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Religious Liberty Could be Big Loser in Wedding Cake Challenge

With news that the Supreme Court will hear Masterpiece vs. Colorado Civil Rights Commission [1]this fall, Washington’s think tanks have been abuzz with talk of religious freedom. In the past week, both the conservative Heritage Foundation and centrist Brookings Institution hosted discussions on the status of religious liberty in American public life. The events, while quite different in their approach to the issue, both help illuminate the massive gulf that has emerged around this often thorny issue.

On September 6th, the Heritage Foundation took a personal approach by hosting a panel discussion [2] with business owners involved in recent discrimination and religious liberty court cases. The participants included florist Baronelle Stutzman, who was sued for refusing to provide flowers to a same-sex wedding [3]; shirt printer Blaine Adamson, who won his court case on his refusal to print pro-gay t-shirts [4]; media producers Carl and Angel Larsen, who proactively challenged a state law mandating they produce films for same-sex weddings [5], and baker Jack Phillips [6], whose Masterpiece Cakeshop is the namesake of the aforementioned Supreme Court case. The panelists all emphasized that their Christian religious beliefs prevented them from participating in these events.

The Brookings Institution took a more theoretical approach to religious freedom in a wide-ranging discussion yesterday morning [7]. After remarks by John Dilulio [8] on the need for more civility and open-mindedness when discussing religion in the public square, an ideologically diverse panel of Joshua DuBois [9], David Gregory [10], Katrina Lantos Swett [11], and Russell Moore [12] took the stage to build on the billed themes of “restoring civility and protecting pluralism.”

(From left to right) David Gregory, Joshua DuBois, Russell Moore, and Katrina Lantos Swett at the Brookings Institution.

DuBois, the former director of the White House Office of Faith-Based and Neighborhood Partnerships under President Obama, got to the heart of the divide over religious freedom in his remarks.  As he recalled conversations with past ‘civil rights giants’, DuBois posited that “Religious liberty advocates…are often the most dangerous and destructive to the civil rights cause because they thought that their first principles and their civility would save them without interrogating the depths of the evil in human hearts that they saw around them….[Religious liberty] was almost an opiate that slowed justice down.”  To DuBois and many progressives of his ilk, religious liberty is often a simple guise for problematic opinions, many of which may impede “progress”. It is therefore only tolerable insofar as it is compatible with the prevailing definition of justice.


And yet here’s the rub: DuBois’s narrow conception of religious liberty is not entirely inconsistent with American jurisprudence. Throughout American history, our courts have repeatedly recognized limits to religious liberty when they feel the state has a compelling interest in imposing such limits. The state’s prohibition of things like polygamy [13] or peyote [14] or (obviously) pedophilia [15] supersede any religious claim to the contrary.

The polygamy case is of particular interest in a world of post-Obergefell religious liberty claims. Over a century before the Court redefined marriage to include same-sex couples in its landmark 2015 decision [16], it considered the question of the legality of plural marriage in Reynolds vs. United States (1878) [13]. The case centered on George Reynolds, who argued that his arrest for marrying a second wife was unconstitutional because his Mormon faith compelled him to do so. In its unanimous decision, the Court first reaffirmed the principle of religious liberty in the then-territory of Utah:

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned.

But the Court then concluded that the practice of polygamy was well outside the limits of the Free Exercise Clause of the First Amendment:

The question to be determined is, whether the law now under consideration comes within this prohibition…To permit [polygamy] would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

It’s not exactly a stretch to foresee a 2017 court using similar reasoning to rule against the Christians opposed to same-sex marriage on the Heritage panel.

Back at the Brookings panel discussion, moderator William Galston, a current Brookings fellow and previous Clinton administration official, pondered the relatively recent and significant change in public attitude towards religious freedom. “The Religious Freedom Restoration Act passed almost unanimously,” Galston stated, referring to the 1993 law that bolstered religious freedom protections. [17] “And 24 years later here we are….We all have the sense that we were in one place 24 years ago and we’re at a very different place now when it comes to religious liberty and its role for good and for ill in our civil discourse. What has happened…in this almost quarter of a century that has led us to this current moment?”

