Category archives: Religious Liberty

Sixth Circuit Shows Why SOGIs Are a Threat to Religious Freedom

by Travis Weber

March 12, 2018

Last week, in EEOC v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit Court of Appeals rejected the religious freedom claim of a funeral home owner who wanted to run his business in accordance with his faith—and did not want to accede to the “gender identity” discrimination claim of an employee who desired to remain an employee while living out his transgendered lifestyle as he saw fit. The case is still ongoing (the appeals court ordered the case remanded for a lower court to continue sorting out), but there’s a very real possibility that business owner Thomas Rost may now be forced out of the marketplace rather than violate his faith.

This is the first federal court case dealing with a Religious Freedom Restoration Act (RFRA) claim in the context of a sexual orientation and/or gender identity (SOGI) nondiscrimination claim (the only other such case is the state-level case of print shop owner Blaine Adamson in Kentucky), and SOGI came out the victor. The concerns of those who have warned of the religious freedom threat of SOGIs are validated by this decision.

The Sixth Circuit, in an opinion authored by Judge Karen Moore, got its analysis wrong on several levels. First, the court claimed it was somehow very clear that Title VII sex discrimination prohibitions include “gender identity”—despite the fact that no court considered such a possibility for decades. Even Supreme Court Justice Ruth Bader Ginburg, writing about the proposed Equal Rights Amendment decades ago, did not take “gender identity” under consideration as she dismissed concerns that sex nondiscrimination provisions could force bathrooms to be opened up to the opposite biological sex. So when the Sixth Circuit says “[n]or can much be gleaned from the fact that … statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of ‘gender identity,’ while Title VII does not,” it isn’t very convincing. If it was so clear, no court would ever have rejected the notion that “gender identity” falls under sex discrimination—yet many have.

The court continued to err when it analyzed the religious freedom issue here. The funeral home relied on RFRA as a defense to the SOGI claim, asserting that a sincere religious belief had been substantially burdened. At that point, the EEOC could only have prevailed if it had a compelling government interest which was accomplished through the least restrictive means.

Judge Moore incredibly (and erroneously) claimed it was not a “substantial burden” on religious exercise to “forc[e] [the Funeral Home] to violate Rost’s faith,” which “would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” Yet it is an elementary principle of RFRA analysis to observe there is a substantial burden on someone who is told they must compromise their beliefs in order to retain their job. The court accepted that Rost sincerely believed he should not be “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” but then summarily dismissed his concern, concluding that “tolerating [his employee’s] understanding of … sex and gender identity is not tantamount to supporting it.”

The court tries to rely on lower federal court adjudications in the HHS mandate contraceptive litigation, claiming that “[m]ost circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged.” Yet this second-guessing of religious beliefs has been roundly repudiated by the Supreme Court in Employment Division v. Smith, where the Court observed decades ago that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Moreover, despite citing HHS mandate cases from the lower courts, Judge Moore skips over the fact that when the Supreme Court handled those cases on appeal in Zubik v. Burwell, the justices told the parties to come to a resolution while honoring the religious exercise at issue, rather than flatly dismissing the substantial burden on the religious claimants.

After concluding there was no substantial burden on religious exercise, Judge Moore didn’t need to continue her analysis, but did so anyway, offering her view that it was a compelling interest to force the funeral home to accede to the transgendered employee’s demands: “Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person—Stephens—to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” The court did not want to “hoist automatically Rost’s religious interests above other compelling governmental concerns.” The Sixth Circuit then concluded that uniform enforcement of sex nondiscrimination provisions without religious exceptions was the least restrictive means to accomplish this compelling government interest of eradicating discrimination.

What are we to make of this? Aside from realizing that judges are not exempt from the temptation to arrive at a conclusion and then craft reasoning to help one get there, the court’s opinion shows us that businesses seeking religious freedom protections need to state clearly and regularly their religious nature (though part of a separate ministerial exemption analysis, the court did hold the business’s lack of numerous and overt religious indicia against it).

More relevant for our current religious freedom concerns, this case shows the inability of RFRA to adjudicate modern religious freedom disputes with certainty, as the statute allows judges the leeway to craft conclusions of their own liking, an even bigger danger when issues of sexuality—on which they want to be on the “right side of history”—are involved in the case.

Finally, and perhaps most significantly, this opinion demonstrates that when RFRA and SOGI claims intersect, the SOGI claims will likely win (and will almost certainly win in the hands of judges under social and cultural pressure to reach a certain result), thus vindicating many who have claimed that SOGI laws themselves are a threat to religious freedom.

Remarks by Tony Perkins at the 2018 NRB Convention

by Tony Perkins

March 1, 2018

The following are prepared remarks by Tony Perkins at the National Religious Broadcasters 75th Annual Convention on March 1, 2018.

Winston Churchill once said, “During their lifetimes, every man and woman will stumble across a great opportunity. Sadly, most of them will simply pick themselves up, dust themselves down and carry on as if nothing ever happened.”

The apostle Paul spoke to the issue of opportunity in his letter to the Ephesians when he wrote in chapter 5: “Look carefully then how you walk, not as unwise but as wise, making the best use of the time because the days are evil.”

