Rory Leishman

In a significant seven-to-two ruling in Masterpiece Cake Shop Ltd. v. Colorado on June 4, the Supreme Court of the United States struck down a ruling by the Colorado Civil Rights Commission that a Christian baker had no right in law to refuse on grounds of sincere religious conviction to bake a wedding cake for a same-sex couple.

That baker can count himself lucky to live in the United States. Any baker, photographer or florist in Canada who steadfastly declines on grounds of Christian faith to help celebrate a same-sex wedding could ultimately end up in jail on a charge of contempt of court for refusing to obey the lawful order of a human rights tribunal to stop discriminating against homosexual couples on the basis of sexual orientation.

Recall the plight of Scott Brockie. He is the Christian print-shop owner in Toronto who was summoned before the Ontario Human Rights Tribunal for refusing to print materials for the Lesbian and Gay Archives. “We have gay clients,” Brockie explained. “That’s not an issue to me. People who are gay can come in and bring their work, the same as anybody else, and I’ll print their general commercial printing work for them. But I’m not going to produce material for a cause that so strongly contradicts what the Bible teaches — what I believe.”

In taking this position, Brockie thought he was protected by the ostensible guarantee of freedom of conscience, religion and expression in section 2 of the Canadian Charter of Rights and Freedoms. Alas, that supposition was incorrect. Regardless of the Charter, the Ontario Human Rights Tribunal held that he had unlawfully violated the ban on discrimination on the basis of sexual orientation in section 1 of the Ontario Human Rights Code; ordered him to pay $5,000 in damages to the complainant; and directed that he must stop refusing to print materials for homosexuals which he found religiously objectionable.

Upon appeal, Brockie lost again: A three-judge panel of the Ontario Superior Court of Justice unanimously upheld the essence of the Tribunal ruling. At this point, having run up a small fortune in legal fees, Brockie gave up the struggle to defend his right to freedom of religion.

Like Brockie, Jack Phillips, owner of the Masterpiece bakeshop in Colorado, has testified to a sincere belief that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” When two homosexual men showed up at his business and asked him to bake a cake for “our wedding,” he politely refused: “I’ll make your birthday cakes, shower cakes — sell you cookies and brownies,” said Phillips. “I just don’t make cakes for same sex weddings.”

In response, the homosexual customers filed a complaint with the Colorado Civil Rights Commission. Eventually, that Commission found Phillips guilty of violating the ban on discrimination based on sexual orientation in the Colorado Anti-Discrimination Act. And that judgment was upheld by the Colorado Court of Appeals. However, on ultimate appeal to the Supreme Court of the United States, Phillips won.

However, his victory was less than definitive. In reasons for judgment on behalf of the Court, Justice Anthony Kennedy reversed the ruling of the Colorado Court of Appeal in Phillips’ case on the sole ground that the Colorado Civil Rights Commission had violated Phillips’ right to the “free exercise” of religion in the United States Bill of Rights, by deriding his faith as “despicable” and equivalent to the abuse of freedom of religion to justify slavery and the holocaust.

As guidance for dealing with similar cases in the future, Kennedy obscurely warned that human rights commissions and the courts must act not only without expressing “undue disrespect to sincere religious beliefs,” but also “without subjecting gay persons to indignities when they seek goods and services in an open market.”

In a concurring opinion in Masterpiece Bake Shop, Justice Neil Gorsuch advanced a more robust view of freedom of religion. “In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise,” he wrote. Furthermore, he maintained that just as the Supreme Court has affirmed that “it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”

In another concurring opinion, Justice Clarence Thomas contended that even if the Colorado Commissioners had not disparaged Phillips’ faith, they would have violated his constitutional right to the free exercise of religion, simply by not allowing him to refuse on religious grounds to bake a wedding cake for a same-sex couple.

Today, Christians in the United States can only wonder whose judicial views on the free exercise of religion will prevail: The traditional viewpoints of Thomas and Gorsuch; the equivocal version of Kennedy; or the hostile stance taken by Justices Ruth Bader Ginsburg and Sonia Sotomayor who both insisted in dissent that the Colorado Court of Appeal was right to uphold Phillips’ conviction despite the disparagement of his faith by the Civil Rights Commissioners.

Meanwhile in Canada, it is already evident that the judiciary has obliterated the historic right to the free exercise of religion that protected Canadians prior to enactment of the Charter and our so-called human rights codes. Thus, in 2000, the human rights adjudicator in Brockie’s case ordained that he “remains free to hold his religious beliefs and to practice them in his home, and in his Christian community,” but he is not free “to practice those beliefs in a manner that discriminates against lesbians and gays by denying them a service available to everyone else.”

One year later, the Supreme Court of Canada likewise ordained in Trinity Western University: “Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute. The proper place to draw the line is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected.”

Thanks to this ruling, all Canadians who act upon a sincerely held religious conviction that conflicts with the official position of the state on marriage, contraception, abortion, euthanasia or any other controversial issue are now at risk. In a warning to faithful TWU students, Ian Hunter, emeritus professor of law at Western University, put the matter well. In effect, the Supreme Court of Canada has decreed in Trinity Western: “You are free to be hearers of The Word but not doers; you may render unto God when on campus but only to Caesar off campus. By their deeds no one shall know them.”

Rory Leishman is The Inteirm’s national affairs columnist.