opinion

Unslippery Slope

The Gay-Wedding Cake Fight Isn’t About Religious Freedom—It’s About Sex

Liberals love asking the ‘slippery slope’ question about religious exemptions, but doing so misses the point: This is all about the culture war.

The slippery-slope argument goes something like this: If Masterpiece Cakeshop, and its owner, Jack Phillips, can refuse to bake a cake for a gay wedding, what’s to stop him from refusing to bake a wedding cake for two Jews, or an interracial couple, or anyone else for that matter?

There are good reasons to make that argument—I’ve made it myself on many occasions, and it may carry the day when the Supreme Court hears the case next week.

But ultimately, it misses the point: that it’s not Jews or people of color or anyone else who are the targets of these “religious freedom” claims. It’s women and LGBT people. Because at the end of the day, these “religious freedom” claims aren’t about religious freedom. They’re about the Culture War. They’re about sex.

First, if Phillips and his ilk were consistent, they would have plenty of sinful people to turn away from their businesses. In Matthew 5:32, for example, Jesus forbids divorce and says that remarriage is the same as adultery. So why isn’t Phillips turning away the remarried?

Here’s another example. In 1 Corinthians 6:9, one of the seven so-called clobber verses (out of 31,102 in the Bible) that talk about homosexuality, Paul states that “neither the sexually immoral nor idolaters nor adulterers nor male prostitutes (malakoi) nor homosexual offenders (arsenokoitai) nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.” Whoever Paul is talking about here—it’s almost certainly not all gay men, and definitely not lesbians, but even if it were—they are placed on the same level as thieves, slanderers, and swindlers. No better and no worse.

And yet, I’m unaware of a single case in which a service provider sought the right to refuse service to a slanderer on the basis of a religious belief. Why?

Nor has Phillips asserted a right to refuse to bake a wedding cake for a Hindu wedding, even though most evangelical Christians believe Hinduism to be a form of idolatry—which is forbidden over 100 times in the Bible, on penalty of death.

In other words, these “religious freedom” claimants are being highly selective about when their conscience compels them to discriminate. Of all of the sins in Scripture, it seems that only those involving sex and gender—contraception, abortion, LGBT people—are the only ones which trigger such claims.

Quite a coincidence, is it not?

Obviously, it is not. These “religious freedom” claims are extensions of the five-decade old Culture War. They are front-line issues in politicized Christianity, not Christianity itself, and are stand-ins for a cultural clash that runs deeper than any individual claim.

The Culture War is a battle about sex, but it is really a battle about what country we are living in: either a Christian nation, with right-wing Christianity as its moral bedrock, or a diverse, secular nation, in which religious claims are respected, but not used as a trump card over the civil rights of others.

After all, the reason I’ve scare-quoted “religious freedom” here is that these kinds of claims are really quite novel. For two centuries, the First Amendment was primarily a shield held up by persecuted religious minorities—Jehovah’s Witnesses, Native Americans—against governmental interference in their religious practice. No third parties were involved; these minorities wanted to practice their religion and be left alone.

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To be sure, this history is still marred by Christian domination. The First Amendment didn’t stop Mormon polygamy from being banned, and it didn’t stop the government from seizing lands held to be sacred by Native Americans. It was often used against Catholics as well.

But in principle, the Free Exercise clause of the First Amendment was a shield protecting minority religions from government interference.

Only in the last 20 years has it been used as a sword, allowing a religious individual to discriminate against someone else. In cases like Masterpiece Cakeshop or 2014’s Hobby Lobby, it’s not just the government and the practitioner. It’s the government, the practitioner, and the person the practitioner is harming. That is a crucial, and unprecedented, difference: Today’s “religious freedom” claimants want to abridge the rights of others.

And it’s not a coincidence. Poll data shows that when you scratch a “religious freedom” claimant, what you find underneath is someone who really wants to ban abortion, overturn same-sex marriage, and bring back anti-sodomy laws. These organizations—the Alliance Defending Freedom, the Becket Fund, Liberty Counsel—are fundamentally insincere. They’re not defending our “First Freedom.” They’re fighting the Culture War.

Now, having followed this issue for many years, I know that millions of conservative Christians sincerely believe their religion to be under attack. But the data doesn’t lie. Ultimately, Christian conservatives don’t just want to be left alone to practice their religion in peace. Ultimately, they want to impose their religious beliefs on others. They want to win the Culture War and ban the stuff they don’t like.

That’s why the slippery-slope argument is off point. We shouldn’t be asking “what’s to stop this person from turning away Jews?” We should be asking “why is it that the only people this person wants to turn away are women and gays?” Because that’s what reveals this campaign for what it is.

Now, two important caveats.

First—and this is a historical point I wish we could all keep in mind—this kind of religious freedom claim was, in fact, used against African Americans during the 1960s and 1970s. Bob Jones University, for example, argued that it had a First Amendment right to refuse admission to black students (and, later, to segregate them in special housing).

And on a local level, “religious freedom” was offered as a pretext by restauranteurs and hoteliers to deny service to blacks. God separated the races on different continents, evangelicals said in the 1950s, and we must not interfere with His plan.

The Bob Jones case went all the way to the Supreme Court—the university lost, and lost their tax-exempt status—and historian Randall Balmer has shown that it, not Roe v. Wade, was the chief motivation behind the formation of the “New Christian Right,” the term political scientists use to describe the Christian political movement that was born in the 1970s. (Prior to the Sexual Revolution, most evangelicals thought that Christians should stay out of the dirty business of politics. Times have changed.)

So it’s not as though the slippery slope isn’t true. It was true quite recently, in fact. The modern “religious freedom” movement was born in segregation.

It’s also true that, when pressed, “religious freedom” activists admit that the slippery slope is accurate in principle. In one memorable exchange from 2014, Congressman Jerrold Nadler asked the Liberty Counsel’s Mat Staver why, under the laws Staver favored—which have now become law in 22 states—a wedding photographer couldn’t refuse service to Jews.

After trying to weasel out of the question—“I think it wouldn’t be something she wouldn’t object to,” he stammered—Staver admitted that, yes, “She would have an issue there—a violation potential in that case.”

So, in principle, the slippery-slope argument is spot-on, and, as mentioned earlier, it may well be decisive at the Supreme Court. For the rule of law to mean something, people can’t pick which laws they wish to obey.

Yet I want to conclude with Staver’s initial response: “I think it wouldn’t be something she wouldn’t object to.” That may well be true. Anti-Semitism has surged during the Trump administration, but probably Staver’s clients—including the Kentucky Clerk Kim Davis, now a hero of the New Christian Right—wouldn’t turn Jews away. That’s not what they’re worried about.

No—what they’re worried about are women and gays; sex and gender; the Culture War and the Christian Nation. And they want to win. Don’t let claims of “religious freedom” fool you.