In 2012, engaged couple David Mullins and Charlie Craig needed a cake.
The Colorado pair went to Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, to commission a custom wedding cake. Phillips, however, refused, citing his Christian faith, which he said prevented him from what he considered to be endorsing a same-sex wedding. Mullins and Craig filed a complaint to the Colorado Civil Rights Commission, since anti-LGBTQ discrimination is considered a violation of the state’s civil rights law. The Colorado Civil Rights Commission sided with the couple and ordered Phillips to sell cakes to all couples, regardless of sex, and to provide training to all staff to ensure compliance.
But Phillips has taken his complaint all the way to the Supreme Court, which will hear the case on Wednesday. He will argue that he should have the right to discriminate in accordance with his religious faith.
It’s tempting to view the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, as a clear-cut issue of LGBTQ rights versus simple bigotry. But as religious (and secular) organizations present amicus briefs for the Supreme Court to consider, their arguments both for and against the legality of Phillips’s actions show the complexities involved in the case.
Ultimately, the briefs argue, this isn’t solely a case about LGBTQ rights, or “religious liberty” as a license to discriminate. It is also a case about the limits of free conscience, about artistic expression, and about when — or whether — religious beliefs should be confined to the pews (or synagogue, or mosque), or whether they must by definition find expression in the public sphere. Regardless of your opinion about Masterpiece Cakeshop, or Jack Phillips, the case has the potential to determine how we legally construe the nature of religion.
I read dozens of amicus briefs submitted to the court by a number of religious groups, including the Southern Baptist Convention’s Ethics and Religious Liberty Commission (ERLC) and the United States Conferences of Catholic Bishops, to better understand religious arguments for and against Phillips.
It’s true that some of the arguments made by these groups focus on the right to discriminate against LGBTQ individuals specifically. The National Black Religious Broadcasters’ brief, for example, argued that objections to same-sex marriage were valid because those unions countered what was considered traditional marriage, considered only for opposite sex couples. Meanwhile, historic objections to mixed-race marriages were invalid and based on prejudice alone, because of marriage’s historical procreative function.
But other arguments made by the various religious groups who put forth briefs are more complex. They’re not just about LGBTQ issues or discrimination, but rather about the extent to which free practice of religion includes, by necessity, practice of that religion in the public sphere.
Vox’s German Lopez has written extensively on how LGBTQ advocacy groups and other anti-discrimination groups have responded to the case. They have overwhelmingly been in support of the Colorado Civil Rights Commission’s arguments. But it’s worth understanding some of the arguments brought forth by religious groups to understand the complexity of the case, especially given the potential impact of a ruling in Masterpiece Cakeshop’s favor.
Some religious organizations argue that religious observance isn’t limited to places of worship
One recurring theme among the briefs is the idea that religion can’t be left in a purely private sphere. By definition, religious beliefs inform how a person lives his or her life, and a person must be allowed to live in accordance with his or her religious values. One brief, brought by the US Conference of Catholic Bishops along with other Catholic groups, makes this explicit:
American citizens should never be forced to choose between their religious faith and their right to participate in the public square. This fundamental vision of our constitutional government is embodied in the First Amendment, which guarantees that all citizens, whether of a particular religious faith or no faith at all, are free both to speak and to act in accord with their conscience … It is about the freedom to live according to one’s religious beliefs in daily life and, in so doing, advance the common good.
This argument recurs in the brief by the ERLC and other related groups, including Jewish and Muslim organizations:
Religious liberty does not belong only to the church, mosque or synagogue. Free exercise of religion extends to individuals and businesses in the marketplace as well. … Christian, Jewish, and Muslim teachers have all emphasized that one’s faith should be fully integrated in every aspect of one’s life. A true believer is called to live out his faith — including fundamental beliefs about sex, marriage, and the family — at all times and places, including his workplace. To do otherwise is sinful and incurs divine disapproval
In other words, religious supporters of Phillips are arguing that “religious liberty” must extend to the commercial sphere (i.e., baking a commissioned cake) because religion itself is about more than just private beliefs. Living out the demands of one’s religion is part of what it means to be religious. The divide between public and private faith, they argue, is arbitrary: the result of a wider cultural tension over what religion should be.
Another brief, from the religious and conservative nonprofit religious liberty organization Freedom X and Rabbi Dovid Bressman, provides a non-Christian example of this:
Many scribes follow the Jewish law barring the sale of a Torah scroll to those who do not practice the Jewish religion. Religious instruments like … Torah scrolls are not goods or services like lodging or transportation necessary for full participation in public life
So too, the argument goes, with wedding cakes. In each case, a purveyor of a particular faith feels he or she cannot sell or create an object with symbolic significance to someone who will not use it in the manner he or she thinks is religiously correct. If the right to participate fully in public life is at the heart of this case, then this example challenges us to ask whose rights are being infringed upon. Is the seller who is forced to sell in contradiction of his faith tenets unable to participate fully in public life? Or is the buyer unable to buy an item of deep symbolic significance (which are generally available to people of a different religion or sexual orientation) the one who is able to participate less fully in “public life?” For Freedom X and Rabbi Bressman, the answer is the former.
