Supreme Court cake case laced with clashing ideas of religious liberty

Jack Phillips, lower center, is surrounded by supporters as they offer a prayer for the owner of Masterpiece Cake after a rally on the campus of a Christian college Nov. 8, 2017, in Lakewood, Colo. The small rally was held to build support for Phillips, who is at the center of a case that will be considered by the U.S. Supreme Court in December. The case may determine if business owners like Phillips are having their right of religious liberty and free expression violated by having to offer their wedding services to same-sex couples. (AP Photo/David Zalubowski)

(RNS) — Americans cherish the First Amendment principle of “religious freedom” even as they question its meaning and test its limits, scholars say.

They expect the arguments in the Masterpiece Cakeshop case going before the U.S. Supreme Court on Tuesday (Dec. 5) will be a window to these tensions.

Technically, the case is being contended on “free speech” grounds:

Is a Colorado Christian baker’s custom cake an “artistic expression,” a protected type of speech entitling him to refuse to produce a custom wedding cake for a same-sex couple?

Or is his religion-based refusal to sell goods to any paying customer a violation of Colorado’s law banning discrimination in public accommodations, one that harms a buyer’s dignity?

“Religious freedom has always been a malleable term,” says Tisa Wenger, an associate professor of American religious history at Yale.

“We can’t take for granted what ‘religious freedom’ is and what it protects,” says Wenger. “White American Christians (have) used religious freedom talk as a way to mark their own superiority” and control the legal, political and social culture. 

In her new book, “Religious Freedom: The Contested History of an American Ideal,” Wenger writes that both religion and modern ideas of religious freedom have “complex histories and constantly shifting consequences.”

Her book centers on the experiences of religious, racial and ethnic minorities, indigenous people and waves of immigrants who had to mold their faith or practices to fit a Protestant vision of what a religion is and does in order to claim the privileges of “religious freedom.” Now, LGBT Americans face the same social and political forces.

“It’s about power,” says Wenger. Now that conservative evangelicals see themselves losing cultural hegemony, they have “seized the religious freedom category” to assert authority while presenting themselves as the beleaguered ones.

Wenger says the “religious freedom” executive order signed by President Trump in May is designed solely to protect that base “and not at all concerned with the freedoms of minority populations.”

No matter how the high court rules, “there’s going to be a political firestorm,” Wenger forecasts.

University of Notre Dame law professor Richard Garnett expects the legal impact will be narrow. Even if the court considers wedding vendors to be artists, they’re really not representative of religious accommodation generally.

But the cultural reaction is the one to watch. “It will tell us a lot about how receptive is the public to (the ruling),” says Garnett, one of 34 legal scholars who filed a friend of the court brief supporting Masterpiece Cake owner Jack Phillips.

The question it turns on for Garnett is not whether the gay couple rejects the idea that providing a cake is an endorsement of a point of view, a commercial blessing on same-sex marriage. The key is whether the baker believes this would be a violation of his conscience compelled by the state.

“People have the right to say and believe things that are offensive and wrong-headed. In a case where the government regulates speech, it has to show that the regulation serves a compelling state interest.”

Compelling Phillips doesn’t meet the test, Garnett says. Neither would a ruling in the baker’s favor, limited to “artistic expression,” shield a business that discriminates among potential customers: “A win for Jack Phillips would not provide any ground to stand on if someone who owned a hardware store who refused to sell a wrench to a gay couple.”

Curtis W. Freeman, professor of theology and director of the Baptist House of Studies at Duke Divinity School, is uneasy about that view.

Freeman notes the array of Southern Baptists and Catholics who support Phillips on the same grounds that Hobby Lobby’s owners used to battle the Obamacare mandate to provide employee insurance coverage for all forms of contraception.

The Supreme Court ruled that small, family-owned corporations such as Hobby Lobby had religious freedom rights. Freeman calls this ruling “the canary in the coal mine. Why can’t Mr. Phillips’ bakery have similar religious liberty? If it works in (the Masterpiece Cake) case, it opens the door to discrimination.”  

In his new book, “Undomesticated Dissent,” a history of Western Christian religious dissidents, Freeman writes that the early evangelicals, once a threatened minority, were great fans of the First Amendment. To them, it enshrined the value that “everyone was entitled to an opinion about religion and to follow the dictates of conscience.”

