On Monday, June 4, 2018, the US Supreme Court announced its decision in this term’s religion case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
Most news stories on this decision over the last few days describe the result as narrow and doctrinally uninteresting. As minimalist. As avoiding the hard issues. They emphasize that what happens next is what matters. Perhaps. There are some anxious and angry dissenters from this line. But whatever the decision can be read to signal for the future of religious exemptions and LGBT rights, the five opinions in the case do provide some more clues to what the justices think counts as religion today for the purposes of the First Amendment. And on that they mostly agree, those in the majority, as well as the concurrers and the dissenters.
How does their theory of religion hold up in the cold light of day? Does it make sense?
This is how the case arose. Mr. Phillips, the owner of Masterpiece Cakeshop, a bakery in Colorado, announced to two customers several years ago that he could not bake the wedding cake they wished to order because of his “religious opposition” to same sex marriage. By refusing service to Mr. Craig and Mr. Mullins Mr. Phillips triggered application of the Colorado Anti-Discrimination Act which prohibits discrimination on the basis of sexual orientation in public accommodations. By using the word religious to modify opposition, Mr. Phillips invoked by reference what he took to be rights to noncompliance with the Act afforded him under the “free exercise of religion” clause of the First Amendment to the US Constitution. The issue before the US Supreme Court in Masterpiece Cakeshop was whether the Colorado Commission, which heard the couple’s complaint under the Anti-Discrimination Act, had itself violated the Constitution when it found Mr. Phillips in violation of the Act.
The Court found that hostile public comments about Mr. Phillips’s position made by some members of the Commission effectively denied Mr. Phillips the neutral treatment to which he was entitled.
Both the Colorado Commission and the justices of the Supreme Court accepted Mr. Phillips’s representation that his refusal to bake a cake was founded in religion. Their acceptance is consistent with the law in the United States and many other places: a sincere (i.e., non-fraudulent) representation that one’s refusal to obey the law is founded in religious belief sufficiently proves the presence of religion and triggers the relevant law. (Such representations permit the courts to privilege religious over nonreligious persons in the law, giving them exemptions from compliance.) Litigants are not usually asked to prove that anyone else has such a belief or that their belief is attached to a community, found in a text, or otherwise formalized or institutionalized. Secular courts do not feel competent to decide what should count as religion so they limit themselves to testing sincerity. Courts may also feel constitutionally compelled to refrain from such assessments.
We religion scholars are not so constrained. Let us weigh in where angels fear to tread. Where is the religion in this case and what kind of religion is it?
Mr. Phillips’s religion is described by Justice Anthony Kennedy as follows:
Phillips is a devout Christian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.
That is all. That qualifies Mr. Phillips for constitutional attention.
What do we know about Mr. Phillips’s religion from this? We know that he calls himself a Christian. We are told that he understands this to mean that his whole life should reflect fidelity to the teachings of Jesus. Virtually all Christians (perhaps a strong majority of Americans) could affirm something like this. Presumably that would not be enough to qualify a person for special legal treatment. What more is required for such treatment is a bit murky.
If we look to the religious claims in past cases, before the sincerity test was standardized, we see that Mr. Reynolds in the famed Mormon polygamy case said he would be damned if he did not practice plural marriage. The Court made a careful, if bigoted, analysis of Mormon religious teaching. The Amish families in the Yoder case said that sending their children to high school would destroy the Amish religious community. The Court reported lovingly and at length on the Amish religious way of life. Mr. Smith and Mr. Black said that ingesting peyote was a sacramental mandate, central to their weekly worship. Dissenting justices rehearsed the history of peyote use in the Native American Church and speculated about the Church’s benefits for remediating Native American alcoholism.
The Court no longer traffics in such amateur philosophizing about religion and religious practice. Religion today has become standardized and formatted for the purposes of laws protecting religious freedom.
What else does the Court report about Mr. Phillips? What makes this Colorado baker so obviously deserving of special treatment, when Mr. Reynolds and Mr. Smith and Mr. Black were not? According to the Court,
- He is “devout.”
- He believes that God intends marriage to be restricted to heterosexual couples.
