Supreme Court Rules in Favor of Religious Liberty...Sort Of

Scott Rae: Welcome to the podcast, Think Biblically: Conversations on Faith and Culture. I'm your host Scott Rae, dean of faculty and professor of Christian ethics here at Talbot School of Theology, Biola University.

Sean McDowell: And I'm your co-host, Sean McDowell, professor of apologetics at Talbot School of Theology, Biola University.

Scott Rae: Today Sean and I are going to be talking about a landmark decision that was handed down on June 5th, 2018 by the United States Supreme Court on a case that we've been waiting for, for some time. The case of Masterpiece Cakeshop versus the Civil Rights Commission of Colorado, otherwise known as the Colorado Cake Bakers case. Jack Phillips who was offered the opportunity to specially bake a wedding cake for a same-sex wedding ceremony and refused to do so citing his religious beliefs, was sued by the same-sex couple who were seeking his services and ruled ... The Colorado Civil Rights Commission and several lower courts ruled against him, the case was taken up by the United States Supreme Court. The Supreme Court ruled in his favor, which religious groups claimed as a great victory for religious freedom. We'll talk a little bit more about the details of that. We do think that, that's pretty good news, but maybe not quite as good as it could have been.

Scott Rae: So Sean, start us out with this, tell us a little bit just about the facts of the case. What made this case such a big deal?

Sean McDowell: Well, it's a big deal because people have sensed the Obergefell ruling in 2015, which made same-sex marriage legal nationwide, that religious freedom was really in jeopardy, and some would say it's been hanging by a string. And even in that ruling itself, some of the conservative judges, I believe it was Thomas and Alito said, “Hey, this is opening up the door for people from good religious philosophical perspectives, who disagree with same-sex marriage in this ruling being criticized, and also being penalized by the law.” So it's a big deal because people have been concerned and wondering which way the court is going to go.

Sean McDowell: Now, I think it's also a big deal because I was actually not surprised that the ruling came down in favor of Masterpiece Cakes, but I was surprised that it was a ruling of seven to two. How wide that was, surprised me. There was at least two distinctly and maybe three if you consider Kennedy, liberal progressive judges who sided with Masterpiece Cake shop. So I think it's been a moment where conservatives, people that care about religious freedom kind of were able to just take a pause and say, “Okay, there's some good news. It might not all be downhill, we can just kind of take a breath and hopefully look towards the future."

Scott Rae: This is the second major case where religious freedom in the marketplace had come under challenge, and where the courts had ruled in favor of religious believers being able to live out their deepest convictions in their businesses. The previous one is the Hobby Lobby case, which was decided ... A case that had to do with contraception, where the Green family, the owners of the Hobby Lobby chain of stores elected not to provide abortifacient contraception.

Scott Rae: There were actually 20 different types of contraception that they were being asked to provide for their employees, they provided 16 of them that were genuinely contraceptive before they were abortifacient, which either prevented implantation of embryos or expelled embryos from the uterus. Those were the ones that they refused to provide for their employees, and again the court ruled in their favor that they were basically allowed to live out their deepest convictions in the way that they conducted their business.

Sean McDowell: And there was another ruling last year that dealt with, I believe the school was named Trinity Lutheran but it was about could this statewide program that dealt with used tires be given to schools for playgrounds. And this Christian school was denied on religious grounds from using it, made it all the way up the Supreme Court and they said, “No, you can't deny this school just on religious grounds.” So there's been a series of limited, arguably narrow but positive rulings that I think help, for those of us concerned about religious liberty, and here's the tension that I think is going on.

Sean McDowell: If you read the Supreme Court ruling, anyone out there I was reading this ruling last night, and my 14 year old son walked by, he goes, “Dad you're such a nerd, reading the Supreme Court ruling.” He's 14 years old. But it's absolutely fascinating. I think every citizen at some point should just read a ruling, how much you would learn by doing this. But Kennedy in the majority opinion, he cites these tensions that he's trying to work between. In one sentence he says, “We shouldn't disparage religious people, conservatives who have genuine objections to same-sex marriage, and want to live out their convictions in the public arena. But we also can't disparage gay people who want equal access to just opportunities and business in the culture in which we live.”

Sean McDowell: Now, that's a tension we're still seeing play out, and it hasn't really been resolved by this ruling [crosstalk 00:05:40].

