By Dr. David W. Opderbeck
Seton Hall University School of Law
Professor of Law
Director, Gibbons Institute of Law, Science & Technology
Livingston Baker Research Fellow
The Supreme Court’s Masterpiece Cakeshop v. Colorado Civil Rights Commission opinion was released recently. It landed with more of a drip than a splash. Justice Kennedy’s majority opinion held that the Colorado Civil Rights Commission had shown specific animus towards the Christian baker, Jack Phillips. However, the majority opinion did not decide the more difficult question whether commercial activities can include elements of protected expression that might allow establishments owned by religious proprietors to be exempted from some civil rights laws. The big issue of whether a baker or florist must sell products for gay weddings when a civil rights statute requires non-discrimination against LGBT people in places of public accommodation remains undecided.
In a Christianity Today article about the case, Ed Stetzer wonders “Why was it so hard for Jack Phillip’s brothers and sisters in Christ to stand up for his religious liberty?” As a law professor and theologian who thinks cases like Masterpiece Cakeshop are more symptomatic of problems in the church than in the broader culture, let me try to respond to this question.
First, the question is oddly framed. What would it mean to “stand up” for Jack Phillips’ religious liberty? I don’t think Jack Phillips or other Christians with traditional views about marriage are bigots. But does this mean I need to agree that Phillips and his lawyers pursued the right course of action, that it was missionally sound, genuinely loving, and spiritually wise, in addition to having legal merit? In my opinion, the failure to consider these factors is one of the reasons the culture wars, including the culture wars over religious liberty, have been such a disaster. Maybe Phillips was on the right side of the law, but the process of this litigation has further convinced the world that all Christians hate LGBT people. Whether that conclusion is fair or not, it is how a battle to the Supreme Court looks to the world. I cannot “stand up” for the instinct that litigation of cases like this in our cultural context should be anything other than a desperate last resort. In our missional moment in America, demands by Christians to exempt their for-profit businesses from civil rights laws deserve a jaundiced glance, not hearty support, regardless of their legal merit.
Second, Stetzer’s question assumes that Phillips’ “religious liberty” really was fundamentally, unequivocally at stake. I’m not convinced it was. Neither were most of the Supreme Court Justices, aside from the much narrower question whether some of the Colorado Civil Rights Commissioners had demonstrated some specific bias on the record.
I do think religious freedom is vitally important. Where there are real threats to the integrity of religious institutions, or to the lives of Christian or other religious people, litigation might be necessary and missionally helpful. Early Christian thinkers such as Origen, Tertullian, and Lactantius argued for the religious freedom of Christians in the face of imprisonment, torture, and martyrdom. They were right to do so in their missional moment, and we should do so too on behalf of Christians and other religious people subject to these same threats today around the world. But nothing of this magnitude was at stake in Phillips’ case.
Phillips argued that his business is unique because his wedding cakes are artistic creations. Other wedding service businesses, such as florists, have made similar arguments in other cases. This raises fascinating questions under the free speech clause of the First Amendment that are related to the free exercise issues. As a law professor, I love wrestling with this kind of problem. I can easily fill an entire Constitutional Law class with discussion about this sort of thing. It’s a real issue, but it’s not by any means a clear issue under our Constitutional doctrine. It’s something I’d like to discuss, and debate, and ponder – but not something I feel compelled to “stand up” about.
Consider just this one hypothetical variation: what if a chef-owner of a restaurant refuses to seat gay couples for dinner because he believes homosexuality is a sin and he views his food creations as his art? Does it matter if the restaurant is a four-star gourmet establishment, or a middle-range steak house, or a burger joint? It’s easy to see how the “artistic speech” claim could swallow any obligation by a place of public accommodation to comply with generally applicable civil rights laws.
Jack Phillips is not a preacher, he is a businessman. His business is subject to the same regulations as any other business, including civil rights regulations. In my view, if he feels he can’t comply with those regulations by supplying wedding cakes to LGBT couples, then he may need to exit that business. He can exit that business and still practice his religion. Indeed, he can exit that segment of the business and still work as a baker. He would not be the first, nor the last, Christian to change a job or business or lose some income because of some issue of conscience. We could even say that regularly examining our work and making changes to it, or saying “no” to some source of income based on what we think God requires of us in a fallen word, is a quintessentially Christian practice.
Third, the call to “stand up” for Jack Phillips’ religious liberty in this case is tone deaf to the history of American Christianity in relation to civil rights. At every turn – from slavery, to the black codes of the Reconstruction era, to desegregation and the modern civil rights movement – conservative Christians argued that their religious views about the proper place of black people should be preserved against the encroachment of laws designed to promote racial equality. They even argued their views to the Supreme Court (see, for example, Bob Jones University v. United States). Who wants to be part of a generation that repeats those mistakes?
Conservative Christians today respond that sexual orientation different than race. Maybe, but given this history, I think it doesn’t matter. This history should sorely chasten us. Even those who think sexual orientation is significantly different than race, perhaps, should sit down and listen for a while, instead of “standing up” at every opportunity to argue for their rights in the public square. That, at least, is how I view my calling concerning LGBT issues for now.
Finally, I cannot “stand up” for Jack Phillips because the case is about something so central to the Gospel narratives: eating with “sinners.” Jesus had a “right” to avoid contact with the sinners and outcasts of his culture. By exercising this right, he could have won the approval of the religious establishment. He did precisely the opposite. Maybe Jack Phillips and other bakers, florists and service providers really do have a Constitutional right to refuse any hint of association or endorsement with the LGBT people they perceive as outcast sinners. But I’ll stand up with people who are criticized by religious pundits for eating with those sinners before I’ll stand up with people who assert their legal rights to keep a pure distance from the mess of the common culture — because that’s what I think Jesus’ example demands.