“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history,” said Colorado Civil Rights Commissioner Diann Rice, “whether it be slavery, whether it be the Holocaust, whether it be …” Here she trailed off.
“We can list hundreds of situations where freedom of religion has been used to justify discrimination,” she picked up again. “And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”
Rice propounded this view as part of her prejudicial rush to judgment in the case of Jack Phillips, a baker who in 2014 was on trial before the commission for refusing to sell a cake to be used in a same-sex wedding celebration. Phillips’ conscientious objection to gay marriage was thus brilliantly equated to Adolf Hitler’s murder of 6 million Jews.
[READ: Supreme Court rules for Colorado baker who refused to make cake for same-sex wedding]
The opinion offered by Rice is not that uncommon. And that’s very unfortunate, because it is a laughably stupid and historically ignorant view, falling apart upon the slightest examination. No sane and honest person — which is to say, no one outside the Colorado Civil Rights Commission — would hazard to pin the horrors of Nazi Germany or the persistence of slavery in the U.S. on Christians asserting their freedom of conscience. (In fact, the zealous Christian abolitionists of the 19th century would surely shudder to learn that their contribution to history has been lost so quickly.) Yet Rice’s general attitude is one widely held today: Religious principles have no place in American civic life.
Given the prevalence of this anti-religious attitude, it was heartening to see that three of the Supreme Court’s five most liberal justices — and seven justices in all — not only rejected Rice’s view, but actually found its utterance during Phillips’ legal proceeding to be clear evidence of the show trial’s unfairness. The Phillips ruling had to be thrown out, seven justices decided, because no reasonable person could defend the promulgation of such ignorant anti-religious bigotry in an official setting.
This bigotry hides behind a twisted notion of secularism: the notion that people are to keep their religious beliefs to themselves, such that they influence only their Sabbath worship and never guide their actions in public. Nobody believes this about all moral judgments, but many on the Left today believe that moral judgments deserve lower regard if they are tied to religion. They start with a motto, “separation of church and state,” and end with a radical notion that religious beliefs need to be locked out of the public square.
This has never been the American idea, and seven Supreme Court justices on Monday rebuked the Colorado officials who preached it.
That said, the 7-2 decision in favor of Phillips and his Masterpiece Cakeshop came only on the very narrow grounds that religious ideas don’t deserve special disdain. Despite many compelling arguments against state compulsion, the only argument that all seven justices agreed with was that the commission’s ruling impermissibly passed judgment on the content of Phillips’ religious beliefs, finding them offensive. A wealth of jurisprudence holds that government may not do this, with or without comparisons to the Nazis.
But two of the seven justices ruling for Phillips — Elena Kagan and Stephen Breyer — believed that, had the commission simply avoided this obvious error, it could have lawfully found against Phillips. This is, in all but name, a vote of confidence in the anti-religious Colorado Inquisition.
Yes, the ruling in Phillips’ favor allows religious freedom to “live to fight another day,” as Justice Clarence Thomas put it in his own concurrence. But it should also serve as a reminder that religious freedom remains very much in peril. And it shows again that judges appointed by Democratic presidents, even the judges who see through flagrant anti-religious bigotry, cannot be counted on to uphold religious freedom.
Under attack today is your very liberty to determine right from wrong based on a belief in divine revelation. The determination of right and wrong, as some would have it, is the role of the Supreme Court itself and our cultural betters. Reject that elite consensus — say, by holding that marriage is a complementary sacramental bond between a man and a woman — and you deserve public sanctions and second-class citizenship.
In America, though, religion and conscience rights more broadly don’t warrant mere tolerance. They in fact warrant a special deference. The First Amendment specifically cites the free exercise of religion as deserving of protection, coming first before even freedom of speech or of the press. And predating the Constitution is the notion that compelling someone to act against his will is particularly bad if you are also compelling him to act against his conscience.
Kagan and Breyer’s middle ground — that religion and conscience don’t deserve lower status — is not enough. The tradition on which our country is built is that religion and conscience deserve exceptional deference, and that they are even vital to public life in the same way as are a free press and freedom of speech. But a new worldview is attempting to remove conscience and religion from their prized place in the First Amendment and replace them with identity politics.
Kagan and Breyer thus argued in their concurrence that it is inherently more legitimate for an atheist baker to refuse to bake a cake with an explicit anti-gay-marriage message than it is for a religious baker to refuse to make a gay wedding cake. Religious views, by that argument, are at best tolerable, in contrast to homosexuality, which they view as exceptionally protected. The problem is that this is the opposite of what the Constitution says.
Freedom of religion and freedom of conscience have survived to fight another day. God willing, they’ll win that fight.
[Also read: The 6 blockbuster cases to watch as the Supreme Court term ends]
