Episode 117 - Bakers, Justices, and Religious Liberty


The last week in June is typically filled with announcements of what the Supreme Court has decided in cases that it’s heard over its last term. Then the court goes on to take a summer break. You may recall that two years ago, the court came to a decision in the Obergefell case, which redefined marriage from a governments perspective. It no longer needed to be legally defined as one man and one woman. It could be two people of any sex. At the time, many people were saying this has profound religious liberty implications. It has profound sociological and societal changes and ramifications that we don't even understand right now and more than that, it fundamentally disconnects the purpose of marriage, which is to protect and promote the next generation from what the government recognizes: peoples happiness and felt and perceived dignity. But, that's another kind of conversation. I just simply want to remind you that at this time of year, the court is announcing its decisions and two years ago, one of them dealt with redefining marriage.

This year, the court is hearing and deciding on cases also they've announced that they will hear a case involving a cake baker and a state. That case is Masterpiece Cakeshop Limited vs. Colorado Civil Rights Commission. This is a case they will hear in their next term.

Basically, the case is not too unique. There have been many of these types of cases in lower courts over the last several years. Here's the gist of the case. A professional who works in a service industry that often will serve the wedding industry, refuses to make or participate in the celebration of a same sex union. For instance, this cake shop said, they do not want to make a cake for a same sex ceremony. Florists have said, "I don't want to make arrangements for your same sex ceremony." Photographers have said, "I don't want to capture your memories and help you celebrate in that way for your same sex ceremony," and the list goes on. These people have been routinely punished; lower courts have said they have to set aside their religious liberty convictions. Now, that sounds like trampling upon of the first amendment’s free exercise clause that says we should be left alone to exercise our religion as we see fit. Now the government is compelling people against their will to celebrate something they have a moral objection against.

In certain circles of the internet, this has come to a head again this last week due to the fact that the court announced that they will hear a case involving a baker and a same sex wedding, and the baker has refused to make the cake. Now, there are some important points that want to talk about. I want to equip you to talk about this case because this case and the issue in general, has two profound ramifications. One, is free speech. The cake is an act of self expression. When you make a cake, especially as a cake baker and you decorate it and you put words on it, you are expressing yourself. You're using your creative talents in a way that's self expression and historically that has been covered under the first amendment. But, it's also a religious rights issue. A free exercise. We're making people, or we're trying to at least, make people contribute and participate and celebrate something they actually have a profound moral objection to. That tramples on their free exercise of religion.

This is not discrimination against gay people because they’re gay

Some people will say today that, no, that's not actually the case, they're just discriminating against gay people. The photographers, the florists, the bakers, they're discriminating against gay people, but that's not actually true. This is a point we have to make continually in these dialogs: it's documented that these wedding professionals have and would be glad to serve gay people. That's not the issue. The issue is they don't want to participate in the same sex celebration. So, they would make the gay person a cake for their birthday. They have no problem with that. Or, they would make them flowers for a funeral or a birthday once again, or just an occasion but they don't want to participate in the celebration of something they have a moral objection to.

In a free society, people should not be compelled to participate in and celebrate things they find objectionable. But, the main point is that they're not objecting to providing services to gay people. That's not what's happening here. They've done it before, it's documented, in many of these cases, and they'd be glad to do it again. What's documented here is that their objection is to serving a same sex ceremony. It has nothing to do with the orientation of the person.

I think there's a helpful way to point this out because these wedding professional would likely object to two straight same-sex people who were getting married. The objection isn't to their sexual orientation. That is incidental to their objection. They would object to two straight people getting married, and yes, straight same-sex people have gotten married. I do think that profanes marriage also. That's an easy way to show that it's not about same sex orientation. They're not discriminating based on that. They're discriminating based on actions in terms of the ceremony. That's a very key distinction we have to make.

Sometimes, conservatives will try to support this point with an analogy or a parallel example and they'll say, "Would you make the Jewish cake shop owner make a cake that say Nazis are great?" Some people won't even answer that. This has been interesting to observe this week. They'll pivot and say, "No, no, no. The true question, the true parallel is ‘can the Nazi refuse to make a cake for the Jew?’ Because the Jew's a protected class”, they'll say, but they never answered your actual question. They never answered the question, ‘can the Jewish cake shop owner refuse to make a cake with a message that violates his conscience?’ I think he should be able to as an expression of his religion. What if someone wanted him to make a cake that said, "God is evil". Shouldn't he be able to refuse to participate in that? Yes, I think he should. One, due to his freedom of speech. He shouldn't be compelled to make speech that he disagrees with. More that that, it violates his religious conscience. That's the same thing that's happening here.

People like I said, want to turn that analogy around. They want to say, "Well, can the Nazi refuse to make a cake for the Jew?" (I actually kind of think he should be allowed to. I don't think people should have to serve me if they find my religion objectionable. That's the nice thing about a free society. People can say, "Well, we're not gonna serve you," and someone else will pop up and serve that class and make money off of it. That's how capitalism works in a fee market and a free society. But that's not so much my point today and you might disagree with that point, and that's okay. I think we can disagree on that, but that's the parallel example some people try to throw up to avoid answering the question of if the Jewish cake shop owner can avoid making a cake with a message they find objectionable. Back to the main point...)

