
On October 8, 2024, in a 4-3 decision in Masterpiece Cakeshop v. Scardina, the Supreme Court of Colorado may have finally ended the long-running ordeal of persecution by lawfare of Jack Phillips. The high-profile case began in the summer of 2012 after Phillips expressed his unwillingness to prepare a custom-made cake for individuals entering a same-sex “union” because doing so would have violated his Christian beliefs.
But that was just the beginning. Six years later, on the same day he prevailed at the United States Supreme Court in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Phillips declined the opportunity to bake a cake for a “coming out” party for an attorney “transitioning” from male to female.
In light of the Supreme Court of Colorado’s having vacated earlier judgments against Phillips in the second action defending his First Amendment rights to freedom of religion and speech, this column reviews the results of both cases and reflects on their potential impact on religious freedom.
Litigation involving Jack Phillips
Controversy in Masterpiece Cakeshop began in 2012 when Phillips chose not to bake a customized cake for a same-sex couple. After the state’s civil rights commission decreed that Phillips violated the Colorado Anti–Discrimination Act (CADA) by denying services due to sexual orientation, he filed litigation that reached the Supreme Court. A divided Court reasoned that the Commission violated Philips’ rights by demonstrating overt hostility to his Christian faith.
However, the Justices sidestepped Phillips’ claim that requiring him to prepare a cake for the same-sex union would have infringed on his rights to the free exercise of religion and speech by compelling him to employ his artistic talents to express a message with which he disagreed.
As noted, on June 4, 2018, the day the Supreme Court decided in Phillips’ favor, he politely declined an email request to prepare a “three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” black Dildo [sic]. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake.”
According to a report in Newsweek, which surveyed prominent bakeries in Denver, while all would have prepared the cake, only one would have included the Satan statue. Despite this, and having apparently singled out Phillips due to his beliefs, rather than comply with CADA’s requirement that aggrieved parties exhaust administrative remedies with the appropriate state agencies before initiating litigation, lawyers for Autumn Scardina successfully filed suit.
In the opening paragraph of its ruling vacating in Phillips’ favor on procedural grounds, the Supreme Court of Colorado acknowledged that the underlying constitutional question addressing how “governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market” is the focus of intense public debate.
Still, the court explained that it heard the appeal “to determine, among other issues, whether Scardina properly filed her case in the district court. We conclude that she did not.” Emphasizing that “CADA is not ambiguous” in this regard, the court found in Phillips’ favor without addressing his claim that Scardina sought to infringe on his protect free speech expressive rights.
Ignoring CADA’s clear directive mandating administrative review—and using language Scardina’s attorneys could have written—the dissent argued that “the majority’s ruling throws Scardina completely out of court and deprives her of the opportunity to seek a remedy for alleged discriminatory conduct based on a novel interpretation of law that no party asserted and, to my knowledge, no court has adopted.”
Concerns and possible challenges
Masterpiece Cakeshop is certainly a welcomed outcome, as Jack Phillips was again, with the help of Alliance Defending Freedom, able to fend off further attempts to violate his First Amendment rights. Because the Supreme Courts of both the United States and Colorado refused to reach the merits of Phillips’ underlying constitutional claims, though, the door remains open for similar challenges to continue against Christians and other people of faith.
The first of three troubling aspects in the saga of Masterpiece Cakeshop is why people, such as Scardina, would seek out Jack Phillips apparently to harass them solely due to their religious beliefs? Especially when others, as reflected in the Newsweek report, were available to prepare cakes without hesitation, even if most were unwilling to add the Satanic decoration. After all, as important as cakes can be in the lives of individuals and couples, they are ultimately luxuries. No one was being denied essential life services such as healthcare. How far are Americans willing to go in allowing individuals to single out and subject others to such overt lawfare? Where is the vaunted tolerance about which we hear so much? Why is it that tolerance, like respect, is a one-way street in such situations?
Secondly, what do activists (as exemplified by Scardina) hope to accomplish by adopting a scorched earth policy in singling out individuals such as Phillips rather than attempting to find amicable ways to resolve their differences? Is this the direction American society should be headed?
Third, there is the disingenuousness of the dissent’s apparent willingness to have agreed with the attorneys representing Scardina in ignoring CADA’s clear dictates on the need to pursue administrative remedies before seeking intervention. Whatever happened to jurists applying the law as written rather than in a manner designed to achieve their activist goals?