Scott Rae: That's right. And we're actually ... There were lots of people who were hoping that the court was going to resolve that very tension in this ruling. They could have had, had they chosen to, but they elected to make the ruling on much narrower grounds, which we'll see when we get into some of the details, leaves the door open for potentially a different ruling under a different set of circumstances. To be really clear, the two sets of principles that are in conflict are essentially the rights of gay people not to be subject to discrimination in the purchase of goods and services, in conflict with the rights of persons under the First Amendment to the Constitution.

Scott Rae: And there are two of those, the right to free expression, which may take a little explaining to see how that's relevant, but the court agreed that that was at stake, and the principle of religious freedom. Both of these came into play. Now, I think it will be helpful for our listeners understand is, how exactly was the right to free expression at stake in the decision to bake a cake.

Sean McDowell: So Jack Philips has been in the cake making business for about two decades, and he views, because of his Christian convictions, his business in some way kind of like a ministry. Now, even the Christian term ministry aside, he would see making a cake artistically as an expression of his beliefs. So he actually closes his business on Sundays for religious reasons. He'll make a cake, and he will go oftentimes to the wedding itself to support the people. He actually would sit down with many of his clients and say, “Tell me what this wedding is about. Tell me why it's important to you.” And he would really invest himself in the making of this cake as an expression and by the way-

Scott Rae: Sometimes he actually cuts the cake at the reception.

Sean McDowell: That's right. That right, he does. And I'll tell you what's interesting, in Thomas', Judge Thomas in his opinion of this [inaudible 00:07:54], he ruled in favor of-

Scott Rae: Concurring opinion.

Sean McDowell: ... His concurring opinion. He says, “The court has recognized as a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside down American flag with a taped on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit in, refusing to salute the American flag, and flying a plain red flag.” And he says, “Once the court concludes that conduct as expressive, then the Constitution limits the government's authority to restrict or compel it.” So the heart of this is, can the government say to a person who runs a business that this ... can they limit the free speech, and decide what is free speech for somebody or not? That's at the heart of this, but that really wasn't settled in this ruling, was it?

Scott Rae: No, it wasn't. When you put it in terms of the other things that are recognized as legitimate free expression, baking a cake doesn't sound so out there.

Sean McDowell: It doesn't.

Scott Rae: No, it just sounds like it's quite in harmony with other things that have been recognized like this. Seems to me the court was correct in the way it recognized that.

Sean McDowell: I think it was. And Jack certainly, not because of any animists towards gay people, he also wouldn't bake cakes that were like Halloween cakes, he had genuine religious objections to that. It wasn't motivated by any animist that we can tell towards this gay couple, it was simply his deep convictions about the nature of marriage and wanting to operate his business, based on those convictions. He treated them kindly as individuals and told them other places that they could go to get a wedding cake.

Scott Rae: Yeah, and my understanding of the facts is that it's not quite right to say that he refused them service, he refused them to bake a specific tailor made cake for their particular ceremony, he offered them anything that had been pre-made in his shop, available for their wedding. He just would not create his own artistic creation specifically for them. So I think when the Civil Rights Commission of Colorado accused him of discriminating against gay people, and refusing them services, that's not quite accurate to say that. He refused to do a very specific service, which constituted an artistic expression.

Sean McDowell: He said specifically, “I will make you brownies. I'll give you anything else that has nothing to do with you as individuals.” Now this actually gets to the heart of the debate, and if you read the ruling, you'll see a difference with how Kagan and Breyer land on this, versus say Alito and Thomas, and they make a key distinction. In the dissenting opinion, there was a difference about whether the refusal of particular service, was tied to sexual orientation or not.

Sean McDowell: So in the dissenting opinion Kagan says, “You denied them service because of their sexual orientation.” And the other side pushed back like Gorsuch and said, “No, it wasn't about their sexual orientation. In fact, the mother of one of the grooms called the next day and said, 'Why won't you bake the cake?' And he said, 'I also won't bake it for you.' So it wasn't about sexual orientation, it wasn't based on discrimination because of who they identified as, it was the nature of the cake and how the cake was going to be used."

Scott Rae: It was the nature of the celebration for which it was going to be used, that was the central issue. It's clear from the ruling that the court did not resolve this fundamental conflict between the rights of gay people to be free from discrimination in the marketplace, and the rights of free expression and religious freedom. So let's talk a little bit about, on what basis did the court actually make their ruling, and how did they go about that.

Sean McDowell: This is really important for people to see, and this is why I think the ruling is somewhat narrow and limited, and leaves open future rulings to really begin to settle this issue.

Scott Rae: Nonetheless, I think we would both say, it's also good news.

