Church-state entanglement erodes both

Steven Puro is president of Midwest Jewish Congress and a professor emeritus of political science at St. Louis University.

BY STEVEN PURO

Questions about freedom of speech and freedom of religion in the United States rarely have easy answers. Battles over the meaning of “religious freedom” define what forms of speech and religious expression are constitutionally protected. Can an individual with a public business use religious beliefs to refuse commercial services? 

These central questions were presented in the U.S Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission

Jack Phillips refused to make a cake for a same-sex couple, Charlie Craig and David Mullins. He argued that the cake was his artistic expression and that making a cake for them would violate his free speech and religious expression under the First Amendment, as well as his Christian beliefs. 

Phillips was willing to sell already produced cakes to the couple.  

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Colorado’s anti-discrimination law prohibits public establishments from discrimination based upon sexual orientation. Similar laws exist in most states.  

The baker’s lawyer argued that free speech and religious freedom rights should overcome this law and Phillip’s artistic expression was protected.  

The Supreme Court’s 7-2 ruling avoided these main issues. In a narrow fashion, it decided in favor of Phillips because the commission’s decision against him had procedural defects and that it had been hostile to his religious beliefs. In short, Phillips did not get a fair hearing. Justice Anthony Kennedy’s majority opinion barely addressed free speech issues.

Key principles for the meaning of religious freedom in the United States are separation of government and religion, freedom of conscience to hold or not hold any belief at all, and government’s lack of authority to impose any set of religious beliefs. 

Rachel Laser, executive director of Americans United for Separation of Church and State, argues that “religious freedom for all cannot thrive if one religious viewpoint is imposed on those who subscribe to other religious or nonreligious belief systems.” 

An example of imposing one religious viewpoint would be encoding Catholic views on abortion into secular law, as was recently rejected by the more religiously diverse Irish voters. 

Discrimination against sexual orientation or homosexual conduct can open floodgates to other religiously sanctioned discrimination against race, gender or individuals not of one’s own religious group.  

This discrimination could affect Jews as a religious minority. 

Those who want to discriminate based upon personal religious belief may ignore the narrow basis of this decision  and consider it a license for their discrimination and to introduce theological principles of imposing theological principles of imposing religious belief on others into U.S. law. 

The Supreme Court’s decision certainly allows states to provide protection from discrimination based on sexual orientation just as they provide protection from discrimination based on race, religion or gender. The decision emphasized the limited focus of the case and the essential importance of tolerance in freedom of religion cases. 

Justice Kennedy wrote: “The outcome of cases like this in other circumstances must await further elaboration in the courts.” The court’s decision left key questions unanswered. It did not venture into territory previously covered by the Hobby Lobby case (Burwell v. Hobby Lobby Stores [2014]) such as whether and how far government can regulate public businesses operating on religious principles or how the court can forbid discrimination against others based on religious expression and still defend an individual’s freedom of expression. The Hobby Lobby case allowed companies to express and impose their own religious precepts on their employees.

Crucial to such freedom of religion cases is that the Supreme Court maintain as much clarity and consistency as possible. The entanglement of religion and government diminishes the independence of both vital institutions in our society.  

Steven Puro is professor emeritus of political science at St. Louis University. Puro taught U.S. Constitutional Law with an emphasis on civil liberties and religious freedom at SLU and is the former president of the Midwest Jewish Congress.