To bake or not to bake?–What would those who actually ratified the First Amendment do?

Media Name: gettyimages-690833732.jpg

David Edwards hold an M.A. in history from the University of Idaho. His thesis, News Reporting or News Making?: the role of the press in the American Revolution looked at the extent to which colonial newspapers influenced reactions throughout the colonies to the Stamp Act and Massachusetts’ response to it.

Just this year the United States Supreme Court issued its’ opinion on a case that had been working its way through the courts since 2012 in Colorado, an opinion that will likely have a far‐​reaching effect on religious freedom in the U.S. It is also a decision that resulted in considerable debate about religion and the Free Exercise Clause in the First Amendment, although at seven to two it is hardly a narrow decision.

In 2012 a same sex couple came to Jack Phillips, owner of Masterpiece Cakeshop, and requested a cake for a reception celebrating their wedding. At that time, before the results of Obergefell v. Hodges (2015), Colorado did not recognize same sex marriages and the couple planned to wed in Massachusetts. Phillips informed the couple that he had a policy in his shop to not make same sex wedding cakes in accordance with his traditional Christian beliefs. The couple then filed a complaint with the Colorado Civil Rights Commission, declaring his refusal to make their cake violated the Colorado Anti‐​Discrimination Act (CADA) which stated that a business could not deny service based on sexual orientation. After investigating the complaint, the Commission decided that Phillips did violate the couple’s rights under CADA. Phillips sued, arguing that he had the right under the Free Exercise Clause to refuse to make a custom cake representing a message he opposed.

The oral arguments before the Supreme Court featured much discussion of the nature of the cake request: Could a custom cake be considered a creative work, such as a poem or a painting? Does a wedding cake carry an implicit message that the baker condones the wedding for which it was baked? Did the Colorado Civil Rights Commission come to its decision in the matter while remaining neutral toward Phillips’ beliefs? In the end, the Supreme Court ruled in favor of Jack Phillips.

In the majority opinion on Masterpiece Cakeshop, Inc v Colorado Civil Rights Commission the Court ruled that the Commission failed to remain neutral with respect to Jack Phillips’ religious beliefs. The Commission made remarks disparaging Phillips’ beliefs and implied that those beliefs were a factor in their decision about whether Phillips had the right to refuse to bake the cake under the Free Exercise Clause. The Court explained that because the Commission had previously allowed other bakers to refuse to make cakes bearing massages with which they disagreed or found offensive, they owed it to Jack Phillips to give him that same consideration. While the Court side‐​stepped the issue of whether cake baking fell under protected speech or religious freedom, it did set a standard that it is not the role of government to judge on the validity of religious beliefs and that it must maintain strict neutrality toward those beliefs. The majority opinion stated,

It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ religious objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.1

While there are many who side with Justice Ginsburg in her dissent, Masterpiece Cakeshop fits very much within the framework of the Free Exercise Clause as originally intended by the framers of the Constitution.

The idea that America has always been a land of religious tolerance is a misconception, albeit a common one. When the Puritans and Pilgrims first came to the American Continent they were indeed seeking a place where they could practice their faith freely, although they themselves were not ready to tolerate dissent. Complete religious tolerance did not really begin to catch on throughout the colonies until after the War for Independence.

In 1779 for example, Thomas Jefferson, as governor of Virginia, attempted to pass his Bill for Establishing Religious Freedom, hoping to curb some of the intolerance he saw around him. It stated that:

No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.2

At that time the Anglican Church enjoyed official establishment in Virginia and was strong enough to prevent the bill from being passed. In 1784, Patrick Henry introduced a bill for state support of “teachers of the Christian religion.” James Madison wrote a powerful essay arguing against Henry’s bill titled “Memorial and Remonstrance Against Religious Assessments,” in which he argued that it was an inalienable right of all men to practice religion according to the dictates of their own conscience and that any power that could then promote one sect over another could then exercise that same power to exclude others in violation of that right. Henry’s bill was defeated, and Madison used that success to revisit Jefferson’s statute for religious freedom, which was passed in 1786. Madison wrote to Jefferson in celebration, “I flatter myself [we] have in this country extinguished forever the ambitious hope of making laws for the human mind.”3 As Supreme Court decisions in Obergefell v Hodges, Hobby Burwell v. Hobby Lobby , and Masterpiece Cakeshop v Colorado Civil Rights Commission show, there is still much debate about how far the right to free exercise of religion extends. In fact, it is likely that at the time of the passage of the First Amendment, the framers themselves were not entirely in unison about the matter either.