- He believes it would be wrong for him to sell a cake he created to a same-sex couple for their wedding.
Let us consider each of these in turn and how they add up to the core of what counts as religion today.
Devoutness. The usual standard today for a legally qualifying religious belief is sincerity. Here and in other recent free exercise and RFRA (Religious Freedom Restoration Act) cases, however, litigants are described as “devout” as well as sincere. (See Holt and Hobby Lobby, in which nearly identical words describe the litigants’ religion.) The Court seems to be upping the ante and possibly narrowing the set of people who qualify as protected. The justices seem to think that devout religious people deserve special treatment. Devoutness implies more than usual attention to religious matters. Pious. Does this additional word reflect the Court’s acknowledgment that virtually all Americans are sincere Christians but that a subset—mostly socially conservative ones perhaps—have a level of piety attributed to seriously religious people? Does this mean that the Constitution only protects devoutly religious people, not just ordinary religious people? Or maybe the Court is trying to signal that these particular religious people really cannot help themselves. “Here I stand. I can do no other.” Is this a plea for compassion for those compelled to outlawry by their convictions—a way to walk back from the Court’s decision in Smith effectively eliminating constitutional exemptions for reasons of religious conscience?
Beliefs about sex and gender. As with the owners of Hobby Lobby, Mr. Phillips believes that he will be complicit with evil, in the words of moral theology, if he takes actions to enable what he takes to be sinful activity. The Court does not inquire into whether his views are orthodox Christian teaching. There is an easy assumption by the Court here and in the Hobby Lobby opinions that conservative views about sex are religious while liberal ones are secular. No explanation need be given. Yet historians such as R. Marie Griffith, Joan Wallach Scott, and others have shown that this alignment is very recent and based in a distorted view of the historical evidence. Issues of sex and reproduction have not historically always been positioned as central to church teaching in the way they are today. Secular people are not and have not necessarily been less biased and judgmental about reproductive rights and marriage than religious people. The record is very mixed. (See TIF discussion of “Sex, secularism, and ‘femonationalism.'”)
Commercial activity as religion. The Colorado Civil Rights Commission explicitly exempts churches, synagogues, and mosques from the strictures against discrimination. Religion is naturally discriminatory, they concede, but should be confined to houses of worship. Many critics of Mr. Phillips argue that if he does not want to serve everyone, then he should go into another line of work. Religion does not belong in the workplace. This position shows a profound misunderstanding of American religious life, as I commented after the Hobby Lobby decision. Religion and commerce have always mixed in the United States. A new book on Wanamaker’s department store in Philadelphia tells the story of Mr. Wanamaker’s thoroughgoing evangelical piety and the way it infused the whole operation. Hobby Lobby and Masterpiece Cakeshop are not doing something new in mixing business and God.
Is the Masterpiece Cakeshop a church? It is a place where Mr. Phillips honors God. It is a place where Mr. Craig and Mr. Mullins sought to acquire a religious object. But these are not facts that the Court can notice. After disestablishment, law has no way of constitutionally locating religion. Over the last few decades, religion in law has been reduced to the attitudes of sincere persons described as devout about sex. By refusing to talk about religion beyond sex, law affirms the avoidance of serious public conversation about what God requires. In what public context today can one say back to Mr. Phillips that Jesus ate with sinners? Or that we are all sinners? Or “judge not that ye be not judged”? Or that hospitality and table fellowship have been virtues in many traditions? And listen to his response. If all we can do is isolate and segregate devout religious people and either vilify them or treat them with kid gloves, where will we be?
Kathryn Lofton argues in her new book, Consuming Religion, that our lives as consumers have become even more devoutly religious under late capitalism. On her theory, the gay couple in this case are also performing their religion through the buying of a custom wedding cake. If we are compassionate, we can see that religion in the workplace is one way Americans as workers and consumers are refusing privatization and reclaiming public religion. All Americans are finding church at work and through their consumption practices.
Lofton urges us to stop consuming religion and commit ourselves to making religion “do something different.” Can we do that? Do we have the courage?
Thanks to Constance Furey, Elizabeth Shakman Hurd, and Barry Sullivan for helpful conversation about this case.