Month: June 2018

While I would absolutely love to get on board the positive attitude party train and frolic in the afterglow of a huge victory in the Masterpiece Cakeshop case, I just can’t bring myself to do it.

Don’t get me wrong, I’m delighted that Jack Phillips’ long struggle is finally over and that after losing a lot of money and six years of his life, he is finally in position move forward with a win – albeit a shallow one – under his belt.

After pouring over the 59 page court document, I see some cause for celebration and much to be concerned about. For those hiding in the cultural crevices for the past six years, allow me to begin with a summary.

How it Began

In the summer of 2012 Jack Phillips’ Masterpiece Cakeshop – just outside Denver Colorado -was visited by Charlie Craig, his mother and Dave Mullins. Though Colorado did not, at the time, recognize Gay marriage, it was Craig and Mullins’ plan to travel to Massachusetts to be married. They would then return to Colorado were they planned a reception for family and friends.

The couple told Phillips they wanted a cake to celebrate their union. Phillips explained to them that though he would be happy to sell them a birthday cake, cookies or other tasty treats, he did not “create” wedding cakes for same-sex weddings.

The next day Craig’s mother called to inquire as to why Phillips would not make a cake for the celebration. Phillips explained that he has a religious opposition to same-sex marriage and that Colorado itself did not recognize same-sex marriage. He later further explained that he believed same-sex marriage was against the Bible and for him to be involved would have been a personal endorsement of something that his faith prohibited.

Craig and Mullins filed a discrimination lawsuit and the Civil Rights Division opened an investigation. After discovering that Phillips had turned away multiple same-sex couples seeking wedding cakes, the Division referred the case to the Civil Rights Commission which sent the case to the State Administrative Law Judge.

Since the details are easy to find, let’s skip along. Phillip’s was:

• Ordered to stop discriminating against same-sex couples by refusing to sell them wedding cakes and other products normally sold to heterosexual couples.
• Compelled to hold comprehensive staff training on the Public Accommodations section of the Colorado Anti-Discrimination Act (CADA).
• Told to change all company policies to comply with CADA.
• Ordered to file quarterly compliance reports detailing every denial of service, the reason, and the remedial actions that were taken.

These finding were upheld by the Court of Appeals before moving to the United States Supreme Court.

This is the where things get a little fuzzy for a lot of people. Most agree that discrimination is a bad thing, and to many, these findings seem very reasonable. Under our Constitution, however, it is not the governments job to determine or dictate reasonableness in the context of ones personal convictions. Thank God!

What has been right and reasonable to many governments throughout history has meant the persecution and death of millions who didn’t meet the government’s criteria. Our Founders knew that, and wanted a system where it didn’t happen here. They were well-versed in the history of the Inquisitions and the horrid reign of Bloody Mary.

Now that the stage is set. Let’s take a look at today’s ruling. I will do my best to keep it reasonably simple.

The Ruling

The big sentence that sticks out of the 59 page report is right up front on page 1:

“The Commissions actions in this case violated the Free Exercise Clause”

And then on page 21:

“The judgment of the Colorado Court of Appeals is reversed.”

– That’s code for Jack Wins!

The more pressing question that may help or haunt our free society for years to come, is how did the Court arrive at their decision and what will it mean in way of precedence in future litigation?

The Challenge

Justice Kennedy wrote the majority opinion for the seven judges agreeing with the ruling. In the opinion, He notes that the case requires the “reconciliation of at least two principles.”:

1. The authority and responsibility of a State to protect the rights and dignity of gay persons who are, or wish to be, married but face discrimination when seeking goods and services.
2. The right of all persons to exercise their First Amendment guaranteed freedoms as applied to the States through the Fourteenth Amendment which guarantees equal protection under the law for everyone.

While there are a plethora of great quotes from a number of Justices and case history throughout the decision, suffice it to say that the government has a vested interest and a responsibility to promote a society where everyone is treated equally, with dignity and respect.

The Fourteenth Amendment was instituted to protect Blacks from unequal treatment because of their race. It has been extended in recent years to provide similar protections to Homosexuals, Gender non-conformist, etc.

The Balance

Though Jack Phillips argued that both his Freedom of Religion and Freedom of Speech were violated though the Commission’s process, the Justices chose to take a pass on the Speech side of the appeal.

Freedom of Speech

Kennedy’s opinion basically states that since no message was clearly articulated, the Court had nothing to rule on.

“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.” (p. 5)

Perhaps if the couple had presented a concept that included the words on the cake, then the Court would have known what speech issues were in question.

