Princeton law professor Robert George, co-author of the Manhattan Declaration and surely the greatest contemporary legal advocate for religious liberty in America today, discussed the meaning and implications of the Masterpiece Cakeshop decision with John Stonestreet of the Colson Center for Christian Worldview in a webinar on June 12. George said that the “decision turned pretty closely on the facts in this case… [it] did not resolve this as a broad matter of principles… [there will be] more cases down the line … and court will probably act incrementally, [and] gradually put a set of principles into place.”
George pointed out that that Jack Phillips, the owner of Masterpiece Cakeshop, is not just a baker selling pastries, but a “creative person” offering creative works for causes he finds consistent with Christian faith. Phillips’ discrimination is against things he believes are sinful, not against persons, George said. Thus he will not provide cakes to celebrate divorce, since divorce is contrary to the teaching of Jesus. He noted that Phillips holds the view of some Christians that Halloween is inconsistent with the Gospel of Jesus, and thus will not provide goods for Halloween celebrations. In the same way, he will not provide cakes to celebrate same sex weddings, although he will provide goods to homosexually inclined people generally. Although these goods can easily be obtained from other bakers, George said that activists are determined that no one can dissent from agreement with same-sex marriage. Fines and re-education are typical penalties for dissenters, and possibly even jail. The “clear goal” of these penalties is to “stigmatize and marginalize” persons holding to the religious, classical, and natural law doctrines of marriage.
George noted that the majority agreed that the decision against Phillips should be overturned, but their reasons differed. The liberal justices who concurred, Elena Kagan and Stephen Breyer, tried to narrow the scope of the ruling to simply include the clearly expressed hostility to religious belief that was present in statements by commissioners in the Colorado Civil Rights Commission. Conservative justices concurring with the ruling, Neil Gorsuch and Samuel Alito, wanted a stronger standard. They sought simply clear evidence of bias against Phillips’ religious beliefs in the absence of clearly expressed hostility. The Colorado commission gave the evidence necessary by ruling in favor of liberal bakers who refused requests for baked goods displaying messages opposed to same-sex marriage. At the same time, they ruled against Jack Phillips’ claim of religious liberty not to bake a cake for a same-sex ceremony.
George agreed especially with the separate concurrence of conservative Justice Clarence Thomas, which was focused on free speech. Both Justice Thomas and Professor George believe that free speech will be crucial in future decisions involving religious freedom and the sexual revolution. Phillips was being required to use his expressive talents to promote an idea with which he profoundly disagreed. As George noted, this line of argument goes back to the Jehovah’s Witness cases of World War II, in which Jehovah’s Witness children refused to salute the American flag, and occasioned Justice Robert Jackson’s maxim that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The “orthodoxy” in this case was acceptance and celebration of same-sex marriage. Although only Justice Thomas addressed it, “the court is going to have to face up” to the free speech claim in future cases. There certainly will be future cases, since there is no principled decision in this case. Free speech will also be important in other kinds of cases, George said, most notably those involving a requirement to refer abortions.
George would especially like the case of Kevin Cochran, the Atlanta fire chief fired for writing a book supportive of traditional sexual morality, and including a condemnation of homosexuality, to come to the Supreme Court. This case, he said, is an especially clear attack on both freedom of religion and freedom of speech.
This writer would add that while religious freedom has been improperly denigrated in American jurisprudence in recent years, it is indeed difficult to define and defend, since religious doctrines and practices are limitless and there is the question of what genuine religious belief is (as distinct from good religious belief). But if a person’s expression is being suppressed or forced, the point at which such a free speech violation happens is much clearer. The key in future cases involving religious beliefs will be the requirement to “confess by act” an orthodoxy one disagrees with. The fact that the court did not use freedom of expression shows its reluctance to defend religious liberty against liberal public policy – and does not bode particularly well for the future.
George expects the court to pick up the case of the Washington state florist Barronnelle Stutzman, who declined to make flowers for a same sex wedding. Because it seems that the court is acting incrementally in cases concerning religious liberty and homosexuality, the court will proceed to “fashion a set of principles” on a case by case basis. Although this is not what he or the conservative justices want, it appears to be the approach that the court will take.
