When opposition to religious liberty becomes silly, petty, and vindictive

August 15, 2018

News broke today that the baker at the center of the religious liberty Supreme Court victory in June, Jack Phillips of Masterpiece Cakeshop fame, is going back to federal court, filing suit against the Colorado Civil Rights Commission who alleges that he discriminated against a transgender person.

Twenty-four days after Phillips’ Supreme Court Victory, he was told by the Civil Rights Commission of Colorado that he was guilty of discrimination. His offense this time around? The official complaint reports that Phillip declined to make a birthday cake celebrating a man’s “gender transition” from male to female. According to the progressive standards of the Colorado Civil Rights Commission, this constitutes an invidious form of public accommodation discrimination. Why? Because Phillips declined to make a cake on the grounds of a person’s self-disclosed “gender identity,” which is a protected class in Colorado, despite “gender identity” being a philosophically incoherent concept, as I argue in my book.

In June 2017, a man entered Phillips’ cakeshop asking him to design a cake with pink coloring on the inside and blue coloring on the outside of the cake, ostensibly because the man’s inner gender identity is female, signified by the color pink.

Phillips declined to make such a cake on the grounds that using his abilities to create a cake that expressed a message at odds with his religious convictions on sex and gender identity violated his own rights to free speech and religious liberty. He says he will not “promote the idea that a person’s sex is anything other than an immutable God-given biological reality.” With this, Phillips’ view mimics standard Christian teaching on the nature of male and female. Phillips has similarly declined Halloween cakes, divorce cakes, or cakes with a vulgar message such as racism or drug use.

It’s worth restating an important principle at the heart of this case that goes back to the original case: Jack Phillips is willing to serve every person, but he’s not required to create every message that a person desires or endorse every event a person intends to host with one of his cakes. In its lawsuit against Phillips, Colorado even acknowledged that Phillips is free to decline creating a message for one person that he would also not create for someone else.

The attorneys for Phillips also argue that the state of Colorado is once again arbitrarily targeting Phillips because of his religious beliefs:

Although the state has repeatedly found no probable cause in other cases where cake artists refused to create custom cakes, the state treated Jack differently when he declined a request for an expressive cake celebrating the idea that sex—the status of being male or female—can be chosen and changed and that it is determined by perceptions and feelings.

In a statement put out by Alliance Defending Freedom, ADF senior vice president of U.S. legal division Kristen Waggoner, who argued Jack Phillips’ victorious case at the Supreme Court, observed:

The state of Colorado is ignoring the message of the U.S. Supreme Court by continuing to single out Jack for punishment and to exhibit hostility toward his religious beliefs. Even though Jack serves all customers and simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held beliefs, the government is intent on destroying him—something the Supreme Court has already told it not to do. Neither Jack nor any other creative professionals should be targeted by the government for living consistently with their religious beliefs.

There’s much at stake in interpreting the multiple layers to this repeat affair.

First, the facts of this new case are even stronger in defense of Phillips’ rights. The person alleging discrimination against Phillips outrightly admits that the purpose of a birthday celebration cake marking his seventh year of transitioning to female was to “celebrate a sex-change from male to female.” This baldly demonstrates the expressive context and purpose behind the cake, the expressive message that Jack Phillips objects to creating. This admission by the complainant acknowledges that cakes are expressive, which implicates both free exercise claims and free speech claims.

The complainant, Autumn Scardina, has a history of requesting cakes from Phillips with lewd designs including both sexualized and Satanic messages that Phillips morally disagrees with. Many of the requests are too lewd for this platform but can be read here on pages 36-37 of ADF’s brief. Given that the person making claims against Phillips is a repeat agitator, it is evident that the person is a bad-faith operator acting out of hostility toward Phillips and convictions like his.

Second, the Colorado Commission on Civil Rights is once again targeting Jack Phillips. In the past, Phillips’ views were likened to the views of slaveholders and Nazis, and remarks of this nature were directly rebuked by the Supreme Court. As the Alliance Defending Freedom makes clear in their brief, Colorado is continuing its practice of treating Phillips worse than other cake artists because it despises his religious beliefs and how he practices his faith. The Colorado Commission on Civil Rights is revealing itself to be a political organ of progressivism. The Supreme Court rebuked the Commission once before, and should do so again with this discredited agency if it rises to that level.

