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.)

About the author

Joyce S. Dubensky

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