Top quotes from the Masterpiece Cakeshop Supreme Court win
By / Jun 4

Today, the Supreme Court ruled 7-2 in favor of Jack Phillips in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case centered on a Colorado baker named Jack Phillips who was punished for refusing to create a wedding cake for a same-sex ceremony because of his sincerely held religious beliefs on marriage.

The Court’s decision is an clear reaffirmation that government must give “neutral and respectful consideration” in weighing the rights of business owners who make religious claims. The decision should also be viewed positively by people of all faiths as a reinforcement of the importance and value of religious freedom more broadly.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Justice Kennedy authored the majority opinion, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch. Justice Gorsuch and Justice Thomas each wrote concurring opinions. Justice Ginsburg, who was joined by Justice Sotomayor, gave a dissenting opinion. Below are key quotes from these opinions highlighting how the Supreme Court reached its decision. Page numbers from the Court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

Majority Opinion | authored by Justice Kennedy

“The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.” (2)

“[T]he religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.  As this Court observed in Obergefell v. Hodges, ‘[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”’ (9)

“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth.” (10)

“The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” (12)

“To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” (14)

“Just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.” (16)

“The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.” (16)

“The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.’” (17)

“It must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.” (17)

“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.” (18)

Concurring Opinion | authored by Justice Gorsuch

“The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.” (2)

“But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as ‘irrational’ or ‘offensive’ will ever survive strict scrutiny under the First Amendment.” (7)

“In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.” (7)

“It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.” (7)

“It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.” (12)    

Concurring Opinion | authored by Justice Thomas

“If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is ‘so standardised and inevitable a part of getting married that few ever think to question it.”’ (6)

“Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message.” (7)

“States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” (12)

“Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’” (14)

Dissenting Opinion | authored by Justice Ginsburg

“Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it.” (6)

Masterpiece ruling: A good trajectory for the future of Christians in the public square
By / Jun 4

It would be a mistake to interpret today’s Supreme Court ruling as an overwhelmingly sweeping win, or one that resolves all the ongoing tensions over religious liberty and LGBT rights. The ERLC has an explainer on the case.

Legal experts are of a mind that today’s opinion has many facts about the case that do not provide all the desired wants social conservatives and Christians might desire. So, I want to chasten against the impression that the Masterpiece Cakeshop’s case is the hook to hang the future of religious liberty’s hat on. It is not.

But what happened? In the words of ERLC staffer Joe Carter, “The Court ruled in a 7-2 decision the actions by the Colorado Civil Rights Commission’s violated the Free Exercise Clause of a Christian baker who refused to create a cake for a same-sex wedding.” In the eyes of the Supreme Court, the Colorado Commission did not treat Jack Phillips impartially, but in fact engaged in a reverse sort of discrimination against him.

But it is worth pausing to consider one elements of today’s outcome that, at least for today, is encouraging and what it means for Christians in our culture.

Ruling against government hostility toward religion

In an important line of the Court’s reasoning authored by Justice Kennedy, the Court wrote that “laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

This is not an insignificant line to dwell on. The Court did not lay animus or prejudice at the feet of Jack Phillips. The Court did not equate the views of Bible-believing Christians who share a long-held conviction of marriage with rank bigotry. The Court ruled against government hostility to religion.

Why does this matter? Because there are voices coming from mainstream segments of society that want to equate goodwill convictions on marriage held by Bible-believing Christians as the same types of views held by hood-wearing Klansmen of the KKK. That is one of the main reasons that progressives are upset about today’s ruling. It is less about a denial of goods (because the vast majority of businesses have no problem making custom cakes for a same-sex wedding) and more about progressivism’s insistence and expectation that the Supreme Court adopt the posture of treating any disagreement with the Sexual Revolution as an irrational form of prejudice held for no other reason than hate.

The instances that promote this line of thinking are almost too much to document at this point.

A LGBT donor, Tim Gill, said he wanted to fund LGBT political initiatives in conservative states to “punish the wicked.”

Mark Tushnet, a Harvard law professor, wrote that cultural progressives should treat Christians like the Allies treated defeated Nazi Germany. In other words, brook no compromise.

Jack Phillips was accused of being a bigot, and of holding views equated with Nazism.

