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Masterpiece Cakeshop, Religious Liberty, and America’s Character

Editor’s Note: This essay appeared in Cultivating Virtuous Citizenship?: A Law and Liberty Symposium on the Ryan Foundation’s American National Character Project.

This summer the Supreme Court will rule on one of the most consequential cases on religious liberty and freedom of speech in recent memory when it decides Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. During oral arguments, Chief Justice Roberts noted that when the Court ruled two and a half years ago in Obergefell v. Hodges that Americans had a Constitutional right to homosexual marriage, its decision “went out of its way to talk about the decent and honorable people who may have opposing views” on marriage. Should the court rule against Masterpiece Cakeshop, those “decent and honorable people” may no longer have a right to publicly hold their opposing viewpoint.

Jack Phillips, the owner of Masterpiece Cakeshop, has refused to use his artistic talents to design a cake specifically for a gay wedding, citing his freedom to exercise his religious beliefs regarding marriage. If the Court decides against Mr. Phillips, it will set a precedent that prohibits the public expression of an unpopular viewpoint and disregards the dignity of individuals who are merely acting on their religious beliefs.

Both sides in this argument should be wary of such a precedent. The framework of our Constitutional government was established primarily by individuals who understood the capacity for human beings to abuse power. This is why they set up a system of checks and balances in our government that would prevent any one individual or governing body from allowing themselves to succumb to the temptation of dictatorial power.

While a decision against Phillips may appear to benefit gay marriage advocates, its effect would be not simply to silence a dissenting viewpoint but to damage the inherent dignity and free will of the individual holding that viewpoint. Such a decision does not even allow for the type of respectful disagreement that is a hallmark of a nation that prides itself in its First Amendment right to freedom of speech. By compelling individuals like Jack Phillips to violate their religious beliefs, the Court would be undermining the Constitutional freedom of expression that allowed gay marriage advocates to lobby and ultimately win enough support for the legalization of gay marriage — an outcome that would be unheard of in many non-Western countries.

We are seeing the potential impact of this suppression of speech today in real life on college campuses. We have historically looked at college campuses as centers that promote a free exchange of ideas, but that discourse has progressively been shut down by those who would not tolerate dissent, especially dissent based on Judeo-Christian morals. Moreover, many universities are effectively forcing students to express beliefs counter to such morals or otherwise face significant damage to their professional aspirations.

It is worth bearing in mind how the deeply-held religious beliefs of many Jews and Christians in this country have provided the fuel for voluntary associations that have helped bring about desegregation, provided for the poor and destitute, and traveled to the frontlines of natural disasters, ready to provide material assistance whenever needed. Many have noted that America is strong because it is good, and much of that goodness is derived from the deeply held religious beliefs of Jews and Christians. Attempts to undermine that Judeo-Christian ethic will inevitably lead to the increased fraying of the moral-cultural fabric that has arguably been one of the primary supports of our freedom of speech over the past 226 years. Without such cultural supports, respect for freely expressed dissenting viewpoints and exercises of deeply held religious beliefs will continue to wane, and our Constitutional rights will soon be worth little more than the parchment they’re printed on.

The historic, structural respect for dissenting viewpoints embedded in the fundamental First Amendment rights of freedom of speech, religious exercise, and association allows for both Jack Phillips to refuse to violate his religious beliefs and for plaintiffs Charlie Craig and David Mullins to tell people that Jack Phillips will not make a cake for a gay wedding. There may be financial, marketplace consequences for Mr. Phillips’ exercise of his rights, but there should be no legal consequences.

If the Court decides against Masterpiece Cakeshop, it would diminish the freedom of religious exercise that has proved so instrumental in supporting and sustaining this more than 200-year-old experiment in liberty. If Masterpiece Cakeshop loses, we all lose.

Reader Discussion

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on April 03, 2018 at 10:52:23 am

This court did not agree to take this case to reverse earlier decisions nor to confirm God. Whatever happens, it will be another piece of legislation from the bench. It is just a matter of the degree to which the vipers and termites will take for the coming years to ensconce more of the progressive agenda.

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Terry Schuck CPCU
on April 03, 2018 at 11:38:38 am

During oral arguments, Chief Justice Roberts noted that when the Court ruled two and a half years ago in Obergefell v. Hodges that Americans had a Constitutional right to homosexual marriage, its decision “went out of its way to talk about the decent and honorable people who may have opposing views” on marriage. Should the court rule against Masterpiece Cakeshop, those “decent and honorable people” may no longer have a right to publicly hold their opposing viewpoint.

