Ethics & Religion
Column #1,894
December 7, 2017
Religious Liberty at Supreme Court
By Mike McManus

Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, was asked by a gay couple to make wedding cake celebrating their marriage. He refused and they sued him. The case was heard this week at the Supreme Court.

Phillips said, "I am here at the Supreme Court today because I respectfully declined to create a custom cake that would celebrate a view of marriage in direct conflict with my faith's core teachings on marriage. I offered to sell the two gentlemen suing me anything else in my shop."

"For that decision, which was guided by an established set of religious beliefs, I've endured a five-year court battle. It's been very hard on me and my family. We have faced death threats and harassment. I've had to stop creating the wedding art that I love, which means we have lost much of our business - so much so, that we are struggling to pay our bills and keep the shop afloat."

LGBT activists have portrayed the case as a dispute over being treated equally in public accommodations. In oral arguments at the Supreme Court, justices heard that state "fairness" agendas can trump the U.S. Constitution.

The homosexuals, David Mullins and Charlie Craig, said they were "mortified" when they realized they could not force Phillips to violate his faith and promote their lifestyle choice. They filed a case with Colorado's Civil Rights Commission. One commissioner, Diann Rice, said using religious freedom to justify discrimination was "despicable." She asserted, "Freedom of religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.

David Cole, a lawyer for the couple, said a decision against them would relegate gay and lesbian couples to "second class status."

Ironically, when Phillips refused to make the cake in 2012, the couple could not get married in Colorado, which prohibited same-sex marriages. They had to go to another state.

Tony Perkins, President of the Family Research Council, spoke in front of the Supreme Court while the case was being debated inside. He said, "An overwhelming 81% of Americans say we should be free to believe and live according to our beliefs.

"And that's the question being debated right now behind me in the Supreme Court. Can Americans be denied the ability to live and speak according to their beliefs and be forced to use their talents to speak a message that is the polar opposite of their beliefs?"

James Dobson, founder of Focus on the Family who now runs Family Talk, charged that the Supreme Court's Obergefell decision in 2015 requiring all states offer same-sex marriages, "is an expression of hostility toward people who take their Christianity seriously."

His view was supported by the four dissenting justices who warned that the decision had no connection to the Constitution and likely will be used to attack Christianity.

Justice Anthony Kennedy, who likely holds the deciding vote, asked whether a baker could put a sign in his window saying, "We do not bake cakes for gay weddings." A lawyer for the Trump Administration, who supports Phillips, said yes, so long as the cakes were custom made.

Solicitor General Noel Francisco, the Trump Administration lawyer, acknowledged it would be harder to justify discrimination against interracial couples than gay ones. "Race is particularly unique," he said.

That distinction did not sit well with some justices and an attorney for the gay couple said it would relegate gay and lesbian couples to "second class status."

Kennedy told Francisco that Phillips stance "means that there's basically an ability to boycott gay marriages." However, he added, "Tolerance is essential in a free society. And tolerance is most meaningful when it is mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips's religious beliefs."

The justices discussed the possibility of returning the case to the commission for a rehearing before an unbiased panel. That prospect appealed to Chief Justice Roberts.

Justice Kennedy was also troubled by part of the commission's ruling that required Phillips to retrain his employees, who included family members, telling them that a state anti-discrimination law overrode their religious beliefs.

Justice Ruth Bader Ginsburg said that was routine: "All he has to say is that this is what the law of Colorado requires."

Justice Samuel Alito noted that when Phillips turned down the couple, same-sex marriage was not yet legal in Colorado. "So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated."

Phillips should win the case, since state law opposed gay marriage.
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Copyright (c) 2017 Michael J. McManus, President of Marriage Savers and a syndicated columnist. For previous columns go to  www.ethicsandreligion.org. Hit Search for any topic.