Precedent, Perverts, and Prairie Dresses: The Conundrum of Religious Freedom


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 His writings have appeared in Touchstone, First Things, and Sojourners. He lives with his son in Alexandria, Virginia.

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  • Phoenix1977

    “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.”
    The Supreme Court already ruled at least once already free speech is not absolute. In Garcetti vs. Ceballos the Supreme Court ruled a government employee’s free speech is void when his / her free speech contradicts the governments policy. At least when at work a government employee is required to speak the governments policy and not his or her own ideas on the subject.
    The Guardian published a story about a woman losing her job for giving the Presidential motorcade the finger when they passed her on the road: . The woman did not make her views on Donald Trump public to the world herself but was photographed by someone else who then published the photo online. Her former employer stated her opinion of the President, or at least the way she “voiced” that opinion, conflicted with the rules the company she worked had, even though she was not working at that time and had not put the photo of her opinion of the President online herself.
    If those two examples show us anything it is that the freedom of speech clearly has limits. And as soon as the speech becomes discriminatory (like refusing to sell the same products and services to same-sex couples) you are not protected by the First Amendment. When the Supreme Court announced it would hear Jack Phillips’ case everyone on the conservative side was ecstatic because the record would be set straight. But looking at the Supreme Court at this moment conservatives won’t know whether or not they should be happy. The 5 pro-LGBT Justices are firmly in their seats and Neil Gorsuch, who replaced Antonin Scalia, has not once in his career ruled against LGBTs. So the happiness and joy conservatives felt earlier could turn sour very quickly if the Supreme Court rules against Jack Phillips, forcing people like Phillips, but also Baronelle Stutzman and the Kleins to service LGBT couples the same as they would straight couples in everything, in all 50 states.

    • Scott

      As an artist, I do not believe the Government has the right to determine what commissioned jobs one should accept or decline. Under the First Amendment, Americans are afforded the right of conscience.

      Garcetti vs. Ceballos is different in that Ceballos was insubordinate to his employer. Not sure how I would have ruled in that case if I were on the Supreme Court… but the basis for the argument is quite different than in the case of Jack Phillips. Jack is neither government employee nor insubordinate, but rather a citizen afforded the right of conscience. Public opinion or any other opinion should not be imposed on free citizens in America… that is at the very heart of what our country’s republic was designed to protect.

      The example you give of the woman flipping the bird to the Presidential motorcade is a perfect example of free speech and by law she should not have been fired from her job unless she signed an employment contract stating she may not express her personal political views publicly. If I were her, I would take the case to court and follow through… all the way to the Supreme Court if necessary.

  • Scott

    “However, the government has the right, even the duty, to make sure all citizens are treated equally, meaning a product or service needs to be available to everyone equally. Like a custom designed wedding cake, for example, which is a product, not an art form.”

    A custom designed cake is not a product because it does not exist. You could argue it is a service… but that service requires special artistic talent that is performed by a human. A human with the right of conscience. A human that cannot be forced to do something against their will. A human that has the right to dictate the terms of business when it comes to rendering their (God given for those of us who believe) artistic talents… especially if that business is theirs to begin with.

    Equal treatment means equal space to disagree. For example: It is reasonable for an atheist artist to refuse to paint a mural of the crucifixion based on conscience. It is also reasonable for Jack Philips to refuse to design a custom wedding cake for a same-sex wedding ceremony for the same reason. This is the form of pluralism that is necessary for a society of all different ideologies to co-exist.

    “That code of conduct states all employees will refrain from any verbal or non-verbal obscenities, both on the job as in their personal life”

    No employer has the right to dictate one’s personal life as a private citizen.

    • Phoenix1977

      Legally a service and a product are the same thing, so thank you for proving my point. And in Colorado business owners can only dictate their terms as long as those terms are compliant with the law. In case of the Masterpiece Cakeshop they didn’t.

      Equal treatment means just that: equal treatment. In case of Jack Phllips that means treating same-sex couples exactly the same as straight couples in every way, including designing custom wedding cakes.
      So far the courts have never ruled against a business refusing a religious order. No idea why. Perhaps because the courts are on our side?

  • ElrondPA

    ” Like a custom designed wedding cake, for example, which is a product, not an art form.”

    This is the crucial question. A cake on the shelf would be a product, and Jack Phillips agrees that such should be sold to all comers (and he did/does so). He, however, considers custom-designed cakes a work of art, because he puts his creativity to work in designing them. We’ll see whether the Supremes agree with him or you.

    Whatever happened to tolerance? Was that simply a tactic for gays while most people opposed them, now to be discarded since they’re on top? How does it harm a gay couple to go somewhere where their business is wanted? (Don’t give me “infliction of mental distress;” that way lies totalitarianism, as anyone who disagrees with preferred attitudes becomes a criminal.) This isn’t the Jim Crow South, where refusal of service was codified by law and by extralegal retaliation against anyone who would break ranks. There is any number of cake decorators, photographers, and venues who are happy to service gay couples; why attack those who, at their own cost, wish to dissociate themselves from such activities? “Live and let live” seems to be a one-way street.

    • Phoenix1977

      Somehow I doubt the Supreme Court will define art. And over the past 30 years the Supreme Court has sided with LGBT rights on every ocassion.

      We have no interest in being tolerant against the intolerant. This is how LGBTs have been treated by Christians for centuries (and worse). Doesn’t feel good, does it? That’s karma.