Some of the religious arguments in support of the plaintiff center on the idea that Americans, theistic or not, do have the constitutional right to live out their values, whatever they may be, in the public sphere. While in this case specifically, these rights potentially conflict with anti-discrimination statutes (LGBTQ people are a protected class in Colorado), many of Cakeshop’s religious supporters see the case as potentially setting a dangerous precedent: demanding that people more generally divorce their closely held beliefs about the world and what it means to live an ethical life from their actions.
What’s interesting about this is that Rabbi Bressman and the ERLC alike have to argue this at all. Until fairly recently, for most of Western European and, to a lesser extent, American history, the idea that religion is of course public (and political) has been taken for granted.
Only in the late 19th and early 20th centuries did the idea of religion as a private matter really become widespread. In the past century across many modern societies, “religion has tended to be restricted to the private sphere,” meaning public displays of religiosity have been frowned upon and strictly limited, writes sociologist John Brewer.
At the same time, the evangelical Christian right more generally has, for the past few decades, sought to counter this. Beginning especially with Jerry Falwell’s 1979 “Moral Majority,” which sought to bring evangelical ideals into politics, some evangelical Christians have worked not just to turn specific religious principles into law but also to return to a cultural worldview in which religion was public, period.
Some organizations argue that anti-LGBTQ beliefs are part of Christian doctrine
However, many religious organizations aren’t resting on the argument above. They’re also making the case that anti-LGBTQ beliefs are an integral part of Christian doctrine. In so doing, they’re being somewhat simplistic.
For example, the ERLC cites this summer’s Nashville statement, a document signed by many evangelicals affirming a “traditional” view of marriage as between one man and one woman, as evidence for that view. However, that statement was very controversial — many Christians from a variety of traditions spoke out against it. For many, an anti-LGBTQ stance is absolutely not a de facto part of being a Christian — including those who identify as LGBTQ people of faith.
That said, it’s unclear to what extent this argument matters independently from the one about the inability for religious people to separate their faith from their public lives. Even if not all Christians believe marriage to be exclusively between one man and one woman, enough do see it as part and parcel of their faith that in the eyes of some religious organizations, the belief forms an integral part of their value system, and therefore should inform their public actions.
Some religious organizations argue that the case threatens to place restrictions on artistic expression
Central to many of the briefs’ arguments is the distinction between service and artistic commission. Because Phillips offered to sell existing items (such as brownies) to the couple whose wedding cake he refused to make, he did not deny them service altogether. Rather, he refused to create a wedding cake to their specifications in celebration of their marriage.
This may seem like a minor distinction, but it also speaks to wider questions of artistic expression: a) is Phillips’s work art, and b) should there be any limits placed on artistic expression distinct from ordinary forms of customer service?
It’s worth noting here that while they formally support neither party in the case, a group of cake artists did file an amicus brief arguing that cake designing is an art, requiring skill and creativity on a par with other forms of artistic expression. That this is a commercial transaction, they argue, should not mitigate the artistic nature of the act:
The cake artist — like the Renaissance painters who worked on commission and indeed like artists in every medium — is the one who must invest her artistic skills and energy to create something that responds to the client’s hopes.
If cake decorating is an art, supporters of Masterpiece argue that Phillips is, by definition, creating celebratory art for a ceremony of social significance. A brief by the Restoring Religious Freedom Project argues that ruling against the Cakeshop would set a precedent for forcing artists to express only that which the state deems acceptable:
By forcing Mr. Phillips with legal action to provide an artistic service, the state is compelling the individual towards the state’s own preferred expressive association and is not simply withholding some benefit for failure to comply.
Here, too, the case raises wider issues that transcend the facts of Phillips’s specific case. While many may find a baker who declines to make a wedding cake for a same-sex marriage an unsympathetic figure, they may not feel the same way about setting the precedent that the government has the right to interfere in decisions of artistic expression.
