Opinion

Saving the First Amendment from extinction

A woman holds up a sign as people gather outside of the Supreme Court while it hears arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case on Dec. 5, 2017, in Washington. (AP Photo/Jacquelyn Martin)

(RNS) — If you believe people from varied religions and beliefs should be treated equally in the U.S., the oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case that came before the Supreme Court on Tuesday (Dec. 5) should make you nervous.

Why? Because Justice Anthony M. Kennedy — although he made it clear that he considers the sort of discrimination against a same-sex couple that we see in this case as “an affront to the gay community” — also threw the petitioners (Jack Phillips and his bakery) a bone.

Disturbingly, Kennedy suggested that the Colorado Civil Rights Commission had been “neither tolerant nor respectful” of Phillips’ religious beliefs in its handling of the case.

Indeed, the commission ruled against Phillips and his claim that baking a cake for a same-sex couple’s wedding would violate his religious beliefs and his expression of them. But I believe their determination was correct. It should be upheld.

It may appear counterintuitive for my organization, which dedicates itself to religious freedom, to actively oppose Phillips, the Colorado baker who declined because of his deeply held Christian beliefs to make a custom wedding cake for a same-sex couple.

But that is exactly what the Tanenbaum Center for Interreligious Understanding is doing. We even filed an amicus brief supporting Charlie Craig and David Mullins, the couple denied services.

How is it that the nonprofit I lead determined not to side with Phillips, when freedom of belief is at the center of our work? We carefully deliberated, and the answer became crystal clear.

As genuine as Phillips’ beliefs are — and as sympathetic as I am to his dilemma — if he wins, religious freedom and the First Amendment as we know it will start down the path to extinction. It may seem implausible, but bear with me.

This case pits Phillips’ right to religious freedom and freedom of speech against Craig and Mullins’ right to freely enter a bakery and order a wedding cake, without encountering the humiliation of illegal discrimination. Both parties are arguing for key rights. And that’s precisely why this case is critical.

For Phillips, religious beliefs underlie all his arguments. So, any decision in his favor will be designed to protect how he wishes to exercise those beliefs. As a devout Christian, Phillips wants to practice his faith at his bakery. But whether he wins or loses this case, he can do this. If he loses, he can continue his new policy of not baking custom cakes for anyone. That way, he can follow his beliefs and treat all his customers equally.

Though he may lose revenue, this would be a balanced solution.

In contrast, if he wins, he will be free to deny services to same-sex couples, and many others who are otherwise protected by Colorado’s law, including people from other religions.

The Colorado Anti-Discrimination Act, like similar laws in 45 states, the District of Columbia and the federal government, protects people across a variety of identities from daily discrimination based on their race, gender, religion and, in many statutes, their sexual orientation.

So, what could happen to our country if Phillips wins?

As our amicus brief warns, religion-based discrimination would be permissible. A Christian banquet hall owner could refuse to host events for Jewish people. Or a van service owned by an Orthodox Jewish family could refuse to transport a Christian couple to their wedding. Alike possibilities are endless.

Such a decision would also undermine long-standing precedents that protect people from discrimination based on, among other things, the religious beliefs of business proprietors serving the general public. Consider the 1960s ruling that prohibited the owner of Piggie Park, a South Carolina restaurant chain, from refusing service to black patrons based on the owner’s religious beliefs.

Ultimately, a win by Phillips would begin the unraveling of our anti-discrimination laws, leaving people of all faiths — including Christians — at risk. What we are talking about is the creation of a court-sanctioned right to pick and choose whether to serve different people, including those holding different religious beliefs. Indeed, Phillips concedes this. He admits that he would never bake a custom cake celebrating atheism.

The constitutional protections of religious freedom and the nondiscrimination laws are complementary: Both protect the right to believe as we choose. Anti-discrimination laws add teeth to the First Amendment, making it clear that all people, regardless of their beliefs, are entitled to be served in places open to the public.

At its essence, Masterpiece Cakeshop pits the right of a shopkeeper to pursue his beliefs over the rights of the general public to be treated equally. Such competing interests require thoughtfulness and empathy but do not warrant undermining the laws that protect equal treatment.

Following Tuesday’s arguments, it will be the Supreme Court’s responsibility to decide just how these competing perspectives can coexist in a way that serves the greater good. If the court breaks with the rulings of the Colorado Civil Rights Commission and the Colorado Court of Appeals, both of which found in favor of Craig and Mullins, the decision will be providing a roadmap for obliterating hard-won legal protections.

Permission to discriminate against people of different beliefs will become the law. And what is that, if not the exact opposite of religious freedom?

