Category archives: Religious Liberty

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.

The Freedom to Serve: Why Religious Adoption Agencies Must Be Protected

by Spenser White

June 19, 2018

Adoption and foster care agencies are the latest battle grounds of religious freedom in the United States today. A number of states have already passed legislation which would protect religiously motivated adoption agencies from being forced to place children with those who identify as LGBT. These bills are called Child Welfare Provider Inclusion Acts (CWPIA). Not surprisingly, CWPIAs have not passed through state legislatures without opposition. Opponents call them “needless”—but are they? Or are they necessary to ensure the survival of faith-based adoption agencies?

In 2006, Catholic Charities of Boston shocked the U.S. charity world when, on March 10, it announced it “plann[ed] to be in discussion with the Commonwealth [of Massachusetts] to end [its] work in adoption services.” They cited disagreement with the Massachusetts law which required the charity to violate its convictions on a child’s need for a mom and dad. Catholic teaching describes homosexual adoption as gravely immoral. The Archdiocese declared in a statement concerning the issue, “in spite of much effort and analysis, Catholic Charities of Boston finds that it cannot reconcile the teaching of the Church, which guides our work, and the statutes and regulations of the Commonwealth.”

This was one of the first situations that showed the dark underbelly of sexual orientation “non-discrimination” policies. Following the Archdiocese of Boston’s decision, Catholic Charities of D.C. was “informed…that the agency would be ineligible to serve as a foster care provider due to the impending D.C. same-sex marriage law.” Catholic Charities was forced into similar situations in southern Illinois and in San Francisco.

North Dakota became the first state to protect religious-based charities when, in 2003, it passed a law which states: “A child-placing agency is not required to perform, assist, counsel, recommend, facilitate, refer, or participate in a placement that violates the agency’s written religious or moral convictions or policies.” In addition, the law also states that a state cannot deny a contract based on religion. These laws read similarly in the states that have passed them. Kansas, Alabama, Virginia, Michigan, Mississippi, South Dakota, and Texas have passed CWPIAs. Oklahoma is the newest state to pass a CWPIA on May 11, 2018.

The First Amendment of the U.S. Constitution declares that “[g]overnment shall make no law respecting religion; or prohibiting the free exercise thereof.” In forcing religious charities to choose between violating their religious beliefs or shutting down, the government is effectively prohibiting the free exercise of religion.

Under CWPIAs, no adoption agency is prohibited by the state from allowing anyone to adopt children, it only allows religious charities to uphold their religious belief that children need a mom and dad.  

There are an estimated 118,000 children in need of adoption in the United States right now. Limiting the number of adoption agencies is certainly not the best way to help them. The well-being of children should be paramount, and they should not be used as pawns in the culture war. Child Welfare Provider Inclusion Acts allow for religiously motivated charities to continue to operate and place children without violating their consciences, a freedom the government is required under the Constitution to protect.

Be sure to read FRC’s in-depth analysis on the importance of CWPIAs.

Spenser White is an intern at Family Research Council.

Good But Not Great: Don’t Be Fooled by the Masterpiece Decision

by Andrew Rock

June 12, 2018

While it is wonderful that the Supreme Court gave Jack Phillips long-overdue justice in Masterpiece Cakeshop v. Colorado, the battle for religious liberty is far from over. The Court only held that the Colorado Civil Rights Commission’s obvious bias against Phillips violated his right to a neutral decision maker. This means that future cases could undermine religious liberty so long as the decision makers appear neutral. What we need is a decision or a law that explicitly protects business owners like Jack Phillips, or better still, a repeal of misguided laws passed under the guise of “antidiscrimination.”

Jack Phillips runs Masterpiece Cakeshop in Colorado, and in 2012, he refused to create a cake for the wedding of a same-sex couple. The couple complained to the Colorado Civil Rights Commission, who sent the case to an Administrative Law Judge, who in turn found that Phillips had broken Colorado’s civil rights laws. The Supreme Court held that the Commission had violated Phillips’ rights under the First Amendment due to their blatant anti-faith bias.

