On Masterpiece and Secular Blasphemy Laws

Supreme Court

The Supreme Court continued to model respect for tolerance and diversity in Masterpiece, where it did not set itself out as a “champion for one or another faction.”

On June 4, the Supreme Court issued its much-anticipated ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado case involving a baker who refused to make a wedding cake for a gay couple. The baker argued that the Commission violated his religious liberty when it punished him for refusing to make a cake that he could not make without violating his conscience. While the Court’s opinion sidestepped the thornier issues at the intersection of religious liberty and gay rights, the opinion did underscore the need for unity in diversity.

The Court emphasized that whatever the balance may be between religious liberty and anti-discrimination laws, one thing that is not permitted is overt hostility to religion and the second-class treatment of “religious beliefs and persons.” The Court was concerned that the Commission had refused the Christian baker’s request for accommodation while permitting other bakers in the state to refuse to make cakes condemning homosexuality. While there may be good reasons for the differential treatment, the Court said, the one thing that was not permissible was treating the two cases differently merely “based on the government’s own assessment of offensiveness.”

The Court’s protection of diverse viewpoints is a key win in today’s polarized debates. It’s also the type of principle that must be protected vigilantly, lest we go the route of other places in the world where the government does get to limit speech it finds “offensive.” I’m all too familiar with these sorts of regimes, given my extensive work on blasphemy laws in places likes Pakistan, Indonesia and Egypt. While the U.S. will never enforce religious blasphemy laws, providing state protection to only one side of a contentious debate (or, as the Court described it, “elevat[ing] one view of what is offensive over another”) amounts to something of a secular blasphemy law.

Today’s political culture in America trends toward wanting to punish views that are different from our own, particularly if we find those views offensive. This impatience with difference is especially the case when it comes to topics that are newer on the national cultural stage. It has been only three years since the Supreme Court decided Obergefell v. Hodges, the case that extended the fundamental right to marry to same-sex couples — and same-sex marriage is undoubtedly one of these “new” issues on which Americans of diverse viewpoints continue to disagree and debate.

If the Court had not spoken definitively of the need to protect this diversity and carve out a space for religious voices, its opinion would have further exacerbated our already deeply polarized condition. In their amicus brief filed in support of the baker, 34 legal scholars described the increasingly common phenomenon where “advocates of one policy will sometimes press an aggressive ‘scorched earth,’ ‘take no prisoners’ agenda”. On religious liberty and gay rights, this type of approach contradicts the Court’s counsel in its Obergefell opinion, where the Court noted: “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here, nor should they be disparaged in a pluralistic society”. The Court continued to model respect for tolerance and diversity in Masterpiece, where it did not set itself out as a “champion for one or another faction, but rather” encouraged Americans “to respect and reconcile the vital, longstanding policies and commitments expressed in various laws that sometimes come into tension”.

Societies across the world that do not learn to negotiate differences routinely face unrest and violence. In countries like Pakistan where one interpretation of religion is enforced through draconian blasphemy laws, individuals and even entire minority sects who deviate from the state-endorsed interpretation face not just state persecution but also violent reprisal from their fellow citizens. Indeed, in many cases, citizens use blasphemy allegations simply to settle a personal score or ruin their competitor’s business.

This type of social regime may seem foreign to us in the U.S. but it shares a certain core element with attempts in secular contexts to use the law to punish beliefs and opinions considered bigoted and deplorable. In places with blasphemy laws, the state enforces its preferred interpretation of religion. In secular contexts, the state enforces its preferred position on a political or social matter. In both cases, views are punished simply because the state considers it “wrong.”

That could have been the outcome of Masterpiece; the Court could have decided Masterpiece to unequivocally give states the right to quash religious objections merely on the basis that such objections are offensive. Instead, the Court made clear that the state cannot categorically take sides. Because when the state “elevates one view of what is offensive over another,” it divides people and fuels discontent.

Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: auddin@freedomforum.org.

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