Should the black cake shop owner be compelled to make a cake that says, "The Ku Klux Klan is great?” No, I don't think they should. Should they have to make a cake that uses the N word or disparages black people? No, I don't think they should and that's not even a religious objection. That's just a free market objection. That's a freedom of speech objection, but those objections get compounded when it comes to religious conviction. Now I also think the black cake shop owner should have a religious objection to celebrating the Klan and that type of derogatory language. I think that actually is a religious type of objection but all of that goes to show we should not let people side step this point. The issue is not, “should the Klan be able to refuse to make a cake for the black person.” It's “should anyone be compelled to provide a service against their sincerely held religious convictions.”

So, that's one issue we need to be prepared to talk about here.

Inconsistency in other areas doesn’t invalidate this point

But, there's another parallel concern. Some people will say that the Christians are inconsistent when we make the objection that “same sex marriage is against our moral convictions.” Because, wedding professionals don't make people fill out a survey and ask them “are you sleeping with the person you're about marry? Is this a result of a remarriage where you were inappropriately divorced from before?” Those are all things that Christianity morally condemns and God morally condemns and that's true. So they're gonna say, "Well since you're inconsistent, you can't make this other point." I don't think that's true because my inconsistency doesn't invalidate the point I'm making in this one case. It can be totally correct to say I should not be compelled to make a cake for someone who's getting “married” to another person, while at the same time, not question other people. That can be a totally right thing to do and my inconsistency doesn't invalidate that point. I think that's really important.

The difference is that one is an extremely clear cut example, the other is very murky at times and invasive. You can just ask the sexes or even the names of the two people that are going to be participating in the same sex union and make a determination. The other is you have to ask very personal questions. “Have you had sexual intercourse recently with this person? Well, okay. Is there a pattern of it? Were you divorced before? Well, yes. Why were you divorced?” As if you're trying to figure out if this was an appropriate divorce so that the marriage could be legitimate. All of that to say, the inconsistency here, if indeed there is one, does not invalidate the sincerely held religious conviction that someone does not want to participate in this other type of ceremony. I think that's really important. These have been the main objections that I've seen over the years and more recently when people discuss this case.

Why does this matter?

Now, you might say, why does all this matter? I think how we define marriage is really important. How we think about marriage is extremely important. Jesus talks about it Matthew 19. He affirms that God created us, male and female, all the way back quoting from Genesis and then goes on to say that the plan was for one man and one woman to live together in a permanent union. That they would leave their parents and cleave to each other. Jesus tells us about God's design for sexuality. So we should care about that too.

The other reason that we should care about it besides the religious moral truth is that when we live according to God's design, there is less pain and less brokenness. Because what same sex marriage institutionalizes, is a perversion of marriage that leads to children legally being able to be deprived of their right to a mother and a father. Children don't just need two parents, they actually need a mother, a female and a father, a male

Now we're getting to the place where those terms are getting redefined because people can choose their gender, but children are the losers in this. We're putting the erotic liberty and freedom and desires of adults above the rights and needs of children. That's also what's at stake here. That's not a religious argument. That's a practical argument that social science backs up, that children are better off when they grow up in households with a parent that is a male and a parent that is a female. In other words, a husband and a wife. A mother and a father.

So, we should care about it for that reason. We should also care about this case and how we talk about it because of the profound freedom of speech implications, because of the free exercise types of concerns that are here. Should I be able to refuse to participate in something? I think I should.

Positive vs. negative rights

In fact, this country was founded on the idea of what are called negative rights. Rights to be left alone where I can't be compelled to do something, but the idea of a right nowadays, all the way from marriage to health care is what's called a positive right. Where someone has to provide you with something. You have a right to a service. That's a totally different definition of right than our country was founded upon. You know why it's different? Because, when you have a negative right, it doesn't infringe on someone else. You just have a right to be left alone, but when there's a positive right, someone now has an obligation to provide you with this thing that you supposedly have a right to. That leads to collisions all over the place.

So, when someone has a right to a cake, someone has an obligation to provide it. That's very different than saying, "I don't have to provide a cake. Someone else would be glad to make you that cake and actually make the money that I just passed up, but don't make me violate my conscience."

Also, the issue isn't if the persons conscience is correct. It's if they have a sincerely held belief. I think that's another thing. We shouldn't want people, even as Christians, to have to violate their conscience. You may disagree, maybe you're a more liberal type of Christian and you disagree with the baker in this case. You think he should bake the cake. Well, let me ask you this question. Would you make people violate their conscience? Isn't that exactly what Paul writes about time and time again in multiple letters? When it comes to eating meat sacrificed to idols and things like that, don't violate your conscience? So, why would we try to compel people to violate their consciences.

In summary, the wedding professionals aren’t discriminating against gays; they just don't want to participate in the event. They would most likely still refuse to bake the cake for two straight same-sex people getting married. But more than that, we've also talked about the fact that even if people are inconsistent here, it doesn't negate the validity of their point on this same sex marriage case. It's extremely clear cut there. It's less than clear cut otherwise. We don't let difficult cases make public policy. More than that, we should care about this issue because we care about people, we care about human flourishing, we care about children, and we actually care about the brokenness and the carnage that same sex marriage has left in its path, which is often, under or not reported at all.