Category archives: Religious Liberty

Another Attack on Kenyan Christians Brings Us Back to Watu Wote

by Travis Weber

September 20, 2018

Tragedy has repeated itself with the most recent attack on Christian bus passengers by al-Shabaab militants in Northeast Kenya. As has happened before, militants reportedly forced the passengers to show their identification cards, and then separated them according to whether they had a Muslim and Christian name. Those with non-Muslim names were forced to recite the Shahada, or the Islamic statement of faith, and two (likely Christians) who failed to recite it were immediately executed.

Reflecting with sadness on these events, we recall the short film Watu Wote (“All of Us” in Swahili, pictured above). An Oscar short film finalist, it tells the true story of another al-Shabaab attack—also on a bus in this area of Kenya (in Mandera to be precise). In this instance, Muslims on the bus refused to separate from the Christians despite orders from the militants to do so, which helped save the lives of the Christians. The film is difficult to watch, but well-done, and an encouraging story of human beings choosing to do what is right, despite the risk of doing so.

In light of recent events, the film is well worth a watch.

Lawsuit Targeting Faith-Based Adoption Agencies Allowed to Proceed in Michigan

by David Closson

September 17, 2018

On Friday, a federal judge ruled that Dumont v. Lyon, the ACLU’s lawsuit against the Michigan Department of Health and Human Services, may proceed, finding that the plaintiffs—two same-sex couples who allege they were turned away by certain faith-based placing agencies when they sought to adopt—have standing to sue.

In denying the Defendant’s motion to dismiss, the Clinton-appointed District Judge, Paul D. Borman, ruled that the couples have demonstrated plausible Establishment Clause and Equal Protection claims that are “fairly traceable” to the defendant’s practice of entering into contracts with faith-based agencies that operate according to their religious beliefs about marriage. Michigan state law since 2015 has protected the conscience rights of faith-based adoption providers.

In his ruling, Judge Borman explained that because faith-based agencies process 20 percent of the active foster care and adoption cases in Michigan, it is “reasonable to infer that the ability of faith-based agencies to employ religious criteria as a basis to turn away same-sex couples erects at least a 20% barrier to that Prospective Parent Plaintiffs’ ability to adopt or foster a child in the State of Michigan.” Noticeably absent from Judge Borman’s comments on this point is that the ACLU’s clients in the case live closer to four other foster and adoption agencies than St. Vincent Catholic Charities, a co-defendant in the case. All four agencies facilitate adoptions for same-sex couples.

Significant for this case—and others moving forward—Borman cites the Plaintiff’s claim of “stigmatic injury” alongside “practical injuries” as grounds for allowing their Establishment Clause claims to proceed. In addition to claiming that Michigan’s law makes it more difficult for them to adopt, the same-sex couples allege that the state’s practice of contracting with faith-based agencies with religious convictions constitutes a form of harmful discrimination. This is an appeal to “dignitary harm,” a concept that refers to the alleged emotional pain and humiliation suffered when someone disagrees with another’s moral decisions or lifestyle; the notion is increasingly invoked by activists who want to silence dissent from anyone who disagrees with the LGBT agenda.

The longest section in the 93-page ruling was Borman’s rationale for why, in his view, the Plaintiffs have credibly alleged an Establishment Clause violation. The Plaintiffs believe the implementation of Michigan law constitutes an endorsement and promotion of religion which is prohibited by the Establishment Clause. Concurring with the Plaintiffs, Borman employs the second and third prongs of the Lemon test to establish whether Michigan’s law conveys the message that the state endorses the view that opposes same-sex marriage. According to Borman, “The answer is yes.” In an important paragraph he argues that “Plaintiffs plausibly allege and suggest that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both a subjective purpose of discriminating against those who oppose the view of the faith-based agencies and objectively endorses the religious view of those agencies that same-sex marriage is wrong.”

Borman also says that while the Establishment Clause does not prohibit Michigan from entering into contracts with religious organizations, the use of religious criteria by faith-based adoption providers suggests “excessive entanglement” between the state and religion. Thus, according to Borman’s opinion, the Defendants will need to prove in the trial phase why current state law protecting faith-based adoption agencies does not constitute an inappropriate promotion of or excessive entanglement of religion.

Turning to the Plaintiff’s Equal Protection claim, Borman is more cautious but permits the claim to proceed to the discovery phase. Notably, he admits the Plaintiff’s burden to prove that Michigan’s law is motivated by anti-gay animus is “admittedly high.”

