By: Jaren Martineau
Religious beliefs as well as religious expression are both civil liberties and civil rights. They are civil liberties because they are natural and unalienable rights that are protected in the constitution. They are civil rights because they are protected by various statutes and regulations such as the Civil Rights Act of 1964.[1]Religious speech is doubly protected as it is protected by both the free exercise clause of the U.S. constitution as well as its freedom of speech. Professor Michael McConnell, Director of the Constitutional Law Center at Stanford Law School, described the combination of these two protections as being a “double-barreled protection.”[2]These protections were important historical developments for human rights founded upon the wisdom learned from experiencing the negative effects of centuries of widespread religious persecution.[3]
Is Religious Animosity on the Rise?
Although there is substantial historical perspective to draw upon in understanding this basic human right, there is evidence demonstrating that animosity towards religious believers could be on the rise in the United States. Americans have grown accustomed to legal protections for religious beliefs and expression being the norm and for the most part have not personally experienced the devastating effects that accompany a lack of such protections. It is troubling to observe, however, that younger generations may have mistakenly learned that religious freedom is nothing more than a license to discriminate against those in the LGBTQ community.[4]This has sometimes led to animosity towards those with religious beliefs that may counter current social trends. Religious discrimination has also occurred as there has been an influx of immigrants who are bringing with them non-Christian religious beliefs that may seem foreign to many Americans. For instance, in the years following the 9/11 terrorist attacks, there was a noticeable increase in religious discrimination claims filed with the Equal Employment Opportunity Commision.[5]
Cochran v. City of Atlanta
The “double-barreled protection”, as previously described by Professor Michael McConnell, came into play in the case of Cochran v. City of Atlanta. In Cochran, Fire Chief Kelvin Cochran was fired from his employment with the city of Atlanta because of a book that he wrote in his personal time (and then distributed to a handful of city employees) describing his religious views including his view of traditional marriage as being a union limited to a man and a woman. In response to the incident, one city councilman was quoted as saying “[f]irst and foremost, I respect each individual’s right to have their own thoughts, beliefs and opinions, but when you’re a city employee, and those thoughts, beliefs and opinions are different from the city’s, you have to check them at the door.”[6](Emphasis added.) The court in Cochrandid recognize the concerns of the city that the Fire Chief’s position of authority within the department had the potential to create a hostile workplace which could potentially trigger problems with Title VII of the Civil Rights Act. Although the court chose not to side with Cochran because of his free exercise claim, the court did find for Cochran based upon his freedom of speech claim.[7]In other words, while Cochran’s religious expression (the writing and distribution of his religious beliefs) was not protected under the free exercise clause (the first barrel) in this case, it was ultimately protected under the free speech clause (the second barrel). The City of Atlanta has recently agreed to pay out $1.2 million to Cochran in a settlement agreement over the incident.[8]
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Another recent case that is fairly illustrative of the general trend towards being dismissive or hostile to the expression of religious viewpoints is the case of Jack Phillips of Masterpiece Cakeshop. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court reviewed the actions taken by the Colorado Civil Rights Commission against Jack Phillips, the owner of Masterpiece Cakeshop. Phillips, the owner of a bakery in Colorado, is a devout Christian who refused to bake a custom wedding cake for a same-sex wedding ceremony. His position was not to refuse service to people based upon the status of their sexual orientation. His argument was much narrower than that. Phillips only objected to using his artistic skills to express support for a union that was violative of his religious conscience. Phillips was willing to sell other products that were not related to the recognition of a same-sex marriage, such as a birthday cake or cookies, to a same-sex couple. The Colorado Civil Rights Commission determined that Phillip’s refusal to bake the wedding cake violated the Colorado Anti-Discrimination Act. The Supreme Court, however, held that the Colorado Civil Rights Commission violated the religious neutrality required by the free exercise clause in its decision to take action against Phillip. This case was decided in part because of the hostility that the commission showed toward Phillips and his religious beliefs.[9]
The details of this case reveal that several participants within the commission demonstrated blatant hostility toward religious objections. The Masterpiece Cakeshopopinion reveals that the commission showed “elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’] objection.”[10]In addition, some of the commissioners “disparaged Phillips’ faith as despicable” and compared his religious beliefs to “defenses of slavery and the Holocaust.”[11]Not a single commissioner objected to those disparaging comments.[12]The Court also noted that the commission was not being fair and impartial in its examination of other similar cases. The opinion mentions that the commission examined cases where other bakers had refused to bake cakes expressing a disapproval of same-sex marriages. The commission upheld those other cases, but it declined to impartially apply the same reasoning in defense of Phillips’ right to not create art that violated his conscience.[13]
The commission further continued to harass Phillips even after the Supreme Court decision in his favor. Phillips reported that he was again challenged by the commission when he declined to create a custom cake for a gender transition celebration, also because of his religious faith.[14]Again individual members of the commission were found to be hostile towards Phillips’ religious views. One commissioner called Phillips a “hater” on social media, and two other commissioners publicly endorsed that anti-religious statement.[15]Recently, the commission finally backed down in its actions against Phillips, likely in response to a lawsuit filed by Phillips.[16]
A Principle For Moving Forward: Balancing the Rights of All
Cochranand Masterpiece Cakeshopare not unique. There are other cases that are moving through the legal system that illustrate similar scenarios which are dismissive or hostile towards religious objections.[17]As our population grows and our citizens become more diverse in terms of their beliefs and backgrounds, it is hoped that we can learn from these cases. The civil rights and liberties of persons with differing viewpoints and beliefs should be protected. People should come together in defense of the right to believe and express according to their own conscience, while also seeking to protect the basic rights of others when those rights may collide.
