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The Christian Right Has A New Strategy On Gay Marriage

The next broadside in the culture wars arrives on the Supreme Court’s doorstep Tuesday in the unlikely form of a Colorado bakery owner named Jack Phillips. Phillips is a devout Christian who closes his shop on Sundays and refuses to take business that he says violates his religious beliefs — including making cakes celebrating Halloween, atheism and “any form of marriage other than between a husband and a wife.” In doing so, he is defying his state’s anti-discrimination law, and the Supreme Court will now hear oral arguments on whether he has the right to do so.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, represents a pivotal new legal strategy for the Christian conservative movement grounded in religious liberty claims rather than arguments that the law should reflect their values. But it’s also a sign that the Christian right — which once professed to speak for America’s “moral majority” — is tacitly conceding a loss in its long-standing battle over gay rights. While religious conservatives have consistently cast themselves as at odds with dominant liberal, secular forces, this case indicates that they are beginning to adapt to life as a true cultural minority.

“Christian conservatives used to try to promote traditional morality for everyone, but now there seems to be a recognition that they just aren’t going to win over the culture,” said Andrew R. Lewis, a political science professor at the University of Cincinnati. “So they’re going to the courts to argue that they’re vulnerable like other minorities and they need protections from the broader culture.”

Resistance to gay rights was one of the Christian right’s earliest and most successful rallying cries, and opposition to same-sex marriage has been a galvanizing issue for the constituency since as early as 1993, when a Hawaii court struck down a gay marriage ban and Christian conservatives rushed to implement same-sex marriage restrictions around the country.

Christian right leaders like James Dobson, Pat Robertson and Ralph Reed frequently cast Christians as a group victimized by a cabal of secular liberal elites intent on dethroning traditional religious values. But rather than seeking to carve out space for these values within the secular mainstream, as Phillips is doing, they used this rhetoric to urge Christians to help turn back the tide. This broader strategy made sense, given that opposition to gay marriage was common among religious Americans at the time, although white evangelicals’ antagonism was particularly vehement: In 2001, only 13 percent of white evangelicals, 30 percent of black Protestants, 38 percent of white mainline Protestants and 40 percent of Catholics were in support.

After the Massachusetts Supreme Judicial Court invalidated the state’s ban on same-sex marriage in 2003, Christian conservatives struck back with anti-gay marriage ballot initiatives during the 2004 presidential election. But despite these short-term gains, support for same-sex marriage rose exponentially among Americans across the board over the following decade. Today, there are only three religious groups — white evangelical Protestants, Mormons and Jehovah’s Witnesses — where a majority of adherents oppose same-sex marriage. And the U.S. Supreme Court essentially shut down the legal paths to opposing gay marriage when it found in 2015 that gay couples have a constitutional right to marry.

So now, Phillips and his attorneys from the Alliance Defending Freedom, a conservative Christian legal organization, are making a two-pronged argument focusing on the rights of religious minorities. (Neither has so far been persuasive in the lower courts.) One is that forcing Phillips to bake a custom cake for a gay wedding violates his religious freedom under the free exercise clause of the First Amendment; the other is that it violates his free speech rights as a self-described “cake artist” who would be forced to endorse a ceremony that he finds immoral.1

Phillips’ lawyers aren’t the only ones making this case. The issue of “religious liberty” has become an increasingly high priority for the broader conservative Christian population, particularly white evangelical Protestants, who are overwhelmingly politically conservative and traditionally seen as the core of the Christian right. Surveys by the Barna Group, a research organization that focuses on Christian trends, found that the number of evangelicals (white and nonwhite) who said that religious freedom in the U.S. has become restricted over the past decade rose from 60 percent in 2012 to 77 percent in 2015. Similarly, according to the Pew Research Center, while only 18 percent of white evangelical Protestant churchgoers reported that they had heard about attacks on religious liberty from the pulpit in recent months in 2012, a survey from 2016 found that 43 percent of white evangelicals said they had recently heard clergy speak in defense of religious liberty.

This preoccupation with religious liberty appears to have cemented evangelicals’ conviction that they are uniquely likely to be victimized as a result of their religion: A Public Religion Research Institute survey from earlier this year found that although Americans overall were twice as likely to say there was a lot of discrimination against Muslims than they were to say there was a lot of discrimination against evangelicals (66 percent vs. 33 percent), 57 percent of white evangelical Protestants believe there is a lot of discrimination against their own group, while only 44 percent said the same for Muslims.