On one count Borman does rule in favor of the Defendants, finding that the Plaintiffs fail to establish taxpayer standing to assert their Establishment Clause claims. Alongside the same-sex couples, Jennifer Ludolph, a former foster child who also sued the state, objected to the use of taxpayer money to fund child-placing agencies that do not place children in same-sex households due to the provider’s religious convictions on marriage. Borman ruled that all of the Plaintiffs failed to establish taxpayer standing and dismissed with prejudice Ludolph’s claims.

In response to the decision, Mark Rienzi, an attorney with Becket representing St. Vincent said, “Today’s court ruling allows the ACLU’s lawsuit to proceed—a lawsuit aimed at forbidding the state from working with faith-based adoption agencies to help children in need. Such a result would make it much harder for thousands of children to find the loving home they each deserve. Beckett is fighting to make sure that doesn’t happen, and this is just one step along the journey in this case.”

SOGI Law Forces Catholic Adoption Provider to Close After 95 Years

by David Closson

August 31, 2018

Last week, after nearly 95 years of providing adoption services, Catholic Charities of Buffalo announced the termination of their adoption and foster care programs because of state requirements that would have forced the charity to violate its religious convictions by placing children in homes without both a father and a mother.  

The agency said their decision was guided by the Catholic Church’s historic teaching on the nature of marriage and family and acknowledged the change was prompted by a same-sex couple’s recent application to become adoptive foster parents.  

In their official statement the agency explained, “As an organization sponsored by the Diocese of Buffalo, Catholic Charities cannot uphold the requirement that contracting agencies allow same-sex couples to foster and adopt children. The teaching and position of the Roman Catholic Church throughout the world recognizes marriage only as a union between a woman and a man.” Noting the obvious, they add: “We’re a Catholic organization, so we have to practice what we do consistent with the teaching of the Church.” 

Tragically, Catholic Charities of Buffalo joins a growing list of faith-based adoption providers that have been forced out of business for refusing to compromise their religious convictions in order to comply with sexual orientation and gender identity (SOGI) “nondiscrimination” ordinances. Earlier this summer, Philadelphia discontinued their relationship with two adoption providers that could not conform to the city’s SOGI law because to do so would violate their religious convictions. In July, a federal judge sided with the city after the adoption agencies filed a motion for a temporary injunction.  

Behind these developments in Buffalo and Philadelphia is a clear message to faith-based adoption-providers: unless you embrace and subscribe to the new orthodoxy on contested matters related to marriage, sexual orientation, and gender identity, you will be blacklisted, targeted, and ultimately run out of business.  

In Buffalo, intolerance toward Christian beliefs was couched in the language of discrimination. A spokesperson for the New York Office of Children and Family Services said, “Discrimination of any kind is illegal and in this case (Children and Family Services) will vigorously enforce the laws designed to protect the rights of children and same sex couples.” 

Thus, under the guise of combatting discrimination, the state government is trampling the religious freedom of faith-based agencies by refusing to grant an exemption or accommodation. Moreover, they are tragically putting the partisan political agenda of adult activists over the interests of children. No one is served by forcing the closure of an organization with a proven track-record of helping children. On average, Buffalo Catholic Charities arranges the adoption of five children per year and currently has 34 children in foster care. When they close, their work of placing these children with adoptive parents will stop. The situation is a lose-lose for everyone, but especially vulnerable children.  

Consider these statistics: there are currently 437,465 children in foster care and 117,794 waiting to be adopted. These numbers highlight the dire need and underscore the reality that the maximum number of partnering organizations are needed to serve the needs of society’s at-risk children. However, if progressive activists have their way and continue enacting SOGI ordinances that preclude faith-based agencies from operating according to the moral teachings of their faith, hundreds of organizations will soon be forced out of the foster-care marketplace altogether. Again, the results would be devastating for at risk-kids.

In short, the development in Buffalo once again underscores the need for federal legislation such as The Child Welfare Provider Inclusion Act (CWPIA) that would ensure all available agencies can continue to serve children without compromising the agency’s sincere beliefs or moral convictions.

Until legislators act, stories like these from Philadelphia and Buffalo will reoccur and children will continue to be the unfortunate casualties in an adult culture-war.