(From left to right) Ryan T. Anderson, Blaine Adamson, Jack Phillips, Barronelle Stutzman, Angel Larsen, Carl Larsen, and attorney Kristen Waggoner at the Heritage Foundation.

The Reynolds case provides the key to Galston’s answer.  It’s not that commitment to religious liberty has changed substantially, but rather that unprecedented challenges to the limits of religious liberty protection have emerged. Sexual orientation and gender identity (SOGI) non-discrimination statutes and policies—and identity politics more broadly—present a unique and powerful challenge to the principle of religious liberty precisely because they are so diametrically opposed to fundamental tenets of traditional religion.

To be sure, identity politics did not arise in a vacuum. “When there is not a sense of transcendent purpose and meaning people will try to find a substitute for that,” Russell Moore astutely observed, “And what we have largely seen happening in American life is people finding tribal identities in political movements or cultural arguments.” Small-o orthodox Christianity roots identity in the reality that every human person is made in the image and likeness of God, which necessarily precludes prior commitments to sexual-, racial-, national-, ethnic-, or any other type of identity.  Clearly, Christianity recognizes the legitimate ways in which these secondary “identities” shape personal experience. But, unlike the identity politics crowd that vociferously asserts their occasionally “intersecting” identities, the Christian always subjugates these affiliations to the Truth of Christ. When “transcendent purpose” recedes from public life, tribal identity takes primacy.

So religious observers who still adhere to those particularly “problematic” beliefs—those beliefs that run counter to the prevailing secular vocabulary of “identity” and “intersectionality”—find themselves at an impasse. The limits of religious liberty protection are rapidly leaving behind even the idea, “male and female, he created them,” seeking to cast the first chapter of Genesis [18] over to the ‘unacceptable’ side of the dividing line with the likes of polygamy (just as, ironically, the latter may be making a move back to the ‘acceptable’ [19]).

What all this reveals is that cries of “religious liberty” are necessary, but not sufficient. So long as traditional Christian belief (especially concerning sexual morality) is successfully painted as outside the bounds of decent public discourse, no religious freedom protection will be granted to those who hold these views. In a secularizing society where, to once again quote Moore, people increasingly “find tribal identities in political movements or cultural arguments,” the Christian conception of the human person is radically alien, and perhaps even hostile.

In this light, both the Heritage and Brookings approaches to the issue are needed. We do need a firm commitment to the principle of religious liberty. But we also need to make the public case, through personal narrative and neighborly relationships with ideological adversaries, that traditional Christian beliefs and those who hold them are reasonable and therefore within the limits of religious freedom.

During his panel introduction, Heritage fellow and moderator Ryan T. Anderson observed: “You’ll see the headlines, but the media doesn’t do a good job of showing the real humans behind these stories.” If Christians are to maintain religious liberty protection, perhaps it’s time we focus on humanizing religious liberty claims.

Emile Doak is director of events & outreach at The American Conservative.

21 Comments (Open | Close)

21 Comments To "Religious Liberty Could be Big Loser in Wedding Cake Challenge"

#1 Comment By Clyde Schechter On September 14, 2017 @ 1:02 am

Certainly humanizing religious liberty claims is important. But it will not be a panacea. It will also be important to choose which cases to fight to the end, and which to concede early on.

The contemporary cases present a variety of situations where the courts may well find different balances between the competing attractors of religious liberty and the notion that when you enter the sphere of public commerce you check your personal beliefs at the door.

It is easy to imagine that the courts will be more sympathetic to, for example, a photographer who is being asked to actually attend and, more or less, participate in a gay marriage ceremony that he or she objects to on religious grounds, and less sympathetic to a vendor who refuses to sell a commodity when the customer discloses that it will be used at a post-ceremony reception.

When the business enterprise involved is small and closely held, the courts will probably be more sympathetic to religious freedom arguments than when the enterprise is large, and still less so if it is a publicly traded corporation.

Some cases will be more clear cut than others; some will be “toss-ups” decided more by who happens to be ruling on them than by a clear resolution of conflicting principles. But, for the foreseeable future at least, each case will present unique aspects. Any sweeping generalizations one might be tempted to identify will be contradicted sooner or later.

