In Canada, the courts ruled that protecting the wishes of LGBT
people is more important than protecting the inalienable God-given right to
religious freedom.
It was about accreditation of a Christian university, Trinity
Western University, which has students sign an honor code that they will not
have sex outside of marriage. (The Christian university I attended, BYU, here
in the US has that in its honor code.) And
they define marriage as between a man and a woman. So, homosexuals who aren’t
married are treated the same as heterosexuals who aren’t married. It’s unclear whether
any “married” same-sex couples wanted to attend the Christian school but felt
excluded by that honor code.
Lower courts supported the school’s right to set its
behavior code according to the religious beliefs of the institution. But the
high court disagreed. Here’s how the high court stated its reasoning:
"The [law society of British Columbia, which denied the
accreditation] has an overarching interest in protecting the values of equality
and human rights in carrying out its functions. Approving or facilitating
inequitable barriers to the profession could undermine public confidence in the
(law society's) ability to regulate in the public interest."
Meanwhile, remember Jack Phillips, the cake baker who refused
to make a cake for a same-sex wedding, whose case went to the Supreme Court? Even
though SCOTUS ruled in his favor, the state of Colorado is after him again.
This time it’s for refusing to make a cake celebrating a person’s “transition”
from male to female.
The first ruling was narrow—about the state’s stated
prejudice against him for his religion, quite specifically. So, they’re at it
again, and this time claiming it’s about him discriminating against a person.
Granted, that’s what they said the last time. He didn’t actually discriminate
against anyone; all comers could buy what he was willing to sell. But he was
unwilling to make and sell a product that celebrated something against his
religious beliefs. This was in character for him; he also refused to make Halloween-themed
products and a variety of other messages he found offensive.
So, the Supreme Court spent an inordinate amount of time
talking about what was a cake and what was a message. It was twisting what he
was doing to be about the people—whom he served in every other way—instead of
about the message. A cake that celebrates a same-sex “wedding” is not the same
thing as a cake that celebrates a traditional, real wedding. It was always
about the event.
So how are things different this time? The Court says he’s
discriminating against people. As First Assistant Attorney General LeeAnn
Morrill said in court: "If you make product 1 for customer 1, you must
make product 1 for customer 2."
But Jack Phillips didn’t refuse to serve the customer, who
was transgendered; he would have sold any product on hand, or products for
other purposes. He only refused the particular request for a cake that celebrated
changing genders. Again, a cake celebrating a birthday or a graduation is not
the same as a cake celebrating what can be seen, quite literally, as body mutilation.
In other words, the state is attacking Jack Phillips again
for his religious beliefs. The only difference might be if they refrain more
carefully from saying so.
In both of these cases, there’s an assumption being pushed
on society, using the courts as well as media, to insist that religious freedom
is a “license to discriminate.”
But when you get the emotional hand-wringing out of the way,
the discrimination is decidedly against religious people. And activists for the
LGBT etc. group are not looking for equality; they are looking for special
prominence, promotion, and power.
A few months back, Tucker Carlson interviewed a woman who
was pressing for parents to stop having boy or girl babies, and just have “theybies,”
non-gendered until the child is four years old or so when the child then
decides what it is. Carlson says, “We acknowledge biology and nature as real.
Right?” The woman doesn’t actually respond to reality; she just keeps insisting
it’s irrelevant: “It’s just a little human.”
Yes, it is a little human. But humans, as other species of
mammals, come in two sexes, biologically determined. Maybe the reason (and let’s
use that word in its full sense) the woman looks foolish is because she denies
reality and claims that will make society better.
In all these cases, someone is denying science and nature.
And the side recognizing the common sense of science and nature is being vilified
as bigoted. Those claiming to ask for “fairness for all,” through SOGI (sexual
orientation and gender identity) laws penalize people who believe in biology—and
common sense.
And, let's be clear, religious believers are on the side of science and reason.
It’s June, the Supreme Court ruling season. Today the
Supreme Court announced its ruling in the Masterpiece Cakeshop v. Colorado
Civil Rights Commission case. It was a 7-2 ruling in favor of Masterpiece
Cakeshop.
But it was a very narrow ruling, answering almost none of
the questions surrounding the issue, and mainly just telling the Colorado Civil
Rights Commission that they were wrong to express their hostility toward
religion during their prosecution of the baker.
It’s good that the case informs this particular Commission,
and possibly similar commissions in other states, that religious people have
the same rights as other people.
But it is so narrow that the Court says nothing about
protecting a creative person’s First Amendment rights if the state has a “compelling
interest” it sees as greater than that person’s religious freedom, and it
prosecutes without expressing
hostility.
