defenses of slavery and the Holocaust.”

In a 7-2 decision, the court ruled that Phillips’ rights under the First Amendment were violated by the Commission, but the exact logic behind their ruling was crucial. Justices Kennedy as well as the liberal justices Kagen and Breyer pointed to the rudeness of the Commission saying that “state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” They also pointed to the inconsistency of the Commission which had allowed three other bakers to reject making cakes with anti-same sex marriage messages as well as the unsettled status of gay marriage laws in the state at the time in 2012. These arguments are procedural objections that are narrowly specific to the case rather than a decision based on Phillips’ rights.

Justice Thomas approached the case with a constitutional focus on Phillips’ right to not be forced to convey a message, particularly one that “he believes his faith forbids.” He was joined in his concurrence by Justice Gorsuch. It is worth reading in its entirety and can be found here. Justice Thomas agreed with the majority opinion but further stated that the “discriminatory application of Colorado’s public-accommodations law is enough on its own to violate Phillips’ rights.”

Many on the left have trivialized Phillips’ decision or recommended that he simply publish a disclaimer with his cake saying that he does not support the message it conveys. Actor Andrew Garfield epitomized this argument at the Tony awards on Sunday when he used the spotlight to say “So let’s just bake a cake for everyone who wants a cake to be baked.” But Justice Thomas rejected this accommodation saying that it “flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.” Such a compulsion, regardless of the message, would fly in the face of what Americans have always held to be their “natural rights” as Jefferson called them.

The common argument from the left is that these types of laws are about dignity and respecting the value of human life. Christian beliefs are often painted as hypocritical excuses to be offensive and discriminate against minorities. The individual respondents in the Masterpiece Cakeshop case accused Phillips of “denigrating the dignity of same-sex couples … and subjecting them to humiliation, frustration, and embarrassment.” These claims were hyperbolic as Phillips was always open to selling the couple a cake, and only refused to customize it. Clearly, the cake was not what was at stake. Through this case, the left wanted to establish constitutional protections from being offended.

In defense of the Constitution’s firm stance on free speech, Justice Thomas cited Texas v. Johnson (1989) writing “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” He pointed to other cases where the Court had affirmed the rights of people to convey truly horrible messages including protesters carrying signs that say “God hates fags” (Snyder v. Phelps in 2011) and white supremacists showing a film where they threaten to “Bury the niggers” (Brandenburg v. Ohio in 1969). Thomas summarized the argument saying “This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized.”

For Thomas, freedom of speech and freedom of religion are inextricably linked by their protection from government regulations. Centuries earlier Jefferson had rejected the establishment of a state religion by arguing that the “ecclesiastical legislators” and government officials who would make decisions on orthodoxy were “themselves but fallible and uninspired men.” In the same way that the Supreme Court has no jurisdiction to declare what is and is not offensive, they are inadequately suited to rule on what religion is correct. Government is made up of mere men, and they do not have the authority to deprive other men of their natural rights to say and believe what they choose.

It is impossible to understate the importance of these freedoms, and the value of allowing a free interchange of ideas and beliefs. Jefferson masterfully defended freedom of speech in the Virginia Statute for Religious Freedom when he said “Truth is great, and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.” Jefferson described why a government cannot be given the power to compel citizens to say or believe certain messages because in so doing, they will prevent man from pursuing Truth.

For Christians, government mandates forcing them to violate their core principles would be a tragedy of government tyranny. Paul reminds us “And whatsoever ye do in word or deed, do all in the name of the Lord Jesus, giving thanks to God and the Father by him.” (Colossians 3:17) These limitations on government allow Christians to continue to freely express their faith in public. They protected Jack Phillips from being forced to violate his religious views and allow him to continue to let his Christian principles guide his business.

At the end of his concurrence, Justice Thomas warns “Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell [v. Hodges, 2015] from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’” Thomas understands that his colleagues issued a relatively narrow decision and the court will likely see similar cases in the future. The defense for Christians must be based in the Constitutions protection of their rights to freely express their religion. Christians remain under attack for standing by their beliefs. Even many Mainline Protestant Christian organizations came out against Phillips in the case by filing amicus briefs against him.

Even when the mainstream culture finds Christian values to be offensive and unacceptable, the rights of minorities were affirmed by this case. Justice Thomas’ Constitutionally based defense of the right to express oneself freely was extremely important for preserving the rights of Christians. Thanks in part to Thomas Jefferson’s writings on man’s natural rights to freedom of religion and freedom of speech, the Constitution protects citizens from the government compelling them to express any opinion against their will.