The rise of the religious right, however, has “flipped the script,” in insisting that they enforce their religious views in the public square, Freeman says. “They turn liberty on its head, and it becomes a new form of tyranny that masquerades as liberty.”

About the author

Cathy Lynn Grossman

Cathy Lynn Grossman specializes in stories drawn from research and statistics on religion, spirituality and ethics. She also writes frequently on biomedical ethics and end-of-life-issues


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  • “White American Christians (have) used religious freedom talk as a way to mark their own superiority”
    Hey Tina — “Race” is just a social construct. Better said, “American Christians have used…….”

  • Wenger couldn’t be further off base if she was on the moon. She is expecting a political firestorm and that may happen but the real firestorm is coming from God. This is not a religious freedom issue, it is an outright attack against God, the Creator.

    The Christian base may be putting up the most stink, but the issue put the world in harm’s way and Wenger is an elitist with an agenda.

    In the meantime, God is kind of enjoying the, to bake or not to bake contest, knowing all along that He will allow the global warming to turn the planet into an oven. It is written, so it is just a matter of time.

    It is not a religious view that same sex unions are contrary to any and all laws of Nature and is plainly stated in the original Law Book which guided the writers of the U.S. Constitution, to be unlawful.

    To repeat, it is not a religious matter, it is a matter of Law, that the Creator will not let stand.

    There was no witch hunt of homosexuals until they lit the fire. It will not be mortal man that spreads the flames.The elitists have spread the Lawlessness around the world. They have lied, cheated and stole Righteousness and Justice from the world.

    Global warming will not be selective of color of skin, can you people even give that a thought. There is no higher priority than global warming, you would think the LGBT would lend a hand. Get your legal status in order with God or we all burn.

    The country survived Watergate but it will not survive the SCOTUS homologate to same sex unions.

  • Your “Law Book” (Bible) was created by ancient delusional and/or fraudulent people claiming to speak for a god . . . a god that was invented in an era when extreme ignorance was virtually all that people had to work with. So, it’s entirely understandable how their god came to be as ignorant and hence bigoted as his inventors. And, classifying homosexuality as a sin is a prime example of that.

    Unlike religion, homosexuality has never ever caused any harm whatsoever to anyone, so there cannot be any legitimate objection to people living in accordance with that innate orientation.

    Actually, the earth and humanity would benefit from more homosexuality and less heterosexuality because 1) it would reduce the vast number of unwanted/unintended pregnancies, and 2) it would provide more adoptive parents to care for the unwanted/unintended children still being produced. Therefore, the Bible should be ignored on the issue of homosexuality because the assertions contained in it have no basis in rational thinking and evidence.

    And furthermore, advocating the full social acceptance of gay people strengthens family bonds, and thus it is the authentic pro-family position. It is the anti-gay crowd who are actually anti-family by doing everything they can to tear families apart.

  • Peter. That statement, as with similar ones by Paul, is a warning that accepting God’s grace through Christ’s Atonement doesn’t give one blanket permission to do whatever one wishes — that sin is still sin, and we will be held accountable for it if we don’t repent.

    As such, it has nothing to do with this case. Rather, this case is over whether the recognized legal principle that if you share in the responsibility for a crime means you share in the guilt applies to the “free exercise” clause of the 1st Amendment and sin. (Yes, on the face of it the defendants are talking about “freedom of expression,” but as the article points out It isn’t likely anyone believes them.)

  • If one opens a business to the general public there are no grounds on which to stand to refuse service to someone. This is no different than refusing service due to skin color, religion, or any other identification. These bakers are practicing discrimination, pure & simple and may as well post a sign over the door “EXTREMISTS ONLY”.

  • Just to be clear, the question about freedom of expression, which is the legal question the Court will be addressing, was brought up by the baker. Not sure if that’s who you meant by defendants (at this stage of the litigation, the baker and bakery are petitioners). This case has nothing to do with criminal accomplice liability.

  • That was supposed to be a reply-bait for my fellow born-again Christian brothers and sisters who are on Jack Philllips’ side. Not me. I’m on Charlie Craig and David Mullins’ side.

    You’ll do, I guess.