Thankfully, the Supreme Court answered this intolerant retort by confirming that religious and philosophical views on marriage are within the penumbra of acceptable views, and views that can be acted on in society.

There’s growing concern on what role evangelical Christians can have in a culture that maligns biblical views on marriage as bigoted. What mainstream access can Christians have in a culture when its views are no longer in the mainstream? That’s an unsettled question, but the Supreme Court answered today with an encouraging reply.

Whatever the implications this ruling has for future cases is unknown. And indeed, given the narrowness of the decision’s construction, different facts in a different context could produce an outcome completely unfavorable for religious liberty. But for today at least, Christians should be thankful for how the Supreme Court ruled.

It’s worth reiterating that Christians are not the weird ones for our understanding of what defines a marriage. We believe that marriage is comprehensive in that it unites not only hearts and minds, but also bodies. From the wellspring of the marital union comes the potential for new life. Marriage is about something more than the intensity of emotions between two persons. Marriage is grounded in the anthropological truth that men and women are different; the biological truth that only men and women can reproduce; and the sociological reality that the seedbed for society and child flourishing is the natural family.

Let’s hope the opinion today continues a future trajectory for religious liberty at the Supreme Court and more broadly through the culture.

Russell Moore calls Masterpiece Supreme Court ruling ‘A win for all Americans’
By / Jun 4

WASHINGTON, D.C., June 4, 2018—The U.S. Supreme Court ruled 7–2 in favor of the Masterpiece Cakeshop in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In the opinion, Justice Anthony Kennedy held that the Colorado Civil Rights Commission treated the religious beliefs of Jack Phillips, a Colorado baker, with impermissible hostility and animus.

Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, responds to the ruling:

“The Supreme Court got this one right. I have long been concerned by the erosion of religious liberty and the characterizing of some of the most basic religious convictions of millions of Americans as hateful or bigoted. So I was very glad to see the strong rebuke of hostility toward religious people’s viewpoints. But this is a win not just for those of us who agree with Jack Phillips. This is a win for all Americans. At stake in this debate was the question of whether or not the state can force an individual to violate his or her conscience. We need to live in the kind of country where we can be free to persuade one another, not bully each other into silence. The Supreme Court's responsibility is to protect Americans from governments and agencies that would make such and demand. I'm glad to see they have. My hope is that this will be a sign that the Court will continue to uphold conscience freedom and personal liberty in future cases.”

The ERLC joined other Baptist, Christian, Jewish, and Muslim denominational entities, colleges and universities, legal associations and individuals to file an amicus brief at the Supreme Court in the Masterpiece Cakeshop case.

The ERLC also urged people to sign a #JusticeforJack petition calling for the Supreme Court to protect religious freedom for Americans of all faiths.

Russell Moore on why the Masterpiece SCOTUS ruling is a win
By / Jun 4

Russell Moore comments on the SCOTUS ruling in the Masterpiece Cakeshop case and the importance of religious liberty.

TRANSCRIPT: Should Christians bake wedding cakes for weddings about which they disagree?
By / Feb 24

Hello, I’m Russell Moore, president of the Ethics and Religious Liberty Commission, and this is Questions & Ethics, the program where we take an issue that you are struggling with, something that you have sent in, and we look at it through the lens of the kingdom of Christ. And today I want to take up an issue that one of you hasn’t asked about, at least not this time, but something that is in the news right now; and that’s the question of should a Christian baker bake a wedding cake for a same-sex wedding?

Now this is very similar to a question that I addressed a while back about a Christian photographer. We had a Christian who is in the wedding photography business who said, “Look, I’ve been asked to photograph a same-sex wedding. Should I do it or not?” I think it is a very similar situation in this case. And the reason why it has come up is because there was an article by Kirsten Powers in USA Today this week that talked about laws in places such as Tennessee and Kansas seeking to protect people who are not wanting to participate in same-sex weddings in terms of their religious liberty. And in the article she talks about such laws as being sort of like Jim Crow segregation laws for gay people. And she quotes Andy Stanley, pastor of North Point Community Church saying look, you need to just serve people you don’t agree with, and bake the cake. And if you don’t want to bake the cake, don’t bake the cake, but don’t put Jesus in it, because Jesus, of course, was with tax collectors and sinners.