David Closson is Research Fellow for Religious Freedom and Biblical Worldview at Family Research Council.

India’s Opportunity for Religious Freedom

by Travis Weber

August 23, 2018

As the U.S. Secretaries of State and Defense prepare to travel to India next month for high-level talks with their counterparts in that country (the first time such talks have occurred), religious freedom should remain squarely on the agenda.

Pressure will no doubt arise from foreign policy realists to toss religious freedom from the discussion. Desiring to bolster the U.S./India relationship to counter China, they will want to avoid any sticking points—and religious freedom is one of them.

This does not need to be the case. If India could see that advancing religious freedom advances its own national security interests, and economic growth, it might be interested in more seriously addressing the issue. In light of India’s desire to advance economically, it should in particular pay attention to the relationship between increased religious freedom and increased economic growth.

But the issue certainly needs to be addressed. Those urged toward Hindu nationalist sentiment by governing BJP party allies have for years targeted Christians and others. More recently, U.S.-based charities like Compassion International have been restricted, shut down, or forced out of the country. The idea that someone might choose a religion other than Hinduism has these groups in an uproar, and hence their backing of “anti-conversion laws” in several areas of India which do in fact make it illegal to convert to other religions—including Christianity.

While Prime Minister Modi has finally started to acknowledge some of these problems, a verbal acknowledgement alone won’t suffice. If Modi wants to point to this as “progress” if Secretary Pompeo raises the issue, he shouldn’t get a pass. Religious freedom advocates have cause to be skeptical in light of the years of abuse in India.

This very week, events commemorating the 10-year anniversary of the slaughter of Christians by mobs upset about the murder of the Hindu leader Swami ‎Lakshmanananda Saraswati are taking place. What followed this murder on August 23, 2008, constituted India’s worst Christian persecution in 300 years. Despite the fact that Maoists took responsibility for the Swami’s death, over the course of the ensuing months, around 56,000 Christians fled into forests and the homes of friends and relatives. Approximately 5,600 houses and 415 villages were raided and set on fire. The government reported that 38 people were killed and two women raped, though others have reported higher numbers.

In the aftermath, seven Christians (including six who were illiterate) were tried and convicted of the murder in what appears to be as close to a sham trial as one can get. Their case has been stagnating, with an appeals court failing to take it up. One journalist has taken to setting up a petition calling for their release. It currently has almost 70,000 signatures. Those who wish to join with him can sign here.

All of this is additionally lamentable in light of India’s proud history as a Commonwealth country. Formerly part of the British Empire, India and other commonwealth countries pride themselves on matters such as the rule of law. Yet the rule of law has sadly suffered in recent years as it pertains to religious freedom in India. This compounds the negative effect on economic growth, as investors grow skittish of places where the rule of law is threatened.

One way these religious freedom concerns can immediately be addressed is by giving the seven Christians convicted for the Swami’s death a hearing date for their pending appeal, and a fair and speedy trial. Such steps will start the process of remedying the religious freedom and rule of law issues which have developed in recent years, and begin the journey toward remedying the problems for religious freedom in India.

Update on California’s AB 2943: Therapy Ban Assaulting Freedom of Speech and Religion Passes Senate

by Peter Sprigg

August 17, 2018

Here are some quick facts on the most recent action regarding California’s alarming bill, AB 2943, with links to sources:

  • The California Senate just passed AB 2943 on August 16.
  • AB 2943 is Round Two of California’s attack upon sexual orientation change efforts (SOCE).
  • AB 2943 is so sweeping it could potentially ban the sale of some books—even the Bible.
  • Therapy bans restrict what therapists can say to clients. The Supreme Court has signaled that this violates constitutional rights to free speech.
  • Ironically, AB 2943 was passed even as a new study has debunked claims that SOCE is ineffective and harmful
  • Most clients who seek SOCE just want to live their lives according to the teachings of their faith, so bills like AB 2943 are an attack upon their freedom of religion.
  • The Assembly or Gov. Brown have a last chance to block enactment of AB 2943. Urge them to do so now.

CNN Publishes a Hatchet Job on Religious Freedom

by Travis Weber

August 10, 2018

Following the announcement of the Department of Justice Religious Liberty Task Force, CNN decided to post a recent piece that horribly mischaracterized what Christians believe about religious freedom. Whatever accuracy the piece contained was drowned out by glaring falsehoods—assertions and conclusions which are not only untrue, but which have now been released into the public discourse to further sow divisiveness and animosity.