The Commission brusquely dismissed Phillips’ arguments that his faith precluded him from endorsing a same-sex wedding without thoughtfully addressing their substance or nuance. One commission member went so far as to compare Phillips’ arguments for religious liberty to those of slave owners and people complicit in the Holocaust. In addition, the Commission granted exemptions to bakers who refused to bake cakes with Bible verses opposing homosexual behavior, holding that this was not unlawful discrimination. The Court held that the flagrant anti-faith bias shown in the Commission’s comments and decision-making invalidated its judgment in Phillips’ case, because the First Amendment requires the government to remain neutral on religious issues.

While it is good that the Court rebuked this blatant abuse of power, this decision does not bode well for future religious liberty cases. The Court merely held that someone like Phillips has the right to a hearing before a neutral decision maker, and if this occurs, outcomes in such cases “may well be different going forward.”

This means that the next case could go poorly for a Christian business owner, provided that the deciding body maintains a pretense of neutrality. If a court or commission can restrain themselves enough to avoid comparing ordinary Christians to slave-owners and Nazis, and then finds that their freedom of conscience subjects “gay persons to indignities,” (which is vague and subjective enough to mean just about anything), they could easily punish someone for refusing to participate in a same-sex wedding through cake or floral design, photography, or other creative service. This is poor precedent, as it leaves Christian businesses vulnerable to biased decisions by courts and commissions sly enough to conceal their prejudice when they apply laws such as Colorado’s.

Since a court that appears neutral could easily use these “antidiscrimination” laws to punish Christians who follow their conscience, religious freedom rights must be clarified in the context of these laws. Better yet, given the constant abuse of laws like Colorado’s to target anyone who disagrees with the politically correct orthodoxy, it would make sense to repeal them and avoid the problem entirely.

Jack Phillips received well-deserved relief in this case, and there is now clear precedent against open bias on the part of courts and commissions in similar instances. However, there is still an enormous risk that decision makers will simply stay quiet about their anti-Christian biases and continue to produce biased and skewed decisions based on current “antidiscrimination” laws. This means that we need to either craft protections in the context of these laws or repeal them outright.

Andrew Rock is a law student and an intern at Family Research Council.

Masterpiece Cakeshop: How Can a 7-2 Supreme Court Decision Be “Narrow?”

by Peter Sprigg

June 8, 2018

On June 4, the U.S. Supreme Court overturned a decision by the Colorado Civil Rights Commission (upheld by Colorado courts) that had found baker Jack Phillips of Masterpiece Cakeshop guilty of unlawful discrimination for declining to make a wedding cake for a same-sex couple. The vote was 7-2—that is, seven justices voted to overturn the Colorado decision, while only two voted to uphold it.

The New York Times’ online story about the ruling carried the headline, “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” The Washington Post editorialized, “The Supreme Court’s narrow ruling on a wedding cake is a step in the right direction.”

Subsequently, I noticed some people on social media (especially conservative friends) grousing about the description of the 7-2 decision as “narrow,” as though the liberal media was trying to downplay Jack Phillips’ decisive victory. So I thought I would offer a short explanation.

Masterpiece Cakeshop is being described as a “narrow” ruling not because of its margin, but because of its reasoning. Neither side in the case got everything that it wanted.

Those supporting Colorado, and supporting Charlie Craig and Dave Mullins (the same-sex couple who had requested a cake from Phillips), wanted a broad ruling that 1) Phillips violated Colorado’s Anti-Discrimination Act by discriminating against the couple on the basis of “sexual orientation; and 2) that no claim of religious freedom or free speech can excuse that statutory violation by a business that qualifies as a “public accommodation.” In the end, only two justices (Ruth Bader Ginsburg, with Sonia Sotomayor joining her in dissent) adopted that view and considered it decisive.

Those supporting the baker Phillips, on the other hand, wanted a broad ruling that his rights to freedom of speech and the free exercise of religion, because they are fundamental rights under the U.S. Constitution, must take precedence over the statutory provisions of Colorado law. Yet the Court’s ruling in favor of the free exercise claim was a narrow one, and only two justices expressed support for the free speech claim as well (Clarence Thomas, with Neil Gorsuch joining his concurrence in the judgment).

