If governments can directly instruct families about what to believe concerning homosexuality and about the correct frame of mind to have in conducting daily business, it is hard think that the policies and practices of religious schools and other institutions, like hospitals, will be left alone…


In Obergefell v. Hodges, the 2015 decision of the Supreme Court imposing same-sex marriage on all the states at a time when only eleven states had done so on their own, Justice Kennedy, writing for the 5-4 majority, gave religious Americans permission to “continue to advocate” against same-sex marriage. The First Amendment, he said, “ensures that religious organizations and persons are given proper protection as they seek to teach the principles… so central to their lives and faiths.”

In dissents that were completely ignored at the time of the decision, three of the justices expressed grave concerns about its implications for religious liberty. Chief Justice Roberts said that “[t]he First Amendment guarantees… the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.” Concerning same-sex marriage and religious liberty, Justice Thomas said that “[i]t appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.” And Justice Alito added that “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

The questions raised by the dissenters are now the subject of the major case of  Masterpiece Cakeshop v. Colorado Civil Rights Commission, “the cake case,” set for argument in the Supreme Court on December 5. In Masterpiece, a Colorado baker is appealing the judgment against him by the Colorado Civil Rights Commission and a Colorado appeals court for refusing to bake a cake for the celebration of a same-sex wedding. The baker, Jack Phillips, who calls his bakery “Masterpiece” because of his intention and practice of providing more artistic baked goods, regularly serves gay customers. However, he could not square participating in a same-sex wedding with his Christian beliefs about marriage. Colorado has its own civil-rights state statute and had recently amended it to include a prohibition on discrimination in “a place of public accommodation” because of “sexual orientation.” The wedded couple got their cake from another bakery, and Mr. Phillips’ bakeshop was picketed by homosexuals. A Colorado appeals court ordered him to cease baking wedding cakes altogether if he continued to deny service for same-sex weddings. Mr. Phillips refused and promptly lost 40 percent of his business and most of his employees. In addition, the Colorado court ordered “comprehensive staff training,” which, for Mr. Phillips, includes members of his family; the filing of quarterly reports for two years describing “remedial measures;” and the documenting of all patrons who are denied service and the reason for the denials. Similar cases with the same result but varying penalties have occurred in New Mexico, Washington, Oregon, Arizona, and New York.

A new kind of First Amendment case

Masterpiece involves almost every issue presented by the First Amendment, including individual free speech, the free speech of a business, art as free speech, “expressive conduct” as intended and understood as free speech, “compelled” speech, free exercise of religion, and “hybrid” combinations of free speech and free exercise. There are background implications for freedom of association and even the establishment of religion.

What is in question is how Masterpiece fits into constitutional law. There are Supreme Court cases on both sides. But no case readily fits for the reason that no American government at any level has ever tried to police free speech and individual behavior to the degree that is being done today by the homosexual rights movement, now increasingly established into law. One can think of anti-Catholic legislation in the 19th and early 20th centuries dealing with Catholic schools and immigration. But those kinds of public acts were general and directed against Catholics as a group.

In older cases, the Supreme Court has allowed religious exemptions from  laws governing unemployment benefits (Sherbert) and mandatory school attendance (Yoder). In more recent cases, it has prohibited a city from banning animal sacrifice in the Santeria religion (Lukumi) and has also prohibited the federal government from interfering in the selection of ministers in churches (Hosanna-Tabor). But those latter two cases, unlike Masterpiece, concerned direct governmental intrusion into the conduct of church bodies, not individual speech and conduct. And against all such free-exercise cases is the Smith case in which the Court disallowed an assertion by a Native American that he should be allowed to use peyote in a religious ritual in violation of a state’s drug statute. In ruling against him, the Court held that the statute was a “neutral” law of “general applicability” that did not single out or target religion. Reflecting Smith, the Colorado court held in Masterpiece that the state’s civil-rights statute “does not impose burdens on religious conduct not imposed on secular conduct.”

