Generations of American Christians have grown up believing that they live in a country where the freedom to practice their religion, including the right to speak in favor of it or refrain from speaking contrary to it, is guaranteed by the Constitution. Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, has become the face and voice behind that belief since he was first sued in 2012 for refusing to use his creative talents to create a custom wedding cake for a same-sex couple.
Phillips was pursued by Colorado’s Civil Rights Commission all the way to the U.S. Supreme Court, which in 2018 ruled 7-2 against the state, finding that the Commission had violated Phillips’ freedom of religion. The Commission treated his religious claims with hostility and handled his case differently than other bakers’ claims in other cases where they had refused to bake cakes with messages contrary to their beliefs.
The Supreme Court, while deciding in favor of Phillips in 2018 on religious freedom grounds, shied away from deciding whether the baker’s free speech rights were also implicated in his refusal to bake a cake celebrating a homosexual union. The majority opinion stated that the facts of the case were sufficiently confusing that they could not decide that issue and left it for another day and a future lawsuit.
Jack became the instant target for that future lawsuit when a Denver-area lawyer by the name of Autumn Scardina ordered a cake from Masterpiece that had to be blue on the outside and pink on the inside, to commemorate Scardina’s gender transition from a male to a female. It was no random call; Scardina’s attorney admitted that Scardina called Masterpiece to order that specific cake design in order to “call Jack’s bluff.”
Jack refused, telling Scardina what he has told everyone since at least 2012: He will happily serve all customers, gay, straight or transgender; but he will not create all messages. He won’t bake a Halloween cake, or a Satan cake (another request by Scardina), or messages that go contrary to his Christian beliefs.
Scardina initially convinced that same Colorado Civil Rights Commission to go after Jack for discrimination, but after Jack’s lawyers with Alliance Defending Freedom filed a counterclaim against the commission – which had already been chastised by the Supreme Court for its animosity toward Jack – the Commission had a change of heart, settled, and dismissed its lawsuit.
That left Scardina to pursue a civil case against the Christian baker alone, and after the trial judge recently threw out part of the claims the lawyer had hoped to use against Jack, trial began this week.
As columnist William McGurn of The Wall Street Journal pointed out recently, the law and the composition of the Supreme Court have only gotten more friendly toward Jack’s free speech defense since his 2018 victory in that court. McGurn is referring to the high court’s decisions in two major free speech cases defending the rights of those who resisted a government effort to compel them to speak contrary to their beliefs: one concerning a pro-life position (NIFLA v. Becerra), and one where public employees were forced to pay union dues that were used to further political messages with which they disagreed (Janus v. AFSCME).
McGurn also highlighted that since Jack’s case was decided by the Supreme Court in 2018, Justices Brett Kavanaugh and Amy Coney Barrett have replaced Justices Anthony Kennedy and Ruth Bader Ginsburg. Both of those replacements, at least on paper, have created a court at least as protective, if not more so, of First Amendment rights than the one that gave Jack his partial victory.
Also, legal developments in the states since 2018 have supported several Christian merchants whose expressive talents put them at risk of violating nondiscrimination laws similar to the Colorado version that has ensnared Jack. Cases from Arizona, Minnesota, and Kentucky have vindicated the rights of creative artists to turn down business that would force them to create a message with which they disagreed.
And that’s the setting in which Jack Phillips finds himself as he once more defends his right to live out his faith as he sees fit. And it’s not at all unfair to Scardina or anyone else that Phillips should be able to do so. After all, Scardina could have gone to dozens, if not hundreds of other bakeries in the area to order his “gender transition” cake. Scardina chose to sue Jack to force him to either compromise his faith or go out of business.
Jack has always said that he’ll sell to anyone who wants to buy something off his shelf. But if you want him to use his talents to create a message, then there’s a larger issue at stake: the right to say “no.”
The First Amendment was designed to protect Christians, Muslims, Jews, and other religious as well as non-religious folk from being forced by government to express a message contrary to their deeply held beliefs. Jack has been in the crucible for nine years and counting in an effort to vindicate that right.
Jack is not fighting for the “right to discriminate,” as his detractors like to characterize it, but for the freedom of everyone to live according to the dictates of their own conscience. That’s a principle that should garner widespread agreement. Maybe one day it will.
May the court trial this week, and any appeals growing out of it, be not only an opportunity to see the First Amendment vindicated, but also an opportunity to extend a hand of love to those who disagree with Jack’s position. Our pluralistic society can certainly survive and thrive when we respect one another’s deeply held beliefs and give each other the elbow room to live out those beliefs.
Photo from Alliance Defending Freedom