So I’m glad it’s not worse, but I wish it were better.
That seems to be how we feel most of the time when so much
extra-Constitutional power is granted to these nine unelected judges.
At the bottom, there’s a video from November about the case.
But here’s a quick review.
A Colorado appellate court ruled in August 2013 that, when Masterpiece
Cakeshop owner Jack Phillips declined to design and create a custom wedding
cake for a same-sex couple, he had violated their civil rights. This was in 2012,
two years before same-sex “marriage” was legally recognized in the state; the
couple got married in Massachusetts, where it was legal.
The couple was not denied service; only their particular
commission for a custom product for a particular event was declined. Nevertheless,
the Colorado Civil Rights Commission prosecuted and ruled that Phillips must
“take remedial measures, including comprehensive staff training” on how
conscientious objection must bow before anti-discrimination law in same-sex situations,
and to “file quarterly compliance reports” with the state regarding the
mandated retraining.
The appeal by Phillips claimed that whether to create a
custom cake for a same-sex “wedding” is protected by two parts of the First
Amendment: freedom of expression, and freedom of religion.
The ruling doen’t really settle either the freedom of
expression or freedom of religion questions. But it gives a nod to respecting
the rights of religious people.
Court drawing of Justice Kennedy announcing the ruling
image from here
In his ruling, Justice Kennedy showed this usual pattern of
behavior by the Commission:
On at least three other occasions the Civil Rights Division
considered the refusal of bakers to create cakes with images that conveyed
disapproval of same-sex marriage, along with religious text. Each time, the
Division found that the baker acted lawfully in refusing service. It made these
determinations because, in the words of the Division, the requested cake
included “wording and images [the baker] deemed derogatory.”
In other words, the Commission didn’t always require a baker
to act against conscience. However, when it came to this case, the religious conscience was not respected.
Here’s what the Colorado Civil Rights Commission had
testified, which was at issue:
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.
One, the couple was not hurt. They were politely sent where
they could get the services done by a willing provider. Two, religion isn’t
rhetorical; it is deeply held belief. Even non-religious believers have deeply
held beliefs, which constitute their religion, whether they call it that or
not. Three, religion is an effort to live a good life, not to do evil. It was
religion that led to the elimination of slavery, after it had existed in most
cultures for millennia. Further, it was not religion that led to the holocaust,
but hatred and bigotry—something differing from the Commission’s hatred and
bigotry only in degree of power.
What is despicable is this Commission’s distortion of
history in its zealousness to malign religious people.
So, at least the Court got it part right.
SCOTUS has no business deciding whether a baker should be
forced to bake a cake—for any purpose. We don’t want the Supreme Court
determining nitpicky laws compelling how we conduct our personal lives and
businesses. So, in some ways it’s good the Court did not make a sweeping
ruling.
An excellent analysis of the opinions is found on the SCOTUSblog, by Amy Howe. But I’d like to walk through the issues, just for clarity.
Two inalienable First Amendment rights were at issue: the
free exercise of religion, and freedom of speech, often referred to as freedom
of expression. These go up against a state’s “compelling interest” regarding
another civil “right.”
The “right” these inalienable and also enumerated Constitutionally
protected rights were up against was the “right” to buy a custom product from a
particular creative businessperson regardless of that person’s willingness to
create it.
That one’s not enumerated in the Bill of Rights, or anywhere
else in the Constitution. That doesn’t necessarily mean it isn’t a right. Any
God-given rights not enumerated are still vested in the states and the
individuals.
But there is a simple way to know whether you are looking at
a God-given natural right: were you born with it? You’re born impoverished,
ignorant, and naked; you have a claim on your parents to care for you until you
can care for yourself. But there’s no natural right to cake-by-the-maker-of-your-choice.
You can’t have that as a right without enslaving someone else to provide it. So
it’s not a right.
The issue isn’t really about getting a cake; the cake artist
(his cakes are literally edible works of art, not just pretty, fancy cakes)
politely recommended other cake shops that could meet the needs of the couple.
The issue isn’t really about service to homosexuals, either.
The cake artist gladly served all customers, and had a long history of doing
so. It was a specific event—the same-sex wedding—that he did not want to use
his art to promote.
Everything in his shop was available to gays and straights
and anyone else who walked in his door. What Phillips did was refuse to use his
skills to design and bake a unique cake and participate in a gay wedding.
Phillips didn’t query anyone on his or her sexual orientation. It was the
Colorado civil rights commission that took it upon itself to peer into
Phillips’ soul, indict him, and destroy his business over a thought crime.
