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.

See also: The Kim Davis Discussion Must Include JFK

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.

Concluding thoughts

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

Oh, dear—the sky is falling. Christian fundamentalists are painting the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, for which oral arguments are being heard today, as a threat to their religious freedom.

Summary of the case

In 2012, two men went to Masterpiece Cakeshop in Denver. Same-sex marriage wasn’t legal in Colorado at that time (they were getting married in Massachusetts), but they wanted a cake for their wedding reception. The baker refused. He said that it wasn’t that they were gay—he would have sold them other products—but a wedding cake required his artistic input, and he couldn’t do that because of his Christian beliefs against same-sex marriage.

The Christian side of the case

The Alliance Defending Freedom (ADF) is the attorney for the baker, and it characterizes the case this way:

When a cake artist declines to design a cake for a Halloween party, the world goes about its business. But if that same cake artist declines a request for a custom cake for a same-sex wedding, he is forced to defend his decision all the way to the United States Supreme Court.

You act like this is surprising. The baker breaks no law (by refusing to serve no protected class of people) when he declines to bake a Halloween cake, but he refuses to serve homosexuals, who are protected by Colorado law, when he declines their wedding cake. When he has a place of public accommodation (like a storefront) in Colorado and refuses to serve someone in a protected class, he breaks the Colorado Anti-Discrimination Act.

The ADF says, “The government does not have the power to force creative professionals like Jack—or anyone for that matter—to celebrate events that violate their faith.”

You don’t want to bake a cake for a same-sex wedding? Then don’t bake wedding cakes. Problem solved—now your faith is no longer violated. But if you provide public accommodation, which in this case means declaring to the public that you will sell custom wedding cakes, you can’t discriminate against protected classes.

The ADF concludes, “[Baker Jack Phillips] has taken a bold stand for his faith—and for religious freedom for all of us.”

Religious freedom for all of us? We all want to be able to discriminate based on our personal religious beliefs? Sorry, laws trump your religious preferences when they conflict.

But the baker doesn’t just refuse the gays

In its brief to the Supreme Court, the ADF notes that the baker doesn’t just have it in for the gays.

Phillips will not design cakes that celebrate Halloween; express anti-family themes (such as a cake glorifying divorce); contain hateful, vulgar, or profane messages (such as a cake disparaging gays and lesbians); or promote atheism, racism, or indecency.

Ah, it’s nice to see that he didn’t forget the atheists.

But let’s go back to the original Colorado law that was broken. It prohibits denying “the full and equal enjoyment of the goods . . . of a place of public accommodation . . . because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” And it sounds like Baker Jack might be okay with most of that. He says he would refuse to create a cake with a hateful message or one that promoted racism, but the excuse that he wants for himself would allow a lot of collateral damage. If Jack can say that his religious beliefs forbid him from making a wedding cake that supports a same-sex wedding, another Christian baker can use the same logic to refuse a cake that supports a mixed-race wedding. In fact, if you think the multi-purpose Bible can’t be used to support a case against any of the protected classes listed in that law, including Jews, Muslims, and African-Americans, you haven’t read enough of the Bible. Worse, there’s no need to invent contrary biblical arguments because the logic behind the argument is irrelevant when religious beliefs are simply whatever someone says they are.

That needs repeating: the argument for discrimination doesn’t have to make sense to you or to anyone. There is no external, objective logic necessary to ground these demands to discriminate when the justification comes from inside people’s heads.

Artistic expression

Note the novel part of this case. The exemption for discrimination isn’t being asked for all businesses, just those that involve “artistic expression.” Artistic expression is speech, and the first amendment protects that as well as religion.

Making a cake is artistic expression, but this claim can apply (potentially) to lots of businesses: florists, nail salons, barbers, tailors, carpenters, plumbers, or destinations for kids’ birthday parties. Maybe even guidance counselors, funeral homes, therapists, or doctors. And once the door is open a bit, other businesses that can’t claim an artistic expression exemption might push for a piece of that sweet, sweet discrimination action.

One response is to say that a business would be fiscally foolish to refuse to serve a class of people, but that’s a weak argument when Masterpiece Cakeshop is already a counterexample. Putting a “We don’t serve your kind here” sign in a window might actually be a plus in some parts of the country. Chick-fil-A, a fast-food restaurant chain, got lots of pushback from its public opposition to same-sex marriage, but it has also gotten support from customers who applauded that action.

Businesses can decide what to sell (so, no, Jewish bakers wouldn’t be forced to sell swastika cakes, Muslim delis wouldn’t be forced to sell alcohol, and newsstands wouldn’t be forced to sell porn), but they can’t decide who to sell it to (with “no shirt, no shoes, no service” kinds of exemptions).

First Amendment rights are important. When the Christian doesn’t have the right to speak freely on religion, I probably don’t, either. But religious freedom doesn’t give you the right to impose your beliefs on others.

For a brief overview, see “Understanding Masterpiece Cakeshop vs. Colorado Civil Rights Commission” by Movement Advancement Project.

For a legal analysis of the case, continue to part 2.

Religion is about having faith beyond what you can know or see,
and yet so many use religion to hate and discriminate
those they don’t know or see.
— Sarah Silverman

Image credit: Open to All