(I should note as well that some key elements of the case remained in dispute. Phillips’ attorneys questioned whether the Anti-Discrimination Act even applied, arguing that Phillips did not, in fact, “discriminate” on the basis of “sexual orientation” at all, because he was happy to serve self-identified gay customers with products other than a wedding cake. Colorado’s attorneys questioned whether the First Amendment even applied, arguing that baking a cake cannot be considered a form of “speech” at all.)

Instead of clearly explaining that Jack Phillips’ has robust constitutional rights regarding the cakes he designs, the majority opinion found that the Colorado Civil Rights Commission simply didn’t behave well enough in this case, due to: (1) the hostility aimed specifically at his religious beliefs (evidenced in comments of the Commission), and (2) the different treatment the Commission gave a parallel case (one in which the Commission allowed bakeries to refuse to make cakes criticizing same-sex marriage). It was only because the Commission exhibited anti-religious bias in its proceedings against Jack Phillips that the Supreme Court threw out its ruling, on free exercise grounds. Justice Gorsuch also wrote a strong concurrence, joined by Justice Alito, elaborating on the strength of the free exercise claim here.

Although they joined the majority opinion, Justices Kagan and Breyer additionally wrote a concurrence explaining that their lukewarm support for Phillips was only based on the fact that he was treated really badly by members of the Commission in this case. They argued that the disparate treatment between the two bakery cases could have been justified, were it not for the overt anti-religious hostility exhibited by the Commission.

Justices Kennedy and Roberts—in writing and joining only the majority opinion, respectively—ruled in favor of Phillips, but not on the basis of a sweeping affirmation of his freedom of speech or of religion.

A definitive Supreme Court precedent, resolving the underlying dispute between “non-discrimination” principles and freedom of speech and religion, will have to await another case and another decision. That is why many are calling Masterpiece a “narrow” decision.

Masterpiece Cakeshop: Summary of Each Supreme Court Opinion

by Peter Sprigg

June 7, 2018

In the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, finding by a 7-2 vote in favor of a baker who had declined to create a wedding cake for a same-sex wedding, there were five separate opinions written.

Here, I offer a brief summary (not a detailed legal analysis) of what each of these opinions contained. (For more, see this blog post by FRC’s Travis Weber.) In the five opinions:

  1. Justice Anthony Kennedy wrote for the Court, joined by Chief Justice John Roberts, Justice Stephen Breyer, Justice Samuel Alito, Justice Elena Kagan, and Justice Neil Gorsuch (six Justices; Justice Clarence Thomas wrote separately “concurring in part and concurring in the judgment,” but did not join the Court’s opinion);
  2. Justice Kagan wrote a concurrence which Justice Breyer joined;
  3. Justice Gorsuch wrote a concurrence which Justice Alito joined;
  4. Justice Thomas wrote an opinion “concurring in part and concurring in the judgment,” with which Justice Gorsuch joined;
  5. Justice Ruth Bader Ginsburg wrote in dissent, joined by Justice Sonia Sotomayor.

Here’s an overview of each opinion:

Kennedy for the Court (joined by Roberts, Breyer, Alito, Kagan, and Gorsuch):

Justice Kennedy ruled in favor of Masterpiece because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” He found this for two reasons:

  1. Comments made by members of the Commission in the course of its hearings, especially one notorious quote:

    “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.”

    Kennedy noted that this statement disparages 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.”

  2. The difference in treatment between Phillips’ case and the cases of other bakers, who had refused to bake cakes communicating negative religious messages about same-sex marriage, but were found not to have discriminated against the customer (William Jack) on the basis of religion. He notes inconsistency in how the free speech claims were treated, but most notably in how the conscience objections were viewed, with the Commission accepting the secular objection to making anti-SSM cakes “because of the offensive nature of the requested message,” but rejecting Phillips’ religious objection to making a same-sex wedding cake. Kennedy says, “[I]t is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive,” yet the Colorado decision “elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”

Kagan concurring, with Breyer joining:

This short opinion (a little over three pages) concurs in the judgment—but goes out of its way to say that Colorado could have made a legitimate distinction between the Masterpiece case and the three cases of William Jack (who was refused cakes expressing opposition to same-sex marriage, but was not deemed a victim of discrimination). Kagan says explicitly that Jack Phillips of Masterpiece was guilty of discrimination:

Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.

