Navigating the Difficult Passage Between Conscience and Justice

Masterpiece Cakeshop owner Jack Phillips

Responses to the Supreme Court’s Masterpiece Cakeshop decision are generating a library’s worth of commentary, much of it partisan. Commonweal magazine contributor Paul B. Moses recently came at the ruling from a different angle.  He wondered whether Masterpiece might signal that Supreme Court justices are uniting across traditional divides to honor the integrity of conscience for everyone, including for people who hold views with which some justices disagree vehemently. Moses wrote,

“It’s significant that three of the justices (Anthony Kennedy, Stephen Breyer, and Elena Kagan) who supported the court’s landmark 2015 ruling in favor of same-sex marriage also discern a basis for dissent in conscience against what they have made the law of the land. That ability to see dignity in those holding an opposing viewpoint is too rare.”

He suggests that we could all stand to imitate their attitude:  “The justices are calling for these difficult disputes to be approached with an open mind.” He hints that with good will and care the Court can balance refusal “to allow religious opposition to deny rights to gay people” with “respect for conscience and the rights of all parties.”

I agree with Moses that we must find ways to honor genuinely conscientious positions and still uphold civil rights, and I agree that the most important prerequisite is practicing generosity toward others’ earnestly stated convictions.  But I have two cautions.

First, Moses and Kennedy (whose decision Moses applauds) are not as successful at this practice as they might be, even as they both point out others’ failures.  Moses points to a complaint in which the Colorado Department of Regulatory Agencies (DORA) was faced with the reverse of the problem that initiated the Masterpiece case.  In that complaint, which was not taken to the Supreme Court, patron William Jack accused Azucar Bakery’s Marjorie Silva of religious discrimination after she refused to produce a pair of bible-shaped cakes including the slogan, “Homosexuality is a detestable sin. Leviticus 18:2.” (The requested cakes were also to include the slogan, “God loves sinners,” among other messages and images.)

DORA ruled that Jack was not a victim of religious discrimination.  Silva had refused to make the cakes because she regarded the “explicit message” he demanded to be “discriminatory,” and not because of his Christian identity.  That is, she believed that he’d asked her to be complicit in his discrimination, not to support his religion.

Kennedy opined that Colorado’s two bakery decisions–Azucar and Masterpiece–were biased.  In each case the state denied the rights of men who made “conservative” religious claims opposing same-sex marriage but upheld the rights of those making “liberal” claims.

Whether or not DORA’s decisions were biased, neither Moses nor Kennedy seems to be reading them generously.  Testimony in the Masterpiece case included this true observation, followed by a strong opinion:  “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history….It is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” (sic)

In response, Kennedy wrote, “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”  This reading, it seems to me, is an example of the very lack of generosity Moses condemns.  The transcript does not say that a person’s faith is a despicable piece of rhetoric but that religious freedom claims can be, and have been, used rhetorically to justify despicable discrimination—a point Moses himself cedes.  Kennedy falls short of Moses’s standard of respect for others’ conscientious arguments.

The second caution is that the decision does nothing to close the “gaping hole” that Moses admits remains between utmost respect for claims of conscience and protection of civil rights.  For clarity, it’s useful to put the Masterpiece decision in conversation with other cases.  What happens if we accept both bakers’ refusals as a way of honoring their desires not to be complicit in evil?

Sure, the Constitution that guarantees freedom of religion and freedom of speech contains no right to order cakes.  Sure, both fiancés Charlie Craig and David Mullins and same-sex marriage opponent William Jack could have shopped around for friendlier bakeries or headed into their kitchens to decorate their own celebratory cakes (Silva even offered to bake the cakes and provide icing that Jack could use for his inscriptions).  The problem is that opponents of integration could, and did, say similar things about African American patrons asking to be served at a segregated Greensboro, North Carolina, Woolworth’s nearly 60 years ago.  And sometimes they said these things based on religious grounds.  It’s not easy to say why these cases should be treated differently.

Greensboro, NC sit-in, 1960

The Court’s majority shares this worry.  Even the Masterpiece decision declares, “purveyors of goods and services who object to gay marriages for moral and religious reasons” must not “in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’”  And, we might add, maybe they should not be able to put up signs that read “No goods or services will be sold if they will be used to denigrate same-sex marriages.” Still, the decision does not explain how to protect all religious conscience claims without allowing outright discrimination.

I have some advice for the justices the next time around. Respect for others’ deeply held, conscientious beliefs must be not just a paramount principle,but a constant practice.  In particular, we must strive to represent our adversaries’ claims honestly.

In addition, respect for a genuinely held belief cannot imply automatic grant of a right to practice it.  I’m thinking of the thirteen Turpin children born, and then starved in imprisonment by their parents, in apparent obedience to a call from God.  If reports are correct, their parents’ strongly held beliefs overrode the children’s basic legal and moral rights.  At some point—as with lunch counters, public education, and same-sex marriage—civic agreements about the concrete requirements of justice and equality have a stronger legal claim than some individual conscience rights.

Moses is right:  we need to respect all strong, deeply held views because they are strongly and deeply held by people, and people possess freedom of conscience.  But respect for them cannot always imply a legal right to act on them.

Cristina Traina, Northwestern University, July 20, 2018

2 replies
  1. Mary Jo
    Mary Jo says:

    Thank you for this thoughtful article. What a hard subject to understand. I find the difference between freedom of religion and freedom from religion to be a fine line but usually experience that freedom of religion argument is used most often to discriminate against.

  2. Tom Bower
    Tom Bower says:

    While I agree the language used by the secondary courts was not judicious in tone, it does lay out the fact that according to the Constitution as interpreted says that the cake shop if it wants to serve the public must serve the public (LGBT individuals included). Many companies (Hobby Lobby, Chic -fil-a, etc.) state they don’t like LGBT individuals and campaign against them, but they still sell to them. As citizens we can believe anything we want and plead for our cause, but when we take certain actions that break
    the idea of equal rights, the law steps in and says what is or is not permissible. The individuals who seek to preserve Confederate soldier monuments in public spaces can think whatever they want, but when civil society says those items represent hate and treason and they must go, then they must go. Being tolerant of a tiny exemption because of sincerity to accept public service for all is not an acceptable option. The decision about the cake shop is an example of justice delayed being justice denied.


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