Sean McDowell: Yes, it is. That's really important. I look at this cautiously optimistic, or mildly optimistic. I don't want to overstate or understate, I think as you said. Now, the ruling was based upon essentially in Kennedy's majority opinion, saying that the Colorado Civil Rights Commission completely overplayed their hand on two areas. Number one, they particularly pulled out some of what was an animist against his religion in particularly, and attacked his religion in a way that's not neutral or not fair, comparing his decision not to bake the cake to slavery and to the Holocaust.

Sean McDowell: And the irony of this, is I heard an interview with Jack Phillips and he described how ... Can't remember if he said it was his father or his grandfather was in World War II, and fought against the Nazis. And he's actually in tears describing the sacrifice his family made. He says, “To compare me to this,” the word he used was ludicrous. So I think Kennedy in the majority opinion said, “One of things they did is, they didn't give Jack Phillips a fair hearing on this. The Civil Rights Commission overplayed their hand, denigrated religion."

Scott Rae: Yeah. We'll just expand on that. I think that the point there is the presupposition that government under the First Amendment, which prevents an establishment of religion was to be neutral about religion as it's carried out in the public square and in the marketplace, which for most of our history has meant that government can't favor a particular religion or sect of a faith, but here it's just in the reverse. The court I think was being consistent with this rule that government can't disfavor religion in and of itself. And I think that's what they ruled that the Commission had done to Phillips.

Sean McDowell: That's really important. I'm glad you stated that about the question of just being treated neutrally, not being favored or disfavored. The second ruling that came down was tied to what they said was an inconsistency in the Civil Rights Commission. How they treated Jack Phillips as a baker versus other bakers who were requested to make cakes of the opposite message. Now, there's a Christian apologist, I met him years ago, I haven't seen him ... In the ruling he's referred to William Jack but goes by Bill Jack. And he went to a number of bakers in Colorado and asked them to bake a cake, a number of different cakes that had images such as an open Bible on the cake, with two grooms with a big red X going through it Leviticus 18 was going to be put on the cake, which says-

Scott Rae: Talks about.

Sean McDowell: Yeah, talks about not having-

Scott Rae: Same sex is an abomination.

Sean McDowell: Exactly. And then Psalms 45:7 which says God hates sin. Asked these different bakeries to make that, and they all said no. Now, clearly you and I are not sitting here endorsing that you should necessarily go and do that. But from a legal standpoint, it raises an important question. And what the Supreme Court of the US came down and said, “Wait a minute, how can the Civil Rights Commission of Colorado penalize Jack Phillips for not taking that cake, but not penalize the other bakeries for not baking that cake?” They said there's just an inconsistency here.

Scott Rae: Let's go back to the first point on this, the animist toward Jack Phillips religious views, because I think it would be helpful for our listeners to hear some of the things that the Colorado Civil Rights Commission said about his faith, we think is an incredibly disparaging way. For one the commission told Phillips that, “Your religious beliefs cannot legitimately be carried into the public sphere or the commercial domain, which the Hobby Lobby decision sort of explicitly said that's not so,” and which really ... Which actually is a ... It forces religious believers to take a truncated view of their faith into most of what they spend their waking hours doing. That view is actually a violation of someone's religious freedom, to prohibit them from carrying that into the public square.

Sean McDowell: And it's arguably embracing a secular view of the religion, which would not be neutral. That's right.

Scott Rae: Second the commission said, and I quote, “They were criticized for implying that religious beliefs in persons are less than fully welcome in Colorado's business community, for saying that freedom of religion has been used [inaudible 00:17:20] discrimination and slavery and the Holocaust.” And here's the one that I think stuck in their craw the most, is claiming that religious freedom is one of the most despicable pieces of rhetoric that people can use, which is really strong stuff. I think that's probably the part that really got the court's attention saying, “This just illustrates an animus toward religion that violates the state's obligation to be neutral toward religious beliefs."

Sean McDowell: Kennedy distinctly called that out, and he said, “This is inexcusable, this is a personal attack, this infringes on some of the rights that we value as a country.” So I really felt like that was one of the most powerful takeaways from this is, Kennedy who's often said he doesn't want gay people to be treated as outcasts, has also on the flip side said, “We also don't want religious people to be denigrated in the same fashion.” That's how he's really looking at this. I think you're right, that's one of the big powerful takeaways from this case.