Looking to the future, the litigation against Jack Phillips calls to mind a statement from Justice Jackson’s opinion for the Supreme Court in West Virginia State Board of Education v. Barnette. Upholding the rights of children who were Jehovah’s Witnesses to not recite the Pledge of Allegiance because this would have violated their religious beliefs, Jackson observed
…freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
It remains to be seen whether people of goodwill on both sides of this debate can reconcile their differences in order to safeguard freedom of religion and speech. The way in which the tension between the rights of believers and transgender individuals is resolved will play a role in defining the future of freedom of religion and speech in the United States. Hopefully Americans can learn to live with those whose values are different, agreeing to disagree but not being disagreeable over these issues as they come to respect others’ opinion over matters “that touch the heart of the existing order” amid changing times and mores.
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“people of goodwill on both sides of this debate”? Are you serious, Charles? If so, you have a serious failure to understand the nature of the anti-Christians in modern America and the correct response to them.
It’s time to be the Church Militant and stand up to our enemies instead of pretending they are reasonable (or even decent) people.
The Colorado wedding-cake case was paralleled by a similar flower-shop case in Washington State https://en.wikipedia.org/wiki/Arlene%27s_Flowers_lawsuit.
For a decade the proprietor (a member of my high school graduating class, and a Baptist) had graciously arranged flowers separately for two homosexuals, but then declined to arrange a wedding bouquet. The state attorney general—a rigorously liberal attack dog of less than good will, and a Catholic—amplified the costly litigation by threatening to drain the shop owner (a dangerous flower shop!) with loss of home and retirement funds, everything.
Unlike the Colorado case, another weapon was a state law having to do with consumer protection. After the first Colorado ruling, the U.S. Supreme Court remanded the flower shop case back to the liberal state Supreme Court who then still ruled 9-0 against the defendant. In the end, the owner declined to have her case linked to the Colorado case, and the United States Supreme Court then declined to hear her appeal.
The owner retired after paying a $5,000 damages fee, explaining that it now falls to others to deal with the barbarians, or words to that effect. The attorney general is the front runner in the current governor’s race in the icy blue state of Washington.
Your remark about the state attorney general as being Catholic is offensive. As a Catholic Iwould suggest to you to embrace all of Christianity. For our Lord said there will be weeds amount the wheat. We don’t need to make waves between denominations but be reminded that we’re one body under one head our Lord Jesus Christ. There are certainly those who do not believe in the Word of God or the doctrines of Jesus in every denomination sad to say but our Lord I believe will unite us all. Baptist, Catholic, Lutheran, Presbyterian , Orthodox, Pentecostal, Methodist, etc. someday. Those who have been persecuted for the sake of the Gospel of Jesus Christ will recieve their reward.
M. Brown: Catholicism is NOT a denomination. The Catholic Church possesses the fullness of the faith. These protestant denominations you mention do NOT have valid orders.
I understand but try to put a positive spin on things, C. I do agree we must fight but still pray reason can prevail.
Thanks, Peter.
I ama ware of this case and there are others, too. Sigh.
Charlie
My understanding is that the case was thrown ot on purely procedural grounds, something to the effect of the suit not being filed correctly. If that is the case, no one should be interpreting this as a win. The enemies of faith are free to file another suit.
QUESTION: Is Jack finally free?
ANSWER: Does Deep State still exist?
Great question, Deacon.
Thanks,
C
As soon as the Obergefell decision was announced, I feared that it might be used to target Christian florists, bakers, photographers, etc. — any profession related to the wedding industry — in order to force them into compliance or drive them out of business. (If I’m not mistaken, one of the dissenting Justices wrote of that possibility in his dissent.)
I’m reminded of a religion professor I had in college in the mid-‘70s who said that during the Roman Empire, persecution against Christians often didn’t involve the “throw them to the lions” forms seen in movies; at times, it was more subtle, like forbidding them from enetering certain professions. Nowadays it’s a matter of trying to drive them *out* of certain professions.
Sadly do, Ken.
This is from Alito’s prescient dissent in Obergefell.
Keep the faith.
Charlie
Insofar as he viewed the majority’s opinion as usurping the right of the People to decide whether to keep the traditional view of marriage, Alito sounded the alarm that the Court’s rationale would have other consequences in that it “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” He added that although the majority sought to allay the concerns of believers, remained deeply concerned that “those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”