Now, if Paul had grown up in this country, he might have told the Ephesians “Make hay while the sun is shining.”

The sun is shining right now in American when it comes to our First Amendment freedoms. We need to be wise and act quickly, not only using these freedoms to spread the good news, but also to put in place policies that will protect and promote these essential freedoms, not just for ourselves but those yearning for freedom around the globe and generations yet unborn. 

Some of our brethren remain skeptical or indifferent about our engagement in the political process. Don’t be foolish. Elections have consequences, many far-reaching as we continue to see from the years of President Obama.

But we also see the consequences of the election of Donald Trump and Mike Pence. 

Let me put it in a format that many who track this administration are accustomed to – I’ll put it in the form of a tweet:

President Trump has:

  • Appointed Excellent Judges like Neil Gorsuch
  • Enacted Unparalleled pro-life policies;
  • Cut taxes & is Growing our economy

President Trump is:

  • Restoring religious freedom
  • Moving the U.S. Embassy to Jerusalem
  • Rebuilding our military

This is happening because many of you in this room used your influence and your platforms to communicate what was at stake in the last election. I believe America dodged not a bullet in the 2016 election, but a political and cultural H-bomb.

Evangelicals, especially the subset that George Barna calls SAGE Cons—Spiritually Active Governmentally Engaged Conservatives (many of your listeners and viewers)—turned out in record-setting numbers and were unified. Ninety-one percent of SAGE Cons representing 20 million U.S. adults voted, and 94 percent of them voted for Donald Trump.

By the way, almost every time I see the president I don’t have to remind him that evangelicals were the margin for his victory—he reminds me that evangelicals voted for him and they love him!

And by the way, in post-election polling, 59 percent said they voted for the Trump/Pence ticket based on the GOP platform’s position on life and religious liberty. This is important. Despite what the media would say, evangelical voters are sophisticated.  They were able to separate personality from policy.

Evangelicals understood what was at stake and voted.

But the election was not the end of our responsibility, but rather the beginning of our opportunity.

First by acting upon it, but also preserving it.

We need to preserve it by communicating to those who look to and listen to us about what is really happening. We have to counter the narrative of the Fake News—which is real. I’ve been in conversations and meetings with this administration, which somehow got into the media based on their sources which were not only inaccurate but if I didn’t know better, I would think there were intentionally misleading.

Because of the importance of the evangelical voter, there is an intense effort on the Left to suppress their turnout in the upcoming elections, by dampening the enthusiasm of conservative voters. If they succeed and your listeners and viewers get discouraged and stay home in the midterm election, the reform is over. The restoration of religious freedom and the freedom of speech will end.

Nancy Pelosi needs just 24 seats to switch from Republican to Democrat to retake the gavel of the House. In every midterm election since the Civil War, the president’s party has lost, on average, 32 seats in the House and two in the Senate. There are more than 40 Republicans that have and will announce that they are retiring. 

If conservatives and in particular evangelical voters do not turn out, it will happen, and one of the first orders of business will be the impeachment of President Trump. They most likely will not succeed in removing him from office, but they will most likely succeed in stopping what this administration is doing.

What are they doing? The Trump administration is not just enacting conservative policies in line with the Constitution. President Trump is the first Republican President to not just stop the liberal policies of his predecessor; he is dismantling, slowly, but dismantling none-the-less parts of the framework of big, liberal government which has been expanded with the election of each Democratic administration since FDR

That is why the Left is unhinged. They won’t be able to jump back in the driver’s seat of big government and restart their programs, they will have to rebuild, and that will take time, especially if they don’t have the courts to help them in their activism. This is why every judicial confirmation is a fight.

We have to act upon the opportunity that we have, to fortify our freedoms, to ensure government does not again try to quarantine our Christian faith within the walls of our churches. A lot has been done, but there is still plenty to do:

  • The Johnson Amendment has to be totally eliminated.
  • The forced partnership between taxpayers and Planned Parenthood must be ended.
  • Patient-centered healthcare must be restored and,
  • God must be welcomed back into our public life.

The president ran and has governed by the theme “Making America Great Again.” But America will only be great again when it has become good again, and that is not government’s mission, but ours, followers of Jesus Christ.    

Benjamin Franklin said, “History will also afford frequent opportunities of showing the necessity of a public religion, from its usefulness to the public; the advantage of a religious character among private persons; the mischiefs of superstition, and the excellency of the Christian religion above all others, ancient or modern.” 

Let’s be wise and make the best use of this moment in time, this opportunity.

In the wake of the tragic shooting in Parkland, Florida, there is a national discussion about how to protect our children in their classrooms. The focus has been on the instruments of destruction. We continue in a defensive posture with almost every school in America now having active shooter drills. 

In some ways, it is reminiscent of their grandparent’s generation that had duck and cover drills in their classrooms as Americans feared a nuclear attack from Russia in the 1950s.

While that threat was external, and today’s is internal, might we learn from how they responded?

