Article Dec 5, 2017

Into the looking glass: Why the impact of Masterpiece Cakeshop at the Supreme Court matters

Today, oral arguments for Masterpiece Cakeshop Ltd., v. Colorado Civil Rights Commission are set to be heard before the Supreme Court, and things as seemingly unimportant as milk, flour, and sugar may be the ingredients that determine the shape of religious liberty’s future in America.

Jack Phillips is a culinary artist and cake shop owner in Colorado accused of discriminating against a same-sex couple for refusing to create a custom wedding cake for them. As a Christian, Phillips believes that marriage is exclusively between a man and woman. Phillips refrained from creating the custom cake for the same-sex couple on the grounds that same-sex marriage conflicts with his understanding of marriage. In Phillips’ view, the manner in which he creates customized wedding cakes enlists his speech to create a message for an event he disagrees with. due to the very nature of what a wedding cake is designed to communicate—celebration and affirmation of the marriage.

In keeping with his Christian convictions, Phillips also refuses to create any custom cake that communicates a message he objects to on religious grounds—such as Halloween cakes or other messages he deems lewd and not in keeping with his Christian faith. Phillips has no issue serving same-sex persons and has happily done so throughout his career. A custom birthday cake for a gay individual, for example, is of no concern for Phillips because all individuals, regardless of how they sexually identify, celebrate birthdays. He merely objects to using his creative talents under the threat of compulsion for a message or event he disagrees with, as in the case of a same-sex wedding where the purpose of a cake is to celebrate and affirm the marriage.

Thus, this case has significant bearing on the relationship between one’s religious convictions and the freedom to not engage in activity or speech that conflicts with those convictions. At root, Phillips is being asked to choose between the integrity of his conscience and conducting his business. Given the First Amendment’s broad protections for religious liberty and the freedom to not engage in speech or activity one disagrees with without a compelling government interest saying otherwise, this is not a choice he should have to make.

In the other corner are David Mullins and Charlie Craig, a same-sex couple who believe Phillips’ refusal to provide a custom cake for their wedding celebration constitutes an invidious form of discrimination and “dignitary harm.” When the details and nuances of the case are sorted out, it is apparent that no such discrimination occurred.

Because court rulings are a barometer for American culture and a looking glass into the future, it is hard to stress the significance of the future impact this case will have on how courts and eventually, the law, will treat religious liberty claims when an accusation of sexual orientation discrimination arises.

Underneath the future ruling will be tectonic implications for American society. Here are a few reasons Christians should be concerned about the outcome of the case and pray for a ruling in favor of Jack Phillips. It should be noted that many of the outcomes described below depend on how sweeping the ruling is from the Supreme Court.

A loss signals that the Sexual Revolution now conscripts conscientious objectors to its cause. In the event of a loss, the Supreme Court would signal that it is no longer acceptable to simply remain silent or sit on the sidelines when it comes to the onward march of the Sexual Revolution. Rather, active assent to the orthodoxy of the Sexual Revolution will be the standard for someone starting a business. Gone are the days of allowing silence and disagreement, and here to stay is a regime of requested affirmation of identities at odds with Scripture.

A loss signals that free speech is predicated on the emotional responses to someone registering disagreement. The rise of “dignitary harm” arguments aims to achieve desired legal outcomes on the basis of a perceived slight or personal offense. While Christians should reject all forms of insult, ridicule, or mockery, a legal regime that treats hurt feelings as tantamount to discrimination is on a precarious ledge. Emotions are volatile and unstable grounds to determine speech and free exercise claims. A condition of living in a free society is that one opens himself or herself up to the possibility of encountering opinions or viewpoints that are offensive. Emotions should not, however, be the determining factor in choosing what views should be permitted freedom. In fact, we should hope that emotions rarely enter into legal calculus, since emotional responses can issue from badly formed personal habits and identities, and irrational grasps that are in need of confrontation. Society needs free speech, even speech it deems unwelcome, in order to safeguard society from error were it to become comfortable with injustice or immorality. In the event of a loss, such a regime rejects broad constructions of free speech in favor of constrained speech permitted on the grounds that it agrees with prevailing social manners.