Look, Kirsten Powers and Andy Stanley, I know both of them. I love both of them. I respect both of them. I don’t have any desire to bash them at all. I think they are good people. But I disagree with them on this, and here’s why. Because I think that if you are saying to me—first of all let’s bracket for a minute the legal reality here, because that is the question. When we are dealing with these laws in Kansas and Tennessee and in other places, what it is attempting to do is to protect, legally, the religious liberty of people from having their consciences violated by the government. And that is going on in New Mexico. It’s going on in Washington State. It’s going on in all sorts of other places, where people are saying, I can’t participate in this wedding, because it violates my religious beliefs and the exercise of my religious convictions, and so somebody else should do this. And the government is coming in and saying, no, we are going to force you to do it. Let’s bracket that for just a moment. I think, clearly, we do need legal and religious liberty protections or those people.

But then let’s address the question that Kirsten and Andy both are saying is really what they are wanting to address, which is the question of whether a Christian should be a vendor, to use the language used in many of these articles, in such a wedding. So if a baker said to me, “Should I bake a cake for a same-sex wedding, when I disagree with same-sex weddings and with homosexuality as being immoral as defined by the scriptures?” Here’s my answer to that. I think first of all, what I am not saying is that vendors shouldn’t be involved in same-sex weddings, generally and across the board. I think if you have a—you know, the other day was Valentine’s Day. I was going to get my wife flowers. I walked into Kroger on the way home, and there were flowers everywhere, flower arrangements you can have, they are selling it; I go and get those flowers, and I go through the checkout line. I don’t think that the checkout person ought to be saying, now wait a minute, who are those flowers going to? Is this an extramarital affair? Is this a homosexual relationship? Is this going to result in fornication, or is this for your wife? No, this is a vendor just providing these floral arrangements that are out there. They are generally for everybody. In the same way, if you are running a Chick-fil-A restaurant, and you have these packages and platters of food that you are selling to people, I don’t think you need to go and interrogate; Wait a minute! Is this for a Super Bowl party, or is this for a bachelor party for a gay wedding, or is this? I don’t think you have a moral obligation to interrogate those sorts of things. You sell your stuff, and you have it already prepared, and it’s out there, and you are just providing it to people to use.

I think where the difference comes in is when you have people who are being asked to become creative participants in an event that has, for Christians and for other religious traditions, sacred implications. So, if you have somebody who is selling material to be used for a wedding dress, well, that person isn’t involved in the wedding. But somebody who is, for instance, a photographer is somebody who is participating in the wedding, somebody who is using artistic gifts in order to create a narrative about this wedding. That is something that the conscience, in the case of the person who wrote to me earlier a couple of years ago about this, wouldn’t allow to happen. So if you are a baker, and you say, “Should I provide a wedding cake for this?” If you have a bakery, and you just have wedding cakes that you are making, and they are out there—and there are bakeries like this; people can come in and just say, “I want that cake.” They pick it out—well, don’t interrogate. You don’t need to interrogate who this is for or what they are going to use it for, because you are not participating in the event. You are just selling your product to whoever is there.

But a lot of cake decorators and bakers, and in fact, I would say most of them, are involved instead in actually participating with the couple and trying to say how do we tell the story of this wedding? How do we make this wedding unique, make this wedding beautiful? And they are putting their creative abilities and their creative talents into that event and into that wedding. I think it would be kind of similar, if you talk about the diversity of gifts, it would be kind of similar to someone saying to me, “Look, I am a liberal Episcopalian pastor. I am going to be marrying a same-sex couple, and I would like you to write the sermon for me. You don’t need to do the wedding, but I want you just to craft a sermon for me that I would be able to preach at this same-sex wedding.” Or a fundamentalist Mormon pastor saying to me, “Can you help me to write a beautiful wedding sermon for this wedding that I am doing for this man and this woman and this woman and this woman?” I would have to be able to say, “You know, I can’t do that. I can’t use my creative gifts in that way in order to participate in this wedding.” And I think the same thing is true here.