However, she concurs because the State’s decisions must not be “infected by religious hostility or bias”—as in this case.

Gorsuch concurring, with Alito joining:

Gorsuch focused in specifically on the disparate treatment of the Masterpiece case as opposed to the three William Jack cases involving refusal to bake cakes opposing same-sex marriage. In contrast to both the Ginsburg/Sotomayor dissent and the narrow Kagan/Breyer concurrence, Gorsuch argued that there was a very close correspondence between the facts of the cases, saying that “the two cases share all legally salient features”:

  • bakers refused services to persons who bore a statutorily protected trait (religious faith or sexual orientation)”
  • they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else)”
  • the bakers in the first case [William Jack] were generally happy to sell to persons of faith, just as the baker in the second case [Jack Phillips/Masterpiece] was generally happy to sell to gay persons.”

Gorsuch concludes that “the Commission failed to act neutrally by applying a consistent legal rule,” and warns that “the one thing it can’t do is apply a more generous legal test to secular objections than religious ones.” In contrast to the four liberals, Gorsuch states explicitly that “the Commission must afford him [Jack Phillips/Masterpiece] the same result it afforded the bakers in Mr. Jack’s case.”

Thomas, “concurring in part and concurring in the judgment,” Gorsuch joining:

To me, one of the most notable facts of the decision is that at oral arguments, the ADF attorneys representing Masterpiece put their emphasis on arguments resting on First Amendment Free Speech grounds (not Free Exercise of Religion). They emphasized that designing custom wedding cakes is a form of artistic expression and therefore, requiring they be provided for same-sex weddings is an unconstitutional form of “compelled speech” by the government. This, however, turned out not to be the primary issue addressed by the court, which instead decided there was a Free Exercise violation because of the lack of religious neutrality.

Justice Thomas’ opinion was the only one that addressed the Free Speech issues at length. He acknowledges that the issue here is “expressive conduct” rather than pure speech as such, but says under Court precedents, “Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.” He says that in this case, “Phillips’ creation of custom wedding cakes is expressive,” and concludes the following:

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.

Although declining to decide whether Colorado’s law satisfies “strict scrutiny,” Thomas warns, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”

Ginsburg dissenting, Sotomayor joining:

Like the Gorsuch/Alito concurrence, the Ginsburg/Sotomayor dissent focused specifically on the differing results given by the Colorado Civil Rights Commission in the case involving Jack Phillips and Masterpiece Cakeshop (where refusing to provide the cake requested by the customer was found to be illegal discrimination) as opposed to the cases involving customer William Jack (where refusing to provide the cakes requested by the customer was found not to be illegal discrimination). However, Justice Ginsburg reaches the exact opposite conclusion from that of Justice Gorsuch.

Ginsburg and Sotomayor agreed with their liberal colleagues Justices Kagan and Breyer in saying that the cases could be legitimately distinguished, but disagreed with the latter pair’s conclusion that anti-religious bias had impermissibly “infected” Colorado’s adjudication of the cases. Ginsburg writes:

The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below. 

Commentary

The problem I see with the dissent is this statement (which was repeated, in various ways, several times): “Phillips did … discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief.” Ginsburg argues that Phillips’ refusal of a same-sex wedding cake was “determined solely by the identity of the customer” whereas the refusal of William Jack’s request “was due to the demeaning message” he wanted displayed.

Since Phillips regularly serves customers who identify as gay (but would refuse a cake to celebrate a same-sex wedding regardless of who requests it), the first conclusion is questionable. The latter conclusion, however, is nothing short of astonishing. What Ginsburg calls a “demeaning message” may have been crude (including, among other things, “an image of two groomsmen, holding hands, with a red ‘X’ over the image”), but combined with biblical verses and quotations, its essential content was that 1) homosexual conduct is sinful, and 2) God does not approve of same-sex sexual relationships or consider them to be “marriage.” I fail to see how this “message” (however “demeaning” some may find it) can be seen as not representing a “religious belief.”