Many white evangelicals see themselves as targets

How respondents in different religious groups view discrimination against Christians and Muslims

THERE IS A LOT OF DISCRIMINATION AGAINST …
CHRISTIANS MUSLIMS
White mainline Protestants 30% 63%
White Catholics 26 64
White evangelical Protestants 57 44
Nonwhite Protestants 40 75
Religiously unaffiliated 23 77
All Americans 33 66

Source: Public Religion Research Institute

White evangelical Protestants are also alone among religious groups in their support for the particular religious exemptions they seek. A PRRI survey released in February found that even religious minorities that have won landmark free speech and religious liberty cases in the past, like Jehovah’s Witnesses (an overwhelming majority of whom also say that homosexuality should be discouraged), oppose allowing small-business owners to refuse to provide products or services to gay and lesbian people. Even when asked specifically about wedding vendors in another PRRI survey, white evangelical Protestants are the only religious group in which a majority say the business owner should be allowed to refuse service to gay couples.

Wedding vendors and nondiscrimination laws

How respondents in different religious groups view requirements for wedding-based businesses to provide services to same-sex couples

YES, THE BUSINESS SHOULD BE REQUIRED NO, NOT IF IT VIOLATES THEIR RELIGIOUS BELIEFS
White mainline Protestants 44% 49%
White Catholics 55 41
White evangelical Protestants 29 65
Black Protestants 56 40
Hispanic Catholics 73 19
Non-Christian religions 64 33
Religiously unaffiliated 65 31
All Americans 53 41

Source: Public Religion Research Institute

Steven Brown, a professor of political science at Auburn University who has studied the Christian right’s use of the courts, said that cases like Masterpiece Cakeshop are taking the language of rights pioneered by liberal groups over the course of the 20th century to demand even more sweeping protections for religious groups than courts have granted in the past.

“This is very different from other cases, where you had Jehovah’s Witnesses saying they couldn’t be forced to say the Pledge of Allegiance in schools,” he said. It’s also a separate situation, Brown said, from instances when Christians argued that a public school or state university violated their free speech rights by restricting the activities of religious student clubs, since “those are government actors and the purpose of the First Amendment is to protect citizens from government overreach.”

“The question here is whether a Christian baker who purports to serve the public gets those protections,” Brown said. “That could lead to a dangerous place where anyone can essentially say, ‘I won’t serve your kind.’”

And then there’s the question of whether “religious liberty” is merely a cover for anti-LGBT discrimination — as some have contended — or whether with cases like Masterpiece Cakeshop, Christian conservatives are shifting to a strategy based on religious pluralism.

It turns out that both may be true. Barna’s polling shows that evangelicals are increasingly concerned about protecting their own values and way of life, even at the expense of others’: The number of evangelicals who agree that traditional Judeo-Christian values must be given preference in the U.S. rose from 54 percent in 2012 to 76 percent in 2015, while the number of evangelicals who agree that no one set of values should dominate the country declined from 37 percent to 25 percent over the same period.

But Lewis’ research also indicates that as they come to terms with their own status as a cultural minority, Christian conservatives may be more accepting of other groups’ First Amendment rights. In a recent book, Lewis developed a scale to measure support for free speech claims by various unpopular groups and found that evangelicals’ support rose significantly between 1976 and 2012.

Along with other political scientists, he also devised an experiment to measure whether exposure to claims about religious rights (like wedding vendors’ ability to opt out of same-sex weddings) increased respondents’ tolerance in general. He found that after being presented with arguments for religious exemptions, white evangelical Protestants reported more favorable views of groups like Muslims and atheists. “As they begin to make their own rights claims, it seems that evangelicals may actually become more tolerant of other groups,” Lewis said.

Regardless of how the Supreme Court rules in this case, the struggle over religious exemptions won’t end anytime soon. Some legal scholars have already argued that although a baker’s participation in a wedding ceremony may not be significant enough to trigger a free speech exemption, a wedding photographer or singer might have a better case.2 And even if Phillips wins, future litigation will likely be needed to work out exactly who can claim religious exemptions, and from which laws.

“Even with Republicans in power in Washington, Christian conservatives have lost one of their biggest battles,” said Daniel Williams, a professor at the University of West Georgia who studies the Christian right. “At issue in this case now is just how much of their agenda they’ll be able to preserve.”

Footnotes

  1. Phillips’ attorneys have made the free speech argument — rather than free exercise of religion — the center of their case. Scholars like Elizabeth Sepper, a professor at Washington University School of Law in St. Louis, say this is because doubling down on the free exercise argument would require the Supreme Court to overturn a 1990 decision by the late Justice Antonin Scalia that an individual’s religious beliefs cannot exempt one from neutral, generally applicable laws.

  2. Another religious exemption case, this one dealing with a wedding florist, is currently in the queue of cases that the Supreme Court has been asked to review. The court declined to review a case about a wedding photographer in 2014, more than a year before the ruling that legalized same-sex marriage.

Amelia Thomson-DeVeaux is a writer and reporter living in Chicago.

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