GetReligion
Sunday, April 13, 2025

RFRA

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After the Cakeshop case: Justice Kennedy cites need for First Amendment guidelines -- then punts

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It's the question that journalists have to be asking right now, along with the legal pros on both sides of future First Amendment clashes between sexual liberty and religious liberty.

Now what?

To be blunt, was the 7-2 U.S. Supreme Court ruling in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (.pdf) a signal (a) to religious believers of all stripes that it's open season, in terms of rejecting LGBTQ customers or (b) to blue-zip-code politicians that they are free to stomp on the First Amendment rights of traditional religious believers, only while using cool, calm legal logic rather than the heated prose used in Colorado?

As always, the key lines to parse were written by Justice Anthony Kennedy. Here is the essential material, as quoted by USA Today:

Kennedy acknowledged that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. Otherwise, he said, "a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws."

"The outcome of cases like this in other circumstances must await further elaboration in the courts," Kennedy said. "These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

It's interesting that Baptist Press, when focusing on the same bottom line, made a strong effort to note the degree to which Kennedy once again affirmed LGBTQ rights:

"Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth," Kennedy said. "For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."

He wrote, "The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

So reporters, what phrases jump out at you, as you look to the future of this story?


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Three decades of 'On Religion' columns: tmatt offers five 'Big Idea' takeaways

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Three decades of 'On Religion' columns: tmatt offers five 'Big Idea' takeaways

This week was an important one for me, since it marked the 30th anniversary of the start of my weekly national "On Religion" column. That very first column on April 11, 1988, focused on Pat Robertson – but the real topic was American evangelicals trying to figure out White House Politics (imagine that).

Now, if you do some #DUH math, that would mean that 20 years ago I wrote a 10th anniversary column. In that column I focused on what I thought was the "Big Idea," the central theme, I had spotted in American religion-beat news over that time.

I described a scene that I kept seeing in my work as a journalist, one most easily seen at rallies linked to "culture wars" topics in American public life. Thus, I wrote this in 1998:

A pro-life rally, for example, would feature a Baptist, a Catholic priest, an Orthodox rabbi and a cluster of conservative Methodists, Presbyterians, Episcopalians and Lutherans. Then, the pro-choice counter-rally would feature a "moderate" Baptist, a Catholic activist or two, a Reform rabbi and mainline Methodists, Presbyterians, Episcopalians and Lutherans.
Similar line-ups would appear at many rallies linked to gay rights, sex-education programs and controversies in media, the arts and even science. Along with other journalists, I kept reporting that today's social issues were creating bizarre coalitions that defied historic and doctrinal boundaries. After several years of writing about "strange bedfellows," it became obvious that what was once unique was now commonplace.

That led me back to the work of the scholar whose work had influenced me the most in that era. You see, all kinds of people use the term "culture wars" these days, but it's important to remember how that term was defined by the man who wrote the book.

Yes, this is precisely where "Crossroads" host Todd Wilken and I started this week's podcast. Click here to tune that in.

Now, back to the 1998 column. This is long, but essential:


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Masterpiece Cakeshop waiting game: Are the bakers of all 'offensive' cakes created equal?

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Masterpiece Cakeshop waiting game: Are the bakers of all 'offensive' cakes created equal?

It probably comes as no surprise that this week's "Crossroads" podcast (click here to tune that in) focused on key ingredients in the Masterpiece Cakeshop debates at the U.S. Supreme Court.

This is one case in which it really helps to spend time reading the transcript (click here for the .pdf). I loved Julia Duin's description of these court arguments, earlier this week, as, "a knife fight between 10 participants (nine justices and the hapless attorney before them)." Host Todd Wilken added that, in this setting, the action took place in a kind of polite, legalistic slow motion.

Hint: It's interesting to scan the document looking for key words and phrases. For example, try "tolerance." And if you search for "doctrine" you will find all kinds of references – but in this case the word refers to doctrines established by the high court. That's rather chilling.

