When Religious Freedom Is a Recipe for Discrimination

Jack Phillips owns a bakery in Lakewood, Colorado. Phillips is a conservative evangelical Christian who opposes marriage equality. He insists that his beliefs give him the right to refuse to serve same-sex couples. Thus, when Charlie Craig and David Mullins approached Phillips in 2012 and asked him to make a cake for their upcoming wedding celebration, he said no.

Phillips said he’d be happy to sell cookies or brownies to members of the LGBTQ community, but a same-sex couple wouldn’t get a cake from his shop.

Craig and Mullins didn’t go away quietly. Colorado has a law that protects gay people from discrimination. The Colorado Anti-Discrimination Act says that businesses that are open to the public cannot discriminate on the basis of race, religion, gender, or sexual orientation.

By refusing to serve an entire class of people, Phillips was clearly in violation of the law. Craig and Mullins filed a complaint before the Colorado Civil Rights Commission, and the matter eventually ended up in a state court, which ruled against Phillips in 2015.

As Phillips’ case was working its way through Colorado courts, events that would impact it were unfolding on the national stage. The US Supreme Court in 2015 ruled that denying same-sex couples the right to marry was a violation of the Equal Protection Clause of the Constitution. In light of that ruling in Obergefell v. Hodges, the owners of the other businesses connected to the wedding industry (florists, photographers, caterers, etc.) and even some government officials, such as the notorious Rowan County clerk Kim Davis in Kentucky, declared that they had a right under religious freedom to refuse to serve same-sex couples.

With so many cases like this popping up, legal observers believed it was only a matter of time before the US Supreme Court decided to weigh in. Indeed, the high court announced in June that it will hear the Colorado case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, during its 2017-18 term. The case is shaping up to be one of the most important religious freedom disputes in years, and it involves a face-off between two legal titans: the American Civil Liberties Union, representing Craig and Mullins, and Alliance Defending Freedom, a large Religious Right legal group that’s backing Phillips.

At the core of the case is a simmering question: What exactly is religious freedom?

In the United States, that concept has historically been interpreted to mean the right to worship (or not) as you see fit, guided by your individual conscience. We tend to take the principle of religious freedom for granted today, forgetting that it wasn’t always a protected right. Quakers were hanged in Boston in the seventeenth century. James Madison saw Baptists in jail in the eighteenth. It wasn’t until the First Amendment, with its guarantee of the right to “free exercise” of religion, that this liberty was secure.

But what did it mean? Surely the founders never meant that there would literally be no law restricting religious liberty. They must have intended for some control, otherwise people could engage in activities that exposed others to harm, danger or ill treatment under the guise of religious freedom.

The Supreme Court embraced this standard in the nineteenth century, refusing to interpret religious freedom as an absolute right. The court indicated that people may believe what they want but that the actions that flow from those beliefs may be curtailed if they cause injury to others or to society at large. Thus, the high court refused to permit Mormons to engage in polygamy, even though church officials argued that plural marriage was part of their belief system. (The church later dropped the practice.)

The legal landscape began to shift in the twentieth century with a case involving members of an Amish sect who refused to educate their children beyond the eighth grade. A case could certainly be made that the youngsters were harmed by this, but the high court upheld the practice as a legitimate expression of religious freedom.

Passage of the Religious Freedom Restoration Act (RFRA) in 1993 furthered clouded the issue. The legislation was intended to protect minority religious expression from government overreach, but in recent years it has been interpreted so broadly that even some of its original supporters say the act has been misconstrued.

This brings us to where we are now. In the wake of RFRA’s misinterpretation, the owners of secular businesses, such as the Hobby Lobby craft store chain, have won the right to deny birth control coverage to employees under the guise of religious freedom. That’s troubling enough, but new claims just keep coming. We’ve seen a spate of business owners refuse service to certain people (almost always members of the LGBTQ community) and call it religious freedom. Some government officials have declined to give same-sex couples marriage licenses, even though they are legally entitled to them, because doing so offends their “religious freedom.”

To many advocates of church-state separation, this isn’t religious freedom; it’s a perversion of that concept. The Supreme Court got it right more than 135 years ago when it made it clear that while private belief is protected, actions may not be.

Specifically, actions that subject people to harm can be curtailed. In this case, the baker’s refusal of service, which had the effect of treating Craig and Mullins like undesirable, second-class citizens, is a harm that must not be allowed to stand. It is akin to the noxious Jim Crow laws that for so long relegated African Americans to a lesser form of citizenship in the South. Jim Crow laws might have been legally sanctioned, but they were morally bankrupt and constitutionally intolerable. It took some time, but courts did recognize that.

(In Phillips’s case, there’s an additional wrinkle: his lawyers at the ADF are also asserting that he’s not just a baker, he’s a “cake artist.” The rebranding is an attempt to give Phillips the same free-speech protections that might be afforded to a journalist or a creative artist. It’s quite a stretch.)

If the Supreme Court rules for Phillips in this case, a new crop of laws permitting discrimination could rise up. An adverse ruling could open the door to a flood of similar denials of service, and we could see a huge loophole blown in our nation’s civil rights laws.

In the process, religious freedom—one of our nation’s greatest achievements—could become little more than a device to cover all forms of discrimination, from the shabbiest to the most insidious.