The “Free Exercise” Clause does not create Religious Liberty

The state of Colorado has found a way to invalidate the argument that the First Amendment protects the “free exercise” of religious faith.

Generations of American citizens have been proud to say that the USA is a country where people are free to live by their religious convictions. In fact, in this country, people are free to choose whatever religion they wish, and then they are free to live by the teachings of that religion. Until now, it has been very seldom that a person with deeply held religious convictions was compelled to violate them. It took serious evidence that accommodation of religious values would do real harm to the nation and other citizens before a court would decide against the “free exercise” of religion. The First Amendment to the Constitution has been a bulwark of religious liberty and a model held high around the world.

It is important to know that the First Amendment did not create the right to religious liberty. Nobody involved in the writing of the Constitution, and nobody who thought the Constitution would be stronger with the addition of the first ten amendments, believed that the men who wrote the Constitution had failed to create a right to religious liberty. As the states debated the ratification of the Constitution, the discussion was about the fact that every citizen already believed that he had religious liberty by virtue of being a human being. Five of the colonies  that became independent states after the Revolutionary War were founded specifically to exercise that right. The founders of those colonies had fled Great Britain, because they were denied that right in their homeland, and they believed that God, not Great Britain, had given them a right that neither Great Britain nor any other government could take away. They knew from experience that government could suppress the right by attaching qualifiers to the exercise of that right, and when citizens advocated strongly for the rights protected in the First Amendment, the citizens were advocating that those unalienable human rights be protected, not created.

The First Amendment does not exist because citizens thought the Constitution ought to create these rights. It exists, because citizens feared that the new government, like the ones they had fled, would try to limit or suppress this right, a right that the citizens believed they possessed as a consequence of being human. The First Amendment does not create the right to religious liberty; the First Amendment forbids the government to try to take that right away. Recently on Facebook, there was a post of a statement to the effect that someone thought that the Bill of Rights was a set of privileges granted to citizens by the federal government. Nothing could be farther from the truth, since the Constitution is a document written by representatives of the states and their citizens with the objective of setting strong bounds to the power of any central government serving all the states.

With that understanding, take a look at what happened recently in Colorado. Jack Phillips, a baker, appealed a decision of the Colorado Civil Rights Commission after a ruling that he had no right, based in his religious convictions, to refuse to prepare a cake for gays who wanted to celebrate a pretend wedding ceremony. The request was made in 2012, and at the time, gay marriage was not legal in Colorado. However, Charlie Craig and David Mullins wanted to play house and part of the game was a play wedding, for which they requested that Jack Phillips bake and decorate a cake. Phillips argued that for him to contribute a cake to the celebration and write a congratulatory message on the cake was tantamount to condoning and supporting gay marriage. He further argued that, since he holds a deep conviction, consistent with the teachings of his faith, that homosexual behavior is sin and the union of two homosexuals is not a marriage, he can neither participate in such behavior nor express a message of the approval of such behavior. His faith teaches him, as it teaches all who follow Christ, that his life must be consistent with his faith—on the sidewalk, in his home, and while conducting business, just as surely as when he is in a church building.

The Colorado Court of Appeals ruled that Jack Phillips may not claim religious liberty as a basis for his refusal to make the cake and write the message on it, because what he writes in cake icing atop that cake, “does not convey a celebratory message about same-sex weddings likely to be understood by those who view it.” Such a claim is preposterous. Such a statement about the writing on a wedding cake is preposterous. People who go to weddings gaze with delight and appreciation at all the decorations and table settings and yes, even the words written on the cake. If those words express anything other than the names and the date of the wedding, everyone takes the sentiments to heart. They wonder who thought up such words, and they compliment both the words and the skill in presentation atop the cake. Some guests may even be so impressed that they ask who the baker was and plan to order something themselves, all because of the words and the skill of artistry in presenting them. It is ludicrous to allege that the wedding guests are too stupid and inattentive to absorb the message on the wedding cake.