I’d like to try to translate this in terms that seem less
inflammatory than “he just hates gays, and that’s wrong, so he should be forced
to do what they ask.”
I have a friend who is an excellent artist. He makes his
living doing works of art and selling them. Much of his work is on commission.
That means a person comes to him (it used to be in a shop/studio, but now his
studio is at his home). And they describe the work they are hoping he can
create. Sometimes these are portraits or family groups. Sometimes they are
religious works or historical pieces.
He doesn’t take every commission that comes to him.
Sometimes it’s a matter of timing; if he takes on too many, he could overwork
himself, and the quality would suffer, which would probably bother him more
than the clients, but it’s an important factor.
But he also needs to do things that are worth putting the
artistic effort into.
Suppose someone came to him asking for something he might
find ugly. It could be something with nudity, or explicit sexual behavior, or
something anti-Christian, or something racist. Even if the work would have no
words on it, art expresses a message. And he might not want his name—or his
style and reputation—attached to something repugnant to him.
It might even be that the person asking for the commission
is personally disagreeable to him. That happened with an artist who was asked
to paint a portrait of Pres. George W. Bush; he declined, because his personal
views were at odds. That may have meant he wouldn’t have put his heart into
doing the work. Or it might have meant he was afraid people would interpret his
work as approval of someone he disapproved of, so it would seem untruthful to
him. Or maybe life is just too short to put time and energy into something you
don’t want to do. Someone else did the portrait, which turned out to be better
for everyone.
So that’s how artistic endeavors work. If you want something
creative/artistic done for you, you find someone whose work you like, and you
ask to commission the work. The artist gets to say yes or no based on whatever
reason he might have—and he doesn’t even have to tell you why.
The only difference with the bakery is that it is a shop;
all comers are invited to come in and buy his wares. Still, he’s free to take
on a commission for custom work or not. Owning a shop does not make someone a
slave to every party who walks in the door.
Good business says he’ll do what he can, and if he doesn’t
take on a commission, he makes suggestions of where the customer can go.
This kind of creative situation is also true for florists,
photographers, T-shirt printers, stationery printers, and others related to
wedding and other services.
It’s pretty clear that, if declining the message is “approved”
by this Commission or some other ruling or influential body—a message such as
something racist or profane, or even of an opposing political viewpoint—the
creative person can turn it down without legal repercussions.
I think it would also be clearly legal for a Muslim baker to
turn down work that goes against her beliefs—maybe even if she turned down a
same-sex “wedding” cake. Certainly such a baker could turn down anything
pro-Israel, or even anything pro-pork industry. A sensible customer would
recognize and respect who they’re dealing with.
So what is it that makes same-sex “marriage” celebration, at
a time when such a “marriage” wasn’t even a legal reality, a state interest of
such great import that it overrides the most essential—and therefore first
enumerated—of self-evident natural rights?
We don’t know, since SCOTUS doesn’t actually answer that
question with their opinion. In fact, they leave all other creative religious people at risk of enslavement—as long as those prosecuting them don’t overtly
mention their antipathy toward religion. “Try again, but be careful not to
verbalize your religious bigotry next time,” is what the Court seems to be
saying.
It was the narrowness of the opinion that allowed it to be
7-2, rather than 5-4 or 4-5. So, again, I’m torn. The Supreme Court has no
business ruling on this issue; they had no business creating same-sex “marriage”
in Obergefell. They have overstepped their authority repeatedly on issues
related to same-sex “marriage,” and have put religious people in this
predicament by their cavalier overreach.
But if the Court has any useful purpose in upholding the
Constitution, they would have done well to say, “Of course you can’t enslave a
human being to do work that directly violates his conscience, simply to serve a
vocal minority group favored by the elites in media, academia, and socialist
ideology.” That would have been helpful.
If we didn’t have activist judges on the Court, we might
have gotten a more satisfying ruling. Gorsuch and Thomas seemed willing to give
it.
But, as long as Kennedy is on the Court, he will rule with
his gut on critical issues more often than with the Constitution. Justices Breyer
and Kagan were only with Kennedy on this because the Colorado Commission had
verbalized its meanness.
Meanwhile, Justices Ginsburg and Sotomayor were perfectly
aligned with a pro-slavery ruling, as long as it makes them look like they
favor a popular minority.
The best way to settle these divisive issues? Stop repeating
the lie that religion is simply a cover for doing evil. Stop assuming evil of
everyone whose opinion is different. Actually tolerate. Respect differences of belief,
and don’t prosecute over them. Because prosecution over belief is tyranny, with
all the ugly that attaches to that word.
