After a winter of discontent, social and religious conservatives had reason to cheer on Monday when the Supreme Court ruled for Jack Phillips and his Masterpiece Cakeshop. A Colorado civil-rights commission charged Phillips with violating state anti-discrimination laws after he refused to create a wedding cake for a gay couple. But a 7-2 majority on the high court held that the commission had trammeled Phillips’s right to religious freedom under the First Amendment. When the celebrations are over, though, the religious right must resolve the bigger questions facing it.
Most of the discussion on the right has so far focused on the scope of the holding. Did Justice Anthony Kennedy score an enduring victory for freedom of conscience, against the encroachments of an intolerant secular progressivism? Or did he merely defer the central question with a decision narrowly tailored to the facts of the case at hand?
My own view is closer to the latter. The majority holding turned on the overtly anti-religious and anti-Christian animus displayed by some members of the state commission. Those sentiments, which were never retracted by the commission, meant to a majority on the Supreme Court that Phillips didn’t get a “neutral” hearing. Had the commissioners kept their hatred of traditional Christianity close to their chests, would Justice Kennedy and the liberals on the court who joined him have ruled differently? Quite likely.
That chilling possibility should dampen some of the enthusiasm for the outcome. It is true that Justice Kennedy reaffirmed the constitutional rights of those of who object to the sexual revolution on religious grounds. But he did so only in a general and imprecise way, in dicta sprinkled throughout the opinion, drawing few black lines. As The Wall Street Journal editorial board noted, “The majority’s muddle provides only gossamer protection.”
So what’s next for religious conservatives in the U.S.?
Ever since the Supreme Court’s 2015 Obergefell decision, which asserted a constitutional right to gay marriage, social conservatives have fought a rearguard action to preserve freedom of conscience and the right to dissent from the latest sexual orthodoxies in the public square. “OK, you got your gay marriage,” the religious right in effect told victorious secular progressives. “But don’t force us to assent to it in violation of our faith.”
It wasn’t to be. Even before Obergefell discarded centuries of moral tradition by judicial fiat, progressives went on offense, demanding total submission. The Phillips case, for example, predated Obergefell by three years. Phillips was the first defensive battle; there will be many more.
One confrontation will be over the right to bathroom privacy for biological women and girls amid the ideological frenzy of the transgender moment. Take the case of Alexis Lightcap, a young woman who recoiled when she ran into a biological male in the girls’ bathroom at her Pennsylvania high school. When she complained to administrators, Alexis was told that the school’s policy had been changed to grant transgender students access to opposite-sex bathrooms. To enter an opposite-sex bathroom, it was enough for a student to mentally identify with the opposite sex. Neither students nor parents had been informed of the change.
These are worthy battles to fight, not least because the protagonists are as courageous and compelling as Phillips and Lightcap. But I do wonder whether religious freedom, without more, suffices to protect faith and tradition in the public square. More libertarian-minded conservatives hope that the answer is yes: that by fighting tooth and nail for religious freedom, Christians and other social conservatives can strike a sort of cold peace with secular liberalism.
But as the Phillips case showed, the inner logic of today’s secular progressivism puts the movement continually on the offensive. A philosophy that rejects all traditional barriers to individual autonomy and self-expression won’t rest until all “thou shalts” are defeated, and those who voice them marginalized. For a transgender woman to fully exercise autonomy, for example, the devout Christian, Muslim, or Jew must recognize her as a woman. People of faith and others who cling to traditional views must publicly assent to what they don’t believe.
Reducing traditional beliefs to a matter of religious freedom carries other risks. It allows progressives to frame traditional positions, which are rooted in reason and natural law, as a kind of idiosyncrasy or superstition. As Archbishop Charles Chaput noted in his 2016 book, Strangers in a Strange Land, “If they’re purely religious beliefs, then . . . they can’t be rationally defended. And because they’re rationally indefensible, they should be treated as a form of prejudice. Thus two thousand years of moral truth and religious principle become, by sleight of hand, a species of bias.”
Defending traditional morality on the basis of religious liberty alone, in other words, risks cornering religious conservatives in the long-term. The alternative, of course, isn’t to give up on religious freedom. That defensive battle must continue to be fought. But religious conservatives should also go on the offensive and once more formulate a substantive politics of the common good. We live in an age of great moral and ideological ferment and rethinking. Even the left is in flux, as evidenced, for example, by the #MeToo phenomenon, which at heart involves a secular rediscovery of the fundamental differences between men and women.
Religious conservatives have answers to these dilemmas. They can’t afford to retreat, and they shouldn’t.
Correction: Alexis Lightcap’s high school is located in Pennsylvania. An earlier version of this article misstated its location.
