By CNA Staff
Denver Newsroom, Feb 20, 2021 / 02:39 am
Ahead of a significant Supreme Court case that could determine whether Catholic adoption agencies can stay open in the U.S., a religious freedom attorney has criticized an article arguing against religious freedom protections.
“To the extent that this article proves anything, it’s that all creative professionals feel freer to exercise their constitutional rights, which is a good thing for every American,” Jake Warner, legal counsel with Alliance Defending Freedom, said Feb. 17.
Warner was responding to a Feb. 6 article in The Atlantic by law professor Netta Barak-Corren. The article argued that religious freedom protections for wedding vendors cause harm to self-identified LGBT couples and that perhaps no religious freedom exemptions should be granted.
In recent years, Warner has represented Jack Phillips of Masterpiece Cakeshop, a suburban Denver baker who declined to make a same-sex wedding cake due to his Christian beliefs.
After a six-year legal battle, the U.S. Supreme Court backed Phillips, the bakery owner. The court ruled 7-2 in his favor in the June 4, 2018, decision Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The Supreme Court overruled the order that he serve same-sex weddings and undergo anti-discrimination training, on the grounds that some commissioners “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”
Some Colorado Civil Rights Commissioners “disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust,” the court objected.
Before success at the Supreme Court, Phillips had chosen to stop accepting all orders for wedding cakes at his shop in order to avoid further litigation. One customer later attempted to order a gender transition cake and then filed a similar legal complaint.
Netta Barak-Corren, an associate professor of law at Hebrew University of Jerusalem, argued in The Atlantic Feb. 6 that the Masterpiece court decision “increased discrimination against LGBTQ couples” seeking wedding vendors. She cited her own research, for which she submitted similar, simulated inquiries on behalf of opposite-sex and same-sex couples to wedding vendors both before and after the Supreme Court decision.
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But Warner said Barak-Corren has taken the wrong approach.
“The author conflates message-based declines with status-based discrimination. Creative professionals like Jack do not decline projects based on who’s requesting, but instead based on what they’re asked to express through their speech,” he said.
Barak-Corren’s Atlantic essay characterized religious freedom as an “exemption” from civil rights law and questioned whether any religious freedom compromise was stable. She criticized claims that religious objectors are “a negligible minority in a society growing ever more affirming of LGBTQ equality.” She also doubted the position that exemptions would “not expand discrimination against same-sex couples.”
Critics of religious exemptions, she said, “worry that the (Supreme) Court’s religious exemptions normalize discrimination and thereby encourage it.”
Barak-Corren said she began an experiment in May 2018, anticipating the court would rule in favor of the bakery. She chose a sample of 1,155 wedding vendors, such as photographers, bakers and florists, from different areas with different religious freedom and anti-discrimination mandates.
Judging from her results, she said, the Supreme Court decision “appears to have generally reduced vendors’ willingness to provide wedding services to same-sex couples.” Same-sex couples’ vendor inquiries “appeared to fare worse after Masterpiece.”
The percentage of vendors who appeared open to same-sex couples appeared to drop from 64% positive responses before the Supreme Court decision to 49% positive responses after the Supreme Court decision.
Warner said strong protections against compelled speech are vital.
“Imagine a world in which government could force a black cake artist to create a white-cross cake to celebrate white supremacy for the Aryan Nation Church just because she would create an identical-looking cake to celebrate a Lutheran church’s 50-year anniversary,” he said. “Or imagine the government forcing an LGBT filmmaker to create a documentary for the Catholic Church promoting traditional marriage. Or forcing a Muslim singer to perform in a Baptist church’s Easter program. No government should have that kind of power.”
“The same principle that protects Jack and the other creative professionals in the cases listed above is the same principle that protects those who vigorously disagree with them on life’s biggest issues,” said Warner.
He referred to a unanimous 1994 U.S. Supreme Court decision upholding the free speech rights of a veterans’ group that put on a St. Patrick’s Day parade authorized by the City of Boston. The parade organizers declined to allow a homosexual and bisexual group to march because they disagreed with the group’s message. The state Supreme Court had ordered the parade organizers to include the group because of a state law barring discrimination on the basis of sexual orientation, but this order was overturned.
“The U.S. Supreme Court refused to blur this message/status distinction nearly two decades ago in Hurley v. Irish American Gay, Lesbian, & Bisexual Group of Boston, holding that nondiscrimination laws cannot punish those who serve people from all backgrounds yet only decline to express certain messages. The study does not show that this decision had any adverse impact on culture,” said Warner.
“Many courts have recognized this message/status distinction since then—affirming the expressive freedom of wedding artists, photographers, and filmmakers,” he said.
Barak-Corren said her findings discredit “the argument that the effect of religious exemptions is negligible and that exemptions will not increase discrimination.” In her view, her results also “complicate the conventional portrait of religious objection as fixed and unyielding to change.” She said they show that people’s behavior is influenced by “signals from the government.” If the government creates exemptions, she said, people might start engaging in what she considers discrimination.
If exemptions do increase discrimination, she said, there are legal implications.
“Under the most demanding legal standard, the government must justify laws that substantially burden religion, by showing that the laws are the least restrictive means to achieve a compelling state interest,” she said. “If religious exemptions increase discrimination, as I have found, then enforcing anti-discrimination laws without exception may be the best way to promote equality, and perhaps the only way.”
Barak-Corren’s essay referenced a similar case regarding an adoption agency that “refuses to consider same-sex couples as prospective parents.”
She did not mention that the case concerns Catholic Social Services of the Archdiocese of Philadelphia, which was told by the City of Philadelphia that the city would no longer refer children to it.
The decision was due to the faith-based stance of the social services agency on marriage, even though there had been no claims of discrimination against same-sex couples brought against it. The city required the social services agency to agree to match children with same-sex couples.
Two foster mothers who worked with Catholic Social Services have sued the city, represented by the Becket legal group. The Supreme Court is expected to weigh in on their case, known as Fulton v. Philadelphia.
Barak-Corren’s Atlantic essay said her findings should “prompt the Supreme Court to proceed with great care as it sets to deciding the Philadelphia case and any future religion-equality conflicts.”
Even a narrow decision “might have a significant detrimental effect on the broader population that stands to lose from the exemption.” She argued the court has a duty to “avoid causing this harm.”
As CNA has previously reported, wealthy funders like the Ford Foundation and the Arcus Foundation have earmarked millions of dollars in grants targeting religious freedom protections that are obstacles to their vision of abortion and reproductive rights and LGBT political demands.
Some opponents of broad religious freedom protections have spent over $500,000 on advocacy and public relations campaigns related to the Masterpiece Cakeshop Supreme Court decision alone.
The Evelyn and Walter Haas Jr. Fund, a San Francisco-based private family foundation with half a billion dollars in assets, listed on its website multiple grants related to the case.