Scott Rae: At the end of the day, that's the part that I'm encouraged about, because the Supreme Court I think called out the Colorado Civil Rights Commission for their hostility toward Jack Phillips religious beliefs. I think had they not done that, had the commission's view of Philip's religious beliefs been allowed to stand, as our friend Johnston [Street 00:18:50] puts it, “It would have been open season on people of faith in the marketplace.” And it would have essentially meant that people of faith would have to cordon off their religious beliefs from all public expressions in the marketplace, in other forms of commerce. And I think that's a very big problem that government would be forcing religious believers into, essentially a privatized faith 24/7.

Sean McDowell: I think the quote in this ruling is very interesting it says directly, “The commission's consideration of Philip's case was neither tolerant nor respectful of Philip's religious beliefs.” That captures it. Now, what's meant by tolerance, what's meant by respectful, there's going to be huge disagreement on there, especially when Kennedy has described that each individual has the right to determine their own existence. So we might quibble on some of those terms but for now, when the commission was neither tolerant nor respectful of his religious beliefs, I think that's something to celebrate.

Scott Rae: And whenever we end up agreeing or disagreeing on what's meant by tolerance and respect, the court was clear, that the Colorado Commission, that's not it.

Sean McDowell: I think that's right, and I think he's using tolerance in a classical sense, because it used to be that tolerance meant, I disagree with you, I think you're wrong but I still love and respect you as a person-

Scott Rae: And I treat you well.

Sean McDowell: Yes. So disagreeing with you is not inconsistent with treating you as a human being with dignity, and respect, and honor, and all the things that we value. But that's not what tolerance often means today. Now tolerance means, if you say that somebody is wrong, you're a bigot just for viewing that they're wrong, and it seems to me like Kennedy is saying, “Wait a minute we need some classical tolerance here, where we can differ with each other."

Scott Rae: Where we presume as the founders did, that tolerance assumes disagreement. Otherwise, what's left to tolerate?

Sean McDowell: Exactly.

Scott Rae: I mean, what's the point? But tolerance today has become synonymous with affirmation. And really if I don't aggressively affirm your choice and advocate for your choices and preferences, I'm being intolerant, hateful and bigoted.

Sean McDowell: I look at this ruling kind of like ... like I said earlier, breath of fresh air. Like, “Okay good. There are some boundaries.” But as I've read through the rule and I've wondered what those boundaries really are, and what this ruling implies moving forward. In the majority ruling Kennedy distinctly says for example, religious pastors, priests cannot be forced to perform a same-sex wedding. That's a boundary that in many ways in America we can't imagine that would happen, but you also look at places like more secular Canada, and places like Europe and you preach classical, just biblical doctrines of sexuality, you can be punished, you can lose your job, thrown in prison, fined. So at least he seemed to say, “We're not going to go down that road,” which I think is good as long as this stands. But as we said earlier, they also didn't settle the First Amendment rights.

Sean McDowell: Now, let me flip side back. He also said, “We don't want people that are in any way related business, for any reason whatsoever to deny gay people services.” So there's two boundaries on the outer edges but leaves a lot open in the middle that's unanswered, and he does say here, he talks about, “The adjudication concerned a context that may well be different going forward in the respects noted in this case.” He says, “The outcome of cases like this in other circumstances must await further elaboration in the courts.” So there's a lot of people, I've read articles New York Times, Slate, NPR, et cetera who've said, they think Kennedy is kind of saying, “Wink wink, if you put a case forward like this and you don't disparage religion so deeply, we're going to pass it.” And I don't know if anybody really knows that, but how do you see this going forward?

Scott Rae: It's really hard to be prophetic on this one, because you can certainly imagine scenarios where the facts are different, and whoever's bringing the lawsuit or bringing charges against a provider of services would not have the overtly hostile views of religion that the Colorado Commission did. For example, take the florist in Washington who has been penalized, basically lost her business as a cake shop in Oregon where a similar thing took place, Memories Pizza in the Midwest, in Indiana-

Sean McDowell: Photographers in New Mexico,

Scott Rae: The best person that I'm aware of that has sort of made sense of this is Conor Friedersdorf, he writes for the Atlantic in this. And I think he's very progressive, but I think he has good common sense about these matters of religious freedom. He's very clear in commenting on Philip's case where he said, “Just because you disagree with someone about same-sex marriage, doesn't give you the right to ruin their livelihood.” And so I think there's a balance that's going to be struck. But eventually, the court is going to have to weight one of these competing values more heavily than the other.

