The next broadside in the culture wars arrives on the Supreme Court’s doorstep Tuesday in the unlikely form of a Colorado bakery owner named Jack Phillips. Phillips is a devout Christian who closes his shop on Sundays and refuses to take business that he says violates his religious beliefs — including making cakes celebrating Halloween, atheism and “any form of marriage other than between a husband and a wife.” In doing so, he is defying his state’s anti-discrimination law, and the Supreme Court will now hear oral arguments on whether he has the right to do so.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, represents a pivotal new legal strategy for the Christian conservative movement grounded in religious liberty claims rather than arguments that the law should reflect their values. But it’s also a sign that the Christian right — which once professed to speak for America’s “moral majority” — is tacitly conceding a loss in its long-standing battle over gay rights. While religious conservatives have consistently cast themselves as at odds with dominant liberal, secular forces, this case indicates that they are beginning to adapt to life as a true cultural minority.
“Christian conservatives used to try to promote traditional morality for everyone, but now there seems to be a recognition that they just aren’t going to win over the culture,” said Andrew R. Lewis, a political science professor at the University of Cincinnati. “So they’re going to the courts to argue that they’re vulnerable like other minorities and they need protections from the broader culture.”
Resistance to gay rights was one of the Christian right’s earliest and most successful rallying cries, and opposition to same-sex marriage has been a galvanizing issue for the constituency since as early as 1993, when a Hawaii court struck down a gay marriage ban and Christian conservatives rushed to implement same-sex marriage restrictions around the country.
Christian right leaders like James Dobson, Pat Robertson and Ralph Reed frequently cast Christians as a group victimized by a cabal of secular liberal elites intent on dethroning traditional religious values. But rather than seeking to carve out space for these values within the secular mainstream, as Phillips is doing, they used this rhetoric to urge Christians to help turn back the tide. This broader strategy made sense, given that opposition to gay marriage was common among religious Americans at the time, although white evangelicals’ antagonism was particularly vehement: In 2001, only 13 percent of white evangelicals, 30 percent of black Protestants, 38 percent of white mainline Protestants and 40 percent of Catholics were in support.
After the Massachusetts Supreme Judicial Court invalidated the state’s ban on same-sex marriage in 2003, Christian conservatives struck back with anti-gay marriage ballot initiatives during the 2004 presidential election. But despite these short-term gains, support for same-sex marriage rose exponentially among Americans across the board over the following decade. Today, there are only three religious groups — white evangelical Protestants, Mormons and Jehovah’s Witnesses — where a majority of adherents oppose same-sex marriage. And the U.S. Supreme Court essentially shut down the legal paths to opposing gay marriage when it found in 2015 that gay couples have a constitutional right to marry.
So now, Phillips and his attorneys from the Alliance Defending Freedom, a conservative Christian legal organization, are making a two-pronged argument focusing on the rights of religious minorities. (Neither has so far been persuasive in the lower courts.) One is that forcing Phillips to bake a custom cake for a gay wedding violates his religious freedom under the free exercise clause of the First Amendment; the other is that it violates his free speech rights as a self-described “cake artist” who would be forced to endorse a ceremony that he finds immoral.Another religious exemption case, this one dealing with a wedding florist, is currently in the queue of cases that the Supreme Court has been asked to review. The court declined to review a case about a wedding photographer in 2014, more than a year before the ruling that legalized same-sex marriage.
‘>3 And even if Phillips wins, future litigation will likely be needed to work out exactly who can claim religious exemptions, and from which laws.
“Even with Republicans in power in Washington, Christian conservatives have lost one of their biggest battles,” said Daniel Williams, a professor at the University of West Georgia who studies the Christian right. “At issue in this case now is just how much of their agenda they’ll be able to preserve.”
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