In February of 1954, Reverend George M. Docherty, pastor of the New York Avenue Presbyterian Church in Washington, D.C., delivered a sermon on the subject of the pledge of allegiance, with President Eisenhower sitting in the front pew. The sermon was about the absence of the words “Under God” in our pledge. America was at the height of the Cold War with Russia, and a bold declaration was needed to show that there was a difference between America and the atheistic communists.

Three days after that sermon, a bill was introduced in Congress to add the words “under God.”

And on Flag Day, June 14, 1954, Eisenhower signed the bill into law, saying, “From this day forward, millions of school children will daily proclaim the dedication of our nation and our people to the Almighty.”

America will not be great again until it is good again, and that means America must once again not only acknowledge but live as one nation under God. 

Let us redeem the time.

Let us make the most of this moment.

Let us seize this opportunity!

Fact-Checking Jimmy Kimmel on Christian Bakers: Two Big Errors, But Props for Trying

by Travis Weber

February 13, 2018

The other day, Jimmy Kimmel responded to a California Court ruling affirming Christian baker Cathy Miller’s First Amendment right to not be compelled to create a cake celebrating a same-sex wedding.

Here is a response to Jimmy Kimmel’s response, which I also presented on Facebook Live with our own Brynne Krispin (below).

First, I commend Kimmel for trying to tackle the issue, and for acknowledging the judge’s ruling in favor of the baker “sounded reasonable.” That’s a start.

But Kimmel then goes off track when trying to portray what happened.

In his skit, he plays a waiter who quizzes customers at his hypothetical restaurant, asking after they sat down but before serving them: “Are any of you gay?” After one woman says yes, he informs her his chef can’t make her a salad because he “believes homosexuality is a sin” (while offering her a salad made yesterday before “he knew you were gay”)—wrongly implying that the California baker did the exact same thing.

ERROR #1: Kimmel wrongly portrays business owners as refusing to serve people because they identify as LGBT

This is simply false. How many times do we have to say it?

What Kimmel portrayed is exactly what is NOT happening in the California case, Jack Phillips’ case, or any other.

Neither Cathy Miller nor any of the other Christians being dragged into court over this issue is quizzing customers to see who identifies as LGBT or not, and sending them on their way if they say they are gay. They are only drawing the line at creating items and sending messages which violate their conscience.

Nor is the issue when the item was baked; Jack Phillips and others are happy to sell a person identifying as LGBT cookies, cakes, brownies, etc.—whether made yesterday or today. Rather, the issue is whether the person of faith is being conscripted into using their talents in service of a proclamation against their will.

Indeed, in his brief to the Supreme Court, Jack Phillips clearly stated that he “would decline to create a wedding cake celebrating a same-sex marriage regardless of whether the customer is a same-sex couple or a heterosexual parent purchasing the cake” (emphasis mine). Yet at the same time, he “would celebrate a marriage between a man and a woman even if one or both spouses identified as gay, lesbian, or bisexual” (emphasis mine).

In other words: this is not about the person; it’s about the message.

ERROR #2: Kimmel tells the story of the potential customers, but not the business owners of faith.

In doing this, Kimmel missed a big opportunity to tell the stories of business owners of faith like Jack Phillips and Cathy Miller—and how they are being harassed by government agencies and dragged into court over this issue right now.

So what should Kimmel’s skit have shown?

The waiter should have played the government and the customer could have played the wedding vendor, and it would have been largely on-point. Jack Phillips and others are simply seeking to stay in the marketplace (the table), yet the government is coming to them and telling them to get out unless they modify their Christian beliefs. This is also happening at the hands of the ACLU in Michigan, where Christian adoption providers have a seat at the table along with pro-LGBT providers. Yet the ACLU is suing the state to force the Christian groups to leave because of their beliefs.

Kimmel’s own skit helps show this. Near the end, he referenced a Hindu chef who didn’t want to prepare a steak for a potential customer because of his religious beliefs. Now, just imagine if that Hindu chef’s job had been to simply prepare vegetable side dishes, and then one day all of a sudden his boss tells him to start preparing steaks—or be fired. Cathy Miller’s story is like this chef’s, and it is a story that needs to be told. If Jimmy Kimmel doesn’t tell it, we gladly will.

Religious Freedom Day: A Call to Action

by Family Research Council

January 17, 2018

President Ronald Reagan once said, “To those who cite the First Amendment as reason for excluding God from more and more of our institutions and everyday life, may I just say: the First Amendment to the Constitution was not written to protect the people of this country from religious values, it was written to protect religious values from government tyranny.”

Yesterday was Religious Freedom Day, and in recognition of this important day to celebrate this indispensable freedom, FRC hosted a Washington Watch Special Report with Tony Perkins. The first guest, Senator James Lankford (R-Ok.), pointed out that it’s currently an “odd season” for Christians who want to live out their faith. “Religious freedom and the free expression of your faith has been a given throughout American history, and now for some reason, people of this country and in this cultural time are becoming afraid of faith and afraid of people of faith.” He went on to emphasize that there cannot be a “wall of separation” between one’s faith and the public square that they participate in through their job or through recreation, echoing Reagan’s proper interpretation of the First Amendment.

