Written by Don Byrd
In a new column, the Baptist Joint Committee’s Holly Hollman dives into Masterpiece Cakeshop v. Colorado Civil Rights Commission, a highly charged case the U.S. Supreme Court will hear in December. As she notes, the Court will decide “whether a Colorado baker has a constitutional right to refuse to make a cake for the wedding reception of a same-sex couple, despite state law requiring nondiscrimination in places of public accommodation (businesses open to the public).”
Hollman goes on to explain, after analyzing the case and the legal arguments on both sides, why the BJC cannot support the baker’s Free Exercise claim for what would essentially be a “limitless” right to be “exempt from nondiscrimination law.” As always, she lays out extremely helpful background and context in understanding the issues from a focused religious liberty perspective. Read the whole thing.
I was especially grateful for one sentiment that appears near the end of her column, expressing succinctly some of the thoughts and concerns I have had about this case, and maybe you have, too, if you have followed the news of this dispute. “Religious and political disputes about LGBT nondiscrimination and religious objections,” she acknowledges, “can be painful.” (my emphasis). Isn’t that the truth? And for many reasons for those on both sides of the debates.
For one, the debates are not fairly characterized as religious folks on one side and the LGBT community on the other. The religious landscape is much more rich and diverse than that. I am reminded of a fantastic 2015 column from the Baptist Standard‘s Marv Knox during the height of the dispute over the legality of state bans on same-sex marriage. Knox wrote:
[P]eople who presume only one ‘Christian’ answer to the same-sex marriage/religious liberty debate do not appreciate its complexity. Faithful Christians live in both camps, precisely because of their faith. Most cannot understand why the other side believes as it does.
This “religious liberty vs. nondiscrimination frame” is also painful because it so lacks nuance and attention to details about the particular dispute at issue. The Masterpiece Cakeshop case, for example, may well be decided on issues having little to do with religious liberty or the Colorado baker’s claim that his Free Exercise rights have been violated. One of his central claims is that enforcement of nondiscrimination law against him for refusing to make a wedding cake violates his Free Speech rights. Of course, religious liberty can be protected by Free Speech principles, too. But here, the question he presents is really about whether a cake (or any other customized product sold in a store) inherently communicates a message.
If the Court decides this as a Free Speech case, it may not address the Religion Clauses.
Some much-needed attention to factual nuance and detail might also help soften the initial reaction many understandably have when it comes to defending a religious claim against a perceived requirement to participate in an objectionable religious ceremony. As Hollman’s column reiterates, “The separation of church and state continues to ensure that churches and ministers make their own decisions about the marriage ceremonies they conduct.” Here, the baker argues that he is being forced to participate in a wedding ceremony, but the same-sex couple he refused were not asking for a cake to be part of their wedding ceremony. Their cake was for a wedding reception that was to take place on a different day and in a completely different state, across the country, from their wedding.
Details like that aren’t nitpicking. They go to the heart of a store owner’s religious objection centering on the solemnity, sanctity, and religiosity of a marriage ceremony. The further removed the objection is from participation in a religious ceremony, the tougher it is to justify.
And, as Hollman notes, “Religious beliefs about marriage and sexuality, expressed in many ways, are constitutionally protected and should be. Likewise, no one can or should be forced to participate in a religious ceremony, and Colorado law makes clear that the requirement of nondiscrimination for businesses open to the public does not apply to houses of worship. Free exercise law provides many protections for individuals and institutions that oppose same-sex marriage for religious reasons, but it does not provide a right for commercial vendors to refuse to sell goods and services to certain people in violation of a law by simply asserting a faith-based reason.”
Emphasizing details and context may help to provide some understanding to a controversy that could seriously use more dialogue and empathy, and less rhetorical posturing. Good faith conversation, however, is noticeably rare. Our politicized climate prefers to characterize this dispute as “Religious Freedom vs. Same-sex Marriage,” a heading that manages to insult religious communities and LGBT communities, while misunderstanding the law, all at once.
Discussions about this issue, Hollman urges, “are more fruitful when they begin by acknowledging the legitimate interests on both sides of the dispute… .”
Sounds like a good place to start.
The U.S. Supreme Court will hear oral arguments in this case on December 5.