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Series Code: LI
Program Code: LI180410A
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00:26 Welcome to the Liberty Insider.
00:28 This is your program that brings you news updates, 00:30 analysis, and discussion on religious liberty events 00:34 in the US and around the world. 00:36 My name is Lincoln Steed, Editor of Liberty Magazine. 00:40 And my guest on this program is my good friend, 00:43 Attorney Alan Reinach. 00:44 And you have many titles 00:46 but you're the Executive Director 00:48 of the California-based Church State Council, 00:51 we'll go with that one. 00:52 Okay. Fair enough. Glad to be with you, Lincoln. 00:54 And as a lawyer, particularly, let's talk a little bit about 00:57 one of the recent decisions of the Supreme Court, 01:00 they dealt with the lay people, and I'm one of them, 01:03 we say Cake Case, right? 01:05 Masterpiece Cakeshop. 01:07 So Jack Phillips is a baker in Colorado, he's a Christian, 01:11 he was asked to bake a cake for a same-sex couple 01:16 and he refused. 01:18 And so he was brought up on charges 01:20 with the Colorado Civil Rights Commission 01:23 and found to have discriminated against them 01:26 on the basis of sexual orientation and, of course... 01:29 I think he went on appeal at the Supreme Court. 01:31 Went all the way to the Supreme Court. 01:33 Now both sides are claiming victory in this case 01:36 and in fact... 01:38 Now who are the sides? 01:39 Well, alright, so... 01:40 Maybe there's more than two. 01:42 This is a very... It's a very interesting... 01:44 Look, the number one conflict in America 01:48 in terms of religious freedom 01:50 is this conflict between LGBT rights 01:53 and religious freedom, 01:57 especially for Christians and for... 01:59 especially for Christian institutions that uphold 02:04 what I like to call 02:05 the biblical view of human sexuality 02:08 because properly understood, it's not discriminatory 02:13 against people with a same-sex orientation. 02:19 You know, it's a view of human sexuality 02:22 that consistently discourages 02:27 sex outside of heterosexual marriage, 02:30 for anyone, whether you're heterosexual or otherwise. 02:33 Yeah, don't you think it's unduly polarized 02:35 because in any biblically based Christian 02:39 reads their Bible and stands by 02:41 would think that to steal, you know, 02:44 whether it's at gunpoint on the street corner 02:47 or from a company embezzling from the company 02:50 that this is a crime, this is immoral. 02:53 But I don't know of any history of Christians, 02:57 you know, with posters out front of a prison 02:59 or mistreating ex-prisoners because of their crime. 03:03 We see this as the foible of fallen human beings, 03:06 and we try to witness to them and have the mend their ways 03:08 and join the Christian community, 03:10 it's not a holier-than-thou, 03:12 you know, go to hell and stay there type approach. 03:15 Well, look, religious freedom is suffering 03:17 as is the gospel itself 03:19 by the very harsh culture war hostility that, 03:24 you know, some Christians are nurturing. 03:27 Now a part of that, honestly, 03:29 I have to lay the blame at the feet of both preachers 03:33 and unaffiliated Christian organizations 03:38 that need conflict to raise money. 03:40 Yeah, I think you're right. 03:41 This is, you know, part of the whole equation, 03:44 I've seen this for decades, 03:46 and I've been so thankful to be part of 03:49 a denominationally-based organization, 03:52 we're affiliated with the Seventh-day Adventist Church, 03:54 we're not independently raising money. 03:57 I don't have to express, you know, a hysterical opinion 04:01 to get people scared enough to give me money, 04:04 you know, and that's what I see happening 04:07 both from the Liberals and the Conservatives. 04:10 I used to say that the likes of, 04:12 you know, the culture warriors in the Christian community 04:15 like Pat Robertson or Jerry Falwell, 04:17 they were in a sick, symbiotic relationship 04:20 with the culture warriors on the left like Barry Lynn 04:23 of Americans United for Separation of Church and State. 04:24 That's true, they needed each other. 04:25 You know, they needed each other to raise money 04:28 and to build up their own powerbase. 04:30 Well, let's get back to Jack Phillips though. 04:33 So Phillips has the... 04:34 Try to give a cultural backdrop. 04:36 Sure. 04:37 'Cause it doesn't make sense to some people. 