Legal Scholars, Economists Defends Christian Baker’s First Amendment Rights

The case of a Christian baker in Colorado who refused to make a cake for a same-sex wedding gets its big day in court today. While Jack Phillips’s legal team has emphasized his right to artistic expression as a cake decorator, many following his US Supreme Court case focus on another legal matter at stake: religious freedom.

Should he, as a Christian, be forced to bake a cake for a same-sex wedding in violation of his deeply held religious beliefs?

Monica Burke, research assistant at the DeVos Center for Religion and Civil Society at The Heritage Foundation explains:

A group of leading legal scholars and economists says “no.” Not only would this violate Phillips’ individual conscience, it would also violate the Constitution and have negative ripple effects on both society and markets.

The distinguished group, which includes 34 legal scholars, philosopher Sherif Girgis, and 14 law and economics scholars, filed amicus briefs in Phillips’ Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In their briefs, the scholars urge the court not to use public accommodation laws to compel private citizens to agree with the government on the issue of same-sex marriage.

The 34 legal scholars ask the court to protect Phillips from the government of Colorado, which seeks to force him to speak a message that he doesn’t believe by designing a cake in support of same-sex marriage.

Citing the Constitution as protecting Americans’ freedom of speech and religious liberty, the scholars contrast the American Founders’ commitment to freedom with that of other societies in the past that punished religious believers for following their consciences.

The scholars recall Thomas Jefferson’s admonition that it is “sinful and tyrannical to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves.”

And they contrast it with one of the most famous examples of forced worship in history: the biblically recorded story of King Nebuchadnezzar of Babylon, who ordered three young Jewish men to bow down to a golden statue or risk being thrown into a fiery furnace.

There are plenty of other examples of odious forced worship throughout history. But America has repeatedly rejected compelled speech, as in the landmark case West Virginia State Board of Education v. Barnette, when the Supreme Court struck down a rule that compelled students to salute the American flag, even if it violated their religious beliefs.

That’s because the whole point of the First Amendment is that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” as the Supreme Court ruled in Texas v. Johnson.

The legal scholars argue that protecting Phillips from being compelled to express a message that violates his religious beliefs benefits all Americans because “a person … who is comfortably in harmony with prevailing opinion one year may … [be in the] minority the next year.”


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