Masterpiece Cakes (By David Opderbeck)

Last updated on: June 13, 2018 at 10:22 am by Scot McKnight

Masterpiece Cakes (By David Opderbeck) 2018-06-13T10:22:47-05:00 Scot McKnight

LOGO Patheos Explore the world's faith through different perspectives on religion and spirituality! Patheos has the views of the prevalent religions and spiritualities of the world.

By Dr. David W. Opderbeck

Seton Hall University School of Law
Professor of Law
Director, Gibbons Institute of Law, Science & Technology
Livingston Baker Research Fellow

CIPP / US

The Supreme Court’s Masterpiece Cakeshop v. Colorado Civil Rights Commission opinion was released recently. It landed with more of a drip than a splash. Justice Kennedy’s majority opinion held that the Colorado Civil Rights Commission had shown specific animus towards the Christian baker, Jack Phillips. However, the majority opinion did not decide the more difficult question whether commercial activities can include elements of protected expression that might allow establishments owned by religious proprietors to be exempted from some civil rights laws. The big issue of whether a baker or florist must sell products for gay weddings when a civil rights statute requires non-discrimination against LGBT people in places of public accommodation remains undecided.

In a Christianity Today article about the case, Ed Stetzer wonders “Why was it so hard for Jack Phillip’s brothers and sisters in Christ to stand up for his religious liberty?” As a law professor and theologian who thinks cases like Masterpiece Cakeshop are more symptomatic of problems in the church than in the broader culture, let me try to respond to this question.

First, the question is oddly framed. What would it mean to “stand up” for Jack Phillips’ religious liberty? I don’t think Jack Phillips or other Christians with traditional views about marriage are bigots. But does this mean I need to agree that Phillips and his lawyers pursued the right course of action, that it was missionally sound, genuinely loving, and spiritually wise, in addition to having legal merit? In my opinion, the failure to consider these factors is one of the reasons the culture wars, including the culture wars over religious liberty, have been such a disaster. Maybe Phillips was on the right side of the law, but the process of this litigation has further convinced the world that all Christians hate LGBT people. Whether that conclusion is fair or not, it is how a battle to the Supreme Court looks to the world. I cannot “stand up” for the instinct that litigation of cases like this in our cultural context should be anything other than a desperate last resort. In our missional moment in America, demands by Christians to exempt their for-profit businesses from civil rights laws deserve a jaundiced glance, not hearty support, regardless of their legal merit.

Second, Stetzer’s question assumes that Phillips’ “religious liberty” really was fundamentally, unequivocally at stake. I’m not convinced it was. Neither were most of the Supreme Court Justices, aside from the much narrower question whether some of the Colorado Civil Rights Commissioners had demonstrated some specific bias on the record.

I do think religious freedom is vitally important. Where there are real threats to the integrity of religious institutions, or to the lives of Christian or other religious people, litigation might be necessary and missionally helpful. Early Christian thinkers such as Origen, Tertullian, and Lactantius argued for the religious freedom of Christians in the face of imprisonment, torture, and martyrdom. They were right to do so in their missional moment, and we should do so too on behalf of Christians and other religious people subject to these same threats today around the world. But nothing of this magnitude was at stake in Phillips’ case.

Phillips argued that his business is unique because his wedding cakes are artistic creations. Other wedding service businesses, such as florists, have made similar arguments in other cases. This raises fascinating questions under the free speech clause of the First Amendment that are related to the free exercise issues. As a law professor, I love wrestling with this kind of problem. I can easily fill an entire Constitutional Law class with discussion about this sort of thing. It’s a real issue, but it’s not by any means a clear issue under our Constitutional doctrine. It’s something I’d like to discuss, and debate, and ponder – but not something I feel compelled to “stand up” about.

Consider just this one hypothetical variation: what if a chef-owner of a restaurant refuses to seat gay couples for dinner because he believes homosexuality is a sin and he views his food creations as his art? Does it matter if the restaurant is a four-star gourmet establishment, or a middle-range steak house, or a burger joint? It’s easy to see how the “artistic speech” claim could swallow any obligation by a place of public accommodation to comply with generally applicable civil rights laws.

Jack Phillips is not a preacher, he is a businessman. His business is subject to the same regulations as any other business, including civil rights regulations. In my view, if he feels he can’t comply with those regulations by supplying wedding cakes to LGBT couples, then he may need to exit that business. He can exit that business and still practice his religion. Indeed, he can exit that segment of the business and still work as a baker. He would not be the first, nor the last, Christian to change a job or business or lose some income because of some issue of conscience. We could even say that regularly examining our work and making changes to it, or saying “no” to some source of income based on what we think God requires of us in a fallen word, is a quintessentially Christian practice.

