This past Monday, the United States Supreme Court heard oral arguments in the 303 Creative v. Elenis religious liberty case.
This case involves basic and fundamental First Amendment religious freedom and free speech issues. The basic facts of the case are simple, but profound. Lori Smith is the proprietor of 303 Creative. Ms. Smith constructs websites using her God-given creative talents. She has concentrated on projects about which she cares deeply, such as children and veterans with disabilities and animal rights and animal shelters.
Ms. Smith decided to expand her business by branching out and creating websites for weddings. As a deeply committed Evangelical Christian, she believed that God created marriage only between one man and one woman. As such, she declined to create a website for a gay couple’s wedding. Let it be known that Ms. Smith does serve LGBTQ customers for websites that do not violate her religious convictions.
The question at issue in the 303 Creative v. Elenis case is really quite simple: Should an American citizen be compelled to violate their conscience and create speech advocating that which their find morally abhorrent?
The state of Colorado says yes. The lower courts have said yes. The question now is what will the Supreme Court say. In a previous case in 2018, the Supreme Court ruled in favor of Jack Phillips, a Colorado baker who had declined to bake and decorate a cake celebrating a same-sex wedding (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission). That case, however, was decided on very narrow lines (that Colorado’s Civil Rights Commission had shown prejudice and hostility toward Phillips’ religious convictions).
It appears from the Supreme Court’s questions during oral arguments that they will decide 303 Creative on substantive issues. This is indeed a free speech and religious freedom case.
Emotions are high and the rhetoric has been ratcheted up to hypersonic levels. By far the major reason is the legal philosophy dominant currently in American jurisprudence and in the LGBT community.
This philosophy has been clearly articulated by Chai Feldblum, an Obama appointee to the U.S. Equal Employment Opportunity Commission and professor of law at the Georgetown University Law Center. In her article, “Moral Conflict and Liberty: Gay Rights and Religion,” published in the Brooklyn Law Review, 2006 and Georgetown Law Faculty Publications, January 2010.
Dr. Feldblum argues that in conflicts between the rights of the LGBT community and people of sincere religious convictions, “society should come down on the side of protecting the liberty of LGBT people.” She believes that in such conflicts it is a “zero-sum” game in which one side must always surrender their rights to the other.
This mindset guarantees such conflicts are elevated to a fever pitch with a belief that there will always be winners and losers.
What would happen if this zero-sum game assumption was not true? Back in 2014, I penned a column for TheChristian Post entitled, “Gay Marriage and Religious Freedom: A Modest Proposal.”
In that column, I challenged Feldblum’s “zero-sum” option and cited Constitutional law scholar Michael McConnell who argues that in such cases the goal should be to “extend respect to both sides…much as we treat atheism and faith as worthy of respect” and define such respect as “the civil toleration we extend to fellow citizens and fellow human beings, even when we disagree with their views.”
I believe McConnell’s “respect” and “civil toleration” are far more noble goals than a zero-sum game where religious rights are always diminished. The best name for this alternative is “pluralism.”
Imagine my delight and surprise when I opened my copy of TheNew York Times (yes, I do subscribe as a form of opposition research) this past Monday and found a column by Tish Harrison Warren, "When Gay and Religious Freedoms Clash."
The author, a priest in the Anglican Church of North America (as opposed to the Episcopal Church), basically made the very same argument in an eloquent and persuasive fashion.
The Rev. Warren asks the question of how committed Americans are to true pluralism as a national societal value. True pluralism is “a commitment to form a society where individuals and groups who hold profoundly different and mutually opposed beliefs are welcome at the table of public life.”
This column is so good, frankly, I am surprised The New York Times published it. Rev. Warren points out that “Millions of Americans have irreconcilable views of sex and marriage and this is unlikely to change anytime soon.” Warren also makes the critical point that the analogy between racism and anti-gay views is disanalogous.
As she notes, people of religious faith’s objections to the LGBT value system are rooted in the foundational teachings of various religions including Christianity and a majority of Jewish and Muslim communities around the world. Conversely, racism has always been antithetical to Holy Scripture and when used by Christians historically, it has been foisted falsely upon Scripture.
At the same time, Warren also pointed out that the Supreme Court has ratified gay couples to marry and a majority of Americans support LGBT rights.
It would appear that this is a recipe for division, strife, and rancor. Warren asked the question, is such strife doomed to commence a societal “war of all against all”?
The answer both Warren and I would agree is a resounding "no." Instead, “We must find ways to protect the civil rights of gay people while allowing religious people who adhere to historic teachings on sex and marriage to freely practice their faith.” (Warren)
As an Evangelical Christian of Baptist convictions, I oppose changing God’s definition of marriage to include same-sex unions. Such a redefinition of marriage goes far beyond consensual behavior between two adults of the same gender. It has huge implications, including its impact on society, particularly its impact on children.
Even though it appears at present that the American public is increasingly coming to a different conclusion, does that mean there are to be no legal protections for those people of faith whose religious convictions are, and will remain, at odds with the current cultural zeitgeist? Are such people (millions of American citizens who continue to hold the moral and sexual views that have dominated the Christian faith for two millennia), now to be coerced by the potential punishments of prison, fines, or going out of business for refusing to participate in, or promote, ceremonies (often religious) that they find unconscionable?
Historically, pluralism has been one of America’s highest and most noble ideals. The unofficial motto of such sentiments might as well be, “I disagree with everything you say, and I defend to the death your right to say it!”
While protecting LGBT rights, our society’s goal should remain one of achieving a society where the rights of all are protected.
For example, we allow Islamic truck drivers not to be required to transport distilled spirits. Are we now to force a Black restaurant owner to cater an initiation ceremony for the Sons of Confederate Veterans or to bake a cake with the Confederate “stars and bars” flag on it, a flag that symbolizes the enslavement and subjugation of their ancestors? Of course not.
Just so, people who believe same-sex marriage is a sin against God should be free without legal penalties, to decline to provide their creative abilities to celebrate that which they find morally abhorrent. This is especially the case when it is realized that LGBT people will be denied no service they desire, as there are multitudes of Americans prepared to happily provide them with whatever services they desire.
Surely we can find a way to follow Dr. McConnell’s path of tolerance and civility that protects the deeply held religious convictions of American citizens from being coerced in matters of conscience. Why would the LGBT community want to coerce and trample the religious convictions of their fellow Americans? Such coercion will not lead to greater affirmation of same-sex marriage, but only greater resentment, backlash, and incivility.
Surely, we can summon what President Lincoln called in his first inaugural address “the better angels of our nature” to do better than that.
May we all resolve to seek greater civility, tolerance, and respect.
Dr. Richard Land, BA (Princeton, magna cum laude); D.Phil. (Oxford); Th.M (New Orleans Seminary). Dr. Land served as President of Southern Evangelical Seminary from July 2013 until July 2021. Upon his retirement, he was honored as President Emeritus and he continues to serve as an Adjunct Professor of Theology & Ethics. Dr. Land previously served as President of the Southern Baptist Convention's Ethics & Religious Liberty Commission (1988-2013) where he was also honored as President Emeritus upon his retirement. Dr. Land has also served as an Executive Editor and columnist for The Christian Post since 2011.
Dr. Land explores many timely and critical topics in his daily radio feature, “Bringing Every Thought Captive,” and in his weekly column for CP.