Some Christians are determined to wear “We don’t serve your kind here” on their sleeves with a list of those people that their loving god tells them to discriminate against. For the previous post on the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case, go here.
Let’s move on to a legal analysis. The Freedom from Religion Foundation submitted an amicus brief in support of the gay couple who were refused a wedding cake. Since the FFRF legal team can make much more sense of the legal case than I can, I’ll summarize their arguments.
1. Free exercise of religion, as guaranteed in the First Amendment, is not an unlimited right. “Free exercise rights end where the rights of other citizens begin—and always have.”
The First Amendment to the U.S. Constitution begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Note the two clauses, which are often examined separately: Congress (that is, government) can’t establish religion, but they also can’t prohibit the free exercise of religion.
While government can’t prohibit the free exercise of religion, it can regulate conduct, even if that conduct is religiously motivated. The FFRF brief states,
The freedom of thought and belief—freedom of conscience—is absolute. But the freedom to act on religious beliefs in every circumstance of one’s life is not absolute, and religious conduct can and must be burdened by civil laws, especially those that protect the rights of others.
Not only can religiously motivated action be burdened, it already has been. Point 2 below gives examples of legal precedents by SCOTUS (that is, the Supreme Court of the United States).
1a. The Burwell v. Hobby Lobby case (2014) does not aid the baker
The baker claims that both Hobby Lobby and Masterpiece Cakeshop are closely held family businesses, so the conclusion in the Hobby Lobby case—that this kind of business can itself hold a religious belief that would exempt it from regulations—applies to Masterpiece Cakeshop as well.
The FFRF brief rejects this claim. The Hobby Lobby case was interpreting the Religious Freedom Restoration Act (RFRA), a federal statute, and didn’t touch on First Amendment claims. Since the opposite is true in the Masterpiece Cakeshop case—it relies on a First Amendment claim and isn’t affected by RFRA—Hobby Lobby is no precedent.
2. Suppose the free exercise clause were interpreted as a right to discriminate
What’s the difference between racial discrimination based on religious beliefs and racial discrimination not based on religious beliefs? There’s no way to distinguish them. Said another way, imagine discrimination that is falsely claimed to be based on religious belief. How could anyone reliably detect the lie? A decision in the baker’s favor would open the door to discrimination, racial and otherwise.
SCOTUS precedents make clear that the free exercise clause has limits.
While drawing the line can be difficult, the Court has been consistent in allowing religiously-motivated action to be halted when “the conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.” (quoting from Sherbert v. Verner, 1963)
Here are several Supreme Court precedents:
- The owner of a restaurant chain claimed that the Civil Rights Act of 1964 imposed on his religious beliefs against racial integration (Newman v. Piggie Park, 1968).
- Bob Jones University claimed a religious right to refuse to admit as students not only interracial couples but students who supported interracial marriage (Bob Jones University v. United States, 1983).
- A Mormon man claimed a religious obligation to polygamy (Reynolds v. United States, 1878).
The religious claim in each case was made subservient to the law.
3. The baker argues that he wasn’t discriminating against people but against an event
Nope. You can’t discriminate against a same-sex marriage and not impact the couple. There wouldn’t be a same-sex marriage to discriminate against unless the couple were gay.
The baker attempts to make a distinction between refusing to sell a wedding cake that celebrates a gay wedding and refusing to sell a wedding cake to gay people. The only people having gay weddings are gay people, and you can’t discriminate against the wedding without discriminating against the people.
4. What limits would there be to a religious right to harm others?
We have only to look at the cases where SCOTUS has already rebuffed religious excesses to see that this is a valid concern.
Bob Jones Sr., televangelist and founder of his self-named university, infamously preached in his 1960 Easter sermon, “If you are against segregation and against racial separation, then you are against God.”
The university forbade mixed-race marriages, flouting a 1970 IRS (Internal Revenue Service) regulation that prohibited tax-exempt status for private schools with racially discriminatory policies, and the IRS revoked their tax-exempt status (ah, for the good old days!). The 1983 SCOTUS decision supported the IRS and concluded, “Governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”
Another example is a chain of health clubs owned by evangelical Christians who imposed their morality on employees. They refused to hire homosexuals, non-Christians, unmarried people living together, unmarried women working without their fathers’ consent or married women working without their husbands’ consent, and so on. Their beliefs weren’t the problem, but their actions were, and they lost in the Minnesota Supreme Court in 1985.
The lessons are that (1) actions can be regulated even if they originated in a sincere religious belief and (2) there is no religious right to infringe on other citizens’ civil rights.
5. How do we balance the establishment vs. free exercise clauses of the First Amendment?
We have a conflict between the establishment clause (government can’t promote religion) and the free exercise clause (government must leave religion alone). Should the baker yield to the customers and treat all equally (a win for the establishment clause) or should gay customers yield to the baker by finding a nondiscriminatory bakery (a win for religious sentiment)?
The FFRF brief concludes that the options aren’t equally balanced:
A ruling in the bakery’s favor would create an interpretation of the Free Exercise Clause that prefers, favors, [and] promotes religion over nonreligion. Whatever keyword one chooses, such a decision would undermine long-settled and critically important principles under the First Amendment’s Establishment Clause.
This summary of the FFRF brief was my attempt at distilling it down to make it shorter and more approachable, so any errors are mine.
There’s an implied asymmetry in the baker’s favor. Religious views are considered fundamental, an important part of someone’s makeup. Those views are fixed, and it’d be much easier for the customer to take his request down the street to another baker than insist that the baker compromise his religious views.
But let’s question that. Instead of the customer going down the street to another baker, why can’t the baker go down the street to another church? Christians change congregations by the thousands every day. There’s nothing inherently wrong about same-sex weddings within Christianity. The baker can drop his bias and still be a Christian.
Of course, that’s unlikely to happen. While it’s easy to justify progressive views within Christianity, people rarely adapt their views to what Jesus says. Instead, they remake Jesus to fit their views. There’s little objective evidence with which to evaluate someone’s Christianity.
But then what happened to the foundational, immutable Christianity that we’re not allowed to impose upon? When a Christian’s views are nothing more than what he says they are, with no means for us to evaluate their logic, society shouldn’t bend over backwards to accommodate them. Believe what you want, but don’t think that society will put up with your actions if they hurt others.
To permit [violating laws for religious reasons]
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.
— Justice Antonin Scalia, in 1990,
quoting the SCOTUS decision
in Reynolds v. United States (1879)
Image credit: Open to All