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Religious liberty wins a meaningful victory

Religious liberty wins a meaningful victory

June 12th, 2018 by Cynthia Allen in Opinion Columns

FORT WORTH, Texas—When it comes to the culture war, social conservatives (at least those who are not deluding themselves) know they have been routed.

The forces of secularism and relativism long ago toppled the social ballasts of religious principle and moral truth. The battles since have been defensive and uphill.

Perhaps, that is why Monday's Supreme Court decision in favor of baker Jack Phillips and his Masterpiece Cakeshop was a beacon of hope for some whose faiths have made them collateral damage by what feels to many like an unrelenting wave of progressive intolerance.

It should give us hope that all is not lost.

To be sure, the facts of this particular case are striking. In 2012, Phillips was asked by a gay couple to design and bake a wedding cake in celebration of their marriage. At the time, gay marriage was not recognized by Colorado, the state where the cake shop is located. Citing the Christian faith that anchored his belief in traditional marriage, Phillips informed the couple he could not bake them a custom cake celebrating their wedding ceremony, but otherwise offered his services to them.

The couple filed a complaint with the Colorado Civil Rights Commission which found that Phillips had violated the state public accommodation law, which prohibits discrimination on the basis of sexual orientation. The decision was upheld by a state appellate court.

The nation's high court saw it differently.

In a 7-2 decision, the majority of the court held that Phillips, not the couple seeking a wedding cake, was the victim of intolerance when several of the state commissioners reviewing the case likened Phillips' faith to "one of the most despicable pieces of rhetoric that people can use," even comparing his religious defense to slavery and the Holocaust.

Writing for the court, Justice Anthony Kennedy called this overt anti-religious animus, "inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation." Imagine that.

The commission, Kennedy wrote, disparaged Phillips faith by reducing it to "something insubstantial and even insincere," a substantial error given that " government has no role in deciding or even suggesting whether the religious ground for Phillips' conscience-based objection is legitimate or illegitimate."

At a time when religion is under constant assault, rebuking the claim that adhering to one's faith is tantamount to bigotry is a real win for religious liberty.

It's notable, too, that Kennedy also wrote the majority opinion in Obergefell v. Hodges, the case that asserted the constitutional right to same-sex marriage. His authorship of Monday's decision doesn't suggest an ideological retreat, but might be viewed as a tacit acknowledgment that gay Americans and religious Americans both deserve constitutional protections, and that the need for the former does not supersede the latter, a necessary reminder in an era of coercive progressivism.

But many religious conservatives are worried—"Only profound naivete can spin the majority decision as a victory for religious liberty," decried an essay in First Things—and they have reason to be.

While Kennedy took a clear stand against blatant religious intolerance, the connective tissue of his opinion was equivocal, flaccid and even fitful at times.

The court failed to rule on one of the case's more difficult questions: does the state have the authority to compel the exercise of constitutionally-protected individual expression in support of a constitutionally-protected act, in this case, a same-sex wedding?

And Kennedy seemed to indicate that had the facts of the case been different, had the commissioners been less overtly hostile to Phillips and his sincerely held beliefs, the ruling could have gone the other way.

But it didn't and there is comfort in knowing that even Justice Kennedy is not blind to the pervasive intolerance of the secular left.

What's more, as writer and lawyer David French points out, the facts of Phillips' case were not so unique. Disdain for religion is a baked-in feature of "state civil-rights commissions that are highly ideological and often outright hackish. They're undisciplined and biased as a matter of course," and religious-liberty attorneys will find no shortage of cases with similar circumstances. Several are in the pipeline already.

While a broader ruling would have reassured people of faith that they still enjoy the blanket protections our Constitution guarantees, the ruling should provide otherwise beleaguered religious conservatives with a much-needed shot in the arm.

It's no time for retreat.

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