An unfortunate tendency in our culture today is for many people of faith to assume that there must be a “wall of separation” between their public and private faith lives. But as Senator Lankford underscored, that’s not the proper understanding of a truly lived faith: “If church and faith is only something you do on the weekend, that’s not a faith, that’s a hobby … A faith permeates everything that you do.”

Next, former Congressman Frank Wolf joined Tony to discuss international religious liberty issues. He declared religious liberty to be at greater risk today than it was 40 years ago, with 5.5 billion people currently living in religiously repressive nations. He also pointed out the outrageous fact that Squire Patton Boggs, one of the most powerful law firms in Washington, D.C., represents persecutors of religious freedom like Sudan’s Omar al-Bashir, an indicted war criminal, as well as China, which imprisons and executes Christians, Buddhists, and Uyghurs.

Wolf also issued a strong challenge to pastors and churches to stand up more forcefully for those being persecuted around the world for their faith. “I think we need some men like Martin Luther King. I think we need pastors to go to jail. I am disappointed in the church. There are exceptions … but overall the church has fundamentally failed.” Wolf also mentioned the current anti-Semitism phenomenon happening on college campuses, and how the “Boycott, Divestment, and Sanctions” movement is in reality thinly-veiled anti-Semitism. When asked what we can all do to fight religious persecution, Wolf emphasized the fundamental importance of prayer, supporting groups like Voice of the Martyrs, Open Doors and Samaritan’s Purse, contacting congressmen and senators about religious liberty legislation, and hosting a “religious freedom day” at your church.

Dr. Alveda King was the show’s next guest, and she pointed out that religious liberty issues are particularly relevant to her personally in light of a recent incident in which Facebook blocked ads from being displayed advertising a movie about Roe v. Wade that she served as an executive producer for. She quoted her uncle Martin Luther King who said “Injustice anywhere is a threat to justice everywhere.”

Ryan Bomberger, who is a tireless advocate for the unborn and for equal justice through his Radiance Foundation, closed out the show, noting that he himself was the target of a free speech lawsuit filed by the NAACP, who didn’t like the fact that he was unafraid to point out the organization’s support for the abortion of black children. He also underscored the need for Christians to be fearless in living out their faith: “What good is religious liberty if we are silent?  What good is that freedom if we are complacent?” He also noted how fundamental these issues are: “Without religious freedom, America no longer matters. Without life, nothing else matters. So for me, those two issues [religious freedom and the right to life] go hand in hand, and that’s why the Radiance Foundation really sees these things as so imperative, and why we have to fight for both.”

Tony and Ryan both emphasized the need for more courage among Christians to boldly stand up against injustice and live out their faith without fear. This could mean something as simple as posting an article about the importance of religious freedom on Facebook without being afraid of the negative comments. As Ryan succinctly put it, “At the heart of Christianity is self-sacrifice. Self-sacrifice unleashes purpose. When we’re courageous, we enable opportunities to happen that allow others to be set free.”

Be sure to listen to the entire Washington Watch Special Report or watch the archived Facebook webcast.

Oregon State Appeals Court Rules Against Aaron and Melissa Klein

by Travis Weber

January 5, 2018

On December 28th, the Oregon Court of Appeals ruled against Aaron and Melissa Klein, upholding a determination under state law that forced them to create a cake for a same-sex wedding against their consciences.

The court threw cold water on the Kleins’ First Amendment defenses, claiming that if it allowed them to proceed, then others seeking to defend racial discrimination through religious freedom claims would also be allowed to prevail.

The Court also goes overboard by accepting and recounting wholesale the feelings and perceptions of the upset same-sex couple, coloring bias into the entire narrative—while failing to do the same courtesy for the feelings and perceptions of Aaron and Melissa, who no doubt have been seriously harmed throughout this case. Moreover, Aaron and Melissa had to endure a barrage of hateful rhetoric directed at them as this incident developed, yet none of this is built into the court’s recounting of events, which ultimately supported highly excessive damages against the Kleins built on nothing more than the couple’s flimsy emotional narrative.

Yet there were a couple of bright spots in the opinion.

The one finding the court reversed was the part of the administrative ruling which acted as a “gag order” on the Kleins being able to speak about what happened to them. This finding was outrageous, and rightly reversed by the court of appeals.

Second, even though the court ruled against the Kleins’ freedom of expression claim, it recognized that to the degree such cake creations are artistic, they are very likely protected. Noting that “[i]t appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression,” the court said that “[i]f BOLI’s [Bureau of Labor and Industry—the administrative entity which ruled against the Kleins] order can be understood to compel the Kleins to create pure ‘expression’ that they would not otherwise create, it is possible that the Court would regard BOLI’s order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression.” This also “would be a different case if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (‘God Bless This Marriage.’)”

Well, the Supreme Court is about to decide this very issue in Jack Phillips’ case—Masterpiece Cakeshop v. Colorado Civil Rights Commission—in the upcoming months. When his case is decided, the Kleins’ case may be too. Indeed, at oral argument in Phillips’ case, the exact message “God Bless This Marriage” was mentioned by the justices as implicating protected expressive conduct (one wonders if the Oregon Court of Appeals specifically cited it in order to leave itself an “out”).

