The 2018 U.S. Supreme Court docket is already shaping up to be significant, as the much anticipated free-speech and -religion case known as Masterpiece Cakeshop v. Colorado Civil Rights Commission will be decided before the end of June. That one has been grabbing major national headlines for nearly six years—ever since Denver cake artist Jack Phillips politely explained why his religious convictions prevented him from providing a cake for a same-sex commitment ceremony, and proceeded to be excoriated both in the secular press and the judicial system as a result.
However, another huge First Amendment case—NIFLA v. Becerra—is following close behind, also with major implications for free speech, the rights of conscience, and the issue of government coercion when it comes to dissenting voices on moral issues. Here is what you need to know about both.
Masterpiece Cake Shop
Jack Phillips, the 62-year-old owner of Masterpiece Cakeshop in Lakewood, Colo., is a Christian who uses his artistic skills as a baker to honor God. He decorates cakes for many occasions, such as weddings and birthdays—but he does not accept requests to bake cakes with messages celebrating things he doesn’t believe in, such as Halloween or adultery. That’s just a principle he’s used since opening his business in 1993.
In 2012, Phillips was asked to create a one-of-a-kind wedding cake for a same-sex couple, and politely declined. The homosexual couple then filed a complaint with the Colorado Civil Rights Commission. That body ultimately decided Phillips engaged in unlawful discrimination on the basis of sexual orientation, and ordered him to provide wedding cakes to same-sex couples in the future, undergo “re-education” on the law, and to report back on a regular basis about why he declines requests from customers.
Phillips appealed to the Colorado courts, and lost. His appeal to the United States Supreme Court was accepted; those arguments took place last December.
In the official documents filed with the U.S. Supreme Court, Phillips’ attorneys explain that “designing and creating specially commissioned cakes is a form of art and expression, the pinnacle of which is wedding cakes.” Moreover, “from the beginning of his business, Phillips has integrated his faith into his work. He closes his shop on Sundays, pays his employees well, and helps them with personal needs outside of work, all because of his religious beliefs.”
For the last six years, Phillips says, “Staying true to my faith as a Christian has resulted in significant loss to my business, death threats, slander, and being compared to some of the most unimaginable things. Not a day goes by where I don’t thank the Lord for his protection over me and my family.”
Focus on the Family President Jim Daly agrees.
“His business and personal life have suffered greatly for his stand for Christ,” he says of Phillips. “No person, Christian or otherwise, should be subjected to hostility and retribution from the governing authorities for exercising their conscience in what messages they choose to endorse with their artistic abilities. We must pray for Jack’s success at the U.S. Supreme Court, because the cause of freedom for which he is persevering is our cause as well.”
Alliance Defending Freedom Senior Counself Kristen Waggoner, who is representing Phillips, explains that this case isn’t just about one man’s rights.
“Artists and other creative professionals should be able to peacefully live and work according to their beliefs without fear of punishment by the government,” she says. “Jack has taken a brave stand for that principle, both for himself and for artists everywhere, even enduring death threats and sacrificing 40 percent of his business because the state won’t let him design any wedding cakes if he won’t design them for same-sex weddings.”
Do the First Amendment’s guarantees of free speech and religion protect Phillips from being required by the state to use his creative and artistic talents to promote a message supporting same-sex marriage, contrary to his deeply held religious beliefs?
The larger questions are: Do artists’ creations amount to “speech” that is protected from government coercion under the First Amendment? If the answer is “sometimes,” where are the lines drawn? Does a wedding cake qualify for protection?
Is the Colorado statute unconstitutional because it is only enforced against Christians like Phillips, while other bakers and vendors are free to decline business for other types of conscience reasons? If the government has discretion to choose which claims of conscience win, does that give too much discretion to the authorities, and violate the First Amendment?
It’s undisputed that the First Amendment applies not only to the written or spoken word, but to various types of “expressive” speech. That could involve anything from parades to mimes to sculptures to interpretive dance. Each of the wedding-vendor cases that has arisen under state or local nondiscrimination laws involve different types of artistic “expression”; therefore, it will be telling to see whether the Supreme Court justices address “expressive speech” only as it affects wedding cake decoration, or whether they discuss more general guidelines that lower courts can apply to the ever-growing list of wedding-vendor litigation.
Is this case at all like Hobby Lobby? That’s a question many religious-freedom watchers have asked.
In 2014, Hobby Lobby won an important victory
at the Supreme Court which involved another type of government coercion: That of federal law forcing religious employers to provide possible abortion-causing contraceptives in company health care plans. Could that decision help Phillips’?
The answer is probably not directly. Hobby Lobby’s and similar cases were decided based on the federal statute called The Religious Freedom Restoration Act (RFRA). It’s a law that complements the First Amendment’s guarantees of religious freedom. Using the balancing test in that statute, the Supreme Court decided the government regulation at issue could not override the religious-conscience objections of Hobby Lobby’s owners.
Unfortunately, the federal RFRA does not apply to the Colorado law at work in this case. And Colorado is not among the 22 states that have passed their own version of RFRA.
So the Masterpiece Cakeshop decision will hinge on Supreme Court precedents decided under the First Amendment, and how they would apply to the specific facts of this case. The arguments will include components of both free speech and religion.
However, the Hobby Lobby decision could help Phillips indirectly because it’s a recent decision in which religious freedom was supported and defended by a majority of the Court’s justices. As such, it will be fresh on the minds of the justices that government coercion of religious conscience contradicts our country’s deepest values, and is permissible only for the narrowest of causes.
NIFLA v. Becerra
In March, the U.S. Supreme Court heard oral argument in an appeal from a decision of the 9th U.S. Circuit Court of Appeals upholding the constitutionality of the California Reproductive FACT Act.
That law requires pro-life pregnancy resource centers in the state to inform their female clients of the availability of—and contact information for—other centers that perform free and low-cost abortions. Those clients are the very women these centers are trying to dissuade from abortion, and the centers object to being compelled to deliver the state’s message.
“NIFLA” is the acronym for the National Institute of Family and Life Advocates. It is a national non-profit organization comprised of 1,430 pro-life pregnancy resource centers across the country (including 110 in California that are subject to the FACT Act). These centers provide licensed medical services such as ultrasounds and urine pregnancy testing, and/or unlicensed non-medical services such as furnishing diapers and maternity clothing. They also provide counseling and support groups for women in unplanned pregnancies. “Becerra” is Xavier Becerra, the current California attorney general, the state’s chief law enforcement officer.
What Are the Legal Questions?
Can California pass a law compelling pro-life pregnancy resource centers to promote abortion, or does that violate the First Amendment’s guarantee of free speech? That’s the key question at hand.
Previous decisions handed down by the U.S. Supreme Court interpret the First Amendment as prohibiting government from “compelling” objectionable speech unless it does so in the least restrictive way to further a very important government purpose. This standard establishes the bar so highly in favor of free speech that government laws rarely clear it.
If the government can force mission-based organizations like pregnancy resource centers to promote actions directly at odds with their beliefs, where does it end? Whenever government attempts to compel the speech of a person or organization so as to provide a message of support on one side of an issue of great public importance, it crosses the line set in the First Amendment that neither Congress nor the states may pass a law “abridging the freedom of speech.”
At a time in our history when radical secularism within government is aggressively taking stands on cultural issues that conflict with biblical positions, Christians should pray for and support efforts to defend our First Amendment freedoms and the right to speak truth in a culture that desperately needs to hear it.
Originally published in the May 2018 issue of Citizen magazine.