My pre-game post focused on several issues that I thought would be crucial in media coverage. For example, tt appears the justices accepted that baker Jack Phillips was, in fact, being asked to create one of his unique, artistically designed cakes, with content linked to a same-sex wedding – as opposed to an all-purpose wedding cake (which he offered the couple).

What about the cases in which the Colorado Civil Rights Commission ruled that liberal bakers did not have to produce products that violated their beliefs? I truly expected journalists to include some information about the court's discussions of that. Many did not.

So what happened on that issue? First, before we look at one interesting chunk of the transcript, please allow me to flash back to a parable that I created in 2015 to illustrate this question. Here it is again:

... Let's say that there is a businessman ... who runs a catering company. He is an openly gay Episcopalian and, at the heart of his faith (and the faith articulated by his church) is a sincere belief that homosexuality is a gift of God and a natural part of God's good creation. This business owner has long served a wide variety of clients, including a nearby Pentecostal church that is predominantly African-American.
Then, one day, the leaders of this church ask him to cater a major event – the upcoming regional conference of the Parents and Friends of Ex-Gays & Gays. He declines, saying this would violate everything he stands for as a liberal Christian.


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The New York Times does its 'religious liberty' thing, with zero input from voices in middle

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Back in 2004, the public editor of The New York Times wrote a famous column with a very famous headline, which said: "Is The New York Times a Liberal Newspaper?"

GetReligion readers with long memories will recall that Daniel Okrent followed that headline with this lede: "Of course it is."

That column contained lots of memorable quotations and it remains must reading. However, here is one passage that was especially controversial at the time and it remains controversial to this day.

... (F)or those who also believe the news pages cannot retain their credibility unless all aspects of an issue are subject to robust examination, it's disappointing to see The Times present the social and cultural aspects of same-sex marriage in a tone that approaches cheerleading.

Okrent was, let me stress, not talking about the great Gray Lady's editorial page. He wasn't talking about op-ed pieces or even first-person features in the newspaper's magazine. The public editor – a post recently shut down by Times management – was trying to describe the urban, blue-zip-code tunnel vision that often slants the newspaper's hard-news coverage, especially on issues of culture, morality and religion.

Thus, I do not know what Okrent would have said about the "Fashion and Style" essay that ran in 2013, written by Times reporter Jeremy W. Peters, with this headline: "The Gayest Place in America?" The lede:

WASHINGTON -- My earliest sense of what it meant to be gay in the nation’s capital came more than a decade ago when I was a summer intern. I was a few blocks from Union Station when a congressman walked by and gave the reporters I was standing with a big, floppy wave hello.

That's fair game for first-person analysis writing. However, I do think that, if Okrent time-traveled to the present, he would raise a question or two about the hard-news Times feature by Peters that dominated my email over the Thanksgiving weekend. The provocative headline: "Fighting Gay Rights and Abortion With the First Amendment."

The subject of this A1 story was the Alliance Defending Freedom, a conservative religious-liberty group that has become a major voice in cases at the U.S. Supreme Court and elsewhere. Here is the thesis statement, high in the report:

The First Amendment has become the most powerful weapon of social conservatives fighting to limit the separation of church and state and to roll back laws on same-sex marriage and abortion rights.


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Slicing up Masterpiece Cakeshop stories (again): It may help to recall that earlier peyote case

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Here we go again, and again. From time to time, there are religion-news issues that create headlines day after day, for weeks or months at a time. This creates a problem for your GetReligionistas. Do we keep critiquing these stories, banging our heads on our keyboards as we see the same old mistakes and holes in the coverage?

One could argue that it's more important to note problems that keep showing up in the news than it is to note a mistake that happens once or twice. Surely it's significant when lighting keeps striking the same spot time after time?

Thus, here is an update to yesterday's Bobby Ross, Jr., post: "As Supreme Court bites into same-sex wedding cake dispute, how to tell good media coverage from bad." You may have noticed that Bobby's post was built on themes from previous GetReligion commentary about news coverage of various religious-liberty cases (linked to the Religious Freedom Restoration Act).