Take this statement, for example: “[Sessions] also portrayed religious liberty as the right of religious groups not to be labeled as hate groups even if their beliefs prescribed hate.”

The author didn’t cite a Bible verse or theological position for “hate” because she can’t—it’s not there. So she just claims (falsely) that Christians’ beliefs “prescribe”—or instruct us to engage in—“hate” (whatever that means). In the process, she defended the Southern Poverty Law Center’s arbitrary “hate” list which Sessions was referring to—a hate list on which SPLC unilaterally labels and places FRC and other groups because we hold to unpopular truths about human sexuality, and a list which led to a gunman entering my organization’s headquarters several years ago with a plan to commit mass murder, wounding a security guard in the process. (FRC maintains no such lists of any of our opponents.)

One need only crack the pages of the Bible for a moment to see how false the CNN piece is about Christianity: “Dear friends, let us continue to love one another, for love comes from God. Anyone who loves is a child of God and knows God. But anyone who does not love does not know God, for God is love” (1 John 4:7-8).

Our faith leads us to love all people, which means conveying the truth. They may not like that truth, but their response does not mean we are not acting out of love.

For CNN to relay such falsehoods about Christians only serves to toxify the public square. Those commenting on the religious beliefs of others—like this author—need to get their facts right. If there is one thing Jesus “prescribes,” it is love. The cost of failing to accurately describe the religious beliefs of others is further mistrust and social deterioration. Unfortunately, this piece squarely contributes to that.

As a Christian organization, we not only aim to convey the truth out of love, but we believe no one should be compelled to act against their conscience in matters of faith. All people must be free to choose—or not choose—God. Therefore, we desire to protect religious freedom for all people (regardless of their faith), and applaud Attorney General Sessions’ efforts to protect Hindus and Muslims, for example. As mentioned during the Task Force announcement, the Sessions DOJ recently prosecuted an individual “who set fire to a mosque”—a fact which the CNN op-ed author conveniently left out of her discussion of how the Sessions DOJ approaches religious freedom. 

It is long overdue for CNN and other “mainstream” media to start discussing religious freedom in good faith, examining the facts and applying a dose of honesty with regard to what Christians actually believe about this issue. This would go a long way toward achieving the constructive dialogue necessary to heal our divided nation.

DOJ Announces Timely Religious Liberty Initiative

by Travis Weber

July 31, 2018

Speaking at the Department of Justice yesterday, Attorney General Jeff Sessions announced the creation of a “Religious Liberty Task Force” to ensure the DOJ fully implements President Trump’s Religious Liberty Executive Order from May 4, 2017, and the follow-on DOJ religious liberty guidance issued on October 6, 2017.

The task force will ensure that the October 6 guidance fully affects all DOJ policy, such as what cases are taken, what arguments are made in court, and how DOJ personnel conduct themselves. Dialogue between DOJ and religious groups will remain ongoing, and DOJ employees will be trained in “their duties to accommodate people of faith.”

This is a welcome announcement, and further indicates the priority given to religious liberty by the Trump administration and his Department of Justice. 

Sessions’ opening remarks were encouraging. He discussed the cases of religious objectors such as the Little Sisters of the Poor (subjected to a legal battle to not be coerced into providing contraception against their consciences), and baker Jack Phillips (who didn’t want to create a cake celebrating a same-sex wedding), mentioning Jack’s recent vindication in the Supreme Court’s Masterpiece Cakeshop decision and DOJ’s decision to file an amicus brief on his behalf. The Attorney General also mentioned he was filing a brief defending the ministerial housing allowance in an ongoing case, and discussed his department’s work to defend churches, synagogues, mosques, and other places of worship. Discussing the increasingly hostile social climate, Sessions criticized the anti-religious remarks certain senators made during recent judicial confirmation hearings, and tacitly but clearly noted the Southern Poverty Law Center’s toxic approach to public discourse:

We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs. (emphasis mine)

Next, Archbishop Joseph Kurtz of Louisville argued eloquently for religious liberty, noting it is derived from and must be protected consistent with human dignity. Kurtz cited the example of faith-based adoption providers, who are buttressing already-strained government foster and adoption care systems, being targeted for living out their belief that children need a mother and a father. As an example of the contributions of such groups, he mentioned an organization named “The Call” which places up to half of all adopted children in Arkansas into families. Such religious organizations do their work quietly and resolutely day after day, and many are not even aware of the value they contribute to the common good. This is real public service, and these organizations must remain free to operate according to their beliefs. 