04:38 Well, so he has an objection, 04:41 he feels, according to the records in the case, 04:44 it's his belief 04:46 that baking the special cake to honor a same-sex... 04:49 And probably it's not the baking, 04:51 it's the decorating that got to him mostly, right? 04:54 Putting an artistic input into it 04:56 where he would have to invest his feelings, 04:59 and creativity, and so on. 05:01 Bottom line, he felt that would be an expression, 05:06 an expression of speech, and endorsement, 05:09 and violation of his conscience. 05:11 So you have two sets of rights here, 05:14 Colorado has broad anti-discrimination laws 05:18 that apply to businesses, public accommodations laws. 05:22 Now these laws predate 05:25 the American civil rights movement 05:28 and the Civil Rights Act of 1964. 05:31 Colorado's laws go back to statehood 05:34 shortly after statehood in the 19th century, 05:36 they began to prohibit 05:38 discrimination and public accommodations. 05:40 So these laws are very ancient, 05:42 they were amended more recently to include sexual orientation 05:46 and businesses generally can't discriminate, 05:48 you have to serve people regardless of their age, 05:52 or sex, or, you know, disability, or religion, 05:55 you know, etcetera. 05:57 So you have these two sets of rights, 05:59 rights of conscience, 06:01 right not to be discriminated against. 06:03 They go all the way to the Supreme Court. 06:05 And what does the Supreme Court do, 06:07 it punts, and it gives a victory to nobody. 06:12 Yeah. 06:13 Well, I thought you were gonna explain how. 06:15 Well, yeah, no, I will. 06:16 I felt there was prejudice 06:18 on the part of those representing the gay lobby, 06:20 the way they'd expressed themselves ahead of time 06:23 showed that they really had the animus 06:25 even though they brought it out of him. 06:27 So you have an administrative judge that issues a decision 06:31 and then it's reviewed 06:33 by the Colorado Civil Rights Commission. 06:35 There were two hearings at the Commission 06:37 and two of the four commissioners 06:40 expressed significant hostility 06:43 to the notion of religious discrimination. 06:46 So they viewed Phillips as being discriminatory 06:50 and they lumped it with the Nazi Holocaust, 06:54 they lumped it with the history of slavery, 06:56 and Jim Crow laws etcetera. 06:58 And the Supreme Court said, 07:00 "You know, when you adjudicate these conflicts of rights, 07:04 religion has a right to be treated fairly, 07:07 the government can't be hostile to religious claims." 07:12 Yeah. 07:14 Now there's a... but there's a back story here. 07:16 The back story is that the Supreme Court, 07:20 30 years ago, destroyed 07:22 the constitutional value of religious freedom 07:26 and this is something that... 07:27 Smith case. 07:29 The peyote case, 07:30 Employment Division against Smith. 07:31 Because religious-free exercise, 07:35 religious conscience has now been relegated to, 07:37 you know, I say the back of the civil rights bus 07:40 or even being dragged behind the civil rights bus, 07:44 like a lynching practically. 07:47 Because of that, 07:48 the Supreme Court did not... was not able to engage 07:53 in the traditional weighing of rights. 07:56 And let me explain what that would look like. 07:58 So you have a neutral law, when I say neutral, 08:04 the civil rights law in Colorado, 08:07 it doesn't target people of faith, 08:09 you know, especially, it applies to everybody. 08:12 So it's not discriminatory in its language, 08:16 but in its application to Mr. Phillips, arguably, 08:20 it's restricting his religious freedom. 08:23 Okay. 08:24 So the question is how do you resolve these conflicts. 08:27 Well, under the traditional view, 08:30 you would say, "Does the state have a compelling interest 08:34 in eradicating discrimination?" 08:36 That's a pretty easy question to answer. 08:38 Yes, state's interest 08:40 in prohibiting discrimination broadly, 08:43 that's a compelling interest. 08:44 Well, they have other compelling interests. 08:45 I always object to that statement that... 08:47 I know you do, but let's, 08:49 you know, but then the next question is, 08:52 is it necessary, in order to achieve that interest, 08:55 to restrict the religious conscience of Jack Phillips. 08:59 You know, you have to have... 09:00 it's called a least restrictive means analysis. 09:03 So his rights get considered. 09:07 That kind of analysis, the court no longer engages in, 09:12 they only ask, "Is the law itself discriminatory? 09:16 Is it neutral in its language?" 09:18 And the answer clearly is yes. 09:20 So free exercise doesn't even get to first base, 09:23 you don't have a claim, which is why 09:26 the lawyers for Jack Phillips litigated this 09:28 as a free speech case. 09:30 Now we don't traditionally think 09:32 of baking a cake as expression. 