I hate this crap.

I’m sure decent and honorable people oppose same-sex marriage. But total SOBs oppose it, too. Just as there are decent and honorable people who favor SSM, and total jerks to favor it. SO WHAT? It’s not the courts business to divide the world into the decent and honorable and the indecent and dishonorable. It’s the court’s job to grant to all equal protection of the laws.

As far as I know, Jack Phillips may be decent and honorable. Or he may be an SOB. WHO CARES? I’m not his mom.

(We get the same BS from the gun lobby, talking about a “bad man with a gun” and a “good man with a gun”—as if the distinction between good and bad was objective and immutable. It’s a flattering world view for people who self-identify as good. But it’s not very helpful for legal or policy analysis. By talking this way, people are trying to use propaganda in place of critical thinking. Knock it off.)

Masterpeice Cake Shop is a collision between equality and freedom. There is inevitably a trade-off. Any analysis that does not candidly admit this is propaganda. And the WORST basis we can find for making the freedom/equality trade-offs is to say, “We’ll grant an accommodation to you because we like you – you’re decent and honorable – but we won’t grant accommodations to similarly-situated people who act in ways we don’t like.” That’s just majoritarian discrimination—the very thing Jack Phillips is fighting against!

I oppose government discrimination based on religion. But freedom of religion, like freedom of speech, can’t mean just freedom for the religion we like; it has to also mean freedom for the religion we hate. That is, whatever accommodation we make for Jack Phillips we should be willing to make for the KKK (the “Christian Identity Movement.”) Again, “decent and honorable” are not relevant criteria.

And, in brief, I think we should make some accommodation for Phillips and the KKK (and all-women’s colleges, and Kosher student housing, and Islamic cab drivers, and….) using the Market Power Affirmative Defense. But I’ll say it again: “decent and honorable” ain’t got nothin’ to do with it.

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nobody.really
on April 03, 2018 at 11:59:05 am

It is my understanding that, despite a numerated Bill of Rights that suggest a descending order in supremacy of rights, from ten down to one, with one being the most supreme right(s), (for which maybe a good argument can be made), in actuality, all constitutional rights possess equal weight that ought to be applied and protected with equal vigor; (I won't go into the natural right aspect of these rights, here).

If Mr. Phillips loses his right to decline business he finds morally/religiously objectionable, how does this impact companies like Citigroup who, in the wake of the most recent school shooting, have decided "to impose restrictions on what kinds of firearms sellers it will do business with"? * Wouldn't (shouldn't) denying Phillips this right also deny Citigroup the right to discriminate against so-called "assault weapon" manufacturers and sellers?

*https://www.americanbanker.com/news/will-rivals-follow-citi-in-clamping-down-on-gun-sellers

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Paul Binotto
on April 03, 2018 at 12:17:11 pm

Agreed! I would also add that Justice Kennedy's assertion that opposition to SSM in Romer v Evans was impermissible as " the Colorado amendment’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.”

Following Kennedy's *animus* jurisprudence, we now have District Court Judges issuing national injunctions based upon a PERCEIVED animus by The Trumpster toward a "discrete and insular minority" (illegal aliens).

If Kennedy is correct in considering animus, then Scalia's counter that Kennedy's reasoning could conceivably lead to the Courts overturning homicide convictions because, "“But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even ‘animus’ toward such conduct."

Such is the nature and effect of "emotion based" jurisprudence.

Interpret the text of the law; do not attempt to divine the emotional state of the 100 or so Legislators debating / signing the law.

Goodness gracious, I can see my grandson arguing that he shlould be able to have more "chocolate sticks" because "Poppa had animus towards me."

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gabe
on April 03, 2018 at 12:19:10 pm

Nope, because, well because *animus* or something. Those who own *assault* weapons are by definition motivated by *animus* - right?

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gabe
on April 03, 2018 at 13:12:51 pm

Oh, right, my bad...

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Paul Binotto
on April 03, 2018 at 23:53:04 pm

"We get the same BS from the gun lobby, talking about a “bad man with a gun” and a “good man with a gun”—as if the distinction between good and bad was objective and immutable. It’s a flattering world view for people who self-identify as good. But it’s not very helpful for legal or policy analysis. By talking this way, people are trying to use propaganda in place of critical thinking. Knock it off."