Some minority religious groups are worried about the freedom to practice their own faith if SCOTUS rules against the plaintiff
While most of the amicus briefs filed were from Christian or Christian-affiliated religious groups, imams, rabbis, and other religious representatives also filed briefs. Both they and some of their Christian allies argued that a decision in favor of Masterpiece Cakeshop would be vital to protecting the rights of religious minorities:
[A ruling for the cakeshop] also vindicate the Jewish florist who believes it is religiously transgressive to participate in creating floral arrangements for a ceremony in which a Jew was converting to another religion, or for a wedding between a Jew and a member of another religion. Such a ruling would also protect the Muslim website designer who refuses to create sites for pornography; the atheist who refuses to create signs proclaiming “Jesus Christ is Lord and King”; and the cake maker who refuses to express white supremacist and anti-Muslim messages.
When, as in many religious traditions, these beliefs are closely intertwined with cultural practices, things get even more complicated. One case that appears in the briefs as a precedent is that of Church of the Lukumi Babalu Aye v. City of Hialeah (1993), in which the Supreme Court found that animal welfare ordinances passed by the city of Hialeah, Florida, specifically and unfairly targeted practitioners of Santeria, an Afro-Caribbean religious folk tradition in which animal sacrifice plays a significant role. While critics point out that the 1993 case should have no bearing on this one because ordinances targeted Santeria practices, it’s not unfair to ask to what extent the burden of restrictions on public practice of faith might fall on members of minority religious or ethnic backgrounds.
Not all religious organizations support Phillips or Masterpiece Cakeshop
While the majority of the religious organizations who filed briefs did so in support of Masterpiece Cakeshop, they were not unanimous. A brief filed by a number of mainline Protestant groups, including the General Synod of the United Church of Christ, the Episcopal Church, and the Evangelical Lutheran Council of America, argued that finding for Masterpiece Cakeshop would in fact represent a violation of the principles of religious liberty, as it would open the door to discrimination against people of particular religions:
Religious liberty itself would suffer, as religious individuals would be subject to being denied service because the commercial proprietor’s religious views differed from theirs.
The brief also argued that the fundamental principle of dignity for every human being — at the heart of spiritual experience — demanded that no form of discrimination, even against a same-sex couple on religious grounds, be considered acceptable:
public accommodations laws help create the necessary conditions for individuals to fully develop, including spiritually…
The brief cited the Episcopal Church’s Baptismal Covenant, which asks for commitments from persons being baptized as well as all other witnesses to “strive for justice and peace among all people, and respect the dignity of every human being.” There can be no religious freedom, the brief argued, without equal respect for the dignity of all persons, a dignity that had been affronted by Phillips’s refusal of service.
Ultimately, for these religious groups — like for many of Masterpiece Cakeshop’s secular critics — religious liberty can only go so far. Once that liberty turns into discrimination, whatever the reason, it becomes both unethical and unconstitutional.
The case is a divisive one — within the Supreme Court, and more broadly
In the age of an administration that has proven itself to be deeply antipathetic to LGBTQ rights, it’s natural to be wary of any arguments in favor of Cakeshop, especially given that LGBTQ individuals are already not legally protected from discrimination at a federal level.
And certainly, the outright anti-LGBTQ biblical rhetoric present in many of the amicus briefs submitted to the Supreme Court reflect arguments that rest as much on being anti-LGBTQ as they do on being pro-religious freedom.
But other arguments put forth are more difficult to automatically wave aside. The question of where religious freedom ends and where individual rights begin is a thorny one, because of the necessity of both preserving individual liberty and protecting citizens from discrimination. And some of the pro-Cakeshop arguments about artistic expression, for example, could just as easily set a poor precedent for pro-LGBTQ (or any kind of) artists in decades to come.
Ultimately, it’s difficult to disagree with at least one phrase in the brief of Freedom X and Rabbi Bressman. “This case,” they write, “presents a conflict between the Scylla of unequal treatment and the Charybdis of outlawing religious practices.”
In other words, when two theoretically valid principles — the right to practice one’s faith freely and the right not to be discriminated against — collide, the Supreme Court will have to decide which one wins out. It’s worth pointing out that if the Court rules in favor of Phillips, the consequences for LGBTQ people could be devastating.
As Vox’s German Lopez writes:
If the Court rules in favor of Phillips, it would be a huge blow to LGBTQ civil rights laws — and not just in the context of bakeries. It could also open a legal path to anti-LGBTQ discrimination in multiple settings, from the workplace to housing, by letting business owners — even in states where such discrimination is prohibited — cite their religious beliefs to discriminate.
At the same time, it’s worth remembering that should the Supreme Court find against Phillips, they may be setting precedents — about the degree to which religious beliefs should be kept out of the public sphere, about artists’ free expression — that could, down the line, also be used against other marginalized groups.
That doesn’t mean, of course, that the potential discriminatory harm to LGBTQ people presented by the case isn’t a far more pressing concern.
But it does remind us that the law is a limited entity. And regardless of what the Supreme Court ultimately judges to be constitutional, no law can provide a perfect answer.
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