It will be important to allocate more effort to the cases that involve greater encumbrance of religious freedom, and avoiding appearing fanatical or unreasonable by relenting on cases that are borderline.

#2 Comment By Liam On September 14, 2017 @ 7:38 am

One thing that is largely missing in modern polemical conversation:

In the circle of given arguments, there are unreasonable arguments and reasonable arguments. Within the sub-circle of reasonable arguments, one will likely be more persuasive (usually because it fits better with pre-logical assumptions, which are difficult to argue about), but that doesn’t mean all the less persuasive arguments are thereby rendered *un*reasonable. They are merely *less* persuasively reasonable.

#3 Comment By bkh On September 14, 2017 @ 8:00 am

This is far greater than religious liberty. These type decisions that will be handed down are either a rush or ramping down of a course to Judgement. For billions of peoples sake, I pray the decision handed down signals a slowing of the momentum to which the cliff is approaching. America may be on its last leg, but we don’t have to kick it out yet.

#4 Comment By Stephen Gould On September 14, 2017 @ 12:49 pm

…that traditional Christian beliefs and those who hold them are reasonable and therefore within the limits of religious freedom.

The issue that many of us have is not that traditional Christian beliefs and those who hold them are unreasonable, but that there is a combination of non-traditional Christian belief and the imposing of that belief on others where it should not do so.

The courts will not inquire into someone’s religious beliefs (at least, not wrt traditional religions – I suspect that the courts would not take seriously someone whose claimed belief was in the Flying Spaghetti Monster, BHNA). So if someone claims that their religious belief as a Christian prevents them doing X, it availeth us not when we point out that they are quite comfortable with non-traditional Christian conduct in other situations – note the notorious clerk Kim Davis, who had 4 marriages. But that does not mean that we have to accept their hypocrisy either socially or legally.

Further, no religious body is required to perform or recognise SSM. Why would a traditional Christian care whether anyone is married in a ceremony they do not recognise anyway?

Nor is a traditional Christian required to participate in gay sex – so their religious freedom is not infringed upon by e.g., Lawrence v. Texas.

I note in passing that it is no defence to a charge of bigotry that one is required to be a bigot according to one’s traditional religious principles honestly held.

#5 Comment By EliteCommInc. On September 14, 2017 @ 1:59 pm

“So religious observers who still adhere to those particularly “problematic” beliefs—those beliefs that run counter to the prevailing secular vocabulary of “identity” and “intersectionality”—find themselves at an impasse.”

Hmmmm . . . curious this. I find myself at no impasse at all.

I find your comments and even the court references interesting. Because while the claim is no force, the evidence is clearly that the government and some number of citizens will and are demanding that Christians acknowledge and participate in these ceremonies, despite clear and thousands of years doctrinal practice, teaching, and belief that they cannot.

hence the lawsuits in question.

#6 Comment By fabian On September 14, 2017 @ 2:27 pm

Religious freedom is narrow way to abord this problem. Furthermore it puts religion above other feelings, which is discriminatory. Ideally, in a confident society, discrimination should be a right and the market would decide. That this guy doesn’t want to serve gays, no matter what his motivation is, is rude but that’s his right. I, I wouldn’t patron this guy. I don’t like his attitude; his life, my life. The same should apply with race, sex, political opinion as it does anyway with wealth and education.

#7 Comment By S P Robinson On September 14, 2017 @ 2:47 pm

Bigot. Hmm.

If person 1 thinks person 2 ought not to intoxicate themselves, even if there is no harm to anyone else, is person 1 a bigot?

Or perhaps I am a “bigot” for implicitly associating that framework with homosexuality or SSM.

In which case, either “bigot” is merely a circular and meaningless hate-label applied (in what constitutes an act of bigotry) to anyone who disagrees with the speaker and has the audacity to say so, or no judgement may be made about any actions of any person 2 by person 1, at least not outside some ultra-libertarian laissez faire.