Finally, in another bright moment in its opinion, the Oregon Court of Appeals observed that the Kleins’ case (and therefore many of these wedding vendor cases) are unlike FAIR v. Rumsfeld, in which the Supreme Court said law schools must allow military recruiters (the military was under the “Don’t Ask, Don’t Tell” policy at the time) access to campus if they wanted to continue to receive federal funds. Opponents of the Kleins and others often claim their cases are like FAIR, and it was good to see the Court here dismiss that notion, observing that the law schools never objected to being forced to speak a message with which they disagree, while the Kleins and other wedding vendors do.

Despite these few promising points, the Oregon Court of Appeals ruling is a blow to freedom for all, and will only perpetuate the current culture war by suppressing the religious freedom of many people of good will who just want to live their lives in peace. The Kleins’ opponents could have easily obtained a cake from a nearby bakery, and the problem would be solved. Instead, once again, everyone has been dragged into years of litigation. Until a different approach to these conflicts is taken, we can only expect more of the same results.

Kicking Jesus Off the Bus?

by Travis Weber

December 13, 2017

Last week, a federal court ruled that the Washington Metropolitan Area Transit Authority (WMATA) was permitted to reject an ad (pictured above) that the Roman Catholic Archdiocese of D.C. wanted to run on the sides of area buses during the Christmas season.

Now why would such an ad be excluded?

In holding that WMATA’s commercial advertising guidelines (under which the ad was excluded) did not violate the First Amendment and could be permitted to stand, the court reviewed the guidelines under a standard for speech in nonpublic forums (which public buses are generally considered to be). For nonpublic forums, the government can discriminate based on content but not on viewpoint, and here, WMATA has a policy of not allowing certain types of content on its buses, including religious content.

While WMATA would be able to eliminate religious content from its buses, the Archdiocese had argued that WMATA was discriminating based on viewpoint because it was happy to have other Christmas ads which are religiously related and which convey the view that Christmas is a commercial holiday, but that WMATA didn’t want to accept the Archdiocese’s view that Christmas is noncommercial and should be focused on the gift of Christ (as the above poster does).

The court rejected this view, ruling that the bus guidelines did not discriminate based on viewpoint but only on content—noting that “religion is excluded as a subject matter.”

But is all of “religion” really being excluded? It doesn’t seem so. WMATA permits Christmas-related ads from the Salvation Army, and ads from a religiously-focused yoga group.

Yet, as the court recognizes later in its opinion, the guidelines prohibit ads that “promote” or “oppose” religious beliefs. The court relies on these guidelines to distinguish the Archdiocese’s proposed ad from ads by the Salvation Army and a yoga studio, which WMATA permitted despite their religious overtones, claiming they don’t promote specific beliefs. So it is not religion per se that WMATA wants to prohibit, but rather messages opposed to or promoting religious belief. And since the Archdiocese is understandably seeking to promote its own religious belief in its own ad which it would be paying for, WMATA declared it off limits (thus, the court’s comment that “religion is excluded”—seeming to refer to religion generally—isn’t even correct).

We should be especially wary of government restrictions on one’s viewpoint. They are the most dangerous at their core, and go to the heart of why we have the First Amendment. In ruling for WMATA here, the court observed that under the lower standard of scrutiny applied, the government could rely on administrative convenience and the avoidance of controversy as a legitimate basis to exclude ads—as it and other authorities have done in response to Islam-related ads (indeed, the whole reason WMATA and other authorities have chosen to lower the level of scrutiny they have to meet and eliminate whole areas of discussion from their buses is to avoid legally having to host controversial Islam-related messages—now, the same ad which has run in years past in the D.C. metro system is not being permitted on buses). But suppressing a message for fear of the response is the essence of the heckler’s veto, and is no way for a free country to act.

If for no other reason, this is perhaps why the courts should be inclined to rule for the Archdiocese here, and be loath to affirm any policy which could be used to justify views the government doesn’t like.

A Three-Dimensional Case for Masterpiece Cakeshop — from Justice Kagan, No Less

by Peter Sprigg

December 12, 2017

I am not generally a fan of liberal Supreme Court Justice Elena Kagan. But after reading the entire transcript of the December 5 oral arguments in the Masterpiece Cakeshop case (in which a Christian baker was found guilty by Colorado of discrimination for declining to make a custom wedding cake for a same-sex couple), I thought one question she asked was especially insightful.

Most of the discussion on Jack Phillips’ free speech claim centered on a question distilled by Justice Stephen Breyer. Baker Jack Phillips argues that his First Amendment right to be free from compelled speech was violated by Colorado’s application of its public accommodations law to him, but Breyer asked, “[W]hat is the line? … [W]e want some kind of distinction that will not undermine every civil rights law.”

Kagan elaborated on that concern in a question posed to U.S. Solicitor General Noel Francisco, who was arguing in support of Phillips:

JUSTICE KAGAN: General, it — it seems as though there are kind of three axes on which people are asking you what’s the line? How do we draw the line? So one axis is what we started with, like what about the chef and the florist -

GENERAL FRANCISCO: Speech, non-speech.

