On Tuesday, lawyers representing Jack Phillips, a baker from Lakewood, Colorado, will argue to the U.S. Supreme Court that religious freedom is under serious, if not mortal, threat. They will urge the court to embrace their interpretation of religious liberty principles, insisting that if they don’t win, the rights of people of faith will be in serious jeopardy.
Phillips and his lawyers have it exactly wrong—it is they who pose a threat to religious freedom. A victory for Phillips would not only harm people of faith, but also those who value our nation’s commitment to religious pluralism and civic equality.
The case being argued before the Supreme Court this week, Masterpiece Cakeshop v. Colorado Civil Rights Commission, raises the important question of whether businesses can rely on religious justifications in order to avoid compliance with state’s non-discrimination laws. As Phillips put it, he declined to bake a wedding cake for a same-sex couple because “using his God-given talents to promote same-sex marriage would go against his religious belief that marriage is between a man and a woman.”
On the surface, Phillips’ argument may appear to advance rights for people of faith. After all, under his view, a small group of religious adherents may gain legal protections. But as we argue in an amicus brief on behalf of fifteen religious minority groups, significantly more people of faith—and religious minorities in particular—stand to suffer if Phillips’ argument prevails. Why? Because non-discrimination laws, such as the Colorado law at issue in this case, often play an indispensable role in protecting the rights of religious communities. These laws serve as a critically important check against discrimination by businesses, employers, landlords, others; without such protections, individuals or groups—especially those outside the mainstream—would not be able to fully participate in civil society, and would be vulnerable to unjust persecution and harassment at every turn.
The United States is more heterogeneous racially and religiously than at any point in our history. As a result, robust non-discrimination laws are all the more crucial for ensuring that people of every faith can live and work together. But if Phillips prevails before the Supreme Court, those who would deny jobs or services to people because of their religious objections will feel even more empowered to do so. For example, a clothing store may choose to refuse to serve or hire Muslim or Jewish women who embrace modesty values because of opposition to their beliefs and practices. This is no idle threat; only two years ago the Supreme Court heard a case in which a Muslim woman was denied a job simply because she was wearing a headscarf.
In recent years, claims of religious discrimination have risen dramatically. According to data from the U.S. Equal Employment Opportunity Commission's (EEOC), there were over 1,000 more workplace religious discrimination complaints in 2016 than in 2006. Discrimination is particularly severe for religious minorities; for instance, while Muslims represent only one percent of the U.S. population, over twenty percent of the filed EEOC religious discrimination charges in 2015 related to incidents of anti-Muslim discrimination. The Department of Justice also consistently reports a disproportionately high number of discriminatory incidents against Muslims and Jews.
Phillips’ arguments also run directly contrary to well established principals and decisions from the Supreme Court. The court has long recognized that robust protections against religion-based discrimination play a key role in the protection of twin bedrock values that underlie both the U.S. Constitution and American democracy: that the government has a responsibility to avoid entangling itself in religion while also protecting the value of pluralism, particularly religious pluralism, in American civil society.
To that end, almost all of the court’s most important religious liberty cases have involved claims made by religious minorities. When Amish, Jewish, Seventh-Day Adventist, Native American, Sikh and Muslim people of faith have sought protection, the court has recognized their constitutional right to practice their religion without government-imposed burdens or discrimination. In a landmark 1963 case, Sherbert v. Verner, the court considered the claim of a woman who was Seventh-Day Adventist and who was fired because she would not work on Saturday, her Sabbath. Not only did the court rule in her favor, it established a rigorous standard for reviewing these types of claims asserted by religious minorities, relying in part on the high standards used in race discrimination cases. Phillips’ position amounts to nothing less than a partial—albeit significant—repeal of the non-discrimination protections contained in state, federal, and local laws that are integral, if not essential, to the free exercise of religion. The ruling sought by Jack Phillips and his lawyers would undermine all this precedent by severing religious liberty doctrine from the Constitution’s promise of equality.
Jack Phillips is right about one thing: religious liberty is a bedrock American principle. However, if the Supreme Court truly wants to protect that principle it should uphold, not weaken, civil rights laws. Liberty and equality are mutually reinforcing values, and both are weakened when they are placed at odds. Ironically, Phillips’ claim that his religious beliefs entitle him to refuse to bake a wedding cake for two gay men threatens not only to unravel the equality rights of LGBTQ people, but to set back the cause of religious equality in this country as well. The two phobias that tragically animate so much our public culture in this period are homophobia and anti-Muslim bigotry. Allowing religion-based refusals of service to gay men will likely be followed in short order by refusals of service to Muslims, Sikhs, Jews and other people of minority faiths.