In short, to dismiss claims about morality with the intellectually vacuous hate-label “bigot”, requires one of:

– total relativism
– total subjectivism
– extreme laissez-faire
– hypocritical bigotry

Select one, or withdraw the tactic of labelling disagreement as bigotry and those who disagree with you as bigots.

#8 Comment By S P Robinson On September 14, 2017 @ 2:49 pm

PS the crazy ramped up CAPTCHA today is really harshing my buzz.

#9 Comment By Greg in PDX On September 14, 2017 @ 4:35 pm

I worked for years in the travel industry and we had to sell honeymoon packages. It was none of my business who was getting married, why they were getting married or where they were going. If you are going to sell a product, you sell it to anyone. If you asked me to book a honeymoon, I booked it. I wasn’t going on the honeymoon and my sale didn’t in any way shape or form constitute an endorsement of the couple’s choices. If you claim otherwise I suspect it has little to with principle and a lot to do with trying make a smug point, be judgmental, or provoke a situation where you can play persecuted victim in the hopes of raking in the bucks from gullible donors to your cause.

#10 Comment By Chad R On September 14, 2017 @ 6:55 pm

“I wasn’t going on the honeymoon and my sale didn’t in any way shape or form constitute an endorsement of the couple’s choices.”

I’m not saying that you would ever do this, but if someone were to knowingly sell a couple’s travel package to a pedophile who planned to take an underaged child along (if such a thing could be pulled off), then, yes, the seller would be morally complicit in what happened on that trip.

These Christian businessmen are being told to contribute knowingly to activities they consider to be unequivocally evil or shut down their businesses. They can’t claim innocence before God out of sheer ignorance as you are proposing.

#11 Comment By St Louisan On September 14, 2017 @ 7:31 pm

Stephen Gould:

“…imposing of that belief on others where it should not do so.”

But why is declining business “imposing” your beliefs on others? Why isn’t requiring florists/bakers/photographers to accept jobs that violate their religious views imposing their clients’ beliefs on them?

#12 Comment By GregR On September 15, 2017 @ 12:16 am

But why is declining business “imposing” your beliefs on others? Why isn’t requiring florists/bakers/photographers to accept jobs that violate their religious views imposing their clients’ beliefs on them?

The exact sane arguments were made in the fight over interracial marriage not so long ago. The same religious arguments that doing ‘X’ was in violation of religious teachings, and the same religious arguments were made. The court struck those arguments down as well. If you don’t want to sell a wedding cake for a gay wedding then don’t sell any wedding cakes and it won’t be a problem. If you don’t want to photograph gay weddings then don’t be a wedding photographer, its really that simple.

I am sympathetic to the claims that the market will eventually sort this out on its own, but I grew up in a small town in Mississippi where there was no ‘black’ option for a lot of services. Saying the market will correct works fine in a large city, but outside that the market can actually force businesses that otherwise would like to open their doors to everyone from doing so because of the fear of loosing other customers.

Anti-discrimination laws don’t target religions they target discriminatory behavior. You can think or believe anything you want, but when you sell products to the market place you are bound by the same laws as everyone else.

#13 Comment By The Color of Celery On September 15, 2017 @ 1:59 am

If I bake a cake for a gay couple, am I condoning and participating in their sin? I suspect cake bakers have baked cakes that were given to partners in adultery. Or wife beaters. Or child abusers. Because the sin is hidden, are the bakers any less complicit? If all have sinned and fallen short of the glory of God, there are no sin-free people to bake cakes for. And baking a cake or not baking a cake doesn’t change the choices made by others. Kindness may prove a better witness than refusing to bake cakes, which by law is discriminatory. So is my sin excusable because I committed it to protest yours? The church needs to provide absolution for cake bakers and all who must serve the sinful public.

#14 Comment By oakinhouston On September 15, 2017 @ 8:09 am

“…but if someone were to knowingly sell a couple’s travel package to a pedophile who planned to take an underaged child along (if such a thing could be pulled off), then, yes, the seller would be morally complicit in what happened on that trip.”

No. He would be guilty of aiding and abetting a crime. Just like if he were to sell a honeymoon trip to an age appropriate opposite sex couple knowing he was planning to murder her.