On one hand is the idea that the First Amendment was merely meant to apply to Congress rather than to the states. The Harvard Law Review Association, for example, argued in 1992 that the First Amendment was conceived in the spirit of federalism, and therefore was merely enjoined Congress from passing laws restricting free exercise of religion or establishing a national religion.4 Patrick Henry’s bill in Virginia would have provided state support to those who taught Christianity. Thomas Jefferson, a true small‐​F federalist, may have even supported a variety of different half‐​way state methods of dividing church and state.

This idea is supported, to some degree, by the history of religious freedom in the period after the Revolution itself. Prior to the Revolution, the individual colonies varied greatly in their approach to religious freedom. In Massachusetts, for example, it was illegal to be a Quaker, and punishment for practicing that faith ranged from whippings to execution for a third offense. Between 1659 and 1661 four Quakers were hanged in Boston for their persistence in practicing their faith in the town.5 Such laws existed in most colonies directed toward one sect or another, and Rhode Island was the only colony which did not, at some point, declare Christianity to be the official religion. Theoretically, it meant that a person travelling from one colony to another might find themselves in violation of religious laws and potentially subject to punishment.

The situation did not necessarily change after the Revolution, either. The official church in Virginia was the Anglican Church. In Massachusetts and Connecticut, it was Presbyterianism. In fact, other than Rhode Island, New York was the only state to make religious tolerance an official state policy. Even there, though, the ban on Catholic office‐​holders was not removed from the state constitution until 1806.

During the Constitutional Convention, Elbridge Gerry and George Mason made a motion to include a bill of rights in the Constitution. James Madison argued against it, declaring that the Constitution did not give the federal government any power to interfere with individual rights, such as freedom of religion, so it was unnecessary to include an injunction in the Constitution against it.6 When it came to the debate over the Bill of Rights before Congress after ratification of the Constitution Madison changed his mind. There were a few reasons for this.

One practical influence on Madison was a series of arrests made against Baptist ministers in Virginia. On the theoretical end, Madison and virtually all of his contemporaries were heavily influenced by John Locke’s three points against government involvement in religious activity in the Letter Concerning Toleration (1689).

First, Locke argued that there is no requirement in the Bible for governments to use religious authority or for it to compel religious activity. In fact, it can be argued that when Jesus said to render unto God that which is God’s and unto Caesar that which is Caesar’s, he may very well be suggesting that there should be a separation between them. Second, Locke suggested that religion uses the power of persuasion for actual conversion, but the only power of the government is that of force. Thirdly, the presence of so many different sects logically means they cannot all be the one true religion, therefore they should all be tolerated.7

Locke’s influence can be seen in the text of the Statute for Establishing Religious Freedom in Virginia written by Jefferson and passed under Madison’s guiding hand. It can also be seen in the Massachusetts Constitution, which reflects, to a great degree, John Adams’s influence. After all, he did write a significant portion of it. On the matter of religious freedom, it stated that no one was to be “hurt, molested, or restrained in his person, liberty, or estate for worshipping God in the manner most agreeable to the dictates of his own conscience.”8

While Madison may have originally preferred an equal separation in which no religious organization enjoyed any benefit of suffered any limit that was not shared by all religious organizations, he changed his mind by the time the Bill of Rights was debated in Congress. Madison came to believe that a government, once given power to encourage, or to limit, religious expression, could potentially come to abuse that power. It was, therefore, necessary to constrain that government from exercising any power whatsoever over a citizen’s right to practice the religion of their own choosing.9