    So the answer to that dual question is, you guessed it, apostle Peter, and, which you couldn’t guess, it’s addressed to – wait for it – Jack Phillips! He’s using his born-again Christian freedom (not the same as constitutional religious freedom which is a highly contentious subject) to cover up the evil he has committed against Charlie Craig and David Mullins.

    As evil is defined by The Rule of Christian Conduct Outside the Church established by apostles Peter and Paul. I think you need to be cautioned with it too by the looks of things here. So here it is for you:

    Acts 24:14-16
    1 Corinthians 5:1-5, 9-13
    2 Corinthians 1:12
    2 Corinthians 4:1-2
    Galatians 4:9-10
    Philippians 2:12-15
    Colossians 4:2-6
    1 Thessalonians 4:3-5, 7-8, 10-12
    1 Timothy 3:2, 7
    1 Peter 2:11-12, 15-17
    1 Peter 3:15-16

  • Jack Phillips broke The Apostolic Rule of Christian Conduct Outside the Church and that’s why he has been appealing to the US Constitutional provision for his Religious Freedom.

    In the Kingdom of God there’s no such Religious Freedom once His people disobeyed that Rule.

    Jack Phillips had done Charlie Craig and David Mullins wrong. Never mind what the Supreme Court will say. Because God’s verdict had already been passed 2 millennia ago.

  • irrelevant, the the spirit and intent, of the freedom of religion amendment. is meant to protect anyone from being forced, to accept the religious beliefs and religions of others. this is a case of an occult religion, misuse of the law to attack the religion of a sectarian believer. and to accept what G-D, said is an abomination.

  • No, there aren’t clashing ideas about religious freedom.

    There is religious freedom as enshrined by our 1st Amendment which protects free exercise of religion and forbids the government from endorsing or attacking any given faith.

    Then there are people seeking special privilege as Christian Fundamentalists to attack others and ignore all considerations of civility and rule of law. This is not any legitimate concept of religious freedom.

  • No one in a ‘right mind’ would criticize the Japanese for their desire for Japan to remain Japanese.
    How come the rest of the Dinosaurs don’t go over to Japan and propagandize the Japanese that they need non-Japanese people to inhabit their nation???
    Inquiring minds want to know. hmmm…………could it be???
    “Jacob have I loved; Esau have I hated”

  • Yes, the defendants might be arguing their case on grounds of freedom of expression, figuring that they’re most likely to win with that argument. But practically all the arguments in columns and comment sections focus on freedom of religion, not freedom of speech. Nor are the justices bound to consider only the arguments made before them when considering their decision.

    And during oral arguments, Kennedy noted that one of the Colorado commissioners that decided against the bakery said that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” He asked if that statement had ever been disavowed, and when the lawyer said no, he responded: “Counselor, tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

  • True, but here Kennedy seems to be asking about evidence of animus by the state toward the baker’s religious beliefs. This is a different claim that simply saying that a sincerely held religious belief entitles you to an exemption from an otherwise religion-neutral antidiscrimination statute. Animus toward religion always raises the Court’s antennae and it should.

  • It’s more than just animus. After all, what’s the point of asking about the State’s lack of tolerance if he’s not hinting that the baker should have been cut some slack? The problem with asserting that people are free to believe what they want so long as they honor the law is that it reduces the “free exercise of religion” to “free exercise of religion so long as the State permits it.” And that is no freedom at all.

  • He’s not hinting that the baker should have been given some slack. He is stating that the Court will be looking at animus. There’s a huge difference between “lack of tolerance” and animus. Lack of tolerance can be religion-neutral.

  • Kennedy didn’t use the word “animus,” he said “tolerance.” So just how should the state have “tolerated” Mr. Phillip’s religious beliefs?

  • Most of your selection is irrelevant, unless you’re trying to say that Christians should never offend non-Christians (which is nonsensical). The one that comes closest to being relevant is 1 Corinthians 5:9-13, which would be relevant if Mr. Phillips refused to serve gay customers under any circumstances. But as with the florists and photographer the sticking point wasn’t that the customers were gay but that it was a gay wedding. As with crime, so with sin — if you share in the act, you share in the guilt.

  • By not making an inane statement like “your religion is offensive to this agency” (paraphrasing).