The correct comparison is to sell a honeymoon package to a couple without veryfing that they are indeed married, and that there is no living ex-spouse anywhere in the picture. Otherwise, you are contributing to fornication, which is unequivocally a sin.

#15 Comment By Olga On September 15, 2017 @ 5:58 pm

Outside of royal weddings, weddings were simple affairs. A few family members in a church or home. Maybe cake and/sandwiches after. The family made the food. Now we have a wedding industry. Are the bakers of wedding cakes asking the couples — Have you had premarital sex? Are either of you divorced? Did this relationship start as an affair? Are they only making cakes for Christians, but would turn down a Buddhist? If you go into the wedding industry — baking cakes, arranging flowers, event planning or photography, then you agree to sell your service to people that buy it. A church can refuse to perform a ceremony. The Catholic Church has a long laundry list of reasons they won’t marry you. However cake baking isn’t a holy act. If a gay couple wants to eat lunch at a diner, they can. Buying a cake is no different regardless of the purpose.

#16 Comment By cka2nd On September 16, 2017 @ 2:06 am

This is really a tough issue for me. I am uncomfortable with asking a small business owner to provide a service for a ceremony or event that they really object to on principled grounds, and I thought it was just a d*ck move on the part of one out gay couple that sued their long-time florist who drew the line at their wedding. Be hurt, but have enough respect for their florist’s deeply held religious beliefs to just move on. On the other hand, GregR makes a good point that there are places where alternative providers are few and far between, and not everyone can find someone to move on to.

If the panelists at the Heritage Foundation event had refused to provide their services to local Nazis or KKK’ers, complete with Hitler and burning cross designs, I doubt any but the most absolutist civil rights folks – a Nat Hentoff, say – would object, although Gods Bless the ACLU if they took the case.

I certainly wouldn’t object if a unionized print shop refused to produce materials for a company during a lock-out or strike, although many others either wouldn’t care or would object to that version of a secondary boycott, which may be illegal under Taft-Hartley.

The problem for those panelists is that public opinion has turned decisively against them on the issue of same-sex marriage, which for many of us has become no more controversial than any marriage, and certainly not sinful. If it had been a polyamorous group that they had turned away – unusual, sure, but without the taint of underage sexual abuse that plagues Mormon-style polygamists – there would probably be a lot less pressure on them, especially given the lack of legal recognition for any kind of multiple-partners matrimony.

I rambling because I’d like to see some grace on all sides, and because there are slippery slopes in more than one direction.

#17 Comment By EliteCommInc. On September 17, 2017 @ 9:31 am

“The exact sane arguments were made in the fight over interracial marriage not so long ago.”

Skin color is a biological non fact with no inherent cultural or behavior attributes attached. The reason the laws against such discrimination make sense is because of that reason.

Skin color unto itelf has no eaning. It’s just skin color, Its a factor common to all people. The meanings assigned to skin color for the purposes of difference fail to very simple tests

1. commonality
2. and fair treatment. In otherwords, community that has pubic toilets lined in gold for whites must provide equal said toilets for blacks.

Being black is not a behavior it has no traits tat indicate anything of meaning unto itself.

A black person may french, Irish, Jewish , South African, even an Eskimo. He or she may choose to embrace Bach Beethoven or Tupac Shakur, but being black will not be in an indicator.

There is not a cintilla of evidence that same relational conduct is biological determined – not one tiddle of evidence for it. It is a behavior and unlike skin color is bound by the persons contro of where how and why. Furthermore, it communicates meaning, unlike skin color. As such it reside in an entirely different arena of of societal existence and response to the same.

I understand that there has been a good deal of mileage by the careless attribution of relational conduct the same as skin color, but carelessness and convenience does not truth make.

If someone comes into a shop asking for a wedding cake to e made especially for same relational wedding — te baker is participating in a ceremony to celebrate said wedding. It’s not as if they came into the shop and purchased a premade cake. For a christian, one who adhere’s to scripture, particpatingign such a ceremony is off limits.