(Joyce S. Dubensky is the CEO of Tanenbaum, a secular nonprofit that works to combat religious bigotry. The views expressed in this opinion piece do not necessarily reflect those of Religion News Service.)

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Joyce S. Dubensky

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  • “A Christian banquet hall owner could refuse to host events for Jewish people. Or a van service owned by an Orthodox Jewish family could refuse to transport a Christian couple to their wedding.”

    That’s not artistic expression. Custom decoration of a cake IS.

    I don’t like the baker’s beliefs, but artists should not be compelled to make art they do not wish to make. ~Artistic~expression~, is where I draw the line, since that’s one of the most important first amendment rights there. Otherwise it is compelled speech.

    It’s also where the Law draws the line. Courts have already ruled you can’t pay someone to print a message something they disagree with. Words printed on cakes, indeed, are already guaranteed by courts for the cake-baker to have the right of refusal when it comes to the words the customer asks to have written on the cake.

    The only question the court is really looking at is whether or not the ~other~, non-word aspects of cake decoration constitute artistic expression. If they do, then the artist legally has, as they always have had, the right of refusal. If it does not, then they do not.

    I’d think that, sure, the decoration counts as artistic expression (because if it didn’t look aesthetically pleasing no one would want to pay extra for a wedding cake that looks a specific way anyways), and thus it should be protected as the Right of Free Speech and the right of an artist to choose what art they wish to make.

    I yearn for the Chick-Fil-A days back when we just boycotted homophobes instead of trying to compel artistic expression from them.

  • Christ treats everyone equally from homosexuals to murderers – one needs to repent of their sin to open communication with the Lord, and form a relationship with Him.

  • A decision for the baker might very well weaken the Establishment clause, since one particular sectarian viewpoint is at issue here, that is, Christian animus against a particular group.

    Also, it’s worth noting that the Piggie Park decision made note of the religious argument in a very dismissive and conclusory way, via a footnote. It was the late 1960s and the Court may have sensed that the argument was frivolous — and would have had the McClung and Heart of Atlanta Motel cases fresh in mind, but it doesn’t read as solid case law. More like a dictum.

    As an alternative — and I think this is plausible, given traditional constitutional strict-scrutiny analysis, the Court might rule that religion and race anti-discrimination is “more compelling” than similar laws on LGBTQ rights. As strict-scrutiny analysis now exists, race and religion are subject to this higher standard, and we may get a ruling that says that LGBTQ is not (and neither is gender, BTW, but that’s for another case). It will make LGBTQ people a second-class group, make a mockery of the equal-protection clause of the 14th Amendment, and maybe put a wedge between LGBTQ communities and communities of color. It certainly would diminish the power of the 1960s public-accommodation decisions like Heart of Atlanta if it narrows it to racial discrimination.

  • Marriage is religious. It is created and instituted in the Bible not the Constitution. The baker is right.

    If the court allows religious exemptions in cases involving sexual orientation, how can it draw a coherent line?

    This is not a difficult case unless you are trying to avoid the truth. The solution and the line is THE TRUTH which is what the Justices are supposed to find in the first place.

    Is homosexuality a race like Blacks? No, so stop comparing them.
    Is it changeable? Yes – People are gay one day and straight the next. Even so called “transgender” revert.
    Is it more like a religion? Yes

    Homosexuality is more like a religion with opposing views to Christianity which is why the two clash. If the SCOTUS sides with homosexuality it will indeed be favoring one religion over another. Jews, Christians, Muslims and other monotheistic faiths do not seem to have this problem — they know where each other stands on religious issues and they respect that. Homosexuality is a religion that is full of deceit. They say for example, that a man can turn into a woman and that their civil rights struggle is just like the black civil rights struggle. A person cannot simply “think” to change their gender and no person should be penalized for telling the truth.

    The justices cannot create “races of people” out of homosexuality just like they can’t create different people out of Islam even though there are different sects. Jack Phillips or any other person who believes only the truth cannot not be punished for their beliefs and the truth will never equal discrimination.

  • The SCOTUS must revisit Obergefell v Hodges. This is where they went down the wrong path. They misunderstand the first amendment and they misunderstand equality.

    Everyone is throwing around the word equality, like it means we all have the same right to vanilla ice cream. Noah Webster and Ben Franklin warned us about the coming of this day and age. At the moment, the Republic no longer stands because of Roe v Wade and Obergefell v Hodges.

    I am being kind when I say they misunderstand because I do not believe you can be as educated as a Justice and not know what they have done.

    God has left the house because the house is no longer on a solid foundation of Law. The SCOTUS exceeded their authority when they made these two decisions and have put the country in harm’s way.