  • Your argument, DougH, is, “As with crime, so with sin — if [Jack Phillips does] share in the act [of ‘a gay wedding’, he does] share in the guilt [of ‘a gay wedding’].” Well, let’s see what apostles Paul & Peter had to say about that hypothetical predicament.

    (1) Jack Phillips was supposed “to maintain always a blameless conscience both before God and before [his gay couple customers]” (Acts 24:14-16) – without having to “share in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (2) Jack Phillips was not supposed to “judge [his gay couple customers] outside his church … [but only] to judge those who are within his church … [And since] those who are outside … [are going to be the ones] God judges [anyway]” (1 Corinthians 5:1-5, 9-13), Jack Phillips shouldn’t have judged them with the accusation that they were tempting him to “share in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (3) Jack Phillips’ “proud confidence [was supposed to be] … the testimony of [his] conscience, that in holiness and godly sincerity, not in fleshly wisdom but in the grace of God, [he has] conducted [himself] in [his gay couple customers’] world” (2 Corinthians 1:12)) – without “shar[ing] in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (4) Jack Phillips was not supposed to be “walking in craftiness or adulterating the word of God, but by the manifestation of truth commending [himself] to [his gay couple customers’] conscience in the sight of God” (2 Corinthians 4:1-2) – without “shar[ing] in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (5) “While [he had] opportunity”, Jack Phillips was supposed to “do good to [his gay couple customers]” (Galatians 4:9-10) – without “shar[ing] in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (6) Jack Phillips was supposed to “do all things without grumbling or disputing; so that [he] will prove [himself] to be blameless and innocent, children of God above reproach in the midst of [his gay couple customers], among whom [he’s to] appear as lights in the world” (Philippians 2:12-15) – whilst not “shar[ing] in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (7) Jack Phillips was supposed to “conduct [himself] with wisdom toward [his gay couple customers], making the most of the opportunity. … [His] speech [must] always be with grace, as though seasoned with salt, so that [he] will know how [he] should respond to [his gay couple customers]” (Colossians 4:2-6) – without “shar[ing] in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (8) Jack Phillips was supposed to “to make it [his] ambition to lead a quiet life and attend to [his] own business and work with [his] hands, … so that [he] will behave properly toward [his gay couple customers]” (1 Thessalonians 4:3-5, 7-8, 10-12) – without having to “share in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (9) Jack Phillips was supposed to “as aliens and strangers … keep [his] behavior excellent among [his gay couple customers], so that in the thing in which they slander [him] as evildoers, they may because of [his] good deeds, as they observe them, glorify God in the day of visitation. … [He’s] not [to] use [his] freedom as a covering for evil, but use it as bondslaves of God [to] honor all [gay couple customers]” (1 Peter 2:11-12, 15-17) – without having to “share in the act … [and] the guilt [of ‘a gay wedding’]. But he went rogue anyway, didn’t he?

    (10) Without having to “share in the act … [and] the guilt [of ‘a gay wedding’], Jack Phillips was supposed to “keep a good conscience so that in the thing in which [he’s] slandered, those [gay couple customers] who revile [his] good behavior in Christ will be put to shame” (1 Peter 3:15-16). But he went rogue anyway, didn’t he?

  • According to your interpretation, Jack showed tolerance toward his gay customers because when he refused to bake their wedding cake he did so politely — an interpretation that I suspect those gay customers and all their supporters would reject. But in actuality he did show tolerance toward them, if not the way you say, because that couple was free to buy anything Jack had on sale in his shop. But there are themes and celebrations that Jack does not make cakes for: bachelor parties, divorces, Halloween, anti-patriotic sentiments, anti-LGBT sentiments … and same-sex weddings. At this point, he’s lost 40% of his business because those that will not tolerate his own religious beliefs have shut down his entire wedding cake aspect, and is in danger of going bankrupt. Where is the toleration in that?

    You get the same thing with the Oregon florist who demonstrated her tolerance by happily selling flowers to a gay couple for a decade, and was on close enough terms with them to consider them friends. It was creating a flower arrangement for their gay marriage she rejected, not them. On the other hand THEY were the ones to demonstrate a breathtaking lack of tolerance when they decided to jettison that decade-long relationship and sue her for everything she’s worth.