Note that this is not to say that the solution would be to force bakers to make cakes with messages they consider “demeaning,” as well as forcing them to make cakes for same-sex weddings. Instead, the opposite would be ideal. Baking cakes, whether to celebrate a specific event such as a same-sex wedding or to condemn that concept, is a form of expressive conduct that should not be compelled by the government. Even if Colorado believes that its Anti-Discrimination Act was violated, the provisions of this state statute cannot be allowed to override the bakers’ fundamental right to free speech under the U.S. Constitution.

No baker should be forced to communicate a message with which he or she disagrees. Although Jack Phillips prevailed in the Masterpiece Cakeshop case, the ruling does not clearly apply the Court’s compelled speech precedents to that context. The debate continues.

Supreme Court Protects Jack Phillips’ Rights, Tells Colorado: “Not So Fast”

by Travis Weber

June 4, 2018

The Supreme Court’s much-awaited decision in the “wedding vendor” case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was announced this morning. Ruling narrowly for Jack Phillips, owner of the bakery at issue, the Court focused squarely on the fact that the state of Colorado did not treat Phillips with “neutrality,” but rather “hostility,” due to the religious beliefs underlying his claims. Thus, the Court concluded, the state violated the Free Exercise Clause of the First Amendment—which prohibits the government from singling out, targeting, and discriminating against religion.

The Court featured two primary bases for this determination. First, the “Civil Rights Commission’s treatment of [Phillips’] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection” to creating a same-sex wedding cake. Comparing him to a slave owner and Holocaust perpetrator (a comparison which was never objected to or disavowed in all the time leading up to the Court’s ruling), the Commission clearly disparaged Phillips’ beliefs in two ways: by calling them “despicable, and also by characterizing [them] as merely rhetori­cal—something insubstantial and even insincere.” Moreover, the commissioners who ruled on his case “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” These “inappro­priate and dismissive comments” showed a “lack of due consideration for Phillips’ free exercise rights and the dilemma he faced.”

Second, the fact that Colorado treated other bakers (who were asked to make a cake condemning same-sex marriage and declined because the message was “offensive”) differently constituted further evidence of the state’s animus against Phillips’ beliefs. “A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at­tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.” It was on these two grounds that seven members of the Court concluded that the state of Colorado treated Jack Phillips harshly because of his religious beliefs.

Harkening back to another Justice Kennedy free exercise opinion from decades ago, Church of Lukumi Babalu Aye v. City of Hialeah, the Court elaborated upon principles that the government cannot single out and target religious beliefs for disfavored treatment. And though it went unmentioned in the Masterpiece opinion, the Court’s ruling in Trinity Lutheran Church v. Comer—holding that the government may not disfavor religion in public grant programs—from just last term affirmed this principle.

While the Court clarified that anti-religious animus was unacceptable (protecting Phillips for now), and while today’s opinion will likely be cited favorably by other wedding vendors who’ve experienced religious bias or animus from government actors, the opinion left other questions unanswered—namely, how the Court will handle free speech claims in the context of sexual orientation nondiscrimination regulation, or free exercise claims in the same circumstances absent such animus. The Court wasn’t exactly clear on how these matters would be decided, noting that clergy are protected (this is beyond debate), but expressing uncertainty on the myriad other matters which have arisen in the last few years as religious beliefs come into conflict with newly-mandated government requirements regarding same-sex marriage. In essence, the Court kicked that can down the road for another day.

While the majority opinion produced a good result, some of the real meat was in the concurrences. Justice Gorsuch penned a concurrence (joined by Justice Alito) in which he offered a clear defense of free expression (this principle being especially important when the expression is unpopular) and a clear explanation of what actually occurred here—Phillips had an objection to the message, not the messenger. As Phillips testified, “I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orienta­tion of the customer” (emphasis mine). Justice Gorsuch made very clear that Phillips was objecting to the creative process, not how the customer identified.

Justice Thomas also concurred (joined by Justice Gorsuch), commenting in depth on the free speech protections he believed Phillips possessed. In doing so, he pointed out that the important free speech case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston supported Phillips’ arguments, and noted that Rumsfeld v. Forum for Academic and Institutional Rights and PruneYard Shopping Center v. Robins were not applicable to scenarios like this (something I have argued separately), for they dealt with allowing other parties access to speech fora, not alterations to a party’s own message. Justice Thomas concludes:

In Obergefell, I warned that the Court’s decision would ‘inevitabl[y] … come into conflict’ with religious liberty, ‘as individuals … are confronted with demands to participate in and endorse civil marriages between same-sex couples.’ 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’ Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

The conclusion to his concurrence, describing all the First Amendment issues not resolved by today’s opinion (which really need a legislative remedy and not a judicial one), is also a fitting conclusion for us as we anticipate the many religious liberty cases surely to be confronted in the years ahead.

