Tomorrow, the United States Supreme Court will hear oral arguments in the case of Masterpiece Cakeshop in which the plaintiff, a Christofascist, argues that his religious beliefs exempt him from compliance with Colorado's public accommodation law and that, therefore, he can refuse to provide services to same-sex couples. Stated another way, the plaintiff claims special rights that the rest of the business community and larger public do not enjoy. All due to real or feigned religious belief. Representing the plaintiff is a well funded anti-LGBT hate group that masquerades as a "Christian" law firm. Should the Court accept the argument and in effect overturn prior rulings that barred exemption from non-discrimination laws, especially based claims of religious beliefs about race, a potential Pandora's Box could be opened. As a piece in Religion Dispatches lays out, a ruling for the plaintiff could well result in carefully crafted claims by white supremacists that they too can ignore non-discrimination laws. Here are article highlights:
The Christian right’s utilization of “religious freedom talk,” as Wenger [Tisa Wenger, associate professor of American religious history at Yale and author of the new book Religious Freedom: The Contested History of an American Ideal] calls it, to impose its own cultural mores on broader society and policy began gradually, in the late 1970s and ’80s, following Roe v. Wade.
Nascent coalitions between (white) evangelicals and conservative Catholics ultimately settled on a highly effective framing of “religious freedom,” which painted any participation in or association with abortion as a heretical infringement on the “sincerely held religious beliefs” of true believers. . . . . “They are making a kind of freedom of conscience claim for themselves, but it’s doing so in a way that also—especially in the case of contraception coverage—is enforcing their own religious standards on employees who have no connection to those beliefs.”
This approach proved so persuasive that it remains the go-to tactic for the religious right in opposing access to abortion and contraception (I’m looking at you, Hobby Lobby and Little Sisters of the Poor). But in the wake of growing legal recognition for LGBT people—and especially with the advance and ultimate affirmation of marriage equality at the Supreme Court—cultural conservatives saw an opportunity to recycle the same “religious freedom” arguments to oppose what they saw as a newly emboldened social ill. No organization has capitalized on this trend more directly than the Alliance Defending Freedom (ADF), the incredibly well-funded “Christian” legal nonprofit and SPLC-certified anti-LGBT hate group that is representing Colorado baker Jack Phillips in Masterpiece Cakeshop.
ADF’s own filings and the amicus briefs supporting the petitioner make clear that this “artistic expression” is inextricably tied to Phillips’s religious convictions about marriage. If the court accepts that premise, it could set a precedent that may well embolden racist factions of American society that, until recently, stayed largely hidden in shadowy sub-communities and angry echo chambers on the dark web.
Pointing to the “religious freedom” arguments deployed by pro-slavery activists and segregationists of old, Wenger acknowledges that most Americans no longer view interpretations of Christianity that call for racial subjugation and white supremacy as legitimate. But given the current climate Wenger worries that a ruling affirming the religious freedom and expression claims ADF is advancing in Masterpiece Cakeshop would draw those dark forces out of the shadows.
“I think we could see white supremacist arguments carving out religious exemptions to non-discrimination laws, which were rejected in the past,” she said. “Given the public resurgence of Nazis and white supremacists, I think we could see a resurgence of those kinds of claims in the courts.”
Wenger acknowledged that, while only a handful of the neo-Nazi and white supremacist groups recently making headlines are overtly religious in nature, given the highly effective legal framing of “religious freedom,” a ruling in favor of Masterpiece Cakeshop could open the floodgates for groups looking to carve out their own faith-based hate bubbles. The fact that Masterpiece Cakeshop is challenging a longstanding Colorado non-discrimination law amplifies the possibility that, if successful, the tactic could be employed to undermine state—or even federal—protections aimed at combatting discrimination against any number of marginalized populations.
Indeed, as Wenger’s book documents in deep historical detail, the bedrock American principle [religious freedom] has already been used to justify imperialism, racism, slavery, xenophobia, misogyny, and (most recently) anti-LGBT animus.
[W]hile earlier religious freedom cases often dealt with explicitly religious behavior—rituals, houses of worship, prayer in schools or the workplace—religious freedom litigation in the 21st Century has increasingly attempted to expand the definition of what may be considered a religious practice. A ruling in favor of Masterpiece Cakeshop would expand this sphere far beyond any contemporary understanding.
But Wenger suspects that expansion is fundamental to the conservative Christian logic behind supporting a plaintiff like Phillips, or the willingness to turn “conscientious objectors” to marriage equality like Kim Davis into right-wing martyrs. . . . . “This sense that religious conservatives need to be drawing a line in the sand right there, and saying ‘I won’t cater to same-sex couples because it’s against my religion,’ is perhaps in part produced by the politics of religious freedom,” Wenger contends.
It is crucial that the Court reject the insidious claims of the plaintiff and ADF which have many more targets they will add to those who offend their "religious beliefs." It is worth remembering that the Virginia Supreme Court cited the Bible as supporting the state ban on interracial marriage in Loving v. Virginia. It took the U.S. Supreme Court to end that toxic use of religion that Masterpiece Cakeshop wants write back into the nation's case law. .