Masterpiece may more likely be decided as a free speech case for the reason that there are more precedents, and for the additional reason that the Supreme Court seems to have preferred rendering decisions based on free speech rather than free exercise. The Trump administration’s Department of Justice has filed a brief in support of Masterpiece, but only on the free speech issue. The Supreme Court has held that the Free Speech Clause protected the Boston St. Patrick’s Day parade from intrusion by a gay group (Hurley), alteration of a state license plate to eliminate part of an unwanted state motto (Wooley), recitation of the pledge of allegiance and saluting the flag (Barnette), burning of the American flag (Johnson), artistic and political speech against an overbroad anti-pornography federal statute (Ashcroft), and the wearing of armbands by high school students to protest the Vietnam War (Tinker). On the other hand, it has upheld against free-speech challenges the prerogatives of Congress to condition federal aid to universities on the acceptance of military recruiters on campus (Rumsfeld) and to prohibit the burning of a draft card (O’Brien), a state law prohibiting cross-burning with intent to intimidate (Black), and a state law involving censure of an elected official for voting on a measure while having a conflict of interest (Carrigan).

Judicial “opinions” v. opinions

In the Colorado court’s Masterpiece decision as well as in related decisions in other states that are serving as precedents, there is conclusive language about what the “likely” or “reasonable” third party would perceive as the meaning and significance of requiring Mr. Phillips to bake a cake for the same-sex couple. Indeed, all briefs filed in support of the Colorado court have uniformly agreed with the declaration of that court that “we conclude that a reasonable observer would understand that Masterpiece’s compliance with the law is not a reflection of its own beliefs.” And: “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.”

To the contrary, it is not only likely but certain that the ordinary observer—as opposed to judges—would regard everyone associated with a wedding as intending moral approval of such an event.  Who goes to weddings but those who want to celebrate the couple and the event? Who caters or sells items involved in a wedding but those who have no moral objection to that wedding? And it is precisely appearances – what it looks like and what meaning people will take—that is an essential part of what Mr. Phillips is objecting to. In the Wooley case, the Supreme Court allowed the New Hampshire state motto, “Live Free or Die,” displayed on the state’s license plate to be altered as a free speech right of a Jehovah’s Witness. The state of New Hampshire had argued that everyone would regard the display of the license plate as mandated speech of the state, not the speech of an owner of a car. And, of course, altering the state motto does nothing to subvert the purpose of the license plate, which is to display the tag number.By contrast, participation in a same-sex wedding conveys a message that is not in the background and cannot be missed or obscured.

The Colorado court went on to say that “Masterpiece does not convey a message supporting same-sex message merely by abiding by the law.” Such a conclusion seems to repudiate all the major cases in free-speech and free exercise jurisprudence. For that has been the basis for all such cases: the protesting parties are seeking exemptions from laws that they cannot personally abide, support, or accept. And the Supreme Court has considered those cases, whether the Court has ruled for or against the objecting person, out of recognition of precisely that point.  In the free-exercise cases, if “merely” abiding by the law was consistent with the religious beliefs of those plaintiffs, then there would have been no such cases.  As the Court said in Hurley, “it boils down to the choice of a speaker not to propound a particular point of view and that choice is presumed to lie beyond the government’s power to control.” In that case, the state of Massachusetts, on behalf of a gay and lesbian organization, was imposing “a message the organizers [of the St. Patricks’ parade] do not wish to convey,” that is, could not abide and was the very basis for filing the case. Likewise, the Court said in Wooley that the case was brought into court “because of “a state measure which forces an individual, as part of his daily life, [to] be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.”

In rendering decisions, judges have to first evaluate and draw conclusions about what the facts say, then consider how the facts fit the laws in question. We colloquially call such decisions “opinions.” That colloquialism is probably unfortunate because court decisions are supposed to be about what the facts and the law require, as opposed to personal “opinions” about either or both. The state-court decisions applying sexual-orientation discrimination to small Christian tradesmen have essentially been generalized “opinions” and dismissive declarations—no “reasonable” person would understand, “merely” abiding by the law—rather than logical conclusions about fundamental constitutional rights

The power of government to re-educate

The penalties imposed on Mr. Phillips by the Colorado court have received almost no attention in the dozens of briefs filed in Masterpiece, nor in public discussion of the case. Again, the Colorado Civil Rights Commission required Mr. Phillips to undertake “comprehensive staff training” and “remedial measures,” along with recording for two years all orders that it denied for whatever reason. In Gifford v. McCarthy (2016), a New York state court upheld a judgment against a Christian married couple for refusing to allow a same-sex marriage to be performed on their private property, a working farm that the couple also rented and supplied services for special occasions, including weddings. The court imposed a fine of $10,000 and individual compensatory damages of $1,500 for each of two rejected lesbians for “hurt, humiliation, and mental anguish”  and required the farm owners to “establish anti-discrimination training and procedures at the farm.” Such “re-education” must, of course, include corrections of attitudes based on religion. If governments can directly instruct families about what to believe concerning homosexuality and about the correct frame of mind to have in conducting daily business, it is hard think that the policies and practices of religious schools and other institutions, like hospitals, will be left alone.