    Fear not the one who can kill the body only, but fear Him who owns this earth. You have less than twenty years before the global warming consumes mankind because of these two decisions.

    I’ve said this before and I will again and again until we are all dead, because I got this from the Horse’s mouth. I hope they can keep the ice cream frozen until the last day.

  • This isn’t from the gorse’s mouth, but the other end.

    I thought y’all wanted Jesus to come back. You should be dancing in the streets. But you’re not. Maybe y’all just don’t believe Jesus is coming back? Or maybe you’re just afraid of which part of his naughty or nice list you’ll find yourself on.

  • Asw. Isn’t that nice? We’re just the same as murderers In your jaundiced eyes.

    Something about logs and motes comes to my mind, but not apparently to yours.

  • Whether homosexuality is like a race is an irrelevant consideration. The antidiscrimination statute in question already treats it as its own category. Nothing the Supreme Court says can or will change this. If, however, the Court were to decide that the baker’s right to free exercise of religion entitles him to an exemption from the statute, there is nothing to stop a different baker from refusing to make a interracial couple a wedding cake because of a religious belief that such a wedding would be evil.

  • If one had a religious belief that gays were evil, one might find healing them to be immoral.
    Obviously that’s an extreme case, and I am not saying that this is the baker’s belief in this case, nor that any other Christians would countenance such an action (but you never know). Is curing infertility healing the body?

  • I wonder if Dubinsky feels that conscientious objectors should be required to serve in combat units or face jail time, or whether people accepting advertisements should be forbidden to ban ads based on their content. After all, we can’t have any special privileges or hindrances of people acting on their beliefs, that wouldn’t be treating everyone equally.

    The simple fact is that all constitutional rights place restrictions on laws, and permit people to treat other differently. Freedom of speech allows people accepting ads to reject some based on their content, freedom to exercise your religion allows you to treat people differently. The question isn’t whether that is true, but what the limits are.

    Beyond that, two huge mistakes in this article. One is its failure to recognize the difference between discrimination against an individual and being complicit in a wrongful act, a common error for those arguing for gutting the Free Exerrcise clause. The second is the argument that the judges should judge between competing rights based on “the greater good.” Is that really a standard we want applied to constitutional protection of individual rights? A much better standard is the level of harm that would be inflicted on the competing individuals in question.

  • absolutely!

    1 Corinthians 7 – Now for the matters you wrote about: “It is good for a man not to have sexual relations with a woman.” 2 But since sexual immorality is occurring, each man should have sexual relations with his own wife, and each woman with her own husband. 3 The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. 4 The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife.” But since sexual immorality is occurring, each man should have sexual relations with his own wife, and each woman with her own husband.”

  • agreed.

    Isaiah 60:12
    English Standard Version
    For the nation and kingdom that will not serve you shall perish; those nations shall be utterly laid waste.

  • Race is relevant because they keep falsely comparing homosexuality to race when they should be comparing it to religion, which is also a protected class. Free exercise is the first freedom enshrined in the law. Homosexuality is not. The Court needs to compare apples to apples to see clearly how to rule in this case. When you are dealing with a religion that is based on beliefs opposite reality, unless they protect the truth, the Justices are going to fall deeper into the pit that they have already laid for themselves.

    It is an indisputable fact that marriage is religious. They should start here and tell the truth from here on out. The baker was targeted and discriminated against for his religious beliefs.

  • Actually, there is a federal stopper, it’s already in place. The 1964 Civil Rights Act, for example. So yes, there IS something that would “stop a different baker” from refusing an interracial couple. Race is innate, race is genetic, unchangeable.

    But Believer explained it correctly:
    “Is homosexuality a race like Blacks? No.”
    “Is it changeable? Yes – People are gay one day and straight the next. Even so called ‘transgender’ revert.”
    “Is it more like a religion? Yes.”

    Exactly right, and rationally confirmed.

  • How do you know? He doesn’t ever mention it. In Leviticus it is mentioned, but somis eating pork, which Jesus would never do.

  • Doesn’t mention homosexuality. It says you shouldn’t have sex at all. And Jesus didn’t say it. Paul did.

  • correct. Anything other than man/woman, husband/wife married sex is immoral. The lack of endorsement for homosexuality exemplifies that homosexuality is immoral.

  • I ate one of them microwave Jimmy Dean Sausage Croissants last month.
    It was supreme delicious. You know why it was supreme delicious?

    Because Jesus Christ fulfilled the Old Testament dietary laws, which means that born-again Christians are not bound by those OT dietary laws. So Jimmy Dean has been “declared clean” (Mark 7:20).