Other panelists at the event, including the Heritage Foundation’s Emilie Kao, addressed the religious liberty threat of governmental authorities enforcing their own sexual orthodoxy on religious believers. Professor Michael McConnell of Stanford Law School (formerly a judge on the U.S. Court of Appeals for the 10th Circuit) discussed oft-used arguments that religious liberty can’t be tolerated when it causes “harm” to “third parties.” As Judge McConnell noted, however, there is always someone else who is affected by the protection of a legal claim to religious liberty—whether a government body, other group, or an individual. This is not a new concept. The fact that the law will always tangibly impact someone, combined with our historic reasons for religious liberty (the necessity of ensuring the government does not get in the way of humans being able to fulfil the responsibilities they owe to God), is the very reason the Founders put the First Amendment in the Constitution to begin with!

Introducing closing speaker Senator James Lankford, Deputy Attorney General Rod Rosenstein commented on the positive contribution of religious freedom to a society, and noted Senator Lankford’s defense of Judge Amy Barrett, who came under fire for her faith when being confirmed by the Senate to the 7th Circuit Court of Appeals.

Senator Lankford’s closing remarks powerfully explained the importance of all people being free to practice their beliefs. He mentioned the legal battle of Coach Kennedy as he sought to pray on the high school football field (something which shouldn’t be controversial), then forayed into international religious liberty issues such as China and Russia’s suppressions of religious freedom (citing a USCIRF report), as well as India’s anti-religious freedom laws. Lankford also addressed Turkey’s ongoing detention of Pastor Andrew Brunson, as well as the importance of Ambassador at Large for International Religious Freedom Sam Brownback’s work. 

We have to set an example of religious freedom at home if we are going to argue for it overseas, Lankford rightly noted. He mentioned we must do better to protect the religious freedom of military chaplains, the need for legislation like the Conscience Protection Act and Child Welfare Provider Inclusion Act, and the importance of fixing the Johnson Amendment due to its chilling effect on religious speech. We must do religious freedom well (protecting the right for all faiths) at home to successfully promote it abroad. When it comes to religious freedom, we must show the world we walk the walk if we want to talk the talk. 

At home or abroad, as Lankford noted, religious freedom includes a robust defense of all people being able to robustly practice their faith in the public square. When this vision of religious liberty is legally protected, the battle will be one of ideas instead of a battle in the courts (or subjugation to governmental suppression of ideas).

An open marketplace of religious ideas should be something all Americans can agree upon. We encourage DOJ in its effort to ensure this marketplace remains open.

In Win for Religious Freedom, Fifth Circuit Court of Appeals Reminds Us Why Judicial Nominations Matter

by Travis Weber

July 17, 2018

Two days ago, in a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the freedom of the Texas Conference of Catholic Bishops to live out their faith as it pertains to pro-life issues. Close votes like this remind us of the importance of judicial nominations, along with why it matters that we have judges who understand religious freedom law.

After Texas passed a law requiring the remains of unborn children to be properly cared for, pro-abortion groups challenged it, and used the lawsuit to harass and compel information from the Texas Conference of Catholic Bishops (TCCB)—who had been supportive of caring for these babies’ remains. The TCCB wasn’t even a party to the case, but out of animus against its pro-life work, the pro-abortion groups tried to force it to turn over all sorts of internal communications which normally would not be disclosed as part of the discovery process. Unfortunately, in a bizarre sequence of actions for which we may never know the reason, a district court judge obliged the abortion groups, forcing the TCCB to turn over internal communications pertaining to the group’s motivations and religious workings in violation of the First Amendment—all under a ridiculously tight timeline—and all on a Sunday, Father’s Day, no less.

Thankfully, the Fifth Circuit reversed this absurd discovery order, with Judge Edith Jones penning the opinion, joined by Judge James Ho (a recent Trump appointee). Judge Jones wrote that the lower court’s “analysis was incorrectly dismissive of the seriousness of the issues raised by TCCB,” such as the inherent danger in forcing groups to disclose “internal communications within a religious body concerning its activities in the public square to advance and protect its position on serious moral or political issues”—which the First Amendment clearly protects.