Jack Phillips had every right to decline any business that was an affront to his conscience. That was always the intent of the First Amendment. For the court to pretend that nobody would associate the cake and the words written on it with the baker who produced them is actually not the important issue, because the court made up that issue in order to avoid showing respect for Phillips’ faith. The court’s explanation is simply a workaround. It was a ruse that salved their own consciences. This convoluted and imaginary logic pretended that free exercise of religion was not involved, and then they rejected the basis of the baker’s decision by saying that religion could not logically figure in the baker’s rejection of the business. In so doing, they thought they would make him look ridiculous. They thought they would forestall any further attempts by other businesses to refuse to participate in the mockery of marriage that is a gay wedding.

Every Christian learns early that Jesus said, “If anyone would come after me, let him deny himself and take up his cross daily and follow me” (Luke 9:23 ESV). The “daily” admonition carries the expectation that at all times and in all places a Christian will obey Christ. The Bible is the place where we find the teachings and the example of Christ.

Christians look to the Bible to learn what a marriage is: “He who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’” (Matthew 19:4-5 ESV). Clearly God created human beings with gender at the time of creation, not for them to choose later, and he established marriage as the unique, natural relationship of an adult human male and an adult human female as the foundation of families and human culture.

Christians learn in the Bible that some sexual behavior is wicked and to be rejected:

God gave them up to dishonorable passions. For their women exchanged natural relations for those that are contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error. And since they did not see fit to acknowledge God, God gave them up to a debased mind to do what ought not to be done. . . . Though they know God’s righteous decree that those who practice such things deserve to die, they not only do them but give approval to those who practice them –Romans 1:26-27, 32 ESV

Some people apply very abstruse and convoluted reasoning to this text and others that condemn homosexual behavior, and by that means they declare that homosexuality is nothing more than a normal variant of all the possible normal variants of human sexual behavior. Christians apply the plain sense of this passage and recognize that heterosexual marriage is God’s plan.

Christians also learn in the Bible that every word and deed must be subject to Christ’s high standards: “whatever you do, in word or deed, do everything in the name of the Lord Jesus” (Colossians 3:17 ESV) It isn’t possible to separate behaviors related to business transactions from behaviors related to worship or good health. All behavior is subject to God’s authority.

In short, Christians cannot make a distinction between what they would do at home and what they would do for a customer in their business dealings. Jack Phillips is doing what every Christian is advised to do. He asks himself what Christ’s standard is, and he tries to live that way. Almost certainly, someone could find a time in his life when he did not make the best choice, but that does not make his choice today invalid; it simply proves that he actually is a human. On the occasion when Jack declined to participate in actions that condone and celebrate the union of two homosexual men as if it were a wedding, Jack Phillips was refusing to participate in behavior that condones and celebrates sin.

The Colorado Court of Appeals failed to uphold the First Amendment protections to which Jack Phillips is entitled. May the court to which he appeals next be wiser.

In the meantime, Christ’s followers must be vigilant. For some, the idea of making a stand is attractive, because some people enjoy verbal combat and the war of ideas. For others, making a stand is very difficult, not because they are less committed, but rather, because they truly deplore the combative environment. All of us must be prayerful and submit to Christ’s leadership first. The landscape is a minefield, littered with assorted definitions, nuances, implications, and real dangers. While every follower must be vigilant, it is important for each to be compassionate toward believers who avoid conflict if possible. Peacemakers are blessed, according to Christ’s words, and every believer must applaud those who find ways to make peace without sacrificing truth.

The Bible is not actually about religious liberty, even though it is our guide to exercising religious liberty. The Bible is about the Way of Christ, a path that ends where each believer is nailed to the cross he carries with him every day. The major concern of every believer must be to know the mind of Christ in order to find Christ’s chosen path through the dangers. We pray for others as we pray for ourselves to give faithful testimony to Christ in every word and deed. Government may arrogate to itself the power to suppress the free exercise of religion, but when government does suppress this God-given, unalienable right, citizens have no obligation to submit. We pray never to give up the right to obey Christ, a right it is not in government’s power either to grant or to withhold.