I'm terribly surprised here. The line, in that context, it bright and clear: Those who seek to do harm to innocent others are bad. Those who seek to defend themselves and innocent others are good. It's truly straightforward, and I will not knock it off.

Kurt

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Kurt
on April 04, 2018 at 01:08:35 am

Mr. Santorum fails to identify the true underlying issues, which are multifold.

This court case, and others like it, which he and others profess are about religion, are not, and it's a profound mistake to try to make it so.

Instead, these court cases are, and should be about two things:

- Freedom of association and contract

- The rights of individuals vs. the privileges and obligations of corporations

I'll tackle the second point first. Corporations (of whatever flavor, including LLCs, S and C corporations, etc.) are creatures of government - it's much more than just getting a business license). Much as Mitt Romney (and others) would have it that corporations are people, they are not. A corporation is a legal fiction used to shield people from liability, while giving them the benefit of harvesting profits. Because they hold an artificial competitive advantage over actual individuals, they can engage in much riskier behavior with little or no fear of personal liability. If we recognize this, we should come to an understanding that corporations must bear a much larger burden of regulation than individual or partner owned business, including all of the burden of non-discrimination laws, etc.

With the nature of corporations and other forms of limited liability organizations understood, the first point above becomes clear. Where organizations have limitations on liability, they must serve all customers for their products and services without any discrimination.

Kurt

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Kurt
on April 04, 2018 at 07:30:58 am

Mr. Kurt,

You offer some good and valid points.

You must recognize, however, that Masterpiece Cake is more than this; In my opinion, it is a matter of a special interest (LGQBT, et al) pre-targeting a religious individual in order to create a test-case to further their ends with complete disregard for the well-being of the person targeted. Mr. Philips did not take his beliefs to this gay couple, nor did he not try to accommodate them in a manner consistent with his religious believes; they took theirs to him, in order to fashion a "test-case" lawsuit whose main objective is to force citizens, by threat and coercion of force, (put-up & shut-up, or pay-up) to publically accept and validate their life-choices.

In my view, this couple went into Mr. Philips shop that day with full prior knowledge of his religious beliefs, and with the organized intention of provoking him into taking a religious stance for this very purpose.

The problem, the way I see it, with these so-called, "equal rights" movements, is that even when they begin with noble motives(not all begin so) of seeking equality, with a little taste of success, they almost always devolve from seeking equality, to seeking dominance and power of retribution over their perceived oppressors (in this case religion and religious people); this at any cost. And, before you know it, they are perpetrating on others similar or worse injustices than those which provoked them into action in the first place.

Rightly or wrongly, well, everyone can judge that for themselves, but lets not fool ourselves about what Masterpiece Cake is really about.

Liberty with out humility, prudence, and restraint is just another name for tyranny - goes both ways.

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Paul Binotto
on April 04, 2018 at 10:52:58 am

I intend this as a discussion of rhetoric, not gun policy specifically.

What is the best way to protect "innocent others" from gun violence? Every developed nation in the world does a better job of it than the US. Do they have more "good men with guns"? (Or perhaps not more, but "better," men with guns?) Or have they discovered a public policy that doesn't rely on random good men with guns?

We can cheer for that "good man with a gun" who defends the innocent others on any given occasion. But that same man may go home, get drunk, and shoot his wife. Or maybe his kid finds the gun and accidentally kills a sibling. Or perhaps we learn that the good man with a gun only happened to be carrying his gun because he's a drug dealer. When it comes to gun policy, we have no reliable mechanism for distinguishing between good and bad.

Consider: Stephen Paddock's only interaction with the law had been minor traffic stuff. But on Oct. 1, 2017, he gunned down 481 people in Las Vegas, killing 59 of them. The NRA would have labeled him a "good man with a gun" up until the moment he became a "ban man with a gun." In short, these words have no explanatory content; they are after-the-fact labels employed to pander to the egos of gun owners and obscure the issues.

Students of rhetoric have learned that the human mind is prone to recall simple, stylized stories of good and evil, heroes and villains. This fact is a great aid to propagandists--but not so much to policy analysts.

