Previous article in this series: April 1, 2018, p. 307.

In the last installment under this rubric, we looked at the pending United States Supreme Court case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case, which involved a homosexual couple’s claim of discrimination against a Colorado baker who refused to make them a wedding cake, raised issues of freedom of speech and freedom of religion. The Supreme Court has now issued its opinion in the matter, and while some of the decision is as expected, there are some aspects of the ruling that are noteworthy.¹

The bakery in the case was sanctioned by the Colora­do Civil Rights Commission for discriminating against the couple because they were homosexual. Jack Phillips, the owner of the bakery, stated that homosexual marriage was contrary to his Christian religion. As was discussed previously, much of the briefing submitted in the case focused on the claim that the actions of the Civil Rights Commission violated his freedom of speech by forcing him to create a cake expressing support for homosexual marriage. This focus on free speech rather than freedom of religion was undoubtedly due to the fact that the courts have previously allowed state regu­lations to impinge upon the free exercise of religion in a number of contexts. Nevertheless, the decision rendered focused squarely on Jack Phillips’ freedom of religion.

The Court’s majority opinion began by acknowl­edging that the case before it involved reconciling two competing legal principles. The first principle is the authority of the government to protect the rights of homo­sexuals from discrimination, as was recognized in the Obergefell decision. The second principle is the right of all persons to exercise the fundamental freedoms granted under the First Amendment, most notably the rights of free speech and free exercise of religion. Many commentators had thought that the Court would come down with a narrow majority on one side or the other with a very narrowly tailored ruling, finding that under the very particular facts of this case, one set of princi­ples or the other required either the state or the baker to prevail. The Court’s ruling is tailored quite narrowly on the facts of this case, but the Court’s approach was somewhat unexpected.

The Court came down on the side of the baker, Jack Phillips. However, rather than focusing on Phil­lips’ rights, the Court focused instead on the lack of religious neutrality demonstrated in the actions of the state civil rights commission while prosecuting the case. The Court briefly discussed the endless number of dif­ferent factual scenarios that could potentially give rise to a claim to protection of free speech or freedom of religion, but then noted that “the Colorado Civil Rights Commission’s consideration of this case was inconsis­tent with the State’s obligation of religious neutrality.”

Although the outcome of the case was in the bakery’s favor, the reasoning and some of the language of the de­cision is disappointing for those in support of religious freedom. The Court stated that the law was clear that the baker, “in his capacity as the owner of a business serving the public, might have his right to the free ex­ercise of religion limited by generally applicable laws.” In this case the Court never addressed the question of whether this was a permissible limitation because it found that the State, through the Civil Rights Commis­sion, had showed hostility and even contempt for the baker’s religion.

The Court reviewed the proceedings before the Civ­il              Rights Commission in some detail, quoting from the statements made by commissioners in these proceed­ings. The Court ruled that these statements showed hostility towards Phillips’ religion. For instance, the Court quoted one of the commissioners, who stated “And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”² As the Court stated, this statement dis­paraged Phillips’ religion in two ways, “by describing it as despicable and also by characterizing it as merely rhe­torical—something insubstantial and even insincere.”³ The Court noted that, contrary to the characterization of the Civil Rights Commission, Phillips’ motivation was his sincere religious beliefs. The Court reasoned that since they were sincerely held religious beliefs, the State had a duty to weigh the infringement on those be­liefs with the State’s interest in preventing discrimina­tion. The Court found that this was not done, but that the Commission had dismissed Phillips’ beliefs as mere rhetoric. This aspect of the case highlights the need to have our religious beliefs clearly stated, so that the gov­ernment cannot easily dismiss them as insincere rhetoric or as a mere pretext for discrimination.

The Court in this case stated that, once sincere reli­gious beliefs are implicated, the Free Exercise Clause “bars even ‘subtle departures from neutrality’ on matters of religion.”⁴ The Court delineated a number of factors to be considered in determining government neutrality in regard to religion. These factors include: 1) the his­torical background of the decision under challenge; 2) the specific series of events leading to the enactment or official policy in question, and 3) the legislative or ad­ministrative history, including contemporaneous state­ments made by members of the decision-making body.⁵

The future impact of the Court’s decision remains to be seen. The decision is not a clear-cut legal victory for either side of the issue. The Court did clearly condemn government action based on hostility towards reli­gion. We know from Scripture that the world hates the church, not because the church impinges on the rights of others, but because the church stands for the truth and the world hates that truth. Therefore, the court’s deci­sion condemning such hostility promises a measure of protection for the sincere religious beliefs of the church and its individual members. For instance, the Court states in its ruling that “When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on religious grounds could not be com­pelled to perform the ceremony without denial of his or her right to the free exercise of religion.”⁶

Another interesting aspect of the Court’s ruling is that the Court’s decision was a 7 to 2 majority. In most issues of this sort in recent years, the Court has been divided 5 to 4, with Justice Anthony Kennedy casting the deciding vote. In this case, two of the court’s liberal wing joined with Kennedy and the conservatives in con­demning the Colorado Civil Rights Commission’s open hostility towards traditional Christianity.

However, some aspects of the Court’s decision are troubling for believers. The Court focused, not on the strength of the freedom of religion, but on the obvious hostility towards religion demonstrated by the Civil Rights Commission. This begs the question of what the outcome would have been if the members of the Commission had not openly made derogatory comments about Phillips’ religion. Also, when discussing Phillips’ refusal to provide the wedding cake, the Court states that his “dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time.”⁷ The Court went on to note that at the time the case arose, homosexual mar­riage was not recognized as valid in Colorado. This comment also raises the question as to whether the outcome would have been different if homosexual marriage had already been legal in Colorado. The Col­orado government apparently does not believe the issue is settled either. Immediately after the Supreme Court’s ruling, they began new proceedings against Phillips for refusing to create a cake to celebrate an attorney’s at­tempt to change from a male to a female.⁸

We have the confidence that all things are in the Lord’s hands and that all of history unfolds according to His plan. We are called to live without fear, availing ourselves of the means He gives us to protect our free­dom, and not fearing the hostility that we experience when the world impinges on this freedom.

We must not be afraid to proclaim our beliefs clearly on such issues, so that the world is exposed in its bla­tant hatred of God’s truths. The Court recognized that hatred in this case, and we should clearly maintain our position so that there can be no question of the world’s motivation as it seeks to silence the church.

1 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S._(2018)

2 Masterpiece v. Colorado, at 13.

3 Masterpiece v. Colorado, at 13-14.

4 Masterpiece v. Colorado, at 17.

5 Masterpiece v. Colorado.

6 Masterpiece v. Colorado, at 10.

7 Masterpiece v. Colorado, at 11.

8 http://www.adflegal.org/enough-is-enough?