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March 8, 2018

Religious Liberty, Tolerance and the Future of Freedom

We must make laws that protect equal treatment of all people, not laws that grant rights to some to the exclusion of others.

Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case currently pending at the Supreme Court, involves Jack Phillips, a pastry chef who declined to make a wedding cake for a same-sex couple on the grounds of religious conscience. Phillips, a Christian, felt that it would be against his faith to endorse the wedding by providing his art for it, but offered to sell the couple other pastries in the store or to bake another cake for a different occasion.

While the couple ultimately found another bakery to meet their needs, they filed a complaint with the Colorado Civil Rights commission. This complicated case now awaits a decision at the Supreme Court and involves a variety of issues including public accommodation laws, artistic expression, religious rights, business rights, government coercion, and fair and equal treatment before the law.

First, public accommodation laws came from English common law, which defined certain industries as public so that no one could be excluded. This was particularly useful for travelers who needed a place to stay, a place to eat, or a ferry to ride.

In the 1960s blacks in this country still lived within racial stratification. This included exclusion from lodging, transportation, restaurants, bathrooms and water fountains. The public accommodation law, known as the 1964 Civil Rights Act, gave them fair and equal access to these services. This law addressed a systemic problem of racism within the United States and gave equal access to a group previously excluded.

Those prosecuting Jack Phillips claim that his refusing to bake a cake for a same-sex wedding is the same as denying service based on a person’s race. In other words, in terms of public accommodation law, a person’s sexual orientation is equivalent to race.

But is it?

First, Phillips did not refuse to serve the same-sex couple. He offered them other items in the store and offered to bake them a cake for another occasion. He declined a specific event. He didn’t decline to serve the people.

Second, comparing the current treatment of same-sex couples to that of pre-Civil Rights blacks is not a fair comparison. Same-sex couples can buy a train, plane or bus ticket. They can buy a house, stay at a hotel, use public restrooms and drink from public water fountains. They simply cannot buy all wedding services from all wedding service providers, if those providers have deeply held religious beliefs about marriage. Even this problem is quickly solved when this couple and others find another bakery to suit their needs. This is not a systemic barring from society that necessitates the application of the public accommodation law.

This case attempts to misapply public accommodation laws to grant government recognition of a specialized interest group. It must be remembered that the original intent of public accommodation laws was on the basis of race — an immutable characteristic. If we expand public accommodation laws to accommodate every grievance group, when does it stop? Do people with bad credit have a “right” to a home loan because to do otherwise discriminates against them? Democrats in the 1990s thought so, and thus seeded the 2008 financial crisis.

Interestingly, the arguments of the case center on the discrimination against the same-sex couple, but fail to recognize the discrimination against Christians, Christian beliefs and conscience rights. Phillips had a religious objection to baking a wedding cake for the same-sex couple. Yet those prosecuting him argue that when a person enters public sales, they lose their right to conscience. This argument states that there are “limits” to conscience, which is a fancy way of saying that there are limits to religious freedom in the public square. Yet when the government “limits” conscience, it essentially controls it, which stands as the very opposite of religious freedom.

To provide an analogy, what if a neo-Nazi requested a swastika cake from a Kosher bakery. Would the Jewish baker have the right to say, “no?” Or does the neo-Nazi have a “right” to demand a service from service provider who philosophically and religiously objects to a request?

Such arguments compromise artistic freedom as well as religious freedom by compelling artists, singers, florists, videographers and others to compromise their deeply held religious beliefs. As Kristen Waggoner, senior counsel at Alliance Defending Freedom, who represents Jack Phillips, stated, “This [Supreme] Court has never, never compelled artistic expression or ideological speech and if it does so now, it will lead to a less pluralistic, less diverse, and less tolerant society.”

In any other business, the owner has the right to say no. “No, I can’t take on that project because my mother is dying and I’m her primary caretaker.” “No, I can’t paint that painting because I’m pregnant and the fumes would harm the baby.” “No, I’m retired, and I don’t offer that service anymore.” But when it is “No, I religiously or philosophically disagree,” why does that change the rights of the business owner to decline?

When the government forces business owners to perform a certain function, we must also ask ourselves, “Who really owns the business?” Do businesses have a right to make their own decisions, or they merely private-sector arms of the government?

Ultimately, we must make laws that protect fair and equal treatment of all people, not laws that grant rights to some groups to the exclusion of others. Laws that coerce people to act against their religious conscience, that limit artistic expression and strip the business owner of his or her ability to decline, limit Liberty rather than protect it.

Such laws grant “rights” to those who demand a service while simultaneously stripping the rights of those who have a religious objection to those demands. Such exclusionary policy stands as a loss for everyone’s freedom. It transforms people of conscience into an excluded minority whose appeal to First Amendment religious rights will be systematically ignored.

Rights and tolerance must be a balance. While we treat lifestyle choices with tolerance and sensitivity, we must also treat a person’s religious beliefs with that same tolerance and sensitivity. As Justice Anthony Kennedy stated in regard to the case, “Tolerance is essential in a free society. And tolerance is most meaningful when it is mutual.”

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