Scott Rae: Yeah, there may be other cases that will be decided on narrow grounds, but I think at some point, the court's going to have to choose whether religious freedom is going to carry the day or whether you can't discriminate in any way, for any reason against either gay couples or same-sex marriage ceremonies, things like that. What it's going to bring to the fore I think will be, I think a clearer understanding of what discrimination means. As you know, we all exercise all sorts of discriminations, we just don't do it on the basis of race and gender, we don't do it on the basis normally of protective categories.

Scott Rae: But I'd like to think that I was very discriminating in the choice of the woman I picked to be my wife. I'd like to think she was discriminated, she was that way too. And I'd like to think that we're very discriminating in terms of the people we trust with our financial statements for example, the people who we do business with, the people who we invite into our home to work on our house, people who babysit your kids, we exercise all sorts of discriminating faculties all the time as a part of the normal course of life.

Sean McDowell: Everybody does. It's impossible to avoid discrimination. I mean I can't get the-

Scott Rae: It's unwise to avoid that.

Sean McDowell: ... I can't get the senior citizen discount at McDonald's, now can you? I'm just kidding.

Scott Rae: No, don't go there.

Sean McDowell: You don't have to answer that. My son plays club basketball and there's another club that's just for Filipino kids, it doesn't bother me at all for the reasons that they do it. So everybody discriminates and the court is going to make a decision that discriminates against somebody.

Scott Rae: That's right.

Sean McDowell: Either the right of this gay couple to get a cake for their same-sex wedding at any bakery, or for Jack Phillips to be able and others to operate their businesses according to their convictions. They have to discriminate. The question is just which way are they going to go, and how are they going to find middle ground. One of my concerns going forward is clearly as Christians, Americans are human beings, we have a value for religious freedom. Religious freedom is at the heart of what it means to be human, to have beliefs about God, about the afterlife, the purpose of life, human nature, these are big questions, and this is a pre-political right that we have that the government doesn't create, the government recognizes.

Sean McDowell: That's a value that we hold dear. But I also look at this ruling, and I have many gay friends who just feel hurt by this, and I disagree with their world view, I disagree with their approach, but I also don't want people to be hurt in any fashion, and I don't want Christians or even non Christians who agree with this ruling to gloat over this, how do we strike that balance of just really defending religious freedom, but being loving, and gracious, and kind to our neighbors who we share a country, and business, and neighbors with?

Scott Rae: I think we do it largely in the way Jack Phillips did, because he offered them lots of different services. It's not like this gay couple walks in the door and wants something for a same-sex wedding, and he just slams the door and throws them out. Unlike other folks that that we're familiar with in other parts of the country, who have had Christians come into their store to buy coffee with gospel tracks and pamphlets they've been distributing out on the street, and the purveyor of the store just throws them out without a second thought.

Scott Rae: Phillips offered them a wide array of services, he offered them referrals to other places where they'd get what they wanted. It's not like that this was the only place and he was the only person that could provide for what they want. So I think he was very respectful in the way he carried out his desire and tried his best to accommodate what they actually wanted. It was just when it came to that specific artistic expression that violated his religious beliefs that he put up a boundary.

Sean McDowell: Barronelle Stutzman, the grandma who owns the florist in Washington had made flowers for gay people, she had gay people working for her. And in a video I saw her being interviewed she was asked, “What would you say to the couple, or the person that sued you if they were here?” And she just said, “I love you, I care about you. This wasn't about hurting and insulting you, I just have to live according to my convictions in seeing the world.” And that's not going to please everybody, but I thought what a tender genuine way to live out love and just leave the results in a sense to God. And I think we have to be motivated by that, not anger, not animist because if we're motivated by those things, we fulfill what the other side says about us.

Scott Rae: Yeah, I certainly don't want to be the kind of person that the Colorado Civil Rights Commission was saying that we all are.

Sean McDowell: Amen to that.

Scott Rae: And too often that's been the case. We will anticipate the next case that comes down the pike, maybe resolving this once and for all. And hopefully the cause of religious freedom will prevail. That's our hope that's our prayer. As Sean, you and I have talked about on this, we say this is guarded good news but still ways to go.

Sean McDowell: I think that's right.

Scott Rae: This has been an episode of the podcast, Think Biblically: Conversations on Faith and Culture. To learn more about us, and our podcast, to find more episodes go to Biola.edu/thinkbiblically. That's Biola.edu/thinkbiblically. If you've enjoyed today's conversation between Sean and me, give us a reading on your podcast app, share it with a friend. Thanks so much for listening and remember Think Biblically about everything.