A pre made wedding cake which is available to all, may be purchased as would the donuts on the shelf by anyone – fine. But the other resides in a different category and no one who is a christian should be forced to do so. I don’t even think one should be forced to bake a cake for black people. But a case against making said cake would not be in line with any prohibition of one’s faith.

A wedding cake for a same relational practicing couple would be. And in such circumstance, that foreknowledge might very well be beyond the baker’s conscience. Unlike buying that premade cake, whether they are buying it to throw stones at or post in their living room — is a private matter, that I need not ave any participation in.

I am always amazed that blacks permit this blending without objection. Though I understand why — the payoff has been to weaken any claim blacks may yet have to pander to a series of civil rights climbers:

latinos, same relational practitioners, women (mostly white women) . . .

#18 Comment By EliteCommInc. On September 17, 2017 @ 9:33 am

So no,

one could not make the same arguments regarding skin color and hold veracity of said arguments with any validity.

#19 Comment By TrueBeliever4Real On September 17, 2017 @ 12:35 pm

The Bible is the divine Word of God and the doctrine of faith for Christians. God created marriage in a creative capacity between male and female, IN HIS IMAGE! Here is why homosexuality is an abomination — it ruins and counterfeits the Image of God in marriage as He created and designed it to be. Likewise, with Satan spiritually behind it, homosexual marriage is the Image of The Beast and anyone accepting, practicing, condoning or otherwise ok with homosexuality has accepted the mark of the beast. Get out of it and repent of your sins before it is too late.

Love is NOT love – God is love. (1 John 4:8). This is what the devil used to introduce confusion as to the true Image of God. God created woman ESPECIALLY for the man. Marriage is in the Bible, not the Constitution! The courts do not have authority over marriage in the first place so any decision they come up with is false. The baker et.al., are correct in refusing to deny their faith and cater, or otherwise service a false religious homosexual ceremony or event.

These are the reasons the true Christian cannot involve themselves at all, for any reason, in false religious homosexual celebrations that also mock God in the process. Homosexuality is desolate and leads to a physical and spiritual dead end.

They are also right to refuse because the image of God, The One whom Christians love, has been defaced and counterfeited in homosexual marriage. ( [20]) For example, two men and children is not the true structure of family. This is false because two men cannot produce a child, neither can two women. The true family structure when children are involved is a mother and a father and a child or children.

Homosexual couples who adopt children have stolen the children’s right to a mother and a father and have left them wondering where the other half of their true creative nature is. Toying with the minds of children is sick and twisted. It is an awful shame to force children into acceptance of the mark of the beast just so homosexuals can play house. This is very serious and has eternal consequences.

#20 Comment By jbg99jbg On September 19, 2017 @ 11:13 pm

TrueBeliever4Real I also am a true believer 4 real. First of all government is involved in “legal” marriage. Second, GOD is all inclusive. GOD is omnipotent, GOD is omnipresent, GOD is omniscient, God is the ground of our being, GOD is the alpha and the omega, etc. consider that definition. You and I and everyone and everything and nothing are each a part of GOD and therefore we each and everyone help make GOD that which GOD is. GOD is love! Make it so by being loving, not being full of dogma or strict inflexibility or lack of love. Show some compassion, understanding, unconditional love in other words do unto others as you would have them do unto you and love your neighbor as yourself. Do not attempt to limit GOD for GOD is unlimited and it is never too late. A microsecond to us may be an eternity to GOD. GOD permits the sun to shine on all of us and the rain to fall on all of us. We all need nourishment bake the cake. Christ feed everyone remember the loaves and fishes. Are you a Christian or just a true believer 4 real?

#21 Comment By Olga On June 4, 2018 @ 11:28 am

Religious liberty is allowing a Catholic Priest (or any other religious officiant) to refuse to marry or recognize a marriage that doesn’t comport to their religious principals.

Baking and selling a cake is a commercial transaction. No cake is needed to bless a union. Refusing to bake a cake for someone violates their civil rights to buy goods and services. Is the cake baker asking heterosexual couples if one of them ever committed adultery or if they had premarital sex? If they did, they would be out of business.

So I think this doesn’t really have to do with religious liberty.