With the U.S. Supreme Court wading into the Masterpiece Cakeshop wars, I would like to flash back to a parable I wrote two years ago, in an attempt to help journalists think through several key issues linked to these stories. Here we go (again):

... There is a businessman in Indianapolis who runs a catering company. He is an openly gay Episcopalian and, at the heart of his faith (and the faith articulated by his church) is a sincere belief that homosexuality is a gift of God and a natural part of God's good creation. This business owner has long served a wide variety of clients, including a nearby Pentecostal church that is predominantly African-American.
Then, one day, the leaders of this church ask him to cater a major event – the upcoming regional conference of the Parents and Friends of Ex-Gays & Gays. He declines, saying this would violate everything he stands for as a liberal Christian. He notes that they have dozens of other catering options in their city and, while he has willingly served them in the past, it is his sincere belief that it would be wrong to do so in this specific case.

Note, in particular that:

It's clear that the gay Christian businessman is not asking to discriminate against an entire class of Americans. He is asking that his consistently demonstrated religious convictions be honored in this case, one with obvious doctrinal implications.

OK, that's another sexuality case. Maybe it would help to think back to an earlier religious-liberty fight. Did Native Americans seek the right to use peyote (period) or did they seek the right to use peyote in a very specific situation, a rite that had existed in the traditions of their faith for centuries?


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Big question in Rose Garden today: A victory, or Trump white flag, on religious liberty issues?

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First Amendment pros on both the left and the right are bracing themselves to find out what is in new, revised executive order on religious liberty that will be signed by President Donald Trump today, which is the National Day of Prayer.

So are reporters. So are millions of religious believers and unbelievers who care about First Amendment rights.

If you fit into one of those categories, then you are probably reading the advance reports on the rumors about this executive order.

Let me provide a piece of advice: Skip the report in USA Today. It is totally predictable and one-sided.

Instead, read the advance report in The New York Times and note, in particular, that the Times allowed its veteran religion-beat reporter to take part in the coverage. I wish the Times team had made one or two more telephone calls – or followed some rather prophetic folks on Twitter – to include the views of Trump critics who (a) are on the cultural right and (b) have solid credentials on religious liberty issues.

We will come back to the Times. Let's take a hard look at the USA Today piece. Here is the overture:

WASHINGTON -- Seeking to appeal to social conservatives who backed him in heavy numbers, President Trump will issue an executive order Thursday designed to "protect and vigorously promote religious liberty" and "alleviate the burden" of a law designed to prohibit religious leaders from speaking out about politics, according to senior administration officials.
The order aims to make it easier for employers with religious objections not to include contraception coverage in workers' health care plans, although it would be up to federal agencies to determine how that would happen.
It would also ease IRS enforcement of the so-called Johnson Amendment, which says tax-exempt religious organizations cannot participate in political activity. While only Congress can formally do away with the law, this will pave the way for churches and other religious leaders to speak about politics and endorse candidates without worrying about losing their tax-exempt status.

First of all, note the meaningless language that the Johnson Amendment says that "tax-exempt religious organizations cannot participate in political activity." That does little or nothing to help readers understand what is actually at stake.


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Faith-healing in Idaho: A Spokane paper doesn't ask enough questions

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The Spokesman-Review, the major daily east of the mountains in Washington state, doesn’t have a religion reporter, which is one reason why the Religion News Association started up its own website in Spokane in 2012.

Tracy Simmons is still capably running SpokaneFavs.com five years later, which may be why religion coverage in the Spokesman-Review is pretty rare. But on Tuesday, the paper did feature a piece about a state Senate bill in neighboring Idaho that tried to regulate faith-healing groups.

