American Religious Liberty: More Than Legal

Just because the law protects religion does not mean religious liberty is in a good place in the United States.

Jack Phillips, the now famous owner and operator of the Colorado bakery Masterpiece Cakeshop, is making headlines again after the Colorado Supreme Court rightly dismisses another case against him. Phillips has now been at the center of national political controversy and legal turmoil for over a decade over his refusal to use his artistic craft, in his business, to create a message that violates his own personal conservative Christian religious beliefs on sexual issues. He won’t allow his speech to be compelled. The first case against him wound up at the United States Supreme Court where the federal court ruled in his favor, to uphold his First Amendment rights to freedom of speech/expression and freedom of religion. 

Initially, after SCOTUS overturned all state level laws defining marriage in the traditional way of being between one man and one woman, some LGBT activists signaled out Phillips’s bakery to specifically ask him, as a Christian baker, to create a cake for a homosexual wedding-replete with language indicating it was a homosexual wedding. While Phillips was willing to sell these activists any cake in his shop, he refused to actually make the message asked of him. Just like that the lawfare began, and after years of defeats and then appeals Jack finally gained vindication of his rights in the highest court of the land. Great! Then with the advent of the ascendency of the transgender debate, activists again targeted Phillips’s shop asking him to create a blue and pink cake in honor of a gender transition, again Phillips refused the artistic expression but not the selling of a plain cake. Again lawfare ensued. Thankfully this time it didn’t leave Colorado after the state’s high court dismissed the case.

Conservative columnist, religious liberty lawyer, and pundit David French would have us believe that these good legal outcomes mean that religious Americans should rest easy in the knowledge that religious liberty is not under threat in America. We won, what is the problem? (see https://x.com/HolyPostPodcast/status/1841252298355347918) Now, I like French, and think he has important points to add to the political conversation in America, so this is not an attack on him. But, while I think he raises a good point on the state of the legal consensus siding with religious liberty in America’s legal system, he is asleep at the wheel to the very real cultural onslaught against religious liberty. Is it good that Phillips has been legally vindicated? Yes, absolutely. But what about the fact that he has now spent a decade of his life in court standing up for his right to believe and live as Christians, Jews, Muslims and virtually every human being has believed and lived for all of human history? Certainly that is not a positive cultural development. It does not speak well of Americans’ tolerance for deeply-held conviction that activists seek to destroy the lives of their fellow citizens who disagree with them. 

Let us turn our attention to a slightly more controversial case–that of the Kentucky county clerk Kim Davis. Just days after the Obergefell decision came down from SCOTUS, Davis found herself in national controversy and severe legal trouble over her refusal to issue a marriage license to a homosexual couple. Davis cited her Christian belief that marriage is between one man and one woman as her reason for refusal, Davis spent days in jail and was ultimately fined over $200,000 for her stance. I acknowledge that this case even has conservative and libertarian legal scholars divided, given that Davis was a government employee tasked with carrying out the law regardless of whether or not she agreed with it.

Admittedly, I come down much more in favor of Davis’s right to refuse service. I think it was up to the state to make reasonable accommodations for their clerks to object, while still finding a way for other officials to carry out the law-as dictated by the fraught legal reasoning of the Court in Obergefell. That said, shortly after this case Kentucky changed some rules so that clerks would no longer have to sign off on marriage licenses. But, if religious citizens and LGBTQ citizens are going to be able to live together peacefully in our increasingly secularizing and polarizing pluralistic democracy then something has to change about this culture of activists seeking to make an example of fellow citizens for disagreeing with new cultural orthodoxies. We need to unite as a nation around a shared commitment to diversity of thought and expression, culturally as well as legally. 

In an example that is related, but not religious, Canadian psychologist and author Dr. Jordan Peterson burst onto the international scene in 2015/16 because of his refusal to go along with Bill C-16 in Canada, which would have compelled him to use the “proper pronouns” of transgender and gender nonconforming students in his university classroom. While not specifically opposed to the transgender agenda, Peterson was opposed to any act of law compelling his speech. The mild mannered Peterson became an instant polarizing force across the western world. Millions of conservative and classically liberal individuals flocked to hear his self-help lectures, and many others viewed him as a proponent of virulent anti-trans hate. The once center-left psychologist has been driven reliably rightward by the reaction against him. Fine by me, but probably not a great strategy for left wingers to take if they want to have a future in western democratic politics. Toleration of dissent is not only morally right; it helps your own cause in the long run. 

The American republic was in many ways founded on the twin concepts of civil and religious liberty. In our earliest days as an American people the insistence on writing down these rights was the result of religious persecution of certain religious sects against others, the Catholic and Protestant religious establishments of Europe and the early Puritan colonies against Christians from non-state established churches. But today the gravest threat to that liberty is from an increasingly militant secular cultural ascendency that is not satisfied unless the public square is free from what it considers “backwards” religious paradigms. But this is not the American way, America is the best nation in human history precisely because of her commitment to civil and religious liberty. 

Going forward from this recent era of lawfare against individuals like Jack Phillips, let us hearken back to what makes our nation exceptional and seek to promote liberty for all of our citizens, religious and secular alike. It is who we are as Americans, or at least it ought to be. 

“Enforced uniformity confounds civil and religious liberty and denies the principles of Christianity and civility. No man shall be required to worship or maintain a worship against his will.” -Roger Williams 

“One person considers one day more sacred than another; another considers every dayalike. Each of them should be fully convinced in their own mind.” -Romans 14:5

Joey Carrion is a political science student at Andrews University, studying pre-law as well as psychology. He co-hosts the Gio and Joey podcast. @adventistcowboy