    I can eat three Jimmy Deans a day if I want to, and NEVER go to Hell for it. Yeah!!

  • If the Court rules that the baker has a free-exercise exemption from the Colorado statute, he would have one from the federal Civil Rights Act as well.
    Whether homosexuality or race are immutable or not really is irrelevant to antidiscrimination statutes. And considering that the entire evangelical endeavor is built on the idea that people can be an atheist one day and a Christian the next, I’m wondering where this argument about mutability is going.

  • Even if homosexuality were a religion, for a court to decide that a certain religion’s beliefs are opposite reality would itself violate the First Amendment. The Constitution does not exist to protect Christianity alone, it exists to protect all of us.
    Marriage is both a religious and secular enterprise. The marriage license that states issue is a secular document to allow and ratify an act that can be religious, secular, or both.

  • You keep telling yourself that.

    Besides, I’m not a Heathen. I am an atheist. And the more I see of your religion, the more certain I am that it was the right choice some 50 years ago, when I finally left religion for good, after very nearly becoming a Christian..

    Believe me, I do understand scripture. But what I understand even more is the psychology of people who want to use their faith as a club against other people, who use their beliefs to work out their own issues on the lives of others, and who simply ignore their scriptures whenever it is inconvenient.

    Jesus and Paul were both quite clear on the subject of divorce, and yet the hyper Christians on these very pages, very likely divorced and remarried themselves, have managed to take clear scripture and find a loophole in it— or dig a tunnel through it— to justify their transgressions against their god.

    If it weren’t so revoltingly hypocritical and self serving, it would be funny. But it’s just revoltingly hypocritical, as you attack gay people for not buying the scheissshow you’re selling.

  • When and how did he fulfill the dietary laws? Where does it say that in the Bible? Did he fulfill the homosexuality laws? What is the difference in law fulfilling? And what about all the other abominations? Which did he fulfill, and how do you know? Is there a list of those fulfilled?

  • Yes, floydlee is also correct. There are protections already that prevent racial discrimination called the 1964 Civil Rights Act.

    I’m wondering where this argument about mutability is going.
    You can’t compare apples to oranges. Race is innate and immutable — it can’t be changed. Homosexuality is not innate, is mutable — can be changed like religion as you point out. This is what makes it more like a religion. Homosexuality is a religion like Christianity is a religion and the battle is over a religious celebratory event connected to Marriage. Because it cannot be disputed that marriage is religious, the baker wins on evidence and truth.

  • As much as it is like the homosexual activists to cause someone trying to help them to look filthy, they have not succeeded with Paul.

  • This is where the truth comes in regarding the facts of this case. The Court would not have to “decide that a certain religion’s beliefs are opposite reality…”, the TRUTH determines that, which is the foundation of judicial jurisprudence. The truth is marriage is purely religious, created and instituted in the Bible, not the Constitution. This is a fact.

    For this reason, the SCOTUS could not cite an authority for marriage when it “created” the same sex marriage law. The law does not have bases in the truth which is why we are here. Truth be told, the baker entered the courtroom already injured by the SCOTUS ssm law. The truth takes the burden off the shoulders of the justices. They did err when they knowingly hijacked the first divine law of Christianity, Marriage, Genesis 1:26, 2:24-25, Matthew 19:4 which is why they admitted foreseeable, justifiable religious dissent in Obergefell.

    The Court cannot expect the baker to exchange his religious beliefs for those of another. No person can falsely claim “discrimination” when the truth is two religions have opposite views of marriage. One views marriage as religious which is the truth, authorities cited. The other views marriage as secular, which is false, otherwise cite the authority.

  • The argument about immutability and the sin being innate is a construct of the already flawed homosexual agenda – which Christ proved to be wrong before their inception. Without the lies, the “activists” can no longer pay their bills by the generous donations of corporations and people thinking they are doing good, all on the backs of the people being directed to Hell by them. Sad really.

  • 1 Corinthians 7 – Now for the matters you wrote about: “It is good for a man not to have sexual relations with a woman.” 2 But since sexual immorality is occurring, each man should have sexual relations with his own wife, and each woman with her own husband. 3 The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. 4 The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife.” But since sexual immorality is occurring, each man should have sexual relations with his own wife, and each woman with her own husband.”

  • “If one had a religious belief that gays were evil, one might find healing them to be immoral.” There is at least one account in the gospels of a man who was disabled due to sin. Jesus healed him with a warning. We could do no less.

    “Is curing infertility healing the body?” That would depend, I suppose, on whether the infertility is due to the body functioning normally or abnormally, and whether anyone else’s rights are being impaired in the process.

