Forcing an artist to create a cake for a same-sex wedding in contradiction to his beliefs is a “de facto religious test” that violates the First Amendment, the Southern Baptist Ethics & Religious Liberty Commission (ERLC) has told the U.S. Supreme Court.
The ERLC – joined by seven other organizations and an individual – urged the high court to reverse a lower-court ruling against Colorado cake artist Jack Phillips and his Masterpiece Cakeshop in a friend-of-the-court brief filed Sept. 7. The justices agreed in June to accept the appeal and are expected to hear oral arguments this fall in one of the cases at the center of the growing legal and cultural skirmish between religious liberty and sexual liberty.
Phillips, who is a Christian, declined to design and decorate a cake for the wedding of two men because of his belief marriage is only between a male and a female. But he told them he would make and sell them all other baked items. After the men filed a complaint with the state, the Colorado Civil Rights Commission ordered Phillips to create custom cakes for same-sex ceremonies or quit designing wedding cakes. The commission also ordered him to re-educate his employees on complying with the Colorado Anti-discrimination Act (CADA), which it found Phillips had violated.
When Phillips appealed, the Colorado Court of Appeals upheld the commission’s order, and the Colorado Supreme Court declined in 2016 to review the decision.
ERLC President Russell Moore told Baptist Press (BP), “No person should be required to use their gifts and calling in a way that violates their fundamental beliefs, and the Supreme Court’s responsibility is to protect Americans from governments and agencies that demand this.”
Freedom of conscience “matters to every American, regardless of belief,” he said in written comments. “A state that can force some individuals to violate their personal convictions is a state that will eventually force others to as well.”
He prays the high court “will once again uphold conscience freedom and personal liberty, and that coercion would be thwarted and replaced by a public square that shows mutual respect for all its citizens,” Moore said.
Joining the ERLC on the brief – which was written by Michael Whitehead, a Southern Baptist lawyer in Kansas City, Mo. – were the Christian Life Commission of the Missouri Baptist Convention, American Association of Christian Schools, John Paul the Great Catholic University, Oklahoma Wesleyan University, Spring Arbor University, William Jessup University, Jews for Religious Liberty and Omar Ahmed Shahin, a Muslim imam.
The ERLC’s brief was one of at least 45 filed with the Supreme Court in support of Phillips, according to Alliance Defending Freedom, which represents him in the case. Among others calling for the justices to rule in Phillips’ favor were the Trump administration’s Department of Justice, 86 members of Congress, 20 states, Becket, Billy Graham Evangelistic Association, Christian Legal Society and U.S. Conference of Catholic Bishops. Jonathan Whitehead, also a Southern Baptist lawyer in the Kansas City, Mo., area and the son of Michael Whitehead, wrote the brief filed by members of Congress.
In a similar case, the ERLC and others urged the Supreme Court in an August brief to review an opinion against Barronelle Stutzman, a Washington state florist who declined to design flowers for a same-sex wedding. ADF, which also represents Stutzman, has asked the justices to consolidate the Southern Baptist woman’s appeal with Phillips’ case.
In its brief on behalf of Phillips, the ERLC and its fellow signers say the lower court’s decision imposes a “de facto religious test” that has the effect of “barring from this craft” those who agree with his beliefs about marriage.
They “face a terrible choice,” the brief says. “Either they obey the State, which compels them to use their talents to design and create a customized cake that celebrates a same-sex marriage despite their contrary religious beliefs – and disobey God’s ‘divine precepts’ … – or they disobey the State and face crushing state penalties and litigation costs.
“No American should have to satisfy a government official that he holds the ‘right’ beliefs to keep his business or to practice his profession,” according to the brief.
The brief contends religious free exercise, protected in the U.S. Constitution’s First Amendment, extends not just to religious bodies but to “individuals and businesses in the marketplace as well.”
The Colorado Court of Appeals rejected Phillips’ distinction “between creating a custom cake for a same-sex marriage and serving other baked goods to gay customers,” the brief says. “The court thus equated a good-faith refusal to create a custom wedding cake with anti-gay bigotry.
“There is no real question that [Phillips’] objection to celebrating a same-sex marriage is an ‘exercise of religion’ protected by the First Amendment.”
The high court needs to reverse the court of appeals’ ruling because the judgment against Phillips is part of a “troubling trend of religious tests” involving wedding vendors, as well as other occupations, the brief contends. It cites the experiences of a graduate student in counseling, pharmacists and a judge as victims of “a legal mandate penalizing or excluding a person from her chosen occupation because of religious belief or expression.”
The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention’s news service.)