  • So just how was Jack supposed to avoid sharing in the act and guilt of a gay wedding while sharing in the act and guilt of a gay wedding? In your long list of scriptures about the importance of maintaining a good reputation among the non-Christians, you are missing the limits placed on that purpose — that you can do so only so long as it is by acting in accordance with God’s law. The assumption Paul makes is that the inward recognition of the on-Christians of what is right will lead them to respect those that act in accordance with what is right. For example, there’s this from Romans 2:

    “When Gentiles, who do not possess the law, do instinctively what the law requires, these, though not having the law, are a law to themselves. They show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them on the day when, according to my gospel, God, through Jesus Christ, will judge the secret thoughts of all.”

    However, seeking after the good opinion of non-Christians did NOT and does NOT extend to committing sin — such as all the Christians that were rightly held up as examples to honor and emulate because their refused to keep a good reputation with their non-Christian neighbors by sacrificing to the Emperor. That refusal led to the creation of martyrs then, and it is doing so now. Like Peter to the Sanhedrin when he was told to shut up about Jesus Christ, they are saying to the State, “Whether it is right in God’s sight to listen to you rather than to God, you must judge; for we cannot keep from [acting in accordance with God’s Word].” After all, as Isaiah points out there are consequences from abandoning God’s laws for the laws of men:

    What sorrow for those who say
    that evil is good and good is evil,
    that dark is light and light is dark,
    that bitter is sweet and sweet is bitter.
    What sorrow for those who are wise in their own eyes
    and think themselves so clever….

    Therefore, just as fire licks up stubble
    and dry grass shrivels in the flame,
    so their roots will rot
    and their flowers wither.
    For they have rejected the law of the Lord of Heaven’s Armies;
    they have despised the word of the Holy One of Israel.

  • It doesn’t really matter from a legal point of view whether the customers tolerated the vendors’ religious belief. The antidiscrimination statutes in question obligated them to serve the customers what they ordered without discrimination, unless there’s an exemption to be found. The Masterpiece Cakeshop focuses on the forced-speech possibility.

  • The arguments might focus on the forced-speech aspect (and considering the range of events/causes the bakery won’t validate, that’s more appropriate than I thought at first), but Kennedy’s statement I think shows he’s thinking about more than just free speech. And exemptions to general rules are just what constitutional rights are all about.

  • Question: “So just how was Jack supposed to avoid sharing in the act and guilt of a gay wedding while sharing in the act and guilt of a gay wedding?”

    Answer: By not doing the following deeds. But which he did. My brother Jack Phillips …

    (1) Decided right there and then at Masterpiece Cake to lead his usual quiet life no more, and that his days of attending to his own business and just working with his hands were over.

    (2) Saw himself no longer as a Christian alien and stranger in America, but as an American born-again Christian nationalist whose agenda is to set America free from LGTBQism.

    (3) Used both his Christian liberty and his US Constitutional freedom as a covering for evil.

    (4) Behaved improperly and dishonorably toward his gay couple customers by treating them as though they were a born-again Christian gay couple actively involved in his church, whose time for reckoning had just arrived.

    (5) Switched off all the lights in the world he was supposed to be to his gay couple customers. Then switched his conscience from a blameless and holy state to an instinct for fleshly ideas and wrongdoing.

    (6) Disputed and twisted scriptural knowledge of the truth so as to justify the walk in craftiness that he was about to take. Conducted with fleshly wisdom toward his gay couple customers.

    (7) Made the most of this opportunity to plot bad things against them. Took away grace from his speeches to them, seasoning no more with the usual necessary salt. Made them see what evil and shameful deeds he was capable of doing as an American born-again Christian nationalist.

    In conclusion, “so just how was Jack supposed to avoid sharing in the act and guilt of a gay wedding while sharing in the act and guilt of a gay wedding?” BY NOT PERFORMING ACTION 1 TO 7 IN THE FIRST PLACE. Period.

  • Got it, you believe that there is no such thing as shared guilt in providing support for sin or crime, and Christians should participate or provide support for sinful activities if that is what it takes to avoid offending people. You must really despise all those early Christians that freely chose death over sacrificing to idols.

    And I have to say that that was perhaps the lengthiest and most flowery non-answer I’ve ever seen.