Can Religious Liberty Survive Homosexual Marriage?


Jack Phillips isn’t presently a household name in evangelical churches. But this fall it will be. That’s when the United States Supreme Court will hear arguments seeking reversal of Phillips’s conviction by a Colorado court for refusing to decorate a cake for a homosexual wedding. The high court’s decision will go a long way toward settling the collision between religious liberty and civil rights that became inevitable when gay marriage was legalized two years ago. It remains to be seen if religious liberty will survive the impact.


Phillips is the owner of Masterpiece Cakeshop, a small bakery near Denver. In 2012 Charlie Craig and David Mullins—who had earlier been legally married in Massachusetts because Colorado at the time didn’t recognize gay marriage—tried to order a wedding cake for their reception. Phillips, an evangelical Christian, declined, explaining that while he would be glad to provide baked goods for any other occasion, he couldn’t make a cake for their marriage because of his religious beliefs.


The couple was offended by Phillips’s refusal and filed a complaint with the Colorado Civil Rights Commission. In 2014 the commission ruled that Phillips must make cakes for homosexual marriages in the future. It further ordered that Phillips’s staff (which includes members of his own family) be re-educated  and that he file quarterly compliance reports for two years. It’s not clear what “re-education” means—maybe instruction by a government bureaucrat in religious beliefs acceptable to the state.


Phillips objected to the commission’s ruling, which resembled a Soviet-style diktat more than anything in American democracy, and took his case to the Court of Appeals. When it affirmed the commission’s decision Phillips went to the Colorado Supreme Court but was refused a hearing. His last resort was to the United States Supreme Court—and that’s where things got interesting. The high court, after declining Phillip’s appeal nearly a dozen times over the past couple of years, suddenly and surprisingly on Monday of this week announced they would hear it after all.


Perhaps now that the court has a full complement of justices with the addition of Associate Justice Neil Gorsuch it feels the time is right to rule on cases with the most potential impact on American jurisprudence. Certainly the implications of Phillips’s case are enormous because of the competition it reveals between two sets of legal rights guaranteed by the Constitution: religious and civil. In other words, when the right to the free exercise of religion comes into conflict with the civil right of homosexual marriage, which one wins?


Associate Supreme Court Justice Sam Alito predicted this day would come in his dissent to the court’s gay marriage ruling in 2015: “This decision,” he said, “will be used to vilify Americans who are unwilling to assent to the new orthodoxy… those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”


Jack Phillips has learned that Justice Alito’s fears were well founded. Add his name to the long and growing list of other small business owners who have dared to test their biblical convictions against the state-empowered LGBT lobby. Seattle’s Barronelle Stutzman, a florist who refused to provide flowers for a gay wedding, found herself in a legal nightmare that continues to this day when she was convicted of violating the civil rights of the couple requesting her services. She will in all likelihood lose her business because of the financial penalties she faces from court judgments. New Mexico’s Elaine Huguenin, a professional photographer, ran into the same legal buzz saw. When she refused the request of a lesbian couple to do their wedding pictures, they turned to the state’s Human Rights Commission which found Huguenin guilty of discrimination. Cynthia and Robert Gifford own Liberty Ridge Farm in New York and rent it out as a wedding venue. When a homosexual couple tried to rent the property for their wedding, the Gifford’s religious convictions couldn’t allow them to agree—although they were perfectly willing to allow the reception to take place. New York’s Human Rights Division found the Giffords in violation of the couple’s civil rights.


The Supreme Court could allow the Colorado Court of Appeals ruling against Phillips to stand without further comment—a decision that would not only leave him destitute (he says his business has already dropped by almost half in the years the case has dragged on) but also fail to address the underlying issues. The court could also find for either party. It could affirm Phillips’s right to religious liberty by reversing the previous decision; 2014’s Hobby Lobby decision allowing for a religious exemption from Obamacare’s contraceptive mandate might provide a precedent. On the other hand, the court could rule that Phillips was in fact guilty of discrimination, a decision that would be devastating for religious liberty throughout the nation.


But maybe the Supreme Court will try to carve out restrictions in the gay marriage law that allow for bona fide expressions of religious liberty. Maybe civil rights don’t have to crush religious liberty rights after all. Such a decision would be in the best interests of the nation and within the spirit of the First Amendment. Most of all, it would honor the biblical convictions that form the spiritual bedrock of more Americans than the LGBT lobby understands.


As for Jack Phillips, he doesn’t have a bone of discrimination in his body. Neither is he a rabble rouser who’s trying to stick his finger in the eye of the state. He’s a man who’s been convicted by a law higher than any government can impose. He explains his situation in a way that resonates with every evangelical Christian:


“I’ve always had to operate my cake shop in a manner that honors God. I gladly welcome and serve everyone who comes into my shop, and would sell anyone any pre-made baked goods. I’m closed on Sundays. I don’t take orders for cakes with messages or designs commemorating events or ideas in conflict with my beliefs, including messages that are anti-American, celebrate atheism, racism, or indecency.”


He says in the particular case that landed him in court, he told the couple he “would gladly sell them birthday cakes, shower cakes, cookies brownies…but I couldn’t design a cake promoting an event in conflict with my beliefs.”

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