In Obergefell v. Hodges, the Supreme Court, relying on little more than the majority’s “reasoned judgement” that “liberty” as mentioned in the Fourteenth Amendment somehow encompasses the dignity of same-sex couples, created a right to same-sex marriage. As the case was being deliberated, traditional marriage supporters, including me, were concerned that creating such a right would immediately create tension (to say the least) between this newly-created right and the right to Religious Freedom and Freedom of Speech. In his dissent, Chief Justice Roberts correctly pointed out that “Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution.” In a separate dissent, Justice Thomas elaborated on what Religious Liberty actually means, pointing out that it “is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.” In an apparent attempt to mollify the dissenters, Justice Kennedy explicitly stated in his majority opinion that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Unfortunately, the LGBT community has done nothing but disparage us and our beliefs since.
Fast-forward two years and we’re back at the Supreme Court for Masterpiece Cakeshop v Colorado Civil Rights Commission, the case where a same-sex couple sued a Christian baker to force him to create a custom cake to celebrate their “wedding.” The baker, Jack Philips, declined to create a custom cake, but offered to sell them anything else in the store. Naturally, the couple cried “discrimination” to the Commission who claimed that Philips not only had to use his creativity and talent to create a cake to celebrate an event to which he was morally opposed, but also had to teach his staff, including members of his family, that his religious beliefs about marriage were discriminatory. The Commission’s ruling blatantly violated both Philips’ right to freely exercise his religion and his freedom of speech, and eventually led to oral arguments at the Supreme Court last week.
I’ve read the transcript of the oral arguments, and while I’m optimistic that Justices Kennedy, Thomas, Alito and Gorsuch, along with the Chief Justice, will rule in favor of Philips, I’m a bit concerned that the ruling may be too narrow to fully protect religious liberty against the same-sex “marriage” onslaught. Much of the argument focused specifically on what aspects of a wedding ceremony counted as “speech” for the purposes of the First Amendment. Trying to draw a line and putting some wedding-related activities, such as cake baking and photography on the protected side and makeup and hairstyling, for example, on the other side, is a complete red herring.
Rather, I believe and hope that the court will take a broader approach to the question of religious liberty that was touched upon by Chief Justice Roberts when he asked whether a Catholic legal aid service could be forced to represent a same-sex couple in a marriage-related case simply because they offered pro bono legal services to the community at large. The question really goes beyond just a wedding. If “decent and honorable” people believe that same-sex marriage is wrong, their “freedom of action in matters of religion generally” demand that they be able to live out their faith.
Christianity teaches that we should treat everyone with love, but it does not demand that we approve of every choice that others make. Why should there be a difference between forcing a baker to create a cake to celebrate a same-sex wedding and forcing a Catholic adoption service to place children with same-sex couples? Why does the same-sex couple’s supposed right to adopt a child supersede a child’s right to have a mother and a father or the Catholic social worker’s right to live out his or her vocation to care for orphans by placing them in healthy family environments?
In either case, the state would be forcing the subject to endorse or facilitate an event or behavior which his sincerely held religious beliefs teach is wrong. It’s really that simple. In either case, the objection is not to the fact that the person is gay. It would be discriminatory if Philips refused to sell the couple a pre-made cake or anything else in the store because they were gay, but that’s not what happened.
The Constitution says there shall be no law prohibiting the free exercise of religion or abridging the freedom of speech. I believe the Court can and should develop a doctrine that allows Christians and other decent and honorable people to avoid endorsing or participating in events or behaviors that their religious beliefs proscribe while still protecting the rights of LGBT persons against discrimination. As Justice Kennedy said in the oral argument, “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.”