Religious conservatives had to have felt like they’d been left at the altar, so to speak, on Monday by the U.S. Supreme Court’s decision involving the refusal of Masterpiece Cakeshop’s owner, Jack Phillips, to make a custom wedding cake for a government-licensed marriage involving two men. But Justice Gorsuch’s concurring opinion served up something for us to chew on.
Highest Court Sidesteps Main Issues
Throughout the various legal proceedings, Phillips’ primary complaint was that forcing him to make a custom cake for a government-licensed same-sex marriage violated his First Amendment free speech rights, because designing a cake is expressive conduct not unlike the expressive conduct associated with burning the flag. His secondary argument was grounded in the free exercise of religion. He argued that being forced by the state to make a wedding cake for a government-licensed same-sex marriage violated the free exercise of his religious beliefs.
The Court sidestepped both of these issues. Phillips “won” because the Court said the Colorado legal proceedings evidenced overt hostility toward his religious beliefs. Moreover, the Court said some of the considerations taken into account in evaluating Phillips’ claims seemed to be different from those applied to three bakers who were accused by a Christian man of discriminating against him because they refused to design cakes expressing disapproval of government-licensed same-sex marriages.
An Appearance of Religious Neutrality
As I read the opinion, all the U.S. Supreme Court really decided was that Civil Rights Commissions and the courts that review their decisions must treat religious defenses to claims of discrimination in the same manner and by the same standards of review as non-religious defenses. In other words, the record of the proceedings must show “neutrality” in the evaluation of different defenses given for non-compliance with a non-discrimination law.
But here is where Justice Gorsuch nails the majority. He notes that the majority’s standard doesn’t really ensure equal administration of the law; it just “invite[s] civil authorities to gerrymander their inquiries based on the parties they prefer.” In plain English, couch your questions and concerns in secular overtones so as to create the appearance of religious neutrality.
Justice Gorsuch realizes that all the majority really said was this: If you want to put the screws to bakers who object to providing services based on what their faith in God tells them about marriage while protecting secular humanist bakers who object to providing services based on what their faith in man and the non-existence of God tells them about marriage, then just be careful what you say. But Gorsuch seems to understand why that approach should not be allowed to work.
Without really saying why, it is because he equates the “secular commitment” of the bakers who refused to bake cakes expressing disapproval of government-licensed same-sex marriages with Phillips’ religious commitments:
[T]he Commission allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs. (emphasis added)
Why Gorsuch’s Connection Was Correct
What I believe Justice Gorsuch was saying, without doing so explicitly, is this: All our actions are based on some value system that is grounded in an ultimate belief that we have to hold in faith.
Many today want us to think that we should hold beliefs based strictly on science and reason, that this is “neutral,” but those things are no help when it comes to the beliefs that undergird our value systems.
Science can tell us how something works and, in some cases, why it may exist, but it can’t provide a foundation for values.
Reason argues from premises that reason can’t prove, at least not without resorting to some other belief that reason then can’t prove. Using reason to prove reason is what we call circular reasoning.
So, one thing I think the religiously-minded can take from Phillips’ case is this: When your values are under attack because they are informed by your religious faith, then help the other person understand that their values are informed by their faith, too—their faith in themselves (because science and reason can’t help them) and in the irrelevance of God to their value systems.
To hold that faith commitments based on God are not acceptable and faith commitments based on the denial of God are acceptable is the essence of discrimination against religion. Maybe someday the majority of the U.S. Supreme Court will understand that.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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