JUSTICE KAGAN: — and — and, you know, everybody else that participates in a wedding? A second axis is, well, why is this only about gay people? Why isn’t it about race? Why isn’t it about gender? Why isn’t it about people of different religions? So that’s a second axis.

And there’s a third axis, which is why is it just about weddings? You say ceremonies, events. What else counts? Is it the funeral? Is it the Bar Mitzvah or the communion? Is it the anniversary celebration? Is it the birthday celebration?

So there are all three of these that suggest like, whoa, this doesn’t seem like such a small thing.

1. “Speech” vs. “non-speech” in the wedding industry

The core of the argument made by Kristen Waggoner, the Alliance Defending Freedom attorney representing Phillips, related to the first “axis” Kagan mentioned. The courts have previously found that under the First Amendment’s free speech protections, not only may the government not punish an individual for speaking his own opinions, but the government also may not compel an individual to communicate a message he disagrees with against his will. Using his talents to create a custom wedding cake is a form of artistic expression which is protected as “speech” under the First Amendment, Waggoner argued. Doing so for a same-sex wedding would constitute a message of endorsement of a homosexual relationship and of same-sex marriage, which violates Jack Phillips’ religious beliefs. Therefore, the state of Colorado may not compel Phillips’ to create such a cake without violating his First Amendment rights.

The justices demanded to know what other vendors providing goods and services for a wedding would or would not enjoy similar free speech protections. What type of commercial conduct constitutes “speech,” and what is “non-speech,” as Francisco put it? Waggoner suggested that the exemption would apply to a baker, florist, or calligrapher creating invitations; but might not apply to a hair stylist or makeup artist (more on that later).

Yet I think Kagan’s other two “axes” (plural of “axis,” not “ax”) are also significant. Unlike Kagan, however, I think they make the case easier to decide, not harder.

2. “Why is this only about gay people?”

The second axis of line-drawing has to do with any distinctions between various protected categories. Is there a difference between “discrimination” that is based on sexual orientation (“gay people”), and that based on race, sex, or religion? Attorneys on the other side and the more liberal justices hammered on the race analogy—if we allow a baker to refuse to bake a cake for a same-sex wedding, can he also refuse to bake a cake for a black child’s birthday?

Now, before discussing the question of whether “discrimination” based on “sexual orientation” is the same as racial discrimination, let me state my own view that refusing to participate in a same-sex wedding does not constitute discrimination based on “sexual orientation” at all. Phillips’ principal objection stems primarily from his religious beliefs about the definition of marriage (that it is inherently a union of one man and one woman) and his beliefs about the appropriate boundaries of sexual conduct (that it should only take place in the context of a marriage so defined). This has nothing inherently to do with the “sexual orientation” of the individuals involved.

Phillips would bake a cake for a wedding of two people who self-identify as homosexual—if they were of the opposite sex. And he would not bake a cake for a same-sex wedding, even if the individuals involved identified as heterosexual. If those examples sound absurd, it is only because in our time we have a cultural assumption that an indispensable purpose of marriage is the gratification of sexual desires. Yet that is an assumption about marriage that has by no means been universal in all times and all cultures, and the Court need not adopt it as a legal assumption today.

The Colorado public accommodations non-discrimination law that Phillips was charged with violating makes no distinctions among its protected categories. But that is not the legal question at issue. Phillips is asserting a claim under the U.S. Constitution, which (if successful) would override a state statute. The question is whether the “discrimination” he is accused of gives the government a compelling interest in overriding that federal constitutional claim. Under federal court precedents, there is a distinction to be made between race and sexual orientation. Classifications of individuals on the basis of race are subject to “strict scrutiny,” which means that they can very rarely be justified. The Supreme Court has never said that classifications based on “sexual orientation” are subject to the same high level of scrutiny.

I have argued elsewhere that the reason classifications based on race are subjected to the highest scrutiny is because race is, indisputably, a characteristic that is inborn, involuntary, immutable, innocuous, and in the Constitution. “Sexual orientation” does not meet the same criteria. In fact, its definition is not entirely clear, since depending on the context, it may refer to a person’s sexual attractions, their sexual behavior, or their self-identification, or some combination of the three. The three aspects of sexual orientation are also not always consistent in one individual at one time, or over the life course. A person’s sexual attractions may indeed be involuntary (I am not saying people “choose to be gay,” if “being gay” is defined based on attractions alone). However, a person’s sexual behavior and self-identification do not meet any of the criteria which justify strict scrutiny of racial classifications. For those who disapprove of homosexuality, it is almost entirely the conduct—not the attractions or even the self-identification—which is seen as problematic.