Compelled speech is acceptable as long as it serves a politically correct cause. Related, in the event of a loss at the Supreme Court, the court would tip its hand in the direction of favoring compulsion and coercion if it furthers a desirable social outcome. Again, Christians should always fight for what is true, good, and beautiful, but if and when a legal regime adopts an expectation that speech conform to a predetermined cultural judgment, free speech and religious liberty become subjugated to majority opinions about what is true, good, and beautiful. In effect, the government establishes an orthodoxy. In better form, the Supreme Court should return to the language of West Virginia v. Barnette: If there is any fixed star in our constitutional constellation, it is 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.

A loss further insulates the Sexual Revolution from moral critique. So much of the cultural debate around religious liberty exists because Christianity and other religious voices utilize broad constitutional protections that allow for moral judgment and moral critique of the ethics of the Sexual Revolution. A loss in this case would signal that the Sexual Revolution has achieved yet another level of protection from dissenting voices that offer a different account of sexual morality. To foreclose one’s self from the ability to hear different opinions eliminates the possibility of personal discovery and social reform. Progressives want to banish Christian views around sexuality from common acceptance because they represent an impediment to progressive sexual ethics claiming cultural victory.

Culture will further depict Christian perspectives on sexuality as outside the bounds of acceptable views to hold in public spaces. The further that law moves in the direction of solidifying the categories of sexual orientation and gender identity into the strictest echelons of non-discrimination statute, the more likely it is that Christian views contrary to established law will be disfavored, marginalized, or punished. Law will use the momentum of Masterpiece’s fallout to paint Christian perspectives on sexuality as discriminatory and fair game for restricting them in certain cultural spheres.

A win signals that courts and the law can make rightful distinctions between a person’s conduct and a person’s status. It is clear from the facts of the case that Jack Phillips engaged in no such acts of invidious discrimination. It is right for the Supreme Court and law to recognize a status-conduct distinction in emotionally fraught religious liberty and non-discrimination conflicts. Jack Phillips objected to designing a custom cake for an event; he did not object to making a custom cake for the same-sex couple because they were a same-sex couple. Were the same couple to ask Phillips for a custom birthday cake so that they could celebrate one another’s birthdays, Phillips would surely have consented.

A win signals that Christian viewpoints on sexuality will not be construed as irrational, prejudiced, or held for reasons of animus. Even in the event of a loss, it would never be accurate to depict Christian convictions around sexuality as irrational, prejudiced, or animus-driven. Christians insist that our views our truthful and ennobling for persons and societies. Other voices in the culture, however, have deep-seated contempt for Christian teaching on these subjects and want them sidelined. Tragically, these are the stakes of the religious liberty challenges we now find ourselves in. The overwhelming majority of liberal groups have proven themselves unwilling to acknowledge the sincere, goodwill basis that Christians hold forth on their understanding of marriage, sexuality, and gender. To the extent that Christian sexual ethics are regarded as grounded in prejudice or animus, law will make no positive overtures to countenance views it seeks to see banish. We should thus hope and pray for an outcome that results in the Supreme Court understanding that Christian convictions around sexual ethics are rationally based and aimed at advancing the common good.

A win or a loss may communicate or determine the public policy posture of law toward persons and institutions with a confessional identity. Again, depending on the nature of the ruling and the implications of its orders, the outcome of the Masterpiece case will have significant trajectory-setting implications. That, in fact, is the most important element of the Masterpiece Cakeshop case altogether. Because the Supreme Court has not yet weighed in on the question of how to handle religious liberty and non-discrimination conflicts, how it rules will set the stage for how public policy begins weighing the priority of religious liberty for individuals and institutions against claims of discrimination and dignitary harm. Though no one can write with certainty at this time because the case has not yet been decided, this case will not likely predetermine the outcome for all future conflicts, but it will certainly offer a precedent that future conflicts will recall. In this account, the future viability not only of commercial institutions run by Christians are at stake, but also any other confessional institution, whether public or private. For these reasons, Christians and Christians institutions of all stripes have a vested interest in seeing Jack Phillips prevail at the Supreme Court.

Rise 2017