Biblically speaking, the issue that is relevant comes down to most particularly what the Apostle Paul is talking about in I Corinthians, chapter 8, where there is a controversy that comes up in the church at Corinth over the question of meat offered to idols. And what does the Apostle Paul say? He says a number of things. He says first of all, you don’t need to interrogate, when you are buying meat, where this meat came from. You don’t need to go and find an investigator to say what is this? Was it ever offered to idols? Because he says we know that an idol is not really anything in the world anyway. But he says if someone says to you come and eat this because it has been offered to idols, now you have a situation where your participating in this can do violence perhaps to your conscience, but more importantly it could do violence to someone else’s conscience. It could become a stumbling block and a scandal to someone else. I think that is very relevant to this question of what we are to do as we are participating in something that we don’t believe in.

The same thing is true with Romans, chapters 12 through 14, talking about the difference of levels of conscience, that people sometimes have differences about issues of conscience that aren’t clearly defined in scripture. And what does Paul say? He says you don’t bind one another’s consciences. He also says that you don’t judge one another’s conscience. And he says someone who is sinning against his own conscience is someone who is sinning. To do anything that is not from faith, the Apostle Paul says, is sin. That’s one of the reasons why I am so concerned about the religious liberty implications here. Some people will say well, what difference does it make? Somebody who is a florist, somebody who is a baker, it’s not the same thing as requiring someone to actually officiate at a wedding or to host a wedding inside a church. Yeah, but if you are coming in and saying to someone whose conscience says my being involved in this, using these creative gifts that God has given to me in order to tell this story in this way, is something that I feel like is rebellion against God, and I am going to have to stand before God in judgment, I do not think that the state ought to come in and pave over the conscience of that person.

And frankly, I don’t think that is in anybody’s interest, including in the interest of gay and lesbian people, our neighbors, and our friends, for a state to be powerful enough to do that. When it comes to the question of you, Baker, should you provide the cake, I think you have to ask am I simply just selling cakes to people, or am I actually participating and being involved in that wedding, in something that I believe, and I think the Bible does teach, isn’t of the Lord? It’s something we disagree with a lot of people in our culture about, but it’s something that the Bible speaks to, and the Bible speaks to our consciences about. So I think, in that case, when you are being asked to use your creative gifts in order to participate in something that you don’t believe in, I think you need to say, “I can’t do that. You need to find somebody else who can.”

Having said that, as I said to the photographer, you don’t be mean. Sometimes you have activists who are coming in and they are trying to catch you in something. A lot of times though, that is not the case. You have people who, made in the image of God, they are loved by God, they ought to be loved by us, and they think that this is the right way for them to go. “There’s a way that seems right,” the scripture says, “to a man.” They think this is going to lead them to the kind of happiness that they are looking for. We disagree with them, but that’s what they think. And they are coming and saying we want you to participate. There’s no reason for us to scowl. There’s no reason for us to rage. These aren’t our enemies. Ephesians 6:13 tells us that we don’t wrestle against flesh and blood. I think you just need to say, “I would love to be able to help you in all sorts of things, but I can’t in this, because I have beliefs about marriage. I have beliefs about sexuality that I am happy to talk about if you want to talk about it or not talk about it if you don’t want to talk about it, but they are informed by the gospel. They are informed by what Jesus says is the way that God designed the universe from the beginning, and that it points to the gospel of Jesus Christ. And it won’t allow my conscience to participate in this way. So I thank you for asking me, but you are going to have to get someone else to participate in this wedding, because I can’t do it according to my conscience.”

And I think we need to be very diligent about making sure that we wind up with the kind of public square that allows the sort of pluralism where people can disagree on these sorts of issues without having the state coming in and saying you can have your cake and eat it too, because you have to be forced to bake and to use your creative talents; you have to be forced to arrange those flowers; you have to be forced to photograph; you have to be forced to write the script. That’s not the sort of republic that many people fought and bled for. And more importantly, the scripture tells us that’s not what God created in the image of God when he created the conscience to be free.

What’s your question? Do you have something that you are thinking about, you are wrestling with? Maybe you are reading the Bible, and you’ve got a question about something that you are reading there. Maybe you are having a conversation with a neighbor or with a family member. Or maybe there is something happening in your family or in your marriage or in your church or in your workplace, and you are saying I just can’t figure out what’s the right thing to do in this situation. Well, shoot me an email at [email protected] or by Twitter at the hashtag #askrdm. And we will take up your question here at Questions & Ethics. Until next time, seek the kingdom, and walk the line. This is Russell Moore.