Bringing forth manifold meanings is more important than intent by the founders or, in the case of statutes, democratic representatives.
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.