I realize that in a 2010 case (Christian Legal Society v. Martinez), Justice Ruth Bader Ginsburg wrote for the 5-4 majority, “Our decisions have declined to distinguish between status and conduct in this context.” The “context” she referred to was a sexual orientation classification. (In that case, the University of California’s law school had denied recognition to a Christian student organization because they did not permit people who engaged in “unrepentant homosexual conduct” to serve in leadership positions.) “CLS contends that it does not exclude individuals because of sexual orientation,” reported Ginsburg, “but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong.’” An analysis in the New York Times described Ginsburg’s sentence rejecting the distinction between “status and conduct” as a “time bomb” which could explode with broader implications in later cases (as it did in the later cases involving the definition of marriage).

Justice Anthony Kennedy himself, however (despite having been the decisive vote in the decisions striking down both federal and state definitions of marriage as the union of a man and a woman), seemed to hint that he might be willing to defuse the status-conduct “time bomb” in the context of the Masterpiece case. Here is part of an exchange with David D. Cole, the attorney representing the same-sex couple, after Cole repeatedly asserted that Jack Phillips’ action was “identity discrimination”:

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly—suppose he says: Look, I have nothing against—against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not –

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s — your identity thing is just too facile. [Emphasis added.]

Whether the court has distinguished between homosexual conduct and an “identity” or “status” as “gay” in prior decisions or not, the distinction clearly exists in the real world, and it makes sexual orientation different from race (or sex). It would be salutary for the Court to acknowledge that now.

3. “Why is it just about weddings?”

The third axis of line-drawing posited by Kagan has to do with the type of events which, hypothetically at least, might trigger a religious objection and therefore a religious or free-speech exception to anti-discrimination laws.

However, it is clear that the liberty Phillips is seeking in this case has specifically and narrowly to do with weddings because of the nature of that event. He and his attorneys have repeatedly made clear that Jack Phillips regularly serves customers who openly self-identify as gay. His policy of not creating custom cakes for same-sex weddings therefore bears no resemblance to racially segregated businesses in the Jim Crow south, which either did not serve black customers at all, or would only serve them in physically segregated facilities.

Phillips’ attorney Kristen Waggoner described his objection regarding weddings most succinctly in her final summation, when she said this:

A wedding cake expresses an inherent message that is that the union is a marriage and is to be celebrated, and that message violates Mr. Phillips’s religious convictions.

This single sentence makes two distinct points. The “message … that [a same-sex] union is a marriage … violates Mr. Phillips’s religious convictions” (because his Christian faith teaches him that “marriage” can only be defined as the union of a man and a woman). In addition, the “message … that [a homosexual] union … is to be celebrated” also “violates Mr. Phillips’s religious convictions” (because his Christian faith teaches that homosexual relationships are sinful—that is, always contrary to the will of God).

Neither of these objections, however, would apply to providing baked goods for a birthday celebration or a funeral reception for someone who identifies as gay, because neither a birthday nor a funeral sends “an inherent message” that marriage can be between people of the same sex, nor that sexual relations between people of the same sex are to be celebrated. Only a wedding (and potentially a wedding-related event, such as a shower or anniversary) sends that particular, and particularly objectionable, message.

In fact, Solicitor General Noel Francisco seemed to me to at least hint at an argument for an even broader exemption than what Phillips’ own attorney, Kristen Waggoner, was requesting. Waggoner argued narrowly that the specific act of creating a custom wedding cake was a form of creative, artistic expression that merits free speech protection. Francisco, however, made repeated reference (seven times, by my count) to the wedding itself as an “expressive event.” This, it seems to me, would suggest that any participation in the celebration of a same-sex wedding—even if it involves less creative artistry than the creation of a custom-made cake—could constitute implicit endorsement of the message in support of same-sex marriage and in support of homosexual unions that is inherent in the event itself.

The Three-Dimensional Solution

Justice Kagan’s concern was that drawing lines too broadly on all three axes she described would result in exceptions that would completely swallow the rule of Colorado’s public accommodation non-discrimination law. If we allow exceptions for bakers, what about other vendors? If we allow exceptions for sexual orientation, what about other protected categories? And if we allow exceptions for weddings, what about other events? If broad exemptions are granted in all three areas, then, as she said, “whoa, this doesn’t seem like such a small thing.”

I believe, however, that there are sound reasons for narrowing the exemption regarding protected categories only to sexual orientation—logically, because it involves primarily conduct, and legally, because it is not subject to strict scrutiny and is never mentioned in the text of the Constitution. As noted above, there are also reasonable grounds for treating a wedding differently from other events.

With the lines drawn narrowly with respect to those categories, I think there would be room for the line regarding which vendors can claim free speech protection to be drawn a bit more broadly. I would like to see the Supreme Court adopt Solicitor General Francisco’s view of a wedding itself as an “expressive event”—and therefore extend the protection against “compelled speech” to any vendor who provides wedding services—whether baker, florist, or photographer, or calligrapher; or even chef, hair stylist or makeup artist.

Such a decision would leave Colorado’s non-discrimination law intact, while still recognizing the elevated threat to freedom of conscience that arises in the narrow and unique situation of participation in celebrating a same-sex wedding.

Will the Supreme Court Recognize Consumable Beauty in Wedding Cake Case?

by Peter Sprigg

December 4, 2017

On Tuesday, December 5, the Supreme Court will hear arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The latter agency ruled that baker Jack Phillips, a Christian, had violated a state law against discrimination based on sexual orientation in public accommodations when he declined to design a wedding cake for a same-sex couple.

