Can State Force Painter to Promote Satan?
When you drove down California Street through San Francisco’s Richmond District in the 1970s, one house made a stronger impression than most others.
This was not because the house was an architectural marvel. It was a small, cookie-cutter Victorian.
No, it stood out because it was painted black. From sidewalk to rooftop, every inch was coated in a uniform darkness.
Its owner in those days was Anton LeVey, author of The Satanic Bible; and, years later, when it was about to be torn down, the San Francisco Chronicle would refer to it as “the building that once housed San Francisco’s sordid Church of Satan.”
“The Black Pope, as [LeVey] liked to be called, was a self-proclaimed sorcerer with a devilish penchant for marketing,” the Chronicle reported in a story published on March 22, 2001.
“While the nation’s media, led by the San Francisco papers, regularly descended upon the 1905 Victorian to pen the latest weird act to emanate from [LeVey’s] bizarre chambers,” the Chronicle said, “his great contribution — if that’s the correct term — to counterculture was a 1969 manifesto called the ‘Satanic Bible,’ which his followers and publicists claimed sold more than 1 million copies.”
Anton LeVey died in 1997 and the black house was torn down in 2001.
But looking back there can be no doubt the house — and its black paint — were evidence of what the Chronicle called LeVey’s “devilish penchant for marketing.”
Now, suppose a new denomination, also presenting itself as Satanic, were to rise up today in Colorado. The leader of this hypothetical church buys a house in a prominent place — with plans to paint it black in the hope of “marketing” his faith.
Could the state of Colorado force a Christian painter to do the job?
Following the reasoning presented in Justice Anthony Kennedy’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the answer would be yes — so long as the Colorado state officials forcing the Christian to paint the Satanic church black were enforcing a “generally applicable law” and took a “neutral” approach to the painter’s religion.
In Masterpiece, the question was whether Colorado could force a Christian baker to make a customized wedding cake for a same-sex wedding. The baker said this violated both his First Amendment rights to the free exercise of religion and freedom of speech.
Kennedy’s majority opinion did not offer a conclusion on the baker’s free speech claim.
But it did make clear that the Court believes a state can force a Christian to act against his faith.
“The reason and the motive for the baker’s refusal were based on his sincere religious beliefs and convictions,” Kennedy concedes.
But then Kennedy says, “The court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.”
The reason the Court reversed Colorado’s action in this specific case was because the Colorado Civil Rights Commission had not been neutral in its treatment of religions and had showed “hostility” toward the baker’s Christian faith.
Specifically, the commission had allowed three other bakers to refuse to make cakes that would have featured religious arguments against same-sex marriage, and some of the commissioners had publicly made disparaging remarks about the Christian baker’s religious convictions when they held hearings on his refusal to make a cake for a same-sex wedding.
Rather than enforcing the law in a neutral way, they had demonstrated bias against a particular religious view.
“Still, the delicate question of when the free exercise of [the baker’s] religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the state itself would not be a factor in the balance the state sought to reach,” wrote Kennedy. “When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”
The Court let stand the Colorado law that makes it unlawful to deny someone “services” not only because of their “sexual orientation” but also because of their “creed” — and the possibility this law can be enforced in a way that compels someone to act against their faith.
So, the founder of a self-styled Satanic church approaches a devoutly Christian painter and asks him to paint the house he uses as his church black.
The painter believes everything he does in life — including his work — must show reverence for Christ. He, thus, declines.
Could Colorado still force him to act against his faith? Under the standing Supreme Court precedent, it could so long as the law was applied to everyone with what Kennedy calls “the neutrality that the Free Exercise Clause requires.”
We still have a Court that believes that under the right circumstances, when done in the correct manner, the government can require Christians to act against their faith.
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