Madison came to believe that a Bill of Rights was a necessary addition to the Constitution. He originally felt that the Constitution did not give the federal government power to involve itself in religious activity, he now supported an explicit recognition of the freedom of the press and of conscience. He also wanted to clearly stipulate that the limit on that power applied equally to the executive and legislative branches. Thus, adding a Bill of Rights to the Constitution would make the rights of the people more secure. Madison also wanted to provide as wide a scope as possible for freedom of conscience–he proposed that no person should be compelled to take up arms if it violated their conscience, even in defense of their nation.10

Proposed language for the first amendment stated “the full and equal rights of conscience shall not be in any manner, or on any pretext, infringed.”11 In debate the language was softened and made less forceful, but in the end Madison and his allies succeeded in passing the Bill of Rights, and within the First Amendment are the words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This was the very first right, in the very first amendment, indicating the importance placed on it.

Over much time and many legal changes, the Court has applied the First Amendment to all levels of government. In 1947 the U.S. Supreme Court declared in Emerson v. Board of Education that the First Amendment clauses on free religion “had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia Statute.” The Supreme Court has continued to affirm this interpretation of the Free Exercise Clause as well.

In Obergefell v Hodges the Court, in deciding in favor of same‐​sex marriage, made certain to carve out an exception for churches. The Court reasoned that the government could not compel churches to perform weddings that were in direct conflict with that church’s beliefs. The Court was even more clear in its ruling in Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission.

It is true that the founders were not in unanimous agreement about how far government should be restricted from intervening in religious activity. There were those who did feel that the states should wield that power themselves but that the federal government could not. In the end however, super majorities of both houses of Congress, President Washington, and the legislatures of three‐​fourths of the states agreed to the wording of the First Amendment as we read it today. The presence of the religious clauses alongside the freedoms of the press, expression, and the right to peaceably assemble in this first of the ten amendments indicates that this was considered a fundamental right. They came to a consensus that because power granted to the government to place limits on these rights might be abused in unforeseen ways it would be best to not grant that power to the government at all. The language is clear that there is to be no infringement whatsoever on the free exercise of one’s religious conscience, even to the extent of allowing for conscientious objection from military service, and that all levels of government were prohibited from infringing on these rights.

1. Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission, 584 U.S. (2018).

2. John Ragosta, “Virginia Statute for Establishing Religious Freedom (1786),” Encyclopedia Virginia, Virginia Foundation for the Humanities, 2 Jul 2014, Wed, 17 Sept 2018.

3. Ralph Ketchum, James Madison: A Biography, Charlottesville: University of Virginia Press, 1990. Pg 163–165.

4. Harvard Law Review Association, “Rethinking the incorporation of the Establishment Clause: A Federalist View,” Harvard Law Review, Vol. 105, No. 7, (May, 1992), Pg. 1708.

5. Kenneth C. Davis, “America’s True History of Religious Tolerance,” Smith​so​ni​an​mag​.com, https://​www​.smith​so​ni​an​mag​.com/​h​i​s​t​o​r​y​/​a​m​e​r​i​c​a​s​-​t​r​u​e​-​h​i​s​t​o​r​y​-​o​f​-​r​e​ligio… (accessed 9 October, 2018).

6. Ketchum, 226.

7. John Locke, “Letter Concerning Toleration,” A Letter Concerning Toleration by John Locke 1689, Constitution Society, http://​www​.con​sti​tu​tion​.org/​j​l​/​t​o​l​e​r​a​t​i.htm, (accessed 9 October 2018).

8. David McChullough, John Adams, New York: Simon and Schuster, 2001, 222.

9. Paul Weber, “James Madison and the Religious Equality: The Perfect Separation,” The Review of Politics, Vol 44 No 2, April, 1982, 169.

10. Ketchum, 290–292.

11. Ibid, 165.