  • Infertility of course can be a function of age, but there are various factors that can go into it. I can’t think of anyone else whose rights would be impaired by fertility treatment.

  • You are comparing apples to oranges.

    Is homosexuality a race like Blacks? No, so stop comparing them.
    Is it changeable? Yes – People are gay one day and straight the next. Even so called “transgender” revert.
    Is it more like a religion? Yes

    The Court cannot expect the baker to exchange his religious beliefs for those of another. No person can falsely claim “discrimination” when the truth is two religions have opposite views of marriage. One views marriage as religious which is the truth, authorities cited. The other views marriage as secular, which is false, otherwise cite the authority.

  • Yes, you are correct. He made that clear in Matthew 19:4 by reiterating and confirming the marriage law.

  • “As genuine as Phillips’ beliefs are — and as sympathetic as I am to his dilemma — if he wins, religious freedom and the First Amendment as we know it will start down the path to extinction. It may seem implausible, but bear with me.

    This case pits Phillips’ right to religious freedom and freedom of speech against Craig and Mullins’ right to freely enter a bakery and order a wedding cake, without encountering the humiliation of illegal discrimination. Both parties are arguing for key rights. And that’s precisely why this case is critical.”

    No, ‘the First Amendment as we know it will NOT start down the path to extinction.” In the Masterpiece Cakeshop case, Mr. Phillips’ First Amendment refusal to bake any kind of cake for anyone (devil worshippers? ISIS sympathizers?), just as this male homosexual couple is well within their First Amendment rights to forgo their phony claim of the “humiliation of illegal discrimination” and walk on down the street and choose another bakery for their cake.

    Our Constitution and First Admendment is here to stay! To me that means your Tannenbaum Center for Interreligious Understanding can go on doing whatever they do on behalf of the various religions understanding and tolerating each other, and stop being a big megaphone for LGBTQ rights.

  • After WWII, Nazis were tried for crimes against humanity for “following orders” that were immoral. If you genuinely believe something is immoral, our government should respect your decision to follow your own conscience, when it is not imposing on another’s rights. One should not have a right to make a private citizen make them a cake!

  • Refusal to make a wedding cake does not impose on another’s rights. The customer can go to another baker, or bake their own cake. This baker’s choice not to aid an activity he genuinely believes is immoral is a private, not a government action. It does not involve fundamental rights of the customer. It would be different if they were being denied government benefits, or the right to marry.

  • When there are 2 competing constitutional rights, a balance must be struck. The nature and extent of the infringements to each side should be weighed. The baker’s right to act according to conscience and religious belief is weighed against the “right” of a couple to require a particular private merchant to provide them with a wedding cake. This is not a fundamental right. The couple can go to another bakery. There is objectively no contest here. If citizens can be forced to act against conscience for such a flimsy purpose, we have lost freedom and forced people of good conscience into civil disobedience. It would be different if the baker took a job distributing government benefits, or was a government agent.

  • Respectfully, Dubensky’s analysis is based upon a faulty initial assumption, illustrated by this quote from her article: “This case pits Phillips’ right to religious freedom and freedom of speech against Craig and Mullins’ right to freely enter a bakery and order a wedding cake, without encountering the humiliation of ILLEGAL (emphasis added) discrimination. Both parties are arguing for key rights. And that’s precisely why this case is critical.”
    If the baker’s refusal is constitutionally protected, then they have not suffered “illegal” discrimination. So the writer reveals her bias at the outset of her analysis. While the right to marry is a key right, forcing another private citizen to make you a cake is not. If old enough to marry, this couple should be mature enough to respect an opposing point of view, rather than interpret it as a personal humiliation.
    Why shouldn’t the couple respect the baker’s religious convictions and go elsewhere? Being gay doesn’t give the couple a privilege to force another private citizen to aid them against conscience. The Piggy Park park case is distinguishable.

  • Under the law it did violate their rights. The only question now is whether the First Amendment grants this baker an exemption to the antidiscrimination law.

  • For most homosexuals, their state is biological! Not changeable! We are not talking of people that are experimenting!
    And most Transgender people do Not revert! That says a lot!

  • That sounds good on the surface. But what happens when all the bakers in a fifty mile radius are run by christians that wont serve gays?

  • Alternatives to forcing another to act against conscience: Make your own cake? Serve another style dessert? Start your own bakery? Nothing stops those supporting gay marriage from providing a wedding cake service. I’ll refrain from pointing out how much more artistic the cakes from a gay baker will likely be.

  • I have no problem with this idea as long as anyone who wants a BLT can go into any Sharia owned restaurant and get one. Oh yea, good luck with that one

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