Last week I said that a religious liberty that means religious neutrality is impossible. And this week the chair of Tennessee’s Democratic Party proved me right.
The proof came in the form of a letter from the party’s chair, Mary Mancini, to the chief executive officer of Cracker Barrel wanting to know her thoughts concerning a certain church in Knox County that was using one of Cracker Barrel’s local restaurants for an event of some kind that the church had entitled “Small Town Soul Winning.” Ms. Mancini made it clear a church was involved and that her concerns arose out of one of the sermons from that Knox County church that had contained statements “against the LGBTQ+ community.”
I have no objection to her posing the question or even being upset on behalf of many within her political constituency. I did not hear the pastor’s entire sermon, but such portions as I did hear and later read sure seemed to miss the Gospel mark both in content and tenor.
But theological dissection of what was said and how it was said is not my purpose today. Rather it is to further the point made last week that there is no such thing as religious neutrality.
I harp on this hoping that some folks—even on “my side” of the sexual ethic question—will think more deeply about the true scope of religious liberty in a pluralistic society vis-a-vis a religious liberty that is essentially pluralism (and polytheistic) in its worldview.
Cracker Barrel’s Response Invites a Civil Rights Complaint
Upon receipt of the letter, Cracker Barrel’s CEO said the business disagreed strongly with the pastor’s statements and the church would “not be permitted on site.” That is where the law of religious liberty parading as religious neutrality was broken.
If the pastor and church were so inclined, it would be legally appropriate for the church and pastor to file a claim against Cracker Barrel and hold it liable for its actions for the same reason claims were filed by citizens in other states against Christian baker Jack Phillips and floral designer Barronelle Stutzman because they refused to provide custom services. And, unlike these Christians, Cracker Barrel is probably not being asked to provide any unique custom services to the church, just its regular “beans and cornbread” type menu. Follow the logic.
Why Wedding Cakes and ‘Pinto Beans and Cornbread’ Are the Same Thing
Jack Phillips was civilly prosecuted for violating a state law making it “a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . creed, . . . sexual orientation, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
Mr. Phillips did not refuse to design a cake for the two men who wanted to purchase one “because of their sexual orientation,” but because of his religious beliefs about the nature of marriage. Those beliefs prevented him from creating something that celebrated as a marriage that which he could not, in good conscience, depict as marriage.
However, the argument against Phillips goes like this: The reason you won’t make the cake is “because of” your beliefs about “sexual orientation,” and therefore you would not have denied them wedding services “but for” your views regarding “sexual orientation.” I think that syllogism is flawed, but the courts have bought it.
Now consider the church. It is an organization with a “creed,” which, like Colorado’s law, is found among those things against which discrimination is prohibited under Tennessee’s civil rights law, Tenn. Code Ann. § 4-21-501. I know Cracker Barrel would say it didn’t “discriminate” because of the church and pastor’s creed, but because their speech was hateful. However, if the “but for” argument works against Mr. Phillips, it works for the church and pastor and has to be applied to Cracker Barrel.1
Has SCOTUS Weighed In Against Cracker Barrel?
Actually, that last thought reflects what the U.S. Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission said in dismissing the claim against Mr. Phillips: The government can’t apply one standard to one commercial vendor under its law and apply a different standard to a different commercial vendor. The U.S. Supreme Court said in Mr. Phillips’ case that “the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission” was in “indication of hostility” against religion in violation not just of a statute, but the First Amendment’s provisions regarding religion.
So, if a “but for” legal standard is to be applied to determine if there is discrimination based on sexual orientation, it also has to be applied to determine if there is discrimination on the basis of creed.
I think Cracker Barrel would have a hard time referring to a church and its pastor’s statements in a sermon and then arguing the church’s “creed” had nothing to do with denying it service.
I think it’s clear that the Tennessee Democratic Party and Cracker Barrel do not believe in religious neutrality and, I suspect, the party will put as much economic pressure on vendors like Cracker Barrel as they can in support of its constituents. The Cracker Barrels of the world do obeisance to their perceived monetary gods, because they can’t be neutral, either.
Religious Neutrality Is Not the Answer
Christians need to think a moment about what has happened: It was a sermon preached inside the four walls of a church that got this church excluded from receiving services from Cracker Barrel.
That Christians might disagree with the theology and tenor of the sermon preached is not the point. Rather, the point is that those Christians who want to retreat from the so-called “culture wars” and trust for their protection in a liberty law grounded in religious neutrality need to think again.
Christians of all people should know that trusting in the law to save them has never worked.2
1. No doubt, defenders of Cracker Barrel would say this was not just a meal but an “event” and the restaurant didn’t want to be associated with the event. But is not a wedding and reception an event? Of course.
2. The U.S. Supreme Court’s decision yesterday preventing the removal of the Peace Cross in a public space in Bladensburg, Md., does not change this point about religious liberty. That decision involved the Establishment Clause, which involves different constitutional issues.
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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