Americans cherish the First Amendment principle of “religious freedom” even as they question its meaning and test its limits, scholars say.
They expect the arguments in the Masterpiece Cakeshop case going before the U.S. Supreme Court on Dec. 5 will be a window to these tensions.
Technically, the case is being contended on “free speech” grounds: Is a Colorado Christian baker’s custom cake an “artistic expression,” a protected type of speech entitling him to refuse to produce a custom wedding cake for a same-sex couple?
Or is his religion-based refusal to sell goods to any paying customer a violation of Colorado’s law banning discrimination in public accommodations, one that harms a buyer’s dignity?
“Religious freedom has always been a malleable term,” says Tisa Wenger, an associate professor of American religious history at Yale.
“We can’t take for granted what ‘religious freedom’ is and what it protects,” says Wenger. “White American Christians used religious freedom talk as a way to mark their own superiority” and control the legal, political and social culture.
In her new book, Religious Freedom: The Contested History of an American Ideal, Wenger writes that both religion and modern ideas of religious freedom have “complex histories and constantly shifting consequences.”
Her book centers on the experiences of religious, racial, and ethnic minorities, indigenous people, and waves of immigrants who had to mold their faith or practices to fit a Protestant vision of what a religion is and does in order to claim the privileges of “religious freedom.” Now, LGBT Americans face the same social and political forces.
“It’s about power,” says Wenger. Now that conservative evangelicals see themselves losing cultural hegemony, they have “seized the religious freedom category” to assert authority while presenting themselves as the beleaguered ones.
Wenger says the “religious freedom” executive order signed by President Trump in May is designed solely to protect that base “and not at all concerned with the freedoms of minority populations.”
No matter how the high court rules, “there’s going to be a political firestorm,” Wenger forecasts.
University of Notre Dame law professor Richard Garnett expects the legal impact will be narrow. Even if the court considers wedding vendors to be artists, they’re really not representative of religious accommodation generally.
But the cultural reaction is the one to watch. “It will tell us a lot about how receptive is the public to ,” says Garnett, one of 34 legal scholars who filed a friend of the court brief supporting Masterpiece Cake owner Jack Phillips.
The question it turns on for Garnett is not whether the gay couple rejects the idea that providing a cake is an endorsement of a point of view, a commercial blessing on same-sex marriage. The key is whether the baker believes this would be a violation of his conscience compelled by the state.
“People have the right to say and believe things that are offensive and wrong-headed. In a case where the government regulates speech, it has to show that the regulation serves a compelling state interest.”
Compelling Phillips doesn’t meet the test, Garnett says. Neither would a ruling in the baker’s favor, limited to “artistic expression,” shield a business that discriminates among potential customers: “A win for Jack Phillips would not provide any ground to stand on if someone who owned a hardware store who refused to sell a wrench to a gay couple.”
Curtis W. Freeman, professor of theology and director of the Baptist House of Studies at Duke Divinity School, is uneasy about that view.
Freeman notes the array of Southern Baptists and Catholics who support Phillips on the same grounds that Hobby Lobby’s owners used to battle the Obamacare mandate to provide employee insurance coverage for all forms of contraception.
The Supreme Court ruled that small, family-owned corporations such as Hobby Lobby had religious freedom rights. Freeman calls this ruling “the canary in the coal mine. Why can’t Mr. Phillips’ bakery have similar religious liberty? If it works in case, it opens the door to discrimination.”
In his new book, Undomesticated Dissent, a history of Western Christian religious dissidents, Freeman writes that the early evangelicals, once a threatened minority, were great fans of the First Amendment. To them, it enshrined the value that “everyone was entitled to an opinion about religion and to follow the dictates of conscience.”
The rise of the religious right, however, has “flipped the script,” in insisting that they enforce their religious views in the public square, Freeman says. “They turn liberty on its head, and it becomes a new form of tyranny that masquerades as liberty.”