While deploying “religious freedom” arguments to push back on progressive social change is hardly new, the explicitly anti-LGBT premise of the upcoming Masterpiece Cakeshop suit is a relatively novel iteration of this bedrock principle’s adjudication at the high court, according to Tisa Wenger, associate professor of American religious history at Yale and author of the new book Religious Freedom: The Contested History of an American Ideal.
“Those most powerful in society have always been able to wield religious freedom arguments for their own interests,” Wenger explained in a recent conversation with RD. And although conservative Christians (particularly white evangelicals and conservative Catholics) are going to great lengths to paint themselves as a minority oppressed by creeping secularism and liberalism, “they nonetheless maintain a huge amount of cultural power and cultural authority,” Wenger continued. “And they certainly have been able to use religious freedom as a rallying cry for their own culture wars and politics issues.”
The Christian right’s utilization of “religious freedom talk,” as Wenger calls it, to impose its own cultural mores on broader society and policy began gradually, in the late 1970s and ’80s, following Roe v. Wade. Nascent coalitions between (white) evangelicals and conservative Catholics ultimately settled on a highly effective framing of “religious freedom,” which painted any participation in or association with abortion as a heretical infringement on the “sincerely held religious beliefs” of true believers.
“On the one hand, conservative Christians have managed to frame their opposition in a way that is compelling to a lot of people,” Wenger said. “They are making a kind of freedom of conscience claim for themselves, but it’s doing so in a way that also—especially in the case of contraception coverage—is enforcing their own religious standards on employees who have no connection to those beliefs.”
This approach proved so persuasive that it remains the go-to tactic for the religious right in opposing access to abortion and contraception (I’m looking at you, Hobby Lobby and Little Sisters of the Poor). But in the wake of growing legal recognition for LGBT people—and especially with the advance and ultimate affirmation of marriage equality at the Supreme Court—cultural conservatives saw an opportunity to recycle the same “religious freedom” arguments to oppose what they saw as a newly emboldened social ill. No organization has capitalized on this trend more directly than the Alliance Defending Freedom (ADF), the incredibly well-funded “Christian” legal nonprofit and SPLC-certified anti-LGBT hate group that is representing Colorado baker Jack Phillips in Masterpiece Cakeshop.
While ADF has taken pains to position its central arguments in Masterpiece Cakeshop as protecting its client’s freedom of expression, ADF’s own filings and the amicus briefs supporting the petitioner make clear that this “artistic expression” is inextricably tied to Phillips’s religious convictions about marriage. If the court accepts that premise, it could set a precedent that may well embolden racist factions of American society that, until recently, stayed largely hidden in shadowy sub-communities and angry echo chambers on the dark web.
Pointing to the “religious freedom” arguments deployed by pro-slavery activists and segregationists of old, Wenger acknowledges that most Americans no longer view interpretations of Christianity that call for racial subjugation and white supremacy as legitimate. But given the current climate Wenger worries that a ruling affirming the religious freedom and expression claims ADF is advancing in Masterpiece Cakeshop would draw those dark forces out of the shadows.
“I think we could see white supremacist arguments carving out religious exemptions to non-discrimination laws, which were rejected in the past,” she said. “Given the public resurgence of Nazis and white supremacists, I think we could see a resurgence of those kinds of claims in the courts.”
Wenger acknowledged that, while only a handful of the neo-Nazi and white supremacist groups recently making headlines are overtly religious in nature, given the highly effective legal framing of “religious freedom,” a ruling in favor of Masterpiece Cakeshop could open the floodgates for groups looking to carve out their own faith-based hate bubbles. The fact that Masterpiece Cakeshop is challenging a longstanding Colorado non-discrimination law amplifies the possibility that, if successful, the tactic could be employed to undermine state—or even federal—protections aimed at combatting discrimination against any number of marginalized populations.
“The cultural and political prominence of religious freedom as an American ideal draws people to it,” Wenger said. “The reason people appeal to it for all sorts of purposes is because it’s so culturally, politically, and legally powerful.”
Indeed, as Wenger’s book documents in deep historical detail, the bedrock American principle has already been used to justify imperialism, racism, slavery, xenophobia, misogyny, and (most recently) anti-LGBT animus. But Wenger notes that the concept of religious freedom has also proved to be a powerful tool for religious and ethnic minorities to stake a claim to the promise of American equality and the vaunted ideal of “free expression of religion.”
So why haven’t LGBT people (and other marginalized communities) advanced their own religious freedom claims to counter the dominance of conservative Christian lawsuits that paint a narrow picture of who, and which issue, qualifies as a legitimate religious freedom concern? There are as many answers to that question as there are identities within the LGBT community, but many legal scholars and activists I’ve spoken to suggest that, in addition to the faith-based trauma many LGBT people carry with them, the murkiness of what actually qualifies as a religion—or religious practice—provides a significant hurdle.
Despite the long history of Supreme Court adjudication of religious freedom claims, the precise nature of what the Court considers to be a legitimate faith-based issue varies widely. In fact, while earlier religious freedom cases often dealt with explicitly religious behavior—rituals, houses of worship, prayer in schools or the workplace—religious freedom litigation in the 21st Century has increasingly attempted to expand the definition of what may be considered a religious practice. A ruling in favor of Masterpiece Cakeshop would expand this sphere far beyond any contemporary understanding.
But Wenger suspects that expansion is fundamental to the conservative Christian logic behind supporting a plaintiff like Phillips, or the willingness to turn “conscientious objectors” to marriage equality like Kim Davis into right-wing martyrs. “The cultural power and cultural availability of religious freedom as a legal argument shapes the way that people think about what their religion is,” she explained. “So it kind of encourages people to frame arguments in that way—so therefore baking a cake becomes a religious act.”
By the same token, the growing number of self-proclaimed Christians who insist that their faith requires them to reject and resist marriage equality, (or, say, the legitimacy of transgender identities,) are performing a kind of public proclamation of faith. Proclaiming these convictions—which are by no means universal—functions as evidence of one’s commitment to a specific (and problematic) doctrinal understanding of so-called “Christian” values. It’s closing in on a literal demonstration that one is “holier than thou.”
“This sense that religious conservatives need to be drawing a line in the sand right there, and saying ‘I won’t cater to same-sex couples because it’s against my religion,’ is perhaps in part produced by the politics of religious freedom,” Wenger contends. “That represents a way in which the prominence and cultural power of religious freedom shapes what American religion is.”