On December 5, the Supreme Court will hear oral arguments in Masterpiece Cake Shop v. Colorado Civil Rights Commission. Rather than rehearse the facts of the case, let me direct you to John Stonestreet’s commentary, which sets forth the facts in the case and discusses its importance.
In the coming weeks you will hear a lot about the case from people on both sides of this issue, including us at the Colson Center. While both sides obviously disagree on how the Supreme Court should rule, they both agree that its ruling will set an important precedent.
And that’s what I want to talk about: precedent.
If Jack Phillips, the owner of Masterpiece, prevails, it will most likely be on free speech, not free exercise, grounds. It will be because his lawyers persuaded five justices that requiring him to decorate a cake in a way that celebrates an occasion that he believes to be morally objectionable is a kind of compelled speech.
This is the argument made by the Department of Justice in support of Masterpiece Cake Shop. In its brief, the Solicitor General’s office argues that the Colorado law as applied here “compels Phillips to create custom cakes for same-sex marriage celebrations, which (depending on the cake) can be either actual speech or, at a minimum, the kind of expressive conduct that conveys a message to others, without allowing Phillips to make clear that he does not share his customers’ viewpoints on same-sex marriage.”
Will five justices agree? I don’t know. What I do know is that however the Court rules, it will not be a victory for religious freedom per se. Whatever Phillips’ chances of prevailing on free speech grounds are, the weight of precedent makes the odds of succeeding on free exercise grounds virtually insurmountable.
“Precedent,” in this instance, means both existing case law and the potential ramifications of a decision. Regarding the former, the precedent that weighs more heavily against Phillips and other similarly situated small-business owners is the Court’s 1990 decision in Employment Division v. Smith.
I’ve written ad nauseam about Justice Scalia’s opinion in Employment Division, so I’ll try not to repeat myself, except to agree with Michael Farris of the Alliance Defending Freedom that “the case that killed the free exercise of religion was Employment Division v. Smith.”
By making a law’s “neutrality” and “general applicability,” instead of its adverse impact on the free exercise of religion, the constitutional standard, the Court opened the door that Phillips’ opponents walked through.
But even if Smith didn’t exist, Phillips’ free exercise argument would still face a formidable hurdle: articulating where you draw the line when people refuse to obey the law on religious grounds. And you need to draw that line. The alternative is to risk, in Justice Scalia’s words, “[permitting] every citizen to become a law unto himself.”
An argument for a personal, free-exercise-based right to not comply with laws that violate your religious beliefs requires an accompanying argument for where to draw the line. It requires a workable standard which the courts can apply consistently.
That’s a tall order. The unfairness of what happened to people like Jack Phillips can blind us to the fact that not every free exercise claim is worthy of our support or even benign.
In “Prophet’s Prey,” Sam Brower, a private investigator from Cedar City, Utah, tells the story of his “Seven-Year Investigation into Warren Jeffs and the Fundamentalist Church of Latter-Day Saints. (FLDS) If you know anything about either, what you probably know is that Jeffs and other FLDS leaders sexually assaulted a bunch of underage girls, some of them as young as twelve, after “marrying” them. In August 2011, Jeffs was convicted of two counts of sexually assaulting a child and sentenced to life plus 20 years in a Texas prison.
As Brower tells his readers, civil authorities in places like Utah and Arizona were aware that sexual abuse of minors was happening in the FLDS, with their parents’ consent, along with other polygamist (called “plygs” by outsiders in the know) Mormon sects. Yet, they did nothing, largely out of fear that they would be accused of “persecuting” a relatively small sect that, on the surface at least, kept to itself.
But even if Jeffs and others had waited until the young women’s 18th birthdays, no reasonable person would want their children to grow up in this environment. Because of all the inbreeding, Brower writes, “more than half of the children in the entire world who suffer from Fumarase Deficiency live in [FLDS stronghold] Short Creek.”
Brower adds, “Kids raised in the FLDS culture just don’t stand a chance . . . . When a boy is born, he has only three options in life: make a mistake and be abandoned by his parents, become frustrated enough to eventually leave the religion and live out his life as a traitor, or grow up to be a perpetrator of abuse. [Being born] female promises a future just as dismal. She will either be an underage bride or will later be placed with a man without regard to love. Either way, it is probable that her children will grow up and continue the cycle of abuse, with her as their primary mentor.”
Groups like Jeffs’ are, thankfully, demonic outliers. We can all agree that the line I referred to above must be drawn well short of sexual abuse. But how short? Do a person’s free exercise and parental rights extend to condemning his or her children to an education “so totally skewed toward strict religious dogma that many kids [graduate] still unable to speak or write in whole sentences,” where the “ability to properly read a list of food ingredients or a tape measure at a construction site [is] deemed adequate?”
That’s not an easy question to answer. The FLDS with its prairie dresses and polygamy is so alien, so “other,” that it’s easy (and probably correct) to interpret all of its actions as a kind of abuse. At the same time, the issue of what homeschooling parents can or should teach their kids is a contentious one. Where do you draw the line?
And make no mistake, you have to draw a line. You have to create that workable, consistently applicable standard. As Justice Scalia wrote in Smith, “[It] is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds.”
To state it differently, courts have to proceed as if the people asserting their free exercise rights are on the level. Yet we know that not all beliefs are central, and not all interpretations are equally valid. Thus, some free exercise claims are more deserving of protection than others. How do we decide which? It certainly can’t be treating one religion—i.e., ours—as more deserving of protection than others, a point lost on some Christians.
I don’t know the solution, and I doubt that anyone else does, either. All of which means that come December 5, I expect a lot of talk about freedom of speech and little about the free exercise of religion. As I’ve previously said, maybe it’s for the better.
Image courtesy of davidf at iStock by Getty Images.
Roberto Rivera is senior fellow at the Chuck Colson Center for Christian Worldview. For nearly 20 years he has been chief writer for the BreakPoint Radio commentary program. His “Internally Displaced Person” is a mostly regular column at BreakPoint.org. His writings have appeared in Touchstone, First Things, and Sojourners. He lives with his son in Alexandria, Virginia.