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nobody.really
on April 04, 2018 at 11:17:22 am

I know you to be a good and intelligent person, so I say this most respectfully, Nobody, good and law-abiding women, to the tune of approaching 60 million, (many repeat practitioners) have terminated the lives of approximately 60 million (we can debate about the number), children in the last 45 years, while at least half of the country see's it rightful, even if it is regrettable.

Americans as a whole only become outraged when killing kids occurs openly and notoriously, and their flat-lined faces can be seen on their flat-screened TV's.

And, more carnage in young life, old life, ill life, and unwanted life has occurred in these other countries who have as you say, "discovered a public policy that doesn’t rely on random good men with guns? ", but on public policy no less heinous.

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Paul Binotto
on April 04, 2018 at 13:27:37 pm

"...they are after-the-fact labels employed to pander to the egos of gun owners and obscure the issues. "

And for rhetorical purposes as well>

The label of *bad* gun is an "after-the-fact labels employed to pander to the egos of gun-controllers and
obscure the issues. "

N'est ce pas?

Seems London has surpassed NYC in its monthly homicide rate for the second straight month.

Again for rhetorical purposes:

Let us begin a discussion of good knives and bad knives.

Clearly THERE IS something to the notion that SOMETHING within CERTAIN human beings is operative here - it is not simply propaganda.

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gabe
on April 06, 2018 at 10:37:32 am

Mr. Santorum’s view of citizenship differs from mine. He states, “Should the court rule against [the baker,] “decent and honorable people” may no longer have a right to publicly hold their opposing viewpoint.”
Therein, Santorum does not appreciate civic citizenship. In the USA, Supreme Court opinion on opinion is merely established law for enforcement, holds no sway on opinion, and may not express justice. Unjust law, like Obergefell vs. Hodges, waits to be overturned by a civic people of the United States, not on religious opinion, but on appreciation of children as persons and protecting them from adult contracts and satisfactions. Adult same-sex bonds can be otherwise honored and accommodated.
Between 200 and 300 Supreme Court opinions have been overturned. The frequency could be reduced with an improvement in the court’s objective.
The court could collaborate to discover and use the-objective-truth, even when constitutional injustice is discovered. Codified injustice must be referred to the Congress for new legislation or potential constitutional amendment. During the 229 years of USA operation, We the People of the United States is informed that conflict for dominant opinion, especially about theism, often increases but does not lessen human misery and loss.
The clearest example is the 1850s factional Protestant ministers in the South castigating abolitionists as rebels against the Christian god’s plan to redeem blacks. See Robert E. Lee’s 1856 erroneous lament at leefamilyarchive.org/9-family-papers/339-robert-e-lee-to-mary-anna-randolph-custis-lee-1856-december-27. The CSA fired on the USA under the hubris, “public opinion at the North has invested a great political error with the sanction of more erroneous religious belief”; http://avalon.law.yale.edu/19th_century/csa_scarsec.asp. The USA’s military power resolved the 1860s clergy-squabble over literature canonized as the Holy Bible. However, another squabble has arisen during the last six decades: black liberation theology presented as Christianity posits that black is the chosen skin color. The woe begged by CSA error is evidence of a fundamental flaw in American morality: governance under theism.
In the Philadelphia summer of 1787, Benjamin Franklin proposed to begin each morning’s deliberations with prayer. The other 54 delegates did not second the suggestion. Why?
Perhaps the delegates knew that despite prayer their factional Protestant gods had not defeated England’s Protestant god. France’s 30,000 military personal along with the Continental army’s 11,000 soldiers had defeated England’s 9,000 at Yorktown, Va. It was France rather than “Nature and Nature’s God” that had helped the thirteen states become free and independent according to the Treaty of Paris. The states collectively ratified individual independence in 1784.
Three years later, regardless of religious sentiments, 39 delegates from twelve states issued the 1787 Constitution without the English tradition of acknowledging the god of the times. Some delegates could not brook this or other provisions, so only 2/3 of delegates signed. Regardless of the founders and Declaration of Independence signers, those 39 signers made the USA possible on September 17, 1787. On June 21, 1788, the ninth of the required state constitutional conventions, the “ratifiers” established the USA. The four dissenting states were then in the position of joining the USA or remaining free and independent. One joined in time for operations to begin on March 4, 1789.
A long journey to ruin began in April and May, 1789, when Congress hired factional Protestant ministers perhaps so that congressmen could claim divinity on par with the Canterbury-Parliament partnership. The 1787 Constitution’s signers were aware of Chapter XI Machiavellianism and had prevented the priest-politician partnership. However, the First Congress embraced divinity, and theism’s woe has bemused and plagued America ever since.
Even the marriage debacle Santorum strains at was made possible by Congress grounding the 1996 Defense of Marriage Act on Judeo-Christian tradition. As a person who trusts-in and commits-to the-objective-truth I am incensed with Judeo-Christian prevention of civic morality in the USA. In the USA, priests are barbarically, practically exempt from laws against child abuse and other sex offenses! And the US Supreme Court is split: 6 Catholics who have no religious bias vs 3 Jews who have no religious bias. Yet they practice Judeo-Christian ritual rather than collaborate to discover the-objective-truth.
According to the-objective-truth, the state would prefer that children be conceived by psychologically bonded couples who have committed both to mutual monogamy for their lifetime and to love and care for any children and grandchildren. Monogamy for life is not easy. Divorce rate is 50%, and only 13% of spouses achieve monogamy for life. Often, spouses need counselling to overcome psychological crises. To encourage dedication and responsibility, the state creates incentives and codifies the arrangement through civil marriage. A religious marriage ceremony has no impact on the civil incentives, such as legal responsibility for non-adult progeny.
Children are not civically protected in same-sex partnerships, and I view same-sex family hood as a dangerous physical and psychological experiment. Same-sex partners may bond for life, and if they agree to monogamy, a civil union is practical for civic functions such as co-insurance, medical responsibilities, retirement benefits, and such.
However, the partners can neither offer children the experience of monogamous, heterosexual family-life nor procreate without third-, fourth-, or fifth-party adult contracts. Also, there is nothing genetically wrong with one of the partners falling in love with an adult child and divorcing in order to start a new partnership or an original, heterosexual bond. Herein lies the civic immorality: a civic people does not condone this kind of experiment with the lives of children. And it is immoral for the USA to impose the experiment on a civic people. The basis is the-objective-truth rather than religion.
The baker needs the opportunity to tell partners the products they offer do not include same-sex representations. It is up to the partners to shop somewhere else. The moral principle here is: in every thought, every word, and every act, neither initiate nor tolerate harm. The considerations are grounded in physics and its progeny, both biology and psychology. The gay partners express harm if they try to force an unwilling vendor to serve them. The vendor expresses harm if he tolerates the abuse rather than confront it. The US Supreme Court may neither initiate nor tolerate harm.
It is important for the Supreme Court to opine for the baker. Not for the baker’s sake, nor for religion’s sake, but to begin to restore the court’s integrity.

