I am tired of hearing Masterpiece Cakeshop v. Colorado Civil Rights Commission hailed as a “victory” for religious liberty; it was no such thing—unless we’re also going to start counting forfeits and rain delays as wins. Masterpiece was a bunt, and not a very promising one at that. Although the outcome of the decision was in favor of Jack Phillips, the Christian baker in Colorado who refused to bake a cake for a same-sex wedding, the reasoning of the decision was mostly based on the hostility that Phillips faced from the Colorado Civil Rights Commission. If proponents of religious liberty unwittingly allow this false sense of security to pervade their thinking, they run the risk of being caught by surprise in later cases, like this one in Michigan to be discussed later.
In the Masterpiece case, the Supreme Court very clearly refused to make a ruling on religious exemptions to discrimination law and public accommodations law. “The delicate question,” Justice Kennedy writes in the majority opinion, “of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.” Kennedy goes on to say that “whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.” Kennedy is, without a shred of subtlety, leaving the back door open for future cases with similar facts to be resolved against businesses and organizations like Masterpiece. He hints at this possibility very clearly: “The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.” Masterpiece, therefore, is hardly a comforting precedent for proponents of religious liberty. Indeed, Justice Kagan (joined by Justice Breyer) filed a concurring opinion in which she writes, “Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias.” The next time a case like Masterpiece goes to the Court, there will be little hope or precedent for it to be decided in favor of religious liberty.
There’s little for religious organizations to celebrate in Masterpiece, which becomes more apparent when one considers the case in Michigan being currently debated. The facts of Dumont v. Lyon center on the various Christian adoption agencies in Michigan, such as St. Vincent Catholic Charities and Bethany Christian Services, which choose for religious reasons not to work with same-sex couples seeking to adopt. The couples in question, and their ACLU lawyers, claim that by refusing to work with same-sex couples, these Christian adoption agencies are discriminating against homosexuals, denying children the opportunity to find a loving family and making it more difficult for same-sex couples to adopt. The plaintiffs argue that this violates the Equal Protection clause, as well as the Michigan Elliott-Larsen Civil Rights Act, which was expanded on May 21 by the Michigan Civil Rights Commission to include protection for people based on gender identity and sexual orientation.
Some have suggested that this suit is not about civil rights, but merely about attacking Christian organizations. As one mother wrote in an editorial for The Hill, “The ACLU argues that St. Vincent prevented its clients from adopting. This makes no sense. The ACLU’s clients actually lived closer to four other foster or adoption agencies without these religious standards. These agencies could have even helped them adopt kids in St. Vincent’s care. Instead of going to these agencies to adopt children, they’ve spent years targeting St. Vincent, as the lawsuit shows, apparently trying to drive them out of the business.”
The plaintiffs, however, argue that the real issue is taxpayer funding. The state of Michigan pays per diem compensation to agencies for the children they accept from the Michigan Department of Health and Human Services. At the most basic level, the controversy is actually pretty simple: spending government money means playing by government rules. There is an undeniable and inevitable danger to religious institutions that depend financially on the government. As West Michigan GOP strategist Greg McNeilly said on the subject: “If you take Caesar’s change, you have to dance his tune.”
Our Constitution and our court system can affirm religious liberty, but it would still be unwise to rely too much on Caesar’s goodwill. The game has changed somewhat, now that Justice Kennedy is retiring and will likely replaced by Judge Brett Kavanaugh, but proponents of religious liberty and free association are by no means out of the woods. Now is the time for religious organizations to start building up what protective hedges they can against government encroachment. Take the Hillsdale option. In the 1980s, Hillsdale College became famous for refusing to take any form of government money in order carry out its mission and values. Hillsdale went to court and lost, which forced the school to choose between its values and its funding; they chose academic freedom, replacing public aid with private contributions. As a proud Charger, I chose to focus on Hillsdale in this article, although it should be said that there are many other schools in the United States that refuse federal funding for similar reasons. Cutting off that flow of government money is not easy, but there are always strings attached, as we see with St. Vincent. Refusing government money, of course, does not inoculate an organization from all government intervention, but it does provide a cushion of religious and intellectual freedom in a world where such things are growing increasingly scarcer.
Refusing government money is not the only thing that religious organizations or business owners can do to protect themselves. Here as well, Hillsdale has seen the writing on the wall. The college recently changed its mission statement to explicitly call itself a Christian college, a move that got a lot of attention from students and alumni. Provost David Whalen said that this was in order to remove “any latent ambiguity as to the college’s beliefs and identity.” Boy Scouts of America v. Dale was decided in favor of the Boy Scouts after the organization chose to revoke the membership of a Scoutmaster who was “an avowed homosexual and gay rights activist,” because to decide otherwise “would significantly burden the organization’s right to oppose or disfavor homosexual conduct.” The Court determined that “the state interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.” The saving grace for the Boy Scouts was that its values were expressed—although the clarity of that expression was debated. It seems the best thing that a religious organization, or a religious person who owns a business, can do is to clearly express the religious values of their business or organization. In Masterpiece, the closest approximation to such an expression was the name of his store, which was supposedly meant to connote owner Jack Phillips’ intention of using each “masterpiece” cake as a way of glorifying God. An honorable intention, but hardly clearly defined.
This is not a Benedict option. I am not proposing that religious people retreat unto themselves; indeed, it seems that Hillsdale and other institutions like it have only become more outspoken about defending liberty since rejecting government money. Organizations must be clear about values and put them on paper—it might be what makes the difference in court. Masterpiece should stand as a warning to religious organizations across the country; this is not a precedent in which to take comfort. Institutions like Becket should be applauded for defending organizations like St. Vincent and Bethany Christian Services, but religious organizations and business owners need to take matters into their own hands, before it’s too late.
Photo: Ted Eytan (CC BY-SA 2.0)