Justice Thomas in his occurring opinion disagrees with this omission. He rightly points out that the Court has recognized many forms of expression under the First Amendment Free Speech clause over the years. These expressions have included, Nude Dancing, Flag Burning, Works of Art, silent sit-ins, and others. (p. 41)

Thomas also articulated that the Wedding Cake has been a very specific symbol since Victorian times. Everyone knows one when they see it and they know what it stands for. (p.43)

Also, they are the subject of great pride on the parts of the bakers who create them. They are indeed works of art flowing from the very soul of an artist. Whether we agree with him or not, for Jack Phillips, creating such a work of art for a same-sex marriage was an act of endorsement of the marriage itself.

But the Court made no determination on this. Will it be the subject of future litigation? Very likely!

Freedom of Religion

Freedom of Religion is discussed in the opinion, but for my non-lawyerly eyes, the result is ambiguous at best. For those of us hoping to hear a clear message that the Government cannot compel us to violate our consciences, it is woefully lacking.

This failure to clearly articulate the rights of people of faith is compounded and convoluted by the suggestion that Colorado’s non-recognition of same-sex marriage, and the yet undecided Supreme Court cases of Windsor and Obergefell at the time of the denial somehow added to Phillip’s confusion of the right thing to do. Kennedy writes:

“His dilemma [Phillips] was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 580 U. S. 744 or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful.” State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive.” (p.2)

The opinion does confirm the right of Clergy to not have to perform a wedding that they oppose on moral or religious grounds, but does little if anything to protect the average religious person. The opinion states:

“Yet if that exception [clergy] were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” (p.13)

There seems to be a clear message that the needs of the homosexual community sometimes outweigh the needs of the religious community thereby suggesting a compelling interest on the part of the government to compel people of faith to act against their convictions in order to serve the interests of government and protected groups. This in and of itself is – in my opinion – a violation of neutrality between civil and religious rights.

As a duly ordained member of the clergy, I am infuriated by the implication that clergy have some kind of special treatment over the “laity” when it comes to religious freedom. One of the bedrock principles of the Reformation under Martin Luther was “The Priesthood of ALL believers.” It was one of the most valued beliefs of the puritans when they established the first colonies in America.

Furthermore, I see nothing explicit or implicit in the first amendment that sets such a standard. The Founders were not worried about protecting the clergy. In fact they sought to protect the common people from being compelled to worship according to a particular Church or Governmental compulsion. The reign of King James and his persecution of puritans was in their thoughts as they penned the immortal words. The Government was to serve the conscience of the people. The people were never to serve the conscience of Government.

The “clergy only view” is very different than the one expressed by Justices Thomas and Gorsuch with whom I agree:

“Forcing Phillips to make a cake for same-sex marriage is forcing him to endorse a view that is contrary to his most deeply held values.” (p. 45)

Winning Points

So with Freedom of Speech discarded and religious freedom largely relegated to the clergy, how did Phillips win?

In the end, the decision came down to two distinct issues I will call:

1. Failed Neutrality
2. Double Standard

Failed Neutrality

The Commission was so outrageously anti-Christian that the majority of Justices felt it had failed in it’s responsibility to act as a neutral and objective party in determining the best course of action between the competing interests of the same-sex community and the deeply held conviction of Jack Phillips. Kennedy wrote:

“… the Commissions consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. The Commission gave ‘every appearance,’… of adjudicating his religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause.” (p. 3)

To substantiate this proposition the court referenced and quoted from Commission hearings:

“At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” (p. 15-16)

At one point, the Commission went so far as to berate Phillips for his faith and to indict religion in general in what seemed more like a far-left polemic than an impartial judicial process. One of the commissioners said:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list
hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” (p. 16)

To this, Justice Kennedy responded:

“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. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.” (p. 17)

The Justice rightly remembers that the law protects religion as well as sexual orientation. Indeed the Constitution only explicitly mentions the former. Kennedy was further concerned that this obvious injustice was glossed over by the appeals court.

While this point is cause for much celebration, it must be tempered by another of Kennedy’s statements,

“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.” (p. 3)

In other words, “if this had been handled better, the outcome may have been different.” Indeed the dissenting opinion by Justice Ginsburg and Sotomayor, clearly articulates their belief that Phillips’ defiant act of refusing to bake the cake far outweighs any injustice caused him by the religious bias of committee members and as a result the Court should have ruled in favor of the Commission. (p. 58)

If I was on the losing side, I would tell all my colleagues to make sure they avoid the appearance of bias next time (even if they have to fake it) so the Court will be more likely to side with them over the backwoods, intolerant consciences of religious bigots.

Double-Standard

The second winning point came in the way of a double-standard the Commission applied to similar cases.

