In 2012, two men asked Jack Phillips, owner of Masterpiece Cakeshop (a bakery in Colorado), to create a wedding cake to celebrate their same-sex marriage. Phillips told the couple that he would gladly sell them any of the premade baked items in his store or create a cake for them for another occasion, but he was unable to create a custom cake to celebrate a same-sex marriage. The couple left the store and, shortly thereafter, filed a complaint with the Colorado Civil Rights Commission.
In 2014, the Commission determined that Phillips’s artistic freedom didn’t extend to a choice not to celebrate same-sex marriage (a strange and remarkable decision given the Commission’s subsequent deference toward cake artists who declined to create cakes expressing disapproval of same-sex marriage). The Commission ordered Phillips to celebrate same-sex marriages through his artistic designs to the same extent he celebrates any other marriage. This order forced Phillips out of the wedding industry, which has cost him about forty percent of his business and left him struggling to keep his family business afloat.
The Commission also instructed him to teach his staff, which includes his family members, that he was wrong to operate his business consistently with his religious beliefs. Finally, it directed Phillips to file quarterly reports with the government for two years, explaining to state officials when and why he declined any commissioned order. In other words, Phillips was ordered to provide a defense every time he exercised his First Amendment right to be free from compelled expression. The Colorado Court of Appeals upheld the commission’s ruling in 2015.
Phillips is going to the Supreme Court to vindicate not only his own First Amendment rights, but also the freedom of other artists to decline to celebrate events or express ideas that they do not support. Thus, freedom for Phillips is freedom for all artists.
As the December 5th oral argument date for his case grows near, the drumbeat proclaiming Jack Phillips must be forced to create a same-sex wedding cake against his conscience grows louder.
The most important consideration in Masterpiece Cakeshop v. Colorado Civil Rights Commission, we are told, is eliminating discrimination on the basis of sexual orientation.
Finally, the state and its defenders claim, the emotional harm felt by prospective customers upon hearing someone disagrees with their actions for religious reasons cannot be tolerated either.
Yet none of what we are being told here is true. First, no “discrimination on the basis of sexual orientation” has occurred in this case at all.
Phillips is not opposed to serving people who identify as homosexual; he simply objects to the celebration for which he is asked to create a cake — the same-sex wedding.
This becomes even clearer when we understand that Phillips will not create a wedding cake for two men even if they claim a heterosexual orientation, but will create a cake for a wedding between a man and a woman despite them identifying as homosexual.
Thus, Phillips is not acting based on the sexual orientation of his prospective customers; he’s only opposed to what they are celebrating, and asking to not be forced to be a part of it.
The cost of protecting this freedom is minimal, only entailing some offense on the part of the prospective customers, who will now have to go elsewhere to find a cake, most couples inquire with multiple shops anyway, for their wedding ceremony.
The two men who initiated the legal case against Phillips could have visited any one of sixty seven other bakeries in the Denver area willing to create their cake, including one only a tenth of a mile from the Masterpiece Cakeshop.
Instead, they filed complaints against Phillips with the state, which followed up by suing him. But in light of all these providers happy to create the cake, is it really necessary to force Jack Phillips to be the one to do so?
The would-be customers, after getting over their offense at Phillips’s beliefs, could have traveled 500 feet down the street to obtain their cake from someone happy to provide it.
Instead, they want to force Jack Phillips to create it, meanwhile, they had already obtained one free of charge from another bakery by the time they filed charges against Phillips.
Unfortunately, this coercion comes with the heavy price of forcing Phillips to violate his conscience or shutting down wedding cake operations and possibly going out of business.
At a recent practice oral argument, the American Civil Liberties Union claimed that this case is about “full and equal participation in civic life,” and if Phillips wants to say “God blesses this union” for any wedding, he must be forced to say it for all weddings.
Yet if those who want the government to punish Masterpiece Cakeshop get their way, Phillips and many like him around the country will themselves be excluded from full and equal participation in civic life.
Allowing religious business owners to continue to operate their businesses according to their deeply held religious beliefs will not push those identifying as homosexual out of society. However, forcing business owners to violate their beliefs could force many religious individuals out of the marketplace.
The Supreme Court should keep this in mind as it decides this case in the upcoming months.