Agreeing with Judge Jones, newly-confirmed Judge James Ho wrote in a separate concurrence that “[i]t is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case. The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.”

He concluded that the “proceedings below” are “troubling,” and “leave this Court to wonder if this discovery is sought … to retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.”

Indeed. We have seen this type of harassment of religious groups before, when the City of Houston sought internal communications from pastors and churches during a lawsuit to which they were not parties—actions reasonably expected to harass these pastors and chill their activities in violation of the First Amendment.

The fact that the Fifth Circuit’s ruling was decided by one vote should remind us all of the importance of confirming good jurists like Judges Jones and Ho, and the cost of not doing so. Our religious freedom, and our nation’s fidelity to the Constitution, hang in the balance.

Are Justices Sotomayor and Ginsburg For or Against Religious Hostility?

by Travis Weber , Andrew Rock

June 29, 2018

On Tuesday, the Supreme Court upheld President Trump’s reasonable national security measures by a 5-4 vote in Trump v. Hawaii. In one of the dissents, Justice Sotomayor (joined by Justice Ginsburg) drew from the Court’s recent opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission to argue that President Trump’s “bias” against Muslims invalidated the travel ban because government actions cannot be motived by anti-religious sentiment. Yet less than a month ago, Justice Ginsberg (joined by Justice Sotomayor) dissented in Masterpiece, ignoring the blatant religious hostility against Jack Phillips that served as the basis for the Court’s ruling in his favor. The position of these two dissenters in Trump v. Hawaii would seem to lead to support for Jack Phillips, but it never materialized.

In Trump v. Hawaii, much biased media coverage obscured the facts of a relatively simple case. President Trump issued a proclamation that temporarily suspended entry into the U.S. of persons from countries which did not provide adequate background check information. It made no mention of any religion (six of the eight countries on the list are mostly Muslim, but the other two were not – and numerous Muslim-majority countries were not on the list). The Supreme Court held that it was well within President Trump’s authority to implement this measure as a matter of national security.

Justices Sotomayor and Ginsberg were having none of it. They insisted that the “ban” (another misnomer, since the regulations didn’t flatly ban anyone, but set up different requirements for different people trying to enter the U.S.) violated the First Amendment because of President Trump’s comments about Islam’s history of violence. The Justices reasoned that because religious hostility is not a valid basis for government action, and since these regulations were supposedly enacted out of some hostility to Muslims, then they are invalid. Justices Sotomayor and Ginsburg referenced Masterpiece, which relied on the principle that government hostility to religion violates the free exercise protections of the First Amendment, to support their argument that the Court should decide differently and to imply that the majority decision was hypocritical. They ignored the fact that they both dissented against the very decision they attempted to invoke.

Indeed, Justice Ginsberg (joined by Justice Sotomayor) penned a dissent in Masterpiece which dismissed the obvious religious hostility against Jack Phillips. The Colorado Civil Rights Commission had compared Christians like Mr. Phillips who wanted to follow their consciences to Nazis and slave owners. These inflammatory statements did not concern Justices Ginsburg and Sotomayor, who said that “whatever one may think of the statements in their historical context…I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.”

Yet Justices Ginsburg and Sotomayor can’t have it both ways. If they believe religious hostility can serve as a basis for relief, as they state in Trump v. Hawaii, they also have to be prepared for to provide that relief for Jack Phillips. Conversely, if a decision can still be valid despite evidence of religious bias (as they argued in Masterpiece), then they should have supported the president’s reasonable national security regulations in Trump v. Hawaii. The Justices cannot ignore obvious religious bias when it is politically convenient, and turn around and use the same argument to attack other measures they don’t like.

The Little-Known Figures Who Had an Outsized Impact on the Masterpiece Cakeshop Decision

by Peter Sprigg

June 20, 2018

I have already written several times about the Supreme Court’s recent Masterpiece Cakeshop decision, in which the Court struck down Colorado’s discrimination charge against a Christian baker who declined to make a custom wedding cake for a same-sex couple. The majority’s ruling rested on its finding that the proceedings against baker Jack Phillips in Colorado were tainted by anti-religious bias. I described each of the five opinions written in the case here, and explained why media referred to a 7-2 decision as “narrow” (in its reasoning, not its margin) here.