Sponsors of California’s AB 2943 Claim It Wouldn’t Ban the Bible. Maybe. But What About These Books?

by Peter Sprigg

May 10, 2018

It seems that we have gone from the culture wars to the “fact-check” wars. One has been underway in recent weeks over a bill making its way through the California legislature.

Put the words “California Bible ban” in a Google search and you will see what I mean.

The California Family Council and Alliance Defending Freedom were among the first to raise the alarm that Assembly Bill 2943 could be interpreted to ban sales of the Bible. Snopes, FactCheck.org, and PolitiFact all tried to debunk the claim. The FactCheck piece reproduces an April 22 tweet from the bill’s sponsor, Assemblyman Evan Low, stating, “It does not ban bibles nor does it ban the basic sales of books as some would have you believe.” But a number of careful and thoughtful conservative writers—such as Michael Brown, David French, Rod Dreher, my colleague at Family Research Council Travis Weber, and Robert Gagnon (here and here) have continued to express alarm about the bill (albeit with slightly different emphases). Does Assembly Bill 2943 actually “ban the Bible” in California? In one sense, no—but in another sense, maybe. Sometimes, what is needed is a not a “fact-check” with a simple true or false answer, but a “perspective check,” explaining why some people make a particular argument and what evidence they cite to support it.

What AB 2943 Does Not Do

Let me state a couple things that are definitely not true about AB 2943 and the Bible, which some of the more sensational headlines about “California wants to ban the Bible” might be misinterpreted to imply.

First of all, “banning the Bible” is definitely not the main purpose of AB 2943. Its purpose is to greatly expand an existing restriction (the first in the nation when enacted in 2012) upon the practice of “sexual orientation change efforts” (SOCE), now routinely referred to by critics (but rarely by practitioners) as “conversion therapy.” I have had concerns about some of the “Bible ban” talk, if only because the core issue—a ban on therapy for those with unwanted same-sex attractions—has sometimes been almost forgotten.

It is a fact that some people with same-sex attractions experience those feelings as unwanted; some of those have sought therapy or counseling to overcome those attractions; and some of those have testified to the success of such therapy in helping them overcome those attractions, and now identify as “ex-gay.” LGBT activists are offended that some people with same-sex attractions don’t want to be “gay,” so they are attempting to eliminate that option by claiming that such therapy is ineffective, as well as harmful to those who undertake it. (Family Research Council disputes those claims.) California’s 2012 law prohibited SOCE only for clients who are minors, and only when conducted by licensed mental health providers. AB 2943 would expand the ban to apply to clients of any age (including consenting adults), and any type of counselor (including religious ones), as long as there is an exchange of money for the service.

Secondly, there is no legislative language in AB 2943 that refers specifically to the Bible. As Snopes explained in its article debunking the supposed “Bible ban” claim, “California Assembly Bill 2943 does not mention the Bible, Christianity, or religion at all.” That sentence—with the key word being “mention”—is correct. (That does not mean it would not affect them, however.)

Thirdly, even if AB 2943 could have an effect upon the Bible, it would only be upon the sale of the Bible. The bill is in the form of an amendment to the state’s consumer fraud laws, so there must be some commercial transaction (involving an exchange of money) to trigger its provisions. The bill does not prohibit the possession, reading, publication, teaching, or free distribution of the Bible.

How Could AB 2943 Ban Sales of the Bible?

The concern that AB 2943 could be used to ban sales of the Bible is an inference from, rather than an explicit statement in, the language of the bill. However, the bill is thirteen pages long, most of which is just a recapitulation of the existing consumer fraud law. To understand the change that is being proposed, one has to search and extract the substantive language from the bill. Here are the key segments, with ellipses ( … ) where text has been omitted. First is the bill’s definition of “sexual orientation change efforts” (emphasis mine):

(i) (1) “Sexual orientation change efforts” means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

Here is the actual language prohibiting SOCE:

1770. (a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:

 . . .