The possibility of a future comprehensive defeat on this issue is due not only to the lack of general principle, but to the reasonable possibility of a future liberal Congress, President, or Supreme Court. George said that the justices need to know that there are many pro-marriage, pro-religious liberty Americans, and this requires activism on the part of Christians. George’s basic advice is “fight any place you can” and “start with prayer.”
Stonestreet agreed with George by pointing to the importance of the denied requests for anti-same sex marriage baked goods in deciding this case. George added that Alexander Solzhenitsyn warned America, in his 1978 commencement address at Harvard, about the loss of courage in our “spiritual and moral lives.” The worst problem, George said, is not that people today advocate for and behave in immoral ways, but that so many people who disagree with them are silent. Ordinary people committed to Christian morality need to “speak truth, in love, to power.” Our duty is obey Jesus’ command to “take up your cross and follow me.” This demand is made of all Christians, George emphasized. Other people gained courage to live out their beliefs when Phillips did so by refusing to make a cake condoning same sex-marriage.
It was noted that decision’s author, Justice Anthony Kennedy, has consistently used a standard of animus, or legally impermissible hostility, in all his same-sex related decisions. It seems to this writer, who has written against it strongly in the past, that the animus standard is really quite dangerous. It is in the first place hardly a “standard” at all, but really an assertion of a judge’s sensibility about what is “permissible” and “impermissible” in political conflict. All politics involves animus. Indeed, democracy is fashioned to deal with animus by the liberal freedoms of majority rule and freedom of opinion. To exclude ideas deemed oppressive from public consideration, in this case the idea that homosexuality is sinful, is really to reject democracy in favor of an ideological state. As noted in an earlier article, this was seen in the official names of communist countries (e.g., “democratic republic,” or “people’s republic”) which were intended to say that all of politics and society was carefully regulated to exclude oppressive ideas. Hate speech laws and regulations similarly attempt to exclude oppressive ideas and proceeded from a communist source. While Kennedy made the animus standard work for religious freedom in this crucial case, in earlier cases it was used make decisions with no basis in the constitution (as is true of all sexual “rights”) and which gravely and immediately threatened constitutional freedoms of religion and speech.
The Masterpiece Cakeshop case also shows the difficulty in attempting to prohibit behavior-based discrimination, as all sexual orientation and gender identity (SOGI) laws are interpreted to do. Doctrines of “liberty” or “equality” cannot be consistently applied to all personal behavior, nor can sexual behavior be singled out for special favor if people define their own realities, as Justice Kennedy said in upholding the right to abortion (1992). Such application of antidiscrimination law and policy really imposes the sensibility of judges about personal morality on all of society.
George was happy that Justice Kennedy explicitly repudiated in the Masterpiece Cakeshop decision the idea that religious belief and practice can be relegated to the private sphere, and should have no impact on public life. This idea, he said, is often voiced in public discussion of religious freedom, but has no good basis in American jurisprudence. A statement explicitly denying the exclusion of religious ideas from the public square was overdue from the Supreme Court, George said.
Stonestreet said that Christians need clarity as well as prayer. Even if we think that Jesus would have baked a cake for a same-sex wedding, we should respect the liberty of conscience of those who disagree. But George said that the claim that Jesus would have baked such a cake is wrong. It is a “phony” understanding of Jesus and his teaching to think he believed that people’s wants should be accommodated. The real Jesus advocated the narrow gate as the way to life. George points out that it is ridiculous to think that Jesus would have baked a divorce cake.
It is safe to say that this battle for religious freedom is not over. Stonestreet noted that for those Christians who stand up to coercion, the result can be an ordeal lasting years. In such cases as these, the Christian community must be supportive. Defendants are faced with fines, jail, or re-education programs from the state, as well as threats from private persons. The response from the Church must begin with prayer. Tangible ways to support involve visits, notes, and purchases at their businesses. We should also support people who are legally embattled with letters to the editor, blog posts, articles, and contacts to legislators when necessary. We are called to put into action our Christian commitment, in the same way that Jack Phillips did.
This writer would finally add to George’s comments that there is no point to liberty of conscience if we can comply with requirements we don’t like. Only if we see that a requirement is evil (in Christian terms, sinful) should we refuse to comply with the law. And so religious liberty activism and noncompliance is not finally a strategy, but really a matter of obedience to God.