Will Christian Baker’s Supreme Court Case Decide Future of First Amendment?

November 1, 2017

by Steven Jonathan Rummelsburg


It strikes one as an episode of the Twilight Zone to think that in the present moral climate, as The Washington Post reports, the Department of Justice would argue in defense of a Christian baker’s right to not bake a cake for a same-sex “wedding.” The enthusiasm to promote same-sex relations and “gay marriage” has reached such hysterical proportions that one seemingly risks censorship for speaking out against them. Merely touch the periphery of the issue and prepare for an onslaught of hateful and bigoted accusations of hate and bigotry. Common Sense, common decency, ethics grounded in the natural law and civil debate are a thing of the past in our public square.

The Christian baker in question is Jack Phillips, the proprietor of the Masterpiece Cakeshop in Lakewood, Colo., who four years ago refused to make a wedding cake for a same-sex couple. The couple turned to the Colorado Civil Rights Commission to press for their rights under Colorado’s accommodations law which protects against “discrimination” based on sexual orientation. Phillips lost the case and the Court of Appeals upheld the ruling.

This is an important case for many reasons, but the most important are buried under layers of ideological subterfuge. Americans’ First Amendment right to freedom of speech has long been under siege, and it has been the trend to condemn virtuous speech and protect vicious speech. However, the issue goes much deeper still. What has been nearly lost to our civilization is the very foundational nature of speech as the First Amendment intended it to be understood and protected. Our Founding Fathers understood that language has two purposes, to convey truth and to serve others. Language that is deceitful and self-serving by definition ought not to be protected by the First Amendment in its original intent.

The increasing number of anti-discrimination cases initiated by same-sex plaintiffs is wholly grounded in the misuse of speech; in equivocations, false propositions and fallacious inferences in order to silence and even destroy the livelihoods of those who would reject the latest incarnations of the sexual revolution. The grounds on which plaintiffs come to sue over wedding cakes, flowers and other accommodations are false. Words like “marriage,” “equality” and “discrimination” are necessarily misused to make an enemy of virtue and an ally of vice.

The etymological roots of “marriage” reveal that at its most basic it means the “state or condition of being husband and wife.” It is a contract which implies the eligibility and complementarity of a man and a woman for the fact of unity and procreation. The original sense of “wedding” or “to wed” is “to make a woman one’s wife by giving a pledge…” We have a God-given right and are protected by the Constitution to hold this definition because it conveys truth about the nature of marriage and family as it serves the common good.

Equality is commensurately abused. As Aristotle said, “the worst form of inequality is to try to make unequal things equal.” Claims of “marriage equality” are based on a false notion of equality. A couple comprised of a man and a woman is qualitatively different than a couple comprised a man and a man. One stark difference is that in one couple there is a woman, and a woman is different than a man — therefore a man and a man does not equal a man and a woman. The term “marriage equality” is an oxymoron in its intension and extension. That we can no longer see this basic reality and, worse, still that we are not allowed to express this truth publicly is a violence against our First Amendment rights.

The misuse of the word “discrimination” is perhaps the most troubling of all. It is an artifact of true common sense to realize that a statement is absurd that explicitly denies what it implicitly affirms. Discrimination at its roots means simply to “distinguished between.” Discrimination is a species of judgement and a natural faculty of the human intellect. The ACLU’s Louise Melling is representing the same-sex couple at the Supreme Court. She epitomizes the absurdity of modern expressions about discrimination by claiming that if the court rules in favor of Phillips, it “will enshrine a constitutional right to discriminate.” The absurdity of her statement is that she is discriminating between the notions of Phillips and the same-sex couple. She is implicitly discriminating while explicitly eschewing discrimination. Discrimination is not a conventional right; it is a natural power and as such is meant to be exercised properly with truth and charity.

Jack Phillips has a natural law right to refuse those requesting his services to participate in a same-sex “wedding” by virtue of his religious convictions. He does not have the right to refuse service in general to those who are same-sex attracted by virtue of that attraction. It is hopeful that Masterpiece Cakeshop respects the dignity and intrinsic worth of all human persons and has no problem serving all walks of life, but in the case of celebrating a same-sex wedding, a religious exception is reasonable and ought to be respected. This Supreme Court decision holds the potential to bring some truth back to our understanding of the First Amendment.


Steven Jonathan Rummelsburg is a senior fellow at the American Principles Project, a writer in residence and teacher of philosophy and theology at Holy Spirit Preparatory School in Atlanta. He is also a senior contributor to The Imaginative Conservative and has written for numerous venues on matters of faith, culture and education.

Archive: Steven Jonathan Rummelsburg

10 comments on “Will Christian Baker’s Supreme Court Case Decide Future of First Amendment?”

  • Kaysha says:

    So can a baker turn away blacks, jews and Baptists from his public accommodation all in the name of “religioius liberty” and :”free speech,” or is it only LGBT people that get denied service? If it is only LGBT people who qualify for discrimination in a public business, then this writer is not telling the truth. He only believes in “religious liberty” in public accommodations when it is for people he doesn’t like.

  • nino says:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    That’s the 1st Amendment. For someone who obsesses on words like “absurd” and “disordered thinking” (previous editorial), Steven Rummelsburg sure has a problem with reading comprehension. The hateful baker continues to be able to belch his bigoted opinions about gay people wherever he pleases, including what he calls a church. (It is certainly not my Christian Church.) His 1st Amendment rights are intact. What he can’t do is an action, that is refuse service and eject a protected class of minorities out of a secular public accommodation. He is free to express his disgusting opinions about gay people. It is the action of professional service that is legally required in his public secular business. If he is morally incapable of treating gay people with professional courtesy, don’t open a public accommodation where gay people are legally free to expect such service. He can have his jollies ejecting gay people from what he calls a church, protected under this same 1st amendment.