“Sobering” but required

Elane Photography v. Willock (2013), a decision of the New Mexico Supreme Court against Christian photographers, was the first and is still the most cited case in this field. Every brief in Masterpiece, pro and con, as well as the written decision of the Colorado court, discusses Elane. What has been ignored about Elane, however, is the concurring opinion of judge Richard C. Bosson in which he was honest—unlike the Elane majority opinion, all similar state cases, and every brief filed on behalf of the Colorado court and the Colorado Civil Rights Commission—about what the decision meant to the owners of Elane’s. He said that the effect on the owners of the photography studio who are “now are compelled by law to compromise the very religious beliefs that inspire their lives” was “sobering.” Nevertheless, “the rule of law requires it,” he went on to conclude. The owners are free to think, speak, and believe in “their personal lives,” but “our civic life” requires the result of this court. This relegation to private life of everything a government newly chooses to regard as part of “civic life” is what Masterpiece is all about.

Law as feelings about “dignity”

The homosexual-rights decisions of the Supreme Court have established a new kind of constitutional law in which the personal feelings and sense of “dignity” of homosexuals have been elevated to the level of a constitutional right. In Lawrence v. Texas (2003), the case in which the Supreme Court nullified state sodomy laws and overturned its previous sodomy decision seventeen years earlier in Bowers v. Hardwick (1986), the Court said that a state may not “demean the lives of homosexual persons.” The Court gave similar justifications in its two same-sex marriage decisions. In Windsor (2013), the Court said that the federal Defense of Marriage Act “demeaned” same-sex marriage, was based on an “improper animus,” and “humiliate[d]” children being raised by homosexual couples. In Obergefell (2015), the Court said that it was taking the side of homosexuals “condemned to live in loneliness.” The Court spoke of the “pain and humiliation” and “dignitary wounds” to which homosexuals were subject.

In criticizing bakery chef Phillips, the Colorado court quotes the words of the Supreme Court’s decision in Obergefell that “the denial to same-sex couples of the right to marry” is a “disability on gays and lesbians” which “serves to disrespect and subordinate them.” In keeping with these words of Obergefell, the brief of the state of Colorado on behalf of its Civil Rights Commission court characterizes Mr. Phillips as one who would “treat a class of people as inferior simply because of who they are.”

A societal decision

In defending its public-accommodations law, Colorado maintains that its state economy is positively fostered by the provisions of the law banning discrimination based on “sexual orientation.” The Colorado court says that discrimination against homosexuals “has measurable adverse economic effects.” And the prohibition of that discrimination “prevents the economic and social balkanization prevalent when businesses decide to serve on their own ‘kind.’” Of course, Mr. Phillips did not serve only Christians, and he did serve homosexuals, just not for homosexual weddings.

In truth, Masterpiece is not a dispute between Jack Phillips and two bakery customers. The national gay-rights movement, with its wealthy activist litigating groups, all of whom are involved in this case, and its billions of dollars of in-kind support by such institutions as the media, entertainment, academia, and tech corporations, has successfully waged a thirty-year campaign in the federal courts, as well as in state courts, to establish homosexuality as its own special right and privilege, seemingly greater than or at least the equivalent of the “suspect categories” of race and alienage. With four consequent society-changing decisions in the Supreme Court, all authored by Justice Kennedy, that movement is now embarked on a mission to eliminate all dissent.

In Masterpiece, we are facing not only a constitutional but also a societal decision. Set in the context of fundamental rights of free speech and free exercise of religion, there is the underlying and basic question of whether state and federal courts and legislatures will abstain from destroying pipsqueak tradesmen who in their tiny shops—if we are allowed to be honest—neither intend nor give any real malice and who have no economic effect whatsoever. If Mr. Phillips’ plea is denied, a result that has no precedent in American history, there is no American right “to be left alone.”

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