Third, progressive coercion against Jack Phillips is pathetic and exposes its aggression toward those who refuse to yield to the dogma of the Sexual Revolution. Absent is any measured response. Absent is any goodwill. Instead of understanding those who disagree, the approach taken by progressives is a scorched-earth policy of vanquishment and winner-takes-all. This is not a long-term winning strategy, as those who believe in the immutable truths of sexuality and gender are captive not to public approval, but to the Word of God. Progressives might think they can wait out cultural shifts due to demographic destiny, but the permanency of God’s authority over creation is eternal and His church is triumphant, and this is true regardless of whatever twists and turns happen in the future.

Fourth, the attempt by progressives to make an example of Phillips is also a sign of civic sickness. There are ways to resolve this case, like simply using one of the multitude of bakeries that has no religious or moral objection. Apart from seeing Jack Phillips celebrate what he considers sin, however, progressivism won’t stop harassing him. An overly litigious culture like our own means, to quote theologian Herman Bavinck, that "the more laws we need, the more it becomes evident that rational and moral understanding, that natural love and natural bonds, are losing their influence and power." The immediate turn to relying on courts and statutes to resolve every intra-human moral dispute using the apparatus of the state means our civic health is in decline.  

Fifth, a doubling-down on Jack Phillips is going to backfire. Over the course of the first case involving Phillips, once all the facts were known about Phillips, he became an extremely sympathetic figure and progressivism’s persistent howling of “discrimination” at every corner was met with diminishing returns. The case struck a chord with innocent observers: Why should a gentle, nice man like Phillips who has no animus against LGBT people be required to create something he disagrees with? Is there not a double standard at play? When a baker of Phillips’ character and meekness has to be made an example of by progressives to the degree that he already has, progressivism is resorting to silliness. They are resorting to vindictive pettiness. This is mean-spiritedness is the very opposite of the inclusiveness that progressivism hypocritically preaches.

A better way forward

The news about Jack Phillips is a reminder that progressive culture war tactics are exacting. Episodes like this reveal the inner logic of progressivism’s strong-man impulse. Instead of debate, bully. Instead of civility, just claim to be a victim. Instead of principled Constitutionalism, just rely on identity politics. In this, progressivism brooks no compromise. It offers the opposite of the tolerance it peddles. But there is a better way forward, and very recently, at the ERLC, our organization had the opportunity to pursue that better path.

A few months ago, our creative director responsible for branding the ERLC’s logo on various clothing items such as polo shirts or jackets was informed by a nationally-known brand that the ERLC’s mission did not align with their corporate values, and we were prohibited from putting our logo on their clothing. To put it bluntly, the Ethics and Religious Liberty Commission, an entity of the Southern Baptist Convention, was unabashedly discriminated against.

When our creative director walked into my office to notify me of this, my first response was to smile. Why? Because the ERLC had been the victim of discrimination, and I knew an opportunity like this meant the ERLC could pursue the moral high ground. What progressivism does to dissenters, we would not do to them.

I’m not going to identify what the particular brand was that discriminated against the ERLC, because the ERLC is not looking to score points against this particular company nor are we looking to file any type of lawsuit.

Another option was available: Avail ourselves of the hundreds or thousands of other companies that would be willing to take our money in exchange for their product. We did.

No lawsuit was necessary. No media storm was called for. We have zero desire to force the discriminating company to agree with us or comply with our demands. No one was holding the other hostage to their ideological expectations.

The power of choice and the freedom of viewpoint diversity allowed two actors to pursue a pathway of pluralism.

I think this company was mistaken and acted ignorantly, but in a free society, I want to leave room for a company of this nature to hold its beliefs and to acts on its beliefs where no obvious public harm was occurring.

Episodes like those against Jack Phillips do not have to happen. There are other options, options like what the ERLC was faced with a mere few months ago. But who will take the higher ground and allow diversity, true tolerance, religious freedom, and free speech to prosper?

Andrew T. Walker

Andrew T. Walker is Associate Professor of Christian Ethics at The Southern Baptist Theological Seminary and a Fellow with The Ethics and Public Policy Center. Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24