More on Phillips, SCOTUS and Religious Freedom
Yesterday I wrote about the victory of Colorado cake-maker Jack Phillips. While I still stand with that piece, the only thing I regret was the title I ran with – in haste. I had to dash out, so I quickly changed a more innocuous headline to a more eye-catching one. [Read this story here on Bill’s website.]
However, anyone reading the piece instead of just going by the title would have seen that this win was hardly an end-all and be-all decision by America’s highest court. Three times in the piece I mentioned that it was not, and that future rulings may well go in the opposite direction.
So let me write a bit more on this case, and bring in a few other commentators who have appeared since the Monday ruling. First, there is no question that the decisions would have been ‘massively’ bad had Phillips lost. Indeed, many of us did not expect much from this Court.
The big surprise was that the same justice who did so much to give us homosexual marriage in 2015 gave us a nice win for religious freedom in this case. So to see Kennedy, along with liberals like Kagan and Breyer, being part of the 7-2 majority was interesting to say the least.
And let me say a quick word about this “narrow win,” which has confused many folks. It is being called a “narrow” victory not because of the number of justices who voted as they did, but because of its rather limited scope. It had a narrow focus on the Phillips’ case, leaving open other such cases in the future.
So the bigger discussion of homosexual rights, discrimination, and religious liberty, and how they all might interact, is still an open debate, and future rulings will likely give us more on those broader matters. Indeed, Kennedy said that homosexual rights were important, so this is not the last we will hear about such issues.
This was most certainly a win, but one would have hoped for more. It left open questions about religious liberty, and it leaves us hanging on a number of core issues which have been the stuff of the culture wars over the past decades.
Let me bring in a few commentators here. Many have rightly pointed out that things should not have gotten this bad to begin with. As Stephanie Curry of the Family Policy Alliance put it:
There are still many lessons to be gleaned from the Masterpiece Cakeshop opinion, but the most important is that Jack should not have had to go to Court to defend his constitutional right to religious freedom in the first place. The Colorado Legislature should have reigned in the Commission’s power and enacted strong laws to protect religious freedom for all its citizens, including Jack.
Matt Walsh, who I mentioned in my earlier piece, said this:
I wish I could say the ruling was a huge win for the First Amendment. All I can say is that it was not necessarily a loss for the First Amendment. A win would have been a decision affirming an individual’s right to operate his business, and create art, in accordance with his sincerely held religious beliefs. The 7-2 decision passed down by the Court this morning does not offer any precedent so sweeping or important as that. Instead it finds, in this specific case, that the baker’s rights were violated because the Colorado Civil Rights Commission showed open hostility to Phillips’ religious convictions. But what if they were more subtle in their hostility? What if a Christian business owner is targeted by cleverer bullies? What about all of the other Christian business owners who have been legally penalized for refraining from participating in gay weddings? This decision has nothing to say on any of those questions. This salvo from the fascist gay Left was blocked, but there is nothing stopping them from firing another round. And then another. And then another. The fight continues.
Rod Dreher asks some pertinent questions:
Before we religious liberty advocates get too excited about it, let us ask: How would this ruling have gone if the Colorado commissioners had not been so blatantly bigoted in their comments about the Masterpiece case? In other words, what if they had cloaked their prejudice in politeness, in bland bureaucratese? Masking your bigotry in that way is not hard to do, you know.
NPR’s headline on its first report called this ruling “narrow” — something I took to be an expression of the broadcaster’s bias. How is a 7-2 ruling “narrow”? But I was wrong: it is a narrow ruling, in terms of its constitutional scope. The ruling leaves unaddressed all, or nearly all, of the basic constitutional questions having to do with the clash between gay rights and religious liberty. I suspect that’s how they got Kagan and Breyer on board, and probably Kennedy too: because the stakes were very small.
The language of the ruling suggests that if the Colorado commission had given the appearance of fair dealing with the Christian baker, it could have ruled the same way and avoided today’s SCOTUS ruling. Or maybe not: the Court would have still had to deal with the question of why a Colorado cake baker can refuse to bake a cake with an anti gay marriage message, but not do what Jack Phillips did. If I’m reading this ruling correctly — and I invite critique — SCOTUS gave no direction for how that dilemma should be decided in the future. It only mandated that religious people should be given fair consideration, without indicating what kind of outcome would be fair.
What if a gay couple went to Masterpiece Cakeshop tomorrow and asked for a wedding cake, and Jack Phillips turned them down, and they go to the Colorado Civil Rights Commission to complain? Could the Commission deliver the same verdict against Masterpiece, but do so in apparently neutral language, and therefore be on the right side of today’s ruling?
If not, why not? What’s to stop gay activists, who have tied this small business owner up in court for five years, from doing it again to him — and this time, expecting the Colorado Civil Rights Commission to be more careful to conceal its hostility to him?
I don’t mean to be ungrateful for this ruling, which I did not expect. (“Take the win, Debbie Downer,” teased a friend.) I do, however, want to caution against reading too much into this. The Court punted more fundamental conflicts down the road. This means that for religious liberty advocates, the future composition of the Supreme Court is massively important. We knew that anyway, but the narrowness of this decision proves it.
Finally, as Lloyd Marcus reminds us, we really must see the bigger picture here, and what in fact is the end game for the homosexual activists. His title says it all: “Face facts: The LGBTQ movement wants to destroy Christianity”. He says this:
Christians believe the LGBTQ movements lie that they seek only Christian love and acceptance. The truth is, the LGBTQ movement seeks to bury Christianity, bullying us into silence and extinction. Christians have told me to stop posting my articles about LGBTQ aggression on their Facebook pages. A Christian told me not to post articles on his Facebook page about Planned Parenthood illegally trafficking aborted baby body parts.
Some Christians want to remain neutral on political and cultural issues for business and various other reasons. Folks, I would never arrogantly tell adults how to run their lives or Facebook pages. What concerns me is Christians who still do not understand what we are up against and Christians who have embraced leftists’ agendas, believing it’s what Jesus would do.
It bothers me that Christians allow themselves to be bullied into not speaking biblical truths and common sense in America today. Growing up in the mean tough projects in Baltimore, I learned early that you never surrender ground to bullies.
Leftists worldwide portray Israelis as villains, claiming that Israel refuses to negotiate peace with the Palestinians. The goal of the Palestinians is to drive Israelis into the sea. So how do you find common ground to negotiate peace with people who want you dead? Christians are dealing with the same scenario with the LGBTQ movement. Using their bogus victim status, LGBTQ activists are using every weapon in their arsenal to punish, humiliate, and destroy Christians, ultimately wiping Christianity off the planet.
Exactly right, which is why we cannot rest on our laurels here. We can be thankful indeed for this particular ruling, but many more rulings in the days ahead need to go our way if we want to see even a minor lessening of the homosexual juggernaut crushing everything in its path.
And real help in all this will be getting more conservatives on the bench of SCOTUS, which will mean keeping conservatives as POTUS.
For further reading on the case, see this article by Associate Professor of Law, Neil Foster.
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