(28) Advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual.

Key Words: “Behaviors” and “Goods”

How does this apply to the Bible? Likely through two key words, highlighted in the bill text above.

The first of these is “behaviors.” When most people think of “sexual orientation change efforts,” they probably think of the second part of the bill’s definition: efforts “to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” LGBT activists claim that such “attractions or feelings” are innate and immutable. The same, of course, cannot be said about “behaviors,” which can be changed at will. I suspect, however, that those activists worried that if therapy to help people change their “behaviors” were permitted, it would constitute a loophole that would allow SOCE to continue.

The problem with outlawing “efforts to change behaviors,” however, is that almost all moral and religious teaching about how we should live involves “efforts to change behaviors.” “Don’t lie.” “Don’t steal.” “Treat your father and mother with respect.” There are all sorts of religiously-rooted assertions directing people to modify “behavior.” Let us not forget the age-old admonition: “Behave!” When Leviticus 18:22 cites God telling Moses, “You shall not lie with a male as one lies with a female” (NASB), that clearly seems to be an “effort to change behaviors.”

The second key word is “goods.” As noted above, the main purpose of the bill is to outlaw a certain type (or more accurately, a goal) of therapy, which would generally be considered a “service.” However, the ban on change efforts applies to any “transaction intended to result or that results in the sale or lease of goods or services to any consumer.” Although one bill critic has suggested that the language about “the sale or lease of goods” does not apply to SOCE, the term “any practices” in the definition of SOCE appears to be broad enough to encompass the practice of selling books.

No, the text of AB 2943 does not mention the Bible. But since the “sale … of goods” could include the sale of books (such as the Bible), and since the moral teachings of the Bible include “efforts to change behaviors” (such as homosexual behavior), critics of AB 2943 have warned that it could, at least theoretically, be used to ban the sale of Bibles in California.

Possible vs. Likely

Now, if AB 2943 is enacted, is California likely to leap directly to banning sales of the Bible? Perhaps not, for several reasons. As noted above, banning Bible sales is not the main purpose of the bill,  and while the Bible supports sexual orientation change (see 1 Corinthians 6:9-11), that is hardly its main theme. At least initially, a prosecutor would likely seek an easier target, and one more directly relevant to sexual orientation change efforts. In addition, it is likely that the Supreme Court (at least in 2018, as currently constituted) would strike down any effort to ban sales of the Bible.

Still, the argument that AB 2943 could, even theoretically, be used to ban sales of the Bible is an important one, if only because it demonstrates how sweeping and poorly written the bill is. That should be reason enough for California legislators to oppose it.

While the Bible may be safe in the short run, I have less confidence in the long run. Zack Ford is a homosexual activist and writer with ThinkProgress who wrote a piece claiming it is “nonsense” that AB 2943 would “ban the Bible.” Yet ironically, that same piece links to a 2016 article Ford wrote asserting that “When Gay People Are Told That Homosexuality Is A Sin,” that “message alone is harmful.” The assertion that a piece of moral teaching from the Bible is not merely incorrect, but is tangibly “harmful,” seems like a way of laying the groundwork for legal restrictions upon that very biblical teaching.

Which Books Would Be Banned?

Even if sales of the Bible in California continue unhindered (for now), what about other books? As I have already stated, I think the argument is strong that AB 2943 could be used, generally, to ban the sale of certain books.

Take a look, for instance, at the books in the photo at the beginning of this post. This is just a sample of the books I pulled off my bookshelf, from the library I have accumulated in 17 years at Family Research Council. The books pictured are not just ones that deal generally with Christian moral teaching on sexuality. Unlike the Bible, these eight books are specifically and entirely about sexual orientation change efforts.

There can be no question that the sponsors of AB 2943 would prefer that books like this did not exist. Could the bill be used to ban their sale?

Some supporters of therapy bans (a number of which have been enacted in the wake of California’s action in 2012) have argued that they do not prevent someone from expressing the opinion that homosexuality is undesirable, or expressing the opinion that it can change, or even expressing the opinion that therapy can facilitate such change. All they ban is someone actually undertaking such efforts. So maybe a few of these books would escape California’s new censors.

