We were there because we had filed “amicus curiae” briefs in support of petitioner Jack Phillips, the Denver cake artist who serves any customer, but who does not do every event, e.g., custom wedding cakes for same-sex weddings. We sat in the section for Supreme Court bar members, giving us a ringside seat for the judicial jousting that was to unfold. (Michael was counsel for Southern Baptists and Missouri Baptists, along with some Christian colleges and other religious associations. Jon had filed an amicus brief on behalf of 86 members of Congress, including Senators Cruz, Lankford and Sasse, and MO Rep. Vicky Hartzler.)
Many of the hypothetical questions assumed that religious disapproval of same-sex marriage was morally equivalent to racism which some have tried to justify on religious grounds in our history. The liberal justices worried that allowing Jack to discriminate against same-sex marriage based on religious conscience would create a slippery slope where many businesses would seek to justify race discrimination on religious grounds. Chief Justice
Obergefell and Believers in Biblical Marriage
In the amicus brief we filed for Missouri Baptists and other Southern Baptists, we elaborated on the argument which the Chief made succinctly here. We said Obergefell promised that religious believers and organizations would remain secure in their constitutional right to believe, teach and live out their sincere religious convictions that marriage is between a man and woman, and that same-sex marriage should not be condoned. The promise was unmistakable and unambiguous:
“Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held – and continues to be held – in good faith by reasonable and sincere people here and throughout the world. Id., 2594
“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. Id., 2602
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Id., 2607
Justice Kennedy, in writing the above words in Obergefell, seemed to be proclaiming his personal respect for traditional biblical views about marriage and giving his personal pledge that the Court would be tolerant of people who lived out this faith. There was no condemnation of these religious views as being based on hatred or malice or animus. He would not have used such affirming words had he been talking about racist views based on twisted scripture.
For this reason, perhaps it should not have been surprising that Justice Kennedy would take almost personal offense at the way the State of Colorado treated Jack Phillips and his biblical view of marriage. But it did surprise us. It surprised everyone.
Do you disavow?
“Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric. Did the Commission ever disavow or disapprove of that statement?” Tr. 51.
Mr. Yarger, somewhat awkwardly, said no.
“Do you disavow or disapprove of that statement?” Kennedy pressed bluntly, noticeably irritated.
“I would not have counseled my client to make that statement,” a nervous solicitor equivocated.
“Do you now disavow or disapprove of that statement?” Kennedy asked in his best prosecutorial tone of voice.
“I — I do, yes, Your Honor,” Mr. Yarger said weakly, halting as if stunned by what had just happened. Tr. 52.
And we all were. We had never seen anything like this before in the Court. The Justice with the swing vote had just forced the lawyer for Colorado to renounce his client’s bigoted statement. Mr. Yarger may have been thinking to himself, “This is a bad day in the Supreme Court. It can’t get much worse than this.”
But it did get worse. A few minutes later, Justice Kennedy drops the bombshell.
Tolerance and respect
Justice Alito extended the argument about the State treating Jack’s views differently from those bakers who support same-sex marriage. Tr. 58.
“One thing that’s disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint.
“The — the Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and those — there were bakers who said no, we won’t do that because it is offensive.
“And the Commission said: That’s okay. It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”
Many legal observers, left and right, are predicting a 5-4 ruling in favor of Jack Phillips, with a narrow opinion that condemns state laws which fail to make reasonable accommodations for people with a biblical view of man-woman marriage. We pray the opinion will protect the right to believe, teach and live out their sincere religious convictions that marriage is between a man and woman, and that same-sex marriage should not be condoned. That was the unmistakable and unambiguous promise of Obergefell.We expect a decision to be announced before the summer recess begins on June 30. There is still time to pray.