09:37 You know, there's another case involving Alain photography, 09:40 wedding photography, 09:42 you know, we can relate to a little bit more 09:45 as an art form, as, you know, expression, 09:48 but baking a cake, well, Jack is the unusual baker. 09:51 I mean, he calls it Masterpiece Cakeshop because, you know, 09:55 he fancies himself a bit of an artist, 09:58 and he engages with a couple to understand 10:01 where they're coming from and to craft a cake. 10:03 Yeah, they don't have any problem, 10:04 see, these are both creative endeavors. 10:07 You don't but, you know, 10:09 reasonable people differ on whether, 10:12 you know, this is free speech. 10:13 I'll give you an example. 10:14 One of the champions of free speech in the legal academy 10:18 is a law professor out of UCLA by the name of Eugene Wollock, 10:22 and he runs a religion law listserv, 10:26 so Eugene Wollock would side with 10:31 the baker in the Baker case... 10:34 I'm sorry, would side with the photographer 10:36 but, as free speech, but would not agree that 10:39 the cake is his free speech, you know. 10:43 Now that's not to say he's right but just that, 10:45 you know, a thoughtful academic... 10:47 Because they've started with a premise 10:49 that we would say is wrong 10:50 and then come to conclusions of the trouble. 10:53 So the problem in this case starts with 10:57 we have a faulty legal landscape 10:59 that does not properly value religious conscience claims. 11:03 And what I don't think helps things much that 11:05 this is clearly a provocation. 11:08 I've said it on this program before. 11:12 Things like wedding photography and making a wedding cake, 11:16 or... 11:17 it's not up for legal challenge, 11:19 but where you're going to have your wedding dress made, 11:21 you go with someone simpatico, right? 11:25 It's somewhat self-regulating, 11:27 and if gays knew that 11:30 this was a Christian cake-maker or whatever, 11:33 they probably wouldn't knock on the door to start with, 11:35 they would go where they feel they're among fellow travelers. 11:39 So I think it's a setup from the get-go and so... 11:43 Well, and the upshot of it is after two weeks, 11:48 after he wins or, you know, he wins in the sense that 11:53 the court reverses the decision against him. 11:55 So in that sense, it is a win for him. 11:56 Yeah. 11:58 But then a transgender person had ordered a cake 12:03 and the Colorado Commission rules against Jack Phillips 12:07 saying that he discriminated against this transgender person 12:11 'cause he wouldn't bake a blue and pink cake 12:14 to celebrate their transition. 12:16 Well, let me throw something in, 12:18 and we need to take a break shortly. 12:19 But, you know, I've heard over and over again 12:22 and I know that generally this is true 12:23 that it doesn't matter what your position is per se, 12:28 if you hold something as a point of conscience 12:31 that's a deeply held conviction that 12:33 that needs to be on it, so it does... 12:35 on one level it seems to me, 12:37 it doesn't have to be proven 12:38 that he's had a biblical position 12:40 or that is consistent with what other churches hold. 12:44 He's troubled by this 12:45 and his feelings on one level should be respected, right? 12:48 Well, but here's the rub, Lincoln, 12:52 historically, the southern white Christian Church held 12:57 either slavery or segregation as religious dogma. 13:02 Right. 13:04 You brought it up and I've brought it before. 13:05 I remember when I first came to the US, 13:08 people were being turned away from stores 13:11 on a biblical basis but underneath, it was racism. 13:14 I will tell you that my kids generation, 13:17 they see Christian attitudes towards gays of a same piece 13:24 with Christian attitudes towards blacks. 13:26 Yeah. 13:28 And that's the problem, 13:29 we can talk about liberty of conscience in the abstract, 13:32 but when you're talking about the right to discriminate, 13:35 it's a tough sell. 13:37 Yeah. 13:38 And before the program, 13:40 we were talking about some of the dynamic that preceded this, 13:43 and I've always objected to gay, 13:46 and transgender, and lesbian, 13:49 and so on rights being equated with the civil rights movement. 13:53 I don't think it's a direct comparison. 13:55 We'll take a short break, 13:57 and we'll come back to this very loaded discussion 14:00 that derives from a recent Supreme Court action. 14:02 Stay with us. |
Revised 2018-11-19