The Supreme Court and the Refusal to Bake a Cake (June 13, 2018)

It seems that nearly everyone who has written about the U.S. Supreme Court decision on the Masterpiece Cakeshop case agrees: The Supreme Court wimped out.

Its June 4 decision gave no legal guidance as to whether a person running a public business can refuse a sale to someone on the basis of deeply held religious beliefs -- in this case, a baker who refused to decorate a custom cake for a gay wedding.

The lack of guidance is disappointing because more cases arguing a person’s “religious freedom” to refuse service on the basis of religious beliefs are heading to the court, and SCOTUS will not be able to avoid a decision forever.

I will go out on a limb in this column and lay out a way to resolve this religious freedom issue, taking into account more than two centuries of USA law, legislation and legal precedent.

The First Amendment says that laws cannot be made “respecting an establishment of religion, or prohibiting the free exercise thereof.” The claimed right to refuse service on the basis of one’s beliefs is based on the amendment’s second phrase -- its religious freedom.

There are two barriers that prevent acceding to that claim by acknowledging a wholesale right that religious people can deny service on the basis of their beliefs. The first is the Equal Protection clause of the Constitution’s 14th Amendment. That amendment prevents states from passing laws treating some classes of citizens differently from others. This amendment holds that a state may not “deny to any person … the equal protection of the laws.”

The second barrier lies in the First Amendment’s first phrase, the so-called “establishment clause.” More than half a century ago, the Supreme Court established the “Lemon Test” to determine if a law violated the prohibition on government establishment of religion and has consistently used it since then in church and state cases like this one.

A law must pass all three components of the Lemon Test to be valid. First, does the law have a secular purpose? Second, is the primary effect either to advance or inhibit religion? Third, does the law foster an excessive governmental entanglement with religion? If the study of a law results in a “no” to the first question OR “yes” to the second OR third, then that law is unconstitutional.

The goal to establish a religious freedom right to deny service on the basis of belief fails not just one but all three tests: No, the claim’s purpose is religious, not secular; yes, the primary purpose is to advance religion; and yes, it fosters an excessive governmental entanglement with religion.

The test of governmental entanglement in religion is the most telling. Going against it in the Masterpiece Cakeshop case would have the greatest impact because it would require the courts to rule on matters of religious belief. Given that few judges and lawyers have any training in religion, this would be a disaster.

It is solidly established in American law that the government cannot deny service on the basis of membership in an identifiable religious group. In the past two years, that principle has been on display with the decisions concerning a religious test for admitting Muslims entry into the country.

But the baker’s claim of the religious right to deny service to a gay couple for their wedding cake is not a matter of their belonging to a particular religion. Rather, it is a question of doctrine within a single religion, that of Christianity. And that doctrine is disputed. Not all Christians or all Christian denominations believe that gay marriage is against Christian belief.

Is the government going to make a decision that allows individual believers (any believer?!) to deny service to members of the same religion on the basis of whatever belief they hold deeply and sincerely? Is it going to get involved in theological and doctrinal disputes? No, it isn’t. That would violate the 14th Amendment as well as the First.

And just to be explicit, the Supreme Court could not rule that only Christians have the right to deny service on the basis of their beliefs. If it decided, against all precedent, that there was a right to religious denial of service, then it would apply to members of all religions -- Judaism, Islam, Hinduism, etc.

If SCOTUS ruled in this direction, it would likely remove the “religious” moniker from the ruling and give the right to anyone with a deeply held belief, religious or not. So, denial of service, in this scenario, would be permissible on moral, political, racial and social justice grounds, as well as religious. That would at least allow the Supreme Court to avoid the entanglement issue.

I will stick my neck out and predict none of this will happen. Instead, I predict two possible decisions. The first would be a complete ruling against a religious-based denial of service as a violation of the 14th Amendment.

The second would be a compromise that classifies the baker as an artist and the baking and decorating of a wedding cake as the commission of an artwork. Just as an artist does not have to take every commission offered to him or her, so the baker would not have to create every cake design that someone asked of him or her.

Religion in American History

January 18, 2018

By Paul V.M. Flesher

In a recent survey, college seniors were asked questions from a high school-level test on American history. Over 75 percent scored a D or below!

While the disappointment expressed by history professors, politicians and the media over the students’ performance is certainly justified, it was the questions on the test that I found most disappointing. Despite this country’s proud religious heritage and the influence of religion at nearly every stage of our history, none of the questions asked about religion. It was as if religion had been dropped from the curriculum. So, although the survey showed that students have forgotten the names, dates and places of American history, they were never expected to know the importance of religion in shaping our country.