One of the key arguments being made on Phillips’ behalf is that the creation of (or decision not to create) a custom-designed wedding cake is quite different from simply buying a product off the shelf, because it is an act of creative artistic expression—and is therefore protected by the First Amendment.

In light of that, one of the more fascinating briefs filed in the case came from a group of “cake artists as amici curiae in support of neither party.” While taking no position on the other arguments in the case, this brief does assert that “this Court should make clear … that cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium.”

Among the unique aspects of this brief are that it includes full color photographs of a number of unique, creative, and beautiful cakes for both weddings and other events. However, I also thought that this paragraph (on p. 33)—challenging the argument that cakes are not “art” because they are designed to be eaten—was a work of beauty in itself:

For example, cakes are perishable, designed to radiate beauty but for a moment, and then to be consumed. But the fact that any given cake is a vanishing work does not distinguish it from artistic performances on the stage (or, indeed, protests on the street). Nature’s beauty is no less revealed through the flower that blooms for a single day than through the tree that lives for a thousand years; likewise, an ice sculpture is not inherently less artistic than one carved from stone. The same is true of cakes—they are made from a canvas designed for consumption rather than permanent display. And like other vanishing works of art, cakes can be given a measure of permanence by being recorded—as with the pictures in this brief. Cake is not the only “art” than can be consumed—but the consumption of cake merges more senses (sight, taste, touch, smell) than the consumption of a speech or a song.

10th Circuit Lets Police Officers Off the Hook After Telling Woman She Could Not Pray in Her Own Home

by Travis Weber , Natalie Pugh

November 22, 2017

First Liberty, a non-profit law firm, recently filed a petition for certiorari with the Supreme Court on behalf of their client, Mary Anne Sause, after the 10th Circuit ruled that the police officers who told her she could not pray did not clearly violate her rights. As recounted by the court, and alleged in her complaint, the police officers entered Sause’s house to investigate a noise complaint. When one officer left to search the house, an action he did not provide a valid reason for, Sause became frightened and asked the officer with her if she could pray. The officer said she could and Sause knelt on her prayer rug and began to pray. Once the other officer returned to the room he allegedly ordered Sause to get up and stop praying as he and the other officer began to mock Sause for praying and tell her that she should leave the state since no one liked her. As recounted, the behavior of these officers is reprehensible in multiple ways. Yet it is also troubling that the 10th Circuit let the officers off the hook for their actions in this case.

In its opinion, the court held that even assuming the police officers violated Sause’s First Amendment rights when they told her to stop praying, the officers had qualified immunity and therefore could not be held responsible.

Qualified immunity is a legal doctrine that protects public officials, such as police officers, from liability if their actions did not violate a clearly established law or constitutional right. Because the specific circumstances of this case had never been presented to the 10th Circuit before, that court claimed the officers did not violate a clearly established law and were protected by qualified immunity.

Yet the right to exercise your religion, in this case the right to pray, is clearly established—in the Constitution. While it is difficult to expect police officers to perfectly understand the legal dynamics of every possible situation they might encounter with a civilian, and thus qualified immunity may be necessary in some contexts to allow police officers to do their jobs effectively, the violation in this case is nevertheless obvious and the officers responsible should not be allowed to hide behind qualified immunity.

It is essential that officers understand basic rights—including our First Amendment rights—named in the Constitution, which every student learns in public school. To claim that a police officer shouldn’t be expected to know that an American citizen has the right to pray in a context like that alleged in this case is a dangerous turn.

The Supreme Court should take up this case and declare to the nation that religious freedom is a vital constitutional right which should be respected by all public officials. No individual in a country which claims to protect the religious liberty of its citizens should ever be told that they cannot pray.

Why It Is Unnecessary to Force Jack Phillips to Bake a Wedding Cake

by Travis Weber

November 21, 2017

There are actually a number of answers to this question, but one of them is quite simple: because there are so many others nearby who are happy to do so.

One amicus brief filed in support of Jack Phillips by numerous law and economics scholars, including the esteemed Richard Epstein, makes this point quite nicely.

That brief points out that according to a search on, there are 67 other bakeries in the Denver area alone that are willing to create a same-sex wedding cake, including one that is only 1/10 of a mile from Jack Phillips’ Masterpiece Cakeshop. Forty-two of these bakeries are shown below; notice where they are compared to Jack’s shop, marked by the orange circle:

Given all these shops that are happy to create a wedding cake for a prospective same-sex couple, is it really necessary to force Jack Phillips to be the one to do so?

While the prospective customers may be offended at Jack’s beliefs, part of living in a free country is that we interact with people who believe differently than us.

Yet they can easily travel nearby and obtain the cake from someone else—someone happy to help create it.

Meanwhile, forcing Jack Phillips to create the cake comes with the heavy cost of forcing him to violate his conscience or stop designing wedding cakes (and potentially go out of business).

Regardless of our personal views on the issue, that is not a vision of American “freedom” that any of us should want to be a part of.