Third, the call to “stand up” for Jack Phillips’ religious liberty in this case is tone deaf to the history of American Christianity in relation to civil rights. At every turn – from slavery, to the black codes of the Reconstruction era, to desegregation and the modern civil rights movement – conservative Christians argued that their religious views about the proper place of black people should be preserved against the encroachment of laws designed to promote racial equality. They even argued their views to the Supreme Court (see, for example, Bob Jones University v. United States). Who wants to be part of a generation that repeats those mistakes?

Conservative Christians today respond that sexual orientation different than race. Maybe, but given this history, I think it doesn’t matter. This history should sorely chasten us. Even those who think sexual orientation is significantly different than race, perhaps, should sit down and listen for a while, instead of “standing up” at every opportunity to argue for their rights in the public square. That, at least, is how I view my calling concerning LGBT issues for now.

Finally, I cannot “stand up” for Jack Phillips because the case is about something so central to the Gospel narratives: eating with “sinners.” Jesus had a “right” to avoid contact with the sinners and outcasts of his culture. By exercising this right, he could have won the approval of the religious establishment. He did precisely the opposite. Maybe Jack Phillips and other bakers, florists and service providers really do have a Constitutional right to refuse any hint of association or endorsement with the LGBT people they perceive as outcast sinners. But I’ll stand up with people who are criticized by religious pundits for eating with those sinners before I’ll stand up with people who assert their legal rights to keep a pure distance from the mess of the common culture — because that’s what I think Jesus’ example demands.

Uncategorized

Previous Post

June 12, 2018

The Term "Evangelical": More Thoughts

Next Post

June 13, 2018 David Fitch, James Cone: Liberation Theology 1

Browse Our Archives

Select a Category Acts of the Apostles Adam Advent Anabaptism Angels Anglican Apologetics Atonement Baptism BCP Prayers Bible Biblical Studies Birds Blogging Bloglossary Bonhoeffer Books Calvinism Christianity Church Church History Coffee Colossians Commentary Recs Conversion Creation Creeds Culture Death Ecclesiastes Economics Education Embracing Grace Emergent Emerging Movement Eschatology Essays Ethics Eucharist Evangelicalism Family Fasting Fathers Fellowship of Differents Footsteps Tour Fun and Whimsical Gospel Grace Happiness Heaven Hell Holy Spirit Irenaeus James Jesus Jesus Creed Job Justification Kingdom of God Law Lectures Lent Liberalism Love and Marriage Mabanteneni Manhood Mary Miracles Missio Alliance MissioLife Missional Missional Jesus Movies and Film New Perspective Northern Seminary OneLife Origins Project Orthodox Parables Pastor's Spouse Pastoring and Leading Pastoring and Preaching Patristics Paul Paul-John Tour Pharisees Pietism Political Theology Prayer and Formation Preaching Problems for Faith Psalm 119 Psalms Public Issues Purgatory Religions Resurrection Revelation Romans Rule of JCreed Science and Faith Sermon on the Mount Sports Ten Commandments Theology Third Way Top Ten Lists Translations Uncategorized Universalism University Ministry Way Out Weekly Meanderings Wisdom Women and Ministry Work Worship Writing & Blogging Youth Ministry

Select a Month July 2021 January 2020 December 2019 November 2019 October 2019 September 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 December 2018 November 2018 October 2018 September 2018 August 2018 July 2018 June 2018 May 2018 April 2018 March 2018 February 2018 January 2018 December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2016 November 2016 October 2016 September 2016 August 2016 July 2016 June 2016 May 2016 April 2016 March 2016 February 2016 January 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 June 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 September 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009 February 2009 January 2009 December 2008 November 2008 October 2008 September 2008 August 2008 July 2008 June 2008 May 2008 April 2008 March 2008 February 2008 January 2008 December 2007 November 2007 October 2007 September 2007 August 2007 July 2007 June 2007 May 2007 April 2007 March 2007 February 2007 January 2007 December 2006 November 2006 October 2006 September 2006 August 2006 July 2006 June 2006 May 2006 April 2006 March 2006 February 2006 January 2006 December 2005 November 2005 October 2005 September 2005 August 2005 July 2005 June 2005 May 2005 April 2005 0000

TAKE THE

Religious Wisdom Quiz

Who was Isaac's wife?

Select your answer to see how you score.

Rebekah Leah Sarah Rachel