Based on the erroneous religion of the Civil War as well as popular stonewalling, it does not seem likely that Santorum can imagine a better civic future by keeping spiritualism a private pursuit while collaborating to discover the-objective-truth rather than competing for dominant opinion. But I hope for pleasant surprise: Consideration, collaboration, and ideas better than the expressions herein.

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Phillip Beaver
on April 07, 2018 at 17:36:02 pm

The significance of "decent and honorable" is that it negates the assumption that denial of service because of opposition to SSM is the same as denial of service because of sexual orientation. This erroneous assumption was the basis of the Colorado court ruling against Jack Phillips. Without that assumption the entire case against Jack Phillips collapses like a house of cards. That false assumption coupled with the anti-religious bias (observed by Justice Kennedy) in the Colorado court makes for a very strong case that Jack Phillips was denied his right to due process. SCOTUS could overturn the Colorado court verdict on this basis alone, without even touching on the free speech or freedom of religious issues.

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Randomutation
on April 10, 2018 at 00:18:56 am

I can hardly wait till someone comes up with a religious rationale to discriminate against blacks. (after all, Hobby Lobby already showed that it was ok to do so against women). But I'm sure I'll hear the same old reasons why the country can't possibly enforce laws against discrimination Becuz Religion.

I also can't wait till a Muslim gets to discriminate against someone for religious reasons. Of course, we all know how far *that* will go, now don't we?

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excessivelyperky
on April 10, 2018 at 06:30:51 am

"I can hardly wait till someone comes up with a religious rationale to discriminate against blacks" - you obviously don't know your history, even the progressive revisionist version...

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Paul Binotto

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