The Ever-Expanding Culture Of Persecution

The now infamous Colorado baker Jack Phillips has no doubt become the target of a troll, but the law remains clear.

Jack Phillips is back in the news for refusing to bake a cake celebrating gender transition. For those who are unaware, Mr. Phillips was the subject of a Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission for refusing to design cakes for gay weddings. The Court, while in part ruling for Mr. Phillips, nevertheless punted on the main question of the case which is one reason why this story remains in the news. Another reason Mr. Phillips keeps popping up on my Twitter feed is that he has undoubtedly — due to his case’s notoriety — become the target of a malicious troll. Before I address the cultural impact however, let’s dive into the merits of the case itself.

The ruling by the Court in Masterpiece was not well-received by either conservatives or liberals. In its decision, the Court upheld Colorado’s antidiscrimination law but found that Colorado’s Civil Rights Commission had displayed a “clear and impermissible hostility” towards Mr. Phillips’s “sincere religious beliefs.” The finding of hostility was based on two factors in the Commission’s due process.

First, the Court held the statements made by a single commissioner that “religion has been used to justify all kinds of discrimination” demonstrated animus. Second, the Court noted the difference in treatment between Mr. Phillips’s case “and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.”

I agree with Elie Mystal that the Court’s finding of animus in the first instance is obnoxious. However, the second finding of animus provides an excellent framework for equitable application of commercial antidiscrimination laws.

The facts showed the Commission consistently upheld “the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text.” The reason the Commission allowed such refusals was that “the requested cake included wording and images [the baker] deemed derogatory.” In consistently finding that religious texts which criticize gay marriage are offensive, the Court held the Commission was essentially elevating “one view of what is offensive over another and itself sends a signal of official disapproval.”

In other words, the refusal to bake a cake displaying religious texts is as logically due to discrimination against a customer’s religious creed, as is the refusal to bake a cake for a same sex wedding is due to discrimination based on sexual orientation. And both religious creed and sexual orientation are protected classes by Colorado’s antidiscrimination statute. Rightly so, in my opinion.

Like an increasing number of Americans, I do not subscribe to any organized religion. In fact, I find many aspects of all three major religions rather appalling. But if I owned a bakery in Colorado and a customer came in and asked for a cake celebrating the prophet Moses’s command to massacre all male Midianite children and women who have known the touch of a man (Numbers 31:17-18), in a pluralistic society that protects religious views in commerce the only adult response is: Bake. The damn. Cake.

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Unfortunately, a culture of persecution has taken hold of far too many Christians in the United States today. The way American Christians tell it, they are fighting against forces that seek to “essentially banish orthodox Christianity from public life — to treat it with the same respect that mainstream culture treats abhorrent ideologies like white supremacy.” Current legal and cultural truths however, paint a far different picture.

For starters, the First Amendment explicitly protects religion from government persecution and as the Masterpiece case illustrates the Court possesses a heightened sensitivity to displays of animus against Christians. Moreover, laws such a RFRA and RLUIPA have further expanded free exercise protections beyond what the First Amendment requires.

In addition, religious liberty doctrine as it currently stands heavily favors Christians at the great expense of free conscience. For example, many citizens who are not Christian are nevertheless taxed in order to subsidize the operations, property aid, and displays of Christian churches. Moreover, churches enjoy a plethora of special exemptions from tax burdens not shared by other tax-exempt organizations. In fact, unlike every other charitable organization, a church is not even required to file for tax exempt status. And despite the acclaim over the increased diversity of the incoming 116th Congress, the nation’s leaders on both sides remain predominantly Christian.

Given all of the undeniable legal preference and representation in government, why do Christians claim to be so persecuted? The answer lies within a concept articulated in my favorite piece of 2018, titled The Racism Treadmill. In it, author Coleman Hughes criticizes the culture of progressives which prevents them from recognizing the substantial progress made towards racism. To Hughes it “seems as if every reduction in racist behavior is met with a commensurate expansion in our definition of the concept,” and I think a similar issue exists with many Christians today in their ever-expanding definition of persecution.

To American Christians, the concept of persecution includes normal social behavior in a diverse society by corporations such as Starbucks. The main issue for American Christians, however, seems to be the increased presence of social backlash to certain Christian doctrines including condemning homosexuality as immoral. But calling all social backlash persecution is illogical, for it would mean expanding the concept of persecution to all forms of legal dissent such as boycotts.

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Of course, forms of dissent have limitations, and of course actual instances of persecution exist against both Christians and homosexuals. But as an ardent capitalist, I think a particularly useful limitation is preventing artificial barriers in commerce based on a discrimination of race, gender, religion, and sexual orientation. Eliminating such barriers means engaging in mutually beneficial commerce with customers who may have beliefs you disagree with. But that mutually beneficial engagement would not make you or Mr. Phillips a victim of persecution.


Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.