In brief, a man named William Jack solicited three bakeries to make two cakes. Both cakes were to be in the shape of an open Bible. The first cake was to have two males holding hands with a red X overtop the image. On one side of the cake it was to say, “God loves sinners.” On the other, he wanted it to read, “While we were yet sinners, Christ died for us. Romans 5:8.” The other cake was to read on one side, “God hates sin Psalm 45:7” and on the other, “Homosexuality is a detestable sin. Leviticus 18:2.” (p. 54)

Each of the Bakeries declined the order as requested expressing personal objections to the messages. William Jack filed a complaint stating that he was refused equal access to goods and services because of his religion. (pp. 54-55)

In these cases, the Commission ruled that the denial had nothing to do with religion, rather the messages were offensive.

While I personally find these planned cakes despicable and not Christ-like, my personal feelings are irrelevant. So are those of the Commissioners. Justice Thomas reminds everyone of the Court’s decision in the infamous Hustler Magazine v. Falwell case (1988).

“’… if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’ i.e. if no one is offended no one will try to stop it. (p. 49)”

This opinion is also clear on the matter,

It is NOT the role of the State or its officials to prescribe what shall be offensive (p. 19)

Without going into all the nuances and the arguments on both sides – which can be found in a complete reading of the the decision – the implication here is that the Commission ruled in both cases according to their own view of morality while completely disregarding Phillips deeply held convictions.

In the case of William Jack, the Commission agreed with the Bakers that the message was offensive and as a result they should not be compelled to bake the cakes. In the case of Phillips however, the Commission was sympathetic to the views held by Craig and Mullins and thereby ruled that in was in societies interest to force Phillips to bake cakes for same-sex marriages or suffer under the full weight of their power. The decision states:

“A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” (West Virginia Bd of Ed.v. Barnette) (p. 19)

Who v. What

One of the biggest ambiguities in the opposing views of this case seem to lie in the area of who versus what. One side judges the merits of the case based on the people involved. Since the couple is gay, refusal to participate in their marriage celebration is a rejection of the people. In legal terms this is seen as discrimination against a protected class.

The other side sees the case entirely differently. To them, the case is not about the people, it is about what the people are doing. For these folk, in the Phillips case and in Jack’s cases, the issue is about the what not the who. In both situations all of the involved bakers would refuse to create such a cake regardless of the customer. Christian, Atheist, Buddhist, Gay, Straight are not the issues, rather it is the message the baker is asked to promote.

Though Ginsburg and Sotomayor are adamant advocates of the former view, I am in agreement with the later one. In all cases the bakers were willing to serve any of the customers from their inventory of products. In the Jack cases, all of the bakers were willing to make Bible cakes, they just refused to decorate them with the desired messages. Phillips was more than happy to provide Birthday cakes, shower cakes, brownies, etc. to the very people he would not make the same-sex wedding cake for. Again it was not the people it was the message.

By the way, Phillips values were not limited to same-sex wedding cakes. He also refused to make halloween pastries despite the fact, according to Justice Thomas, it is a very lucrative season for bakeries. (p. 47)

Conclusion

So in the end Phillips won, but it appears to be a hollow victory. While the need for government agencies to act in a neutral manner is clearly established in this ruling, Freedom of Speech and Freedom of Religion for people of Faith are in limbo. The primary issues remain unresolved and the Court has kicked the can down the road for another time.

Reading between the lines, I can’t help but wonder if this decision is about the best we could hope for given the current slate of Justices. Based on the various written opinions I surmise that an attempt toward a more definitive answer to our questions may have resulted in a swing the other way. I pray we are blessed in the future with more Constitutionalist scholars who can help us find our way home to the protection of rights for all, not just those favored by the politics deJour.

What will our culture look like in a few years if people of faith are compelled to either act against their consciences or exit the marketplace all together. Since Satanism is an official religion, and therefore protected by the First Amendment, should bakers be forced to create demon cupcakes? If Neo-Nazis get elected and change the rules, should carpenters be forced to make crosses for them to burn? If there is a cultural shift back to Christianity, should a Muslim musician be forced to provide Christian Music for church events.

Forcing others to comply with our values and beliefs often seems like a good thing, but we must always remember that we may not always be on the power side of the equation. As my wise government professor taught me many years ago, “your rights end where someone else’s begin.” Jesus said something similar, “Do unto others as you would have them do unto you.” A little more mutual respect would go a long way. No one should be forced to violate their conscience in favor of one group over another.

While we wait for the next big case, there is unfortunately no clear message to the States and municipalities busy engineering our communities according to their own subjective world views. Let us pray that God will grant us mercy, grace and favor in the days ahead.

On the positive side, this decision is loaded with precedent and well-articulated arguments that can serve future jurists well if they only take note. If you have a little extra time, I encourage you to especially take a look at the consenting opinions by Justice Gorsuch and Justice Thomas. Great stuff!