There is one more aspect of the Masterpiece case that I found interesting. The key parties to the case were the baker, Jack Phillips, and the same-sex couple, Charlie Craig and Dave Mullins. The experiences and perspectives of these men had been discussed and recounted repeatedly as the case made its way through Colorado’s adjudicatory process and then through the appeal to the Supreme Court.

In the end, however, there were two lesser-known figures who played a key role in the outcome of the case. From the pro-family perspective supportive of the baker Phillips, one—a man named William Jack—helped to expose the hypocrisy of the Colorado Civil Rights Commission. The other—a woman named Diann Rice—may have unwittingly doomed the state’s case by verbalizing the anti-religious hostility that was fatal to their side.

Diann Rice was a member of the Colorado Civil Rights Commission that heard the complaint against Masterpiece Cakeshop. During a July 25, 2014 meeting of the Commission, she made the following statement, which was recounted by U.S. Supreme Court Justice Anthony Kennedy in his majority opinion in the 2018 case:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

The quote was originally found on an audio recording of the meeting, and a transcript from that recording only identified the speaker as a “female speaker.” It was not until six months later that Phillips’ attorneys with the Alliance Defending Freedom identified the speaker as Rice.

Justice Kennedy explained the problem with this remark:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

The sad thing is that the kind of contempt for “freedom of religion and religion” voiced by Rice, including the over-the-top comparison of a belief in one-man-one-woman marriage with defenses of slavery and the Holocaust, is not even considered extreme on the Left today. On the contrary, that view is utterly commonplace. For example, writer Zack Ford of ThinkProgress openly defended the remark. That is why it was so welcome to have the Supreme Court declare that such contempt is not permissible as a part of government decision-making.

The other person who surprisingly proved central to the case was William Jack. (William Jack is not to be confused with Jack Phillips, the baker at the heart of the case.)

Even after he was cited in the Court’s ruling, little has been written about Mr. Jack’s background. The liberal magazine Mother Jones wrote the most detailed article about him, referring to him as “a foot soldier in the religious-right evangelical movement.” They also linked to a brief he filed in the case in support of Phillips, which describes him as “a Colorado citizen and Christian educator who teaches nationally on issues of Christian worldview, apologetics, and leadership.”

In a sort of reverse parallel of what happened to Craig and Mullins when they requested a wedding cake from Masterpiece Cakeshop, William Jack visited three Colorado bakeries requesting that they bake him cakes with a message of opposition to same-sex marriage. Justice Ruth Bader Ginsburg described Jack’s request most explicitly in her dissenting opinion. He wanted cakes:

made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He]requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] … ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’[Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”

All three bakeries declined to bake the cakes requested by Mr. Jack, on the grounds that they considered the message (especially, it seems, the image of the grooms with the red “X” and the word “sin”) to be offensive. Mr. Jack brought discrimination charges against each of the bakeries, asserting that they had discriminated against him because of his “creed” (that is, religion), which is a protected category under Colorado’s public accommodations non-discrimination law. Yet the Colorado Civil Rights Commission in Mr. Jack’s case found the bakeries not to have been guilty of discrimination—in direct contrast to the outcome for Masterpiece Cakeshop.

Mother Jones referred to Jack’s requests as a “stunt.” Jack himself admitted, according to World magazine, that he made the requests in response to the Masterpiece case, “to see if those charging discrimination against gays would care about discrimination against Christians.” He never indicated that the cakes were intended for a particular social event. On the other hand, even Mother Jones admitted such experiments

aren’t uncommon among activist groups of all political leanings seeking changes in the legal system. Civil rights organizations use testers, for instance, to see whether a landlord is refusing to rent to people of color or a car dealer is charging them higher interest on auto loans. Activists who use wheelchairs visit businesses to see whether their buildings comply with the Americans With Disabilities Act, and file complaints if they don’t.

The point, of course, is not that the Colorado Civil Rights Commission should have punished the bakers who refused to make cakes for Mr. Jack with a message opposing same-sex marriage. Instead, it is the opposite. They should have allowed Jack Phillips of Masterpiece Cakeshop the same freedom—to refuse cakes with messages to which he has a conscientious objection—that they allowed to the bakeries approached by William Jack.

The message William Jack requested on his cakes may have seemed unusual, odd, or even, yes, offensive to some. But Justice Kennedy warned that “it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.”

William Jack did not get his cakes, but he did prove a point—possibly turning the tide of a Supreme Court case in the process.

Archives