But what about James E. Phelan’s Practical Exercises for Men in Recovery of Same-Sex Attraction (SSA)? This book appears to have no purpose other than actually bringing about sexual orientation change in the men who read it. Under AB 2943, how could California allow “any practice” that includes the “sale of” this particular “good?”

Banning Books is Totalitarian

In the past few weeks, Christians have been shocked by the possibility of a state banning the sale of the Bible.

But shouldn’t every American be shocked at the thought of a state banning the sale of any books based on their philosophical, religious, or moral viewpoint?

Banning books because one doesn’t like their message?

In the United States of America?

In this country, you can sell all kinds of books.

You can sell Mein Kampf, and The Communist Manifesto. Bookstores sell the celebration of sado-masochism of Fifty Shades of Grey, and the celebration of sodomy in Allen Ginsberg’s Howl.

But now, California might ban the sale of Practical Exercises for Men in Recovery of Same-Sex Attraction? Or ban Coming Out Straight—just because it says that for “those who struggle with their own same-sex attractions,” it will “open the door to a new, happier, and fulfilling heterosexual life”?

The idea of banning books—any books—because the authorities don’t like their message is totalitarian. In the United States of America, it should be unthinkable. California legislators should affirm that it is unthinkable—by voting “No” on AB 2943.

Banning Therapy is Totalitarian, Too

While the prospect of the Bible—or any books—being “banned” from sale has focused attention on AB 2943, I hope it will also bring people’s attention to the central issue:

Banning a client-chosen goal of therapy is just as totalitarian.

By framing their assault upon the freedom of therapists and clients as an exercise of the state’s power to regulate health care or (in the case of AB 2943) to prevent “consumer fraud,” LGBT activists have masked how unprecedented these therapy bans are in the history of American law or counseling.

Note that what these bills seek to outlaw is not a particular therapeutic technique. While advocates will tell stories (some of them far-fetched) about being victims of “aversion therapy” techniques that have not been used in 40 or 50 years, the prohibition is not limited to “aversion therapy.” When pressed, sponsors must admit that they seek to outlaw ordinary talk therapy as well. What these laws and bills target is nothing more or less than a goal: “to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” This is extraordinary.

Supporters of the bans will also imply that people are “coerced” into undertaking SOCE. That problem (if it exists) could be resolved by requiring “informed consent” before therapy. The prohibitionists reject that, insisting on banning all therapy, even if the client desperately wants it. (Can you imagine the outcry from some of these same activists on the Left if conservatives argued, “Because some women are coerced into having abortions, the only solution is to prohibit any women from obtaining them”?)

Therapy bans violate freedom of speech for therapists, freedom of religion for clients and therapists, and the privacy of the therapist-client relationship.

They should outrage every freedom-loving American, and should be opposed by every legislator.

Religious Liberty and National Security Go Hand in Hand

by Family Research Council

May 3, 2018

There is a gaping hole in American foreign policy today, and it is negatively affecting our national security and the security of the world.

There has been a ‘religious freedom avoidance syndrome’ in the State Department,” said Dr. Tom Farr, President of the Religious Freedom Institute, during a recent FRC Speaker Series panel discussion held in Washington, D.C.“…The problem with that … is that the world is religious. And if it is the business of American diplomates, which it is, to defend American interests in a highly religious world, staying away from religion simply doesn’t make sense.”

Professor Robert Destro of Catholic University of America pointed out that we need to work with other countries to make them realize that granting their citizens more religious freedom will actually promote their own self-interests. Studies show that increased religious freedom leads to the absence of religious violence, economic growth, a reduction in corruption, a decrease in infant mortality, better health outcomes, more literacy, more empowerment of women, and more.

Professor Destro also made the case that America needs to help its own Muslim citizens present the benefits of religious freedom to their Muslim counterparts in the Middle East, because it’s obvious that someone of the same faith as them can make the case much more effectively than non-Muslims. As Dr. Farr pointed out, extremist ideologies cannot be destroyed with bullets, they must be destroyed by better ideas.

Don’t miss the full panel discussion.

Be sure to read FRC’s full analysis of the religious freedom/national security issue.

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