Social justice advocates should defend the right to have differing religious or non-religious views and to express those viewpoints. The goals of diversity and equality that make up the social justice movement should lead us to a more diverse society, one that permits differing views to exist in the marketplace of ideas and to flourish equally. One of the ironies of these cases is that sometimes in the name of diversity, some within society attempt to force uniformity rather than diversity. Our society would do well to attempt to recognize the civil rights and liberties of all. In so doing, it is important to recognize that rights are not absolute. Just as first amendment rights are not absolute, other rights are likewise not absolute. Our laws can be designed to balance and protect the rights of all; to provide social justice for all, rather than to force conformity on all.
Using the Masterpiece Cakeshopscenario as one example, laws should be artfully crafted to make reasonable accommodations. The rights of those within the LGBTQ community to have free access to public accommodations should certainly be protected. At the same time, however, there should be a narrow exception where providing a specific public accommodation would force a religious believer to violate his sincerely held religious beliefs. This exception should only be exercised in a respectful way toward the party who is being refused. It should never be done with hostility or animosity. This way, the valuable rights and dignity of each party is protected in a reasonable way. If we truly seek to have a diverse and successful society, all parties must be willing to give a little in order to allow everyone respectful solutions to live according to their own values.
[1]Legal Information Institute, Civil Rights, Cornell Law School, https://www.law.cornell.edu/wex/civil_rights.
[2]Michael W. McConnell, Is religion special?, Deseret News, Nov 20, 2011, https://www.deseretnews.com/article/700199256/Is-religion-special.html?pg=2.
[3]The Library of Congress, Religion and the Founding of the American Republic, America as a Religious Refuge: The Seventeenth Century, Part 1, https://www.loc.gov/exhibits/religion/rel01.html.
[4]Rob Boston, Religious Freedom Should Not Be A License To Discriminate, Americans United For Separation of Church and State, Wall of Separation Blog, Jan 21, 2019, https://www.au.org/blogs/wall-of-separation/religious-freedom-should-not-be-a-license-to-discriminate.
[5]U.S. Equal Opportunity Employment Commission, EEOC Remembers September 11, 2001, https://www.eeoc.gov/eeoc/events/9-11-11.cfm.
[6]Katie Leslie, Fire Chief Suspended Over Book Controversy, The Atlanta Journal-Constitution, Nov 24, 2014, https://www.ajc.com/news/fire-chief-suspended-over-book-controversy/mYFsK5I6cdb7bHzNCQ21bM/?icmp=ajc_internallink_invitationbox_apr2013_ajcstubtomyajcpremium#ba0f33e4.3461033.735561.
[7]Cochran v. City of Atlanta, Georgia, 289 F. Supp. 3d 1276 (N.D. Ga. 2017).
[8]Jeff Gauger, Former Shreveport fire chief to get $1.2M in religious discrimination case, Shreveport Times, Oct. 17, 2018, https://www.shreveporttimes.com/story/news/2018/10/17/former-shreveport-fire-chief-gets-1-2-m-religious-discrimination-case/1670675002/.
[9]Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1732, 201 L. Ed. 2d 35 (2018).
[14]Jack Phillips, Can I just be a cake artist again?, The Denver Post, Mar 8, 2019, https://www.denverpost.com/2019/03/08/jack-phillips-can-i-just-be-a-cake-artist-again/.
[17]SeeKlein v. Oregon Bureau of Labor & Indus., 289 Or. App. 507, 410 P.3d 1051 (2017), review denied, 363 Or. 224, 434 P.3d 25 (2018); see alsoBrush & Nib Studio, LC v. City of Phoenix, 244 Ariz. 59, 418 P.3d 426 (Ct. App. 2018), review granted (Nov. 20, 2018); see alsoArlene’s Flowers, Inc. v. Washington, 138 S. Ct. 2671, 201 L. Ed. 2d 1067 (2018).
Law Journal for Social Justice 