This is a tremendously interesting topic but see if you can understand the story as it appeared in Tuesday’s paper:

BOISE – Controversial faith-healing legislation narrowly cleared an Idaho Senate committee on Monday, after a hearing in which nearly everyone who spoke opposed it.
Sen. Dan Johnson, R-Lewiston, said his bill, SB 1182, makes a series of changes to Idaho’s existing faith-healing exemption from civil liability for child neglect, but makes no changes in the state’s criminal laws, which include a religious exemption from prosecution for faith-healing parents who deny their children medical care and the children die or suffer permanent injury.
“I’m not sure that it really changes a whole lot,” said Johnson, who co-chaired a legislative interim working group that held hearings on Idaho’s existing faith-healing exemption, “other than it moves a bunch of words and sentences around.”

What we’re missing at this point is some background.

Johnson said his bill restates Idaho’s current religious exemption from civil liability for child abuse or neglect as an “affirmative statement,” and clarifies some wording. It also references Idaho’s existing Religious Freedom Restoration Act, citing rights to free exercise of religion. “That is a fundamental right that applies to all parenting decisions,” Johnson said. The bill makes no changes to Idaho’s criminal laws.
Then follows a number of quotes from people who oppose the bill, including a county sheriff who says he’s had a handful of child deaths in the past four months due to parents not giving their offspring medical care.


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Horse diapers -- yes, horse diapers -- spur useful Wall Street Journal data dump on RFRA

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Headlines don't get more provocative – or clickable, to use modern lingo – than this one from the Wall Street Journal (behind its strong paywall): "When Horse Diapers and Freedom of Religion Collide."

Yes, I wonder if the late Immanuel "Worlds in Collision" Velikovsky would appreciate the humor.

True to its general form of getting the story straight, the WSJ piece sets forth the conflict between the town of Auburn, Kentucky, wanting to keep its roadways clean(er) and the Old Order Swartzentruber Amish, whose theological conservatism precludes diapering horses:

Horse diapers have been thrust into the debate over religious freedom.
Two Amish men in Auburn, Ky., filed a lawsuit last month saying a city ordinance requiring horses to wear equine diapers – bags designed to catch manure – violated the ability of Amish residents to exercise their religion.
The ordinance, passed in 2014, broadened an existing law mandating the removal of dog waste in public places. The new law, which the city said was spurred by complaints from neighbors about horse manure, requires a “properly fitted collection device” to be placed on all horses walking on the street.

What could have been an occasion for lowbrow comedy turns out, in fact, to be a respectful and frank discussion of the merits of an ostensible public health law, as well as competing efforts to defend individual religious freedoms – specifically the free exercise of religion.

Members of the town’s Amish community have refused to comply with the ordinance, saying equine diapers violate the community’s religious standards. That stance has landed many of them in court, or worse.


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Fighting taxes: Just crazy religious antics to the Indianapolis Star

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The religious crazies are at it again in Indiana, trying to use the state version of the Religious Freedom Restoration Act for their aberrant behavior. This time, it's a guy who's trying to get out of paying taxes.

And once again, the Indianapolis Star has managed to run a religion story without talking to any religious people.

One Rodney Tyms-Bey says that "paying his state taxes is a burden on his religion," the newspaper says:

At trial, Tyms-Bey, 41, claimed the religious freedom law is a valid defense for tax evasion, an argument the court rejected.
A clause in Indiana's RFRA permits individuals to cite the law as a defense in criminal legal proceedings, unlike the federal RFRA law enacted in 1993.
"When this law was signed, it opened up a whole new world of legal defense," said Matthew Gerber, Tyms-Bey's defense attorney.
The state argues that Tyms-Bey cannot use the defense, as he failed to identify his religion and the state's imposition of income tax does not burden his religious practice — whatever it may be.

The case is two years old, but oral arguments were scheduled for appellate court today – showing how tangled matters of church and state can get. We GR folk have scrutinized reports on RFRA and its state versions for a couple of decades – from gay marriage in Mississippi to Santeria sacrifices in Florida – but Tyms-Bey's case seems like an enormous reach.


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