When is a wedding cake not just a cake, but a statement of profound religious beliefs?
That’s the question being debated today at Supreme Court as it hears oral arguments about LGBT rights yet again. This fight is much different than the one settled two years ago in Obergefell v. Hodges, which declared that states cannot refuse to perform or recognize marriages for two people of the same sex. Masterpiece Cakeshop v. Colorado Civil Rights Commission is not explicitly about marriage but rather about whether there can be exemptions to nondiscrimination laws.
While the wedding cake baker is asking for a narrow exemption, the cultural shift revealed is broad: Conservatives have changed how they engage in politics and law, transforming U.S. culture wars.
The question is whether a Colorado cake baker, Jack Phillips, has a First Amendment right to be excused from his state’s nondiscrimination laws, which say that public accommodations — like bakeries — may not refuse to serve people based on characteristics that include race, color, disability, sex or sexual orientation. Phillips refused to bake a wedding cake for two men and says he should be excused because doing so would violate two First Amendment rights — the free exercise of religion and the freedom of speech. In his view, marriage should only be between a man and a woman — and baking a cake for two men’s wedding would violate his conscience. Perhaps more important, he claims that as a cake artist, he should not be compelled by the government to create messages with which he disagrees.
The new conservative Christian line of defense
Conservative Christian activists have been previewing this approach for years. As I show in my new book, “The Rights Turn in Conservative Christian Politics,” for more than two decades, evangelical Protestants and their allies have been shifting toward rights politics.
This shift is quite notable. For most of the 20th century, conservative Christians flew the standard of community morality, often opposing the expansion of civil rights and liberties of minorities. For example, televangelist and conservative activist Jerry Falwell Sr. named his Christian right the “Moral Majority.” But as their cultural power has declined, conservative Christians have been leaving aside moral public discourse and turning to talk about rights, the currency of public discussion in a time of pluralistic politics.
We can see that shift clearly in Colorado. Twenty-five years ago, conservative Christians campaigned for a state constitutional amendment that would ban municipalities from adding sexual orientation to local nondiscrimination laws. Amendment 2 passed in a statewide referendum and was later struck down by the Supreme Court in the landmark Romer v. Evans.
The advocacy was clearly based on the idea that the majority of Americans held a particular moral point of view. Now, Phillips is claiming the minority rights position famously won by Jehovah’s Witnesses in the 1943 case West Virginia State Board of Education v. Barnette: The government cannot compel his speech or expression.
Learning from abortion politics
Abortion was the issue that helped lead conservative Christians toward rights politics.
Both before and after the 1972 decision Roe v. Wade nationalized abortion politics, the Catholic wing of the antiabortion movement argued in favor of human rights beginning at conception. When evangelical Christians first joined the movement, they primarily emphasized abortion’s immorality. But by the late 1980s and early 1990s, the movement was arguing almost entirely in terms of human rights — in part because the argument was so effective.
Further, conservative Christian legal groups cultivated robust arguments in favor of free speech when defending abortion protesters, often drawing upon the most liberal free speech precedents of the 1960s and 1970s.
Several conservative advocacy groups have also been turning to and expanding their free speech approaches over the years, sometimes in controversial cases. For example, in 2007 several conservative Christian groups filed amicus curiae briefs in the case Morse v. Frederick, a student who was suspended for raising a “bong hits 4 Jesus” banner at a school-supervised event. While the religious groups did not support the mixing of Jesus and drug use, they told their base that this effort would help them stand up for unpopular speech like raising antiabortion signs outside women’s clinics.
Conservative Christian advocacy changes evangelicals’ stances on civil liberties generally
As conservative Christian advocates have shifted toward advocating for their own rights, survey data suggests evangelical Protestants have increasingly supported others’ civil liberties as well.
For the past four decades, the General Social Survey has asked a representative sample of Americans a battery of questions about whether people would support the rights of disliked groups — giving the examples of homosexuals, atheists, communists, militarists and racists — to give speeches in their home communities. I combined these questions into a free speech index and compared the responses of evangelicals and nonevangelicals. While nonevangelicals’ support for unpopular speech has increased modestly between 1976 and 2014, evangelicals’ support has increased substantially. In generations past, evangelicals had low levels of support for unpopular speech rights; as of 2014, they nearly match nonevangelicals’ support for free speech.
Elite conservative advocacy has increasingly emphasized respect for the rights of others. And experimental survey results suggest that priming evangelicals to think about their own rights increases their political tolerance toward the groups they like least. For conservative Christians, claiming their own rights seems to lead to believing in extending rights to others.
Whether Jack Phillips successfully gets an exemption to anti-discrimination laws, the cultural battles already have changed. Both the right and the left now deploy rights claims, and these rights are increasingly likely to clash in courtrooms and statehouses. While serious conflicts will remain between conservative religion and LGBT and women’s rights, the trajectory of conservative Christian politics is toward liberalism as they leave behind moral majority politics behind in favor of minority rights politics. Masterpiece Cakeshop shows us this shift.
Andrew R. Lewis is assistant professor of political science at the University of Cincinnati and author of The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars (Cambridge, 2017).