How did our education system arrive in this situation? It all boils down to the separation of church and state. In the early part of the 20th century, the boundaries between church and state were not clearly defined with regard to schools. All across America, school systems had a variety of relationships to local churches and religious practice. Aspects of American religious history were taught in various degrees of detail.

Then, following the end of World War II, uncertainties began to arise concerning the appropriateness of the intertwining of churches and schools. The doubts continued into the 1960s when the Supreme Court ruled that schools were permitted to teach ABOUT religion(s), but they were not permitted to teach religion, i.e., to indoctrinate. Thus, the court approved teaching of the role of religion in American history.

So, it would seem that the matter had been resolved. But, not so. The Supreme Court’s ruling that banned teacher-led school prayer ushered in an era of litigation over religion in schools, which has continued to this day. Although the controversy focuses on religious prayer, it has spilled over into instruction about religion. 

The fear of legal action has led schools to “sanitize” their curriculum, to take mention of religion out of the curriculum. This has not been from any fear of religion, but from the fear of being sued and the tremendous costs that suits entail. School district budgets are stretched as it is, without having to find several million dollars for legal expenses. The victory granting the ability to teach students about this country’s religious heritage has been squandered by the political controversy over school prayer.

So, what kinds of questions should high school students, college students and we “lifelong learners” be able to answer about religion in our country’s past? Here are three true/false questions you can test yourself on:

1. The Puritans believed that everyone in America should have the freedom to follow any religion and to worship in any way they chose.

2. At the time of the American Revolution and the founding of the American republic, Baptists strongly supported the separation of church and state.

3. In the slavery debate preceding the Civil War, the Bible’s explicit statements about slaves supported the pro-slavery position best. 

Check the answers below, and see if you don’t agree that religion’s role in shaping American culture and history needs more emphasis at all levels of learning, from our elementary schools to our senior citizens. 

Answers:

1. False -- Puritans were interested in freedom of religion for themselves only. It was Roger Williams, Rhode Island’s founder, who promoted religious freedom for all.

2. True -- Historically, Baptists have been some of the strongest believers in the separation of church and state.

3. True -- The Bible never explicitly condemns slavery; its statements assume that slavery is a normal part of society.

Liberty, Equality and the Meaning of Religious Freedom

The Declaration of Independence placed the Enlightenment ideal of “liberty” at the heart of the American soul. It cites liberty among the reasons for creating our new country. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.”

            The basic meaning of liberty is the ability to do what one wants. Of course even school children know that unbridled liberty is impossible. If one person decides they want to kill another, an extreme example, the second person’s liberty is violated, to say nothing of their life.

            Liberty as a political or governing policy thus consists of balancing of each individual’s ability to behave as they wish against others’ freedom to do the same. The goal is to achieve an equality of liberty for everyone, with everyone attaining as much freedom as possible.

            Another widely used definition of liberty is one of freedom from oppression; as the Merriam-Webster dictionary puts it, “freedom from arbitrary or despotic control.” This notion of liberty inspired the Puritans to leave England and come to the New World. They wanted the freedom to believe and worship as they were convinced that God wanted them to.

            If America’s notion of liberty began with this bid for religious liberty, the result was initially disappointing. True, in 1620 the Puritans established a colony at Plymouth where they followed their faith freely.

            But the Puritan notion of religious freedom was limited to themselves and their own beliefs and practices. It did not extend to anyone who believed different from them. In that they were no different from the Church of England, which had developed its discriminatory policies under King James (d. 1625).

            When Roger Williams and then Anne Hutchinson developed theological positions that differed from those of the Puritans, they were banished. Roger Williams fled to Rhode Island where in 1636 he founded Providence as the first community run on the basis of religious freedom. Anne and her followers later settled there.

            Although we often call Roger Williams the founder of religious liberty, what he really created was religious equality. The practical effect of bringing together several groups with different religious beliefs in Rhode Island set up an ironic conundrum: religious freedom had to be restricted to achieve the highest level of religious liberty.

            Each group in Rhode Island was free under the second definition of liberty, that of freedom from oppression and control. But they were not free under the first one, that of the unlimited ability to do as they wished. Where one group’s free expression of belief and practice impinged upon another’s, they had to work out a comprise to prevent that. These compromises usually limited both sides’ freedom, although ideally with as little limitation as possible.

            America’s great reputation for religious freedom is therefore the reputation for religious equality. Every religion and every version of a religion is free to worship and believe as each one chooses, as long as it does not impinge upon the rights of others. The clarion call we still sound for religious liberty is a call for equal rights of all religions.

            That is what makes America the standard bearer for religious freedom. Religious refugees from around the world flock to our country because they know they can worship without persecution here.

            What is opposite of equal rights for all religions? Despotism.