  • david says:

    There is no such thing as “natural law right.” Natural Law is a theory, particularly a religious theory. The constitution protects us from being abused by your “natural law”. You have a right to believe in natural law, however, you don’t have a “natural law right” to use secular government to deny service to people you despise. Religious liberty means these minorities have a constitutional right not to be harmed by your religion.

  • jui says:

    “Jack Phillips has a natural law right to refuse those requesting his services to participate in a same-sex “wedding” by virtue of his religious convictions.”

    As always, Steven Jonathan is wrong again. In order to get a business license, Phillips signed a contract promising to obey state and federal law. State law mandates that he not discriminate against gay people. Phillips lied. I guess breaking legal contracts is part of his right wing religion. He denied service to a same-sex couple. He broke the law.

    If treating gay people with common courtesy in a public accommodation violates his so-called abhorrent “natural law” religion, then don’t sign a contract that promises to serve gay people in your for profit business. He still has a first amendment right to go to his alleged church and hate gays all he wants. He just doesn’t have the right to dishonestly acquire a business license and then go into business and obnoxiously break the law.

  • rob says:

    Steven Rummelsburg has a selective definition of the word discrimination. It absolutely includes usage in “discrimination laws.” According to Merriam Webster:Definition of discrimination

    1 a :the act of making or perceiving a difference :

    2 :the quality or power of finely distinguishing the film viewed by those with discrimination
    3 a :the act, practice, or an instance of discriminating categorically rather than individually
    b :prejudiced or prejudicial outlook, action, or treatment racial discrimination

    Discrimination is an apt term when used in a prejudicial outlook, especially when in the case of minorities you are denying them jobs, housing, marriage rights, service in public accommodations.

    Does Steven not care that blacks have historically been denied constitutional rights? Most people would use the word “discrimination.” Steven wants to take it away because it is now rightly being applied to people he hates.

    This guy just loves the word “absurd.” The above article is saturated with it! I believe Steven is writing this hysterical piece because he wants to use government as a means to enshrine his Catholic Church natural law hocus-pocus on the rest of American society. Most of us, Christians, other religions, non-believers, reject his laughably mislabeled “natural law”, although he certainly deserves to freely believe it in the arthritic church that has a evil history of mistreating gay people. Forcing us to abide by his beliefs is instituting a state religion. This man absurdly doesn’t understand religious liberty.

    • Steven Jonathan says:

      Answer me one question rob, do you really think your idea of “religious liberty” is better than mine?

      • rob says:

        Religious liberty protects us from your totalitarian impulses. Yes, for the sake of humanity, my view of religious liberty is better than the way you would choke non-Catholics with your state religion.

      • jk105 says:

        Steven, your definition of “religious liberty” is that you want freedoms that go beyond simply having the liberty to worship in church and not be denied the basic civil rights guaranteed other protected classes, such as race. All religions have those. For instance, that heinous monster of a baker also can’t deny service to Jews. The freedom you want is one in which you would straight-forward use the government to deny Christian churches (and civil servants) the right to perform same-sex marriage. You want freedoms for your church that you would deny to other Churches. That is a system of government in which your god is recognized as the supreme civil ruler and laws are interpreted by the ecclesiastical authorities of your church, and your church alone.That is not religious liberty. That is theocracy.

  • kern says:

    “Discrimination is a species of judgement and a natural faculty of the human intellect.”

    Thank you Rummelsburg. It is the judgment of many people with the natural faculty of human intellect that this baker engaged in a criminal act perpetuated against American citizens who are protected by accommodation laws. These laws also protect interracial couples as well as religious couples. Your precious “religious” beliefs don’t supersede the constitution. That is indeed theocracy.

    These same very smart people will tell the ignorant that the baker has the constitutional freedom to express his contempt of gay people. This bigot is free to go to churches that treat gay people with contempt. He can puke up hate against gay people on the internet or in his church. However, under the American constitution, if he hates gay people so much that he won’t serve them in a public accommodation, he is under no obligation to open a secular business that serves the public. Problem solved.

    ” but in the case of celebrating a same-sex wedding, a religious exception is reasonable and ought to be respected.”

    Don’t flatter yourself into thinking that this bigoted baker is being asked to “celebrate” a same sex wedding. No one wants his bigoted presence at the wedding. His opinion does not matter. Baking a cake in a public accommodation is not participating in the event any more than the person who made the shoes of the participants is “celebrating” the wedding. For someone who spits out the word “absurd” every other line on this editorial, Rummelburg should examine his own absurdity.

  • jk105 says:

    Twilight Zone Indeed!
    In the name of freedom, Steven advocates theocracy.

    In the name of his church’s “natural law” theory, he would deny gay couples the right to be legally married in their Christian Churches. Fact.

    In the name of his church’s “natural law” theory, he would allow this baker to deny gay couples service in a secular, for profit business.

    In the name of his church’s “natural law” theory, he would allow its adherents to break the law.

    In the name of his church’s “natural law” theory, his church gets to decide what laws they want to obey.

    Never mind that many Christian Churches are morally repelled by his “natural law” theory. His “natural law” theory trumps Christian Churches–and he would use the brute force of government to deny us the right to exercise our religious beliefs.

    Steven bandies about words like ‘absurd” to support his absurdity.

    Steven wants theocracy.

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