            If a country allows one religion to worship and act in accordance with its beliefs at the expense of other religions, then that country no longer has freedom of religion but the religious equivalent of political dictatorship.

            This is the situation for many countries around the world. They have a political system that favors one religion or even one version of a religion. That preference permits the members of the favored religion rights and privileges others do not have.

            This is true whether the religion is Hinduism, Buddhism, Islam, Judaism and even Christianity. The difference in rights between the religion in favor and those out of favor range from mild to extreme, from England’s support of Anglicanism with public taxes, to Israel’s allowing Judaism’s Orthodox wing of Judaism to control marriage law, to frequent persecution of Christians for blasphemy in Islamic countries.

            Only equal rights for all religions and all religious people, as well as non-religious beliefs and people, ensures the most religious freedom possible. Any other position penalizes those who do not follow the privileged faith.

Morality: The Face of Public Christianity

September 30, 2015

A non-Christian who read recent newspapers to learn about Christianity might arrive at the following picture. Christianity believes that marriage is between a man and woman, so no marriage between members of the same sex. Christianity believes life begins at conception, so no abortion and no stem cell research. Christianity believes that God created the universe, so evolution should not be taught. Sexual activity belongs in marriage, so no premarital sex.

In this picture, Christianity is about actions that people should or should not do; it is about morality. What is missing from this public Christianity are the religion’s core features. Salvation, Scripture, faith and belief have disappeared from public view. How did this happen?

The story begins in the early 1500s, with the Protestant Reformation. Prior to that, the Christianity of Western Europe was Catholic and centered on community. Based on their doctrinal interpretation of Scripture, Catholicism raised a group of men out of the community to become priests. These priests then mediated between God and the people to bring salvation, forgiveness and blessings from God to the people. The church stood with individuals before God, buffering them in his majestic presence.

Starting in 1517, Martin Luther changed all that. Instead of the church standing with the individual, Luther held that individuals stood alone before God, with only their faith, based on their understanding of Scripture, alongside them.

Despite this theological change, the social reality altered surprisingly little. Individuals still lived in communities and these communities shared a single doctrinal interpretation of Scripture. Individuals did not interpret Scripture on their own, but rather followed their community’s understanding.

Often, these communities were formed around the teachings of influential theologians and leaders. Luther founded the Lutherans; John Calvin founded the Reformed Church and influenced the Puritans; and John Knox organized the Presbyterians. And these are just a few of the communities, the churches, if you will, created from the Reformation.

So, early forms of Protestantism took a similar structure to Catholicism: Each was a community that brought a common interpretation to Scripture which, in turn, led to common social norms (i.e., morality).

The Puritans brought this communally organized Christianity to America, where they established a new community that would help individuals lead moral lives in keeping with the Puritan interpretation of Scripture.

But Luther’s dictum of the individual alone still rang out. When Roger Williams interpreted Scripture for himself in the 1630s, the Massachusetts Puritans expelled him. Williams believed in a radical understanding of Luther’s dictum: The church should be separate from the government so that the church could not use government powers to enforce doctrine and interpretation on individuals.

Williams’ idea become the foundation of America’s religious freedom. By the 1680s, variety was the religious flavor of the era. Formulations of Christian beliefs, called catechisms, proliferated. Puritan preacher Increase Mather thought that “over 500” different catechisms were circulating at the time. Over the next century or more, European immigrants brought in new Protestant denominations and Americans created their own.

By the 1800s, Christians realized all this religious freedom fragmented Christianity and interfered with its ability to accomplish the great deeds needed. So, they banded together into non-denominational organizations to take on moral projects. To accomplish this unity, they overlooked doctrinal features that divided them.

Thus, the great ethical movements of the century were founded: anti-slavery, temperance, women’s suffrage, and missionary projects to evangelize both foreign peoples and the USA’s “unchurched” masses. By the mid-20th century, new non-denominational groups joined with those of a more secular bent in the civil rights and women’s rights movements. The lessons of these movements was that, if the divided Christian populace overlooked matters of doctrine and Scripture interpretation, they could unify on moral issues.

Toward the end of the 20th century, a new alliance of Christians was formed. Since the great moral concerns of slavery and personal civil rights had been resolved (more or less), these groups took up new ones. Thus, the “right to life” movement, for example, took up the cause of the unborn. This brought together an alliance of conservative Protestants, Catholics and Mormons, who were able to overlook their differences on doctrine and Scripture, to unite on what they saw as a great moral concern.

Thus, morality is the great religious unifier, where different religious groups can agree. They may arrive at those moral positions through different doctrinal interpretations of Scripture, even from different versions of Scripture. But, to strengthen their unity, they ignore those differences. The public unity of Christianity, as apparent in American news coverage, comes from morality rather than doctrine.