The Supreme Court's "Gay Cake" Case Matters to All Americans


The Supreme Court's "Gay Cake" Case Matters to All Americans

Feb 5, 2018 6 min read

Former Visiting Fellow, DeVos Center

Emilie Kao was a Visiting Fellow for Heritage’s DeVos Center for Life, Religion, and Family.

Key Takeaways

The Supreme Court will decide how much power a government can exercise to force a person to create art that violates their conscience.

It was not about hostility to sexual orientation.

America’s founders believed in the simple principle that people of all faiths should be able to think, speak, and work without government oppression.

On Tuesday, the Supreme Court will hear oral arguments in a landmark religious liberty and free speech case, Masterpiece Cakeshop Ltd. v. Colorado Anti-Discrimination Commission.

This case is important to all Americans, not just to Jack Phillips, the Colorado cake artist and owner of Masterpiece Cakeshop, who petitioned the Court for a hearing. The Supreme Court will decide how much power a government can exercise to force a person to create art that violates their conscience. 

Jack Phillips is a Christian who believes that marriage is the union of one man and woman so designing a custom cake for a same-sex wedding would violate his conscience. But, what’s at stake in this case reaches far beyond the issue of marriage.

It will affect Americans of many beliefs and vocations for generations to come. At stake is whether the First Amendment to the Constitution protects all Americans at all times.

Colorado alleges that Jack Phillips discriminated against the two men because of their sexual orientation. In the state’s view, support for traditional marriage equates with discrimination. 

However, when the Supreme Court redefined marriage in Obergefell v. Hodges, Justice Anthony M. Kennedy wrote that support for traditional marriage is based on “decent and honorable” premises and held “in good faith by reasonable and sincere people here and throughout the world.”

He also said that the Supreme Court’s decision did not disparage people who support traditional marriage. That’s precisely why Colorado’s decision is so wrong. 

Jack Phillips welcomes and serves everyone, of all sexual orientations, selling them coffee and off-the-shelf baked goods. On occasion, he has to decline a custom cake order because it expresses an idea that violates his conscience.

He has declined requests for Halloween and divorce cakes, and he has declined to create anti-gay messages. The Satanic Temple recently asked him to create a cake for Satan’s birthday; he declined that order, too. 

When he politely told the gay couple he couldn’t design a custom wedding cake for them, it was for the same reason that he had said no to the other requests: it would have violated his conscience. It was not about hostility to sexual orientation. 

Colorado rightfully recognizes and respects the right of African-American cake artists to say no to requests for cakes expressing the racist ideals of the Aryan Nations Church. Colorado should also demonstrate this kind of respect for Jack Phillips’ First Amendment freedoms.

Some may think that Jack’s case affects only those in the wedding industry. But, the nation’s top fire administrator Kelvin Cochran, the former CEO of Mozilla Brendan Eich, and former Air Force Colonel Leland Bohannon all lost their jobs or opportunities to advance because of hostility toward their belief in traditional marriage.

New categories based on sexual orientation and gender identity have been added to anti-discrimination laws in 21 other states and Washington, D.C. And states are using them to punish many people in many professions for their beliefs about marriage, the family, and biological sex:

  • In Michigan, a farmer was banned from selling his fruit at a local market because he declined to host same-sex weddings.
  • In Illinois, families are prevented from fostering children if they won’t affirm transgenderism.
  • In Minnesota and Arizona, residents face criminal penalties if they operate a business that doesn’t conform to the state’s view of marriage.

All Americans should be concerned when people are no longer able to do their jobs because of their religious or moral beliefs about marriage, family, and sex differences. 

There is no need for states to impose draconian punishments on people like Jack Phillips, because the handful of lawsuits across the country have been over disagreements about marriage, not because people are being turned away from restaurants or hotels simply because they are gay.

The same-sex couple that went to Jack Phillips’ shop was inundated with free offers to make wedding cakes. They opted for one with rainbow-colored filling, highlighting how a cake can express a clear message and idea. But the couple still filed a complaint against Jack Phillips. As a result, he was targeted with angry, obscene phone calls and death threats.

Even Americans who support same-sex marriage should also care about this case—and support victory for Jack Phillips. Matt and T.J. are two gay men who support Jack’s religious rights fight.

Some may think that surrendering power to the state to punish someone like Jack will never affect them. But, this is short-sighted. Today’s orthodoxies can easily become tomorrow’s heresies.

This is exactly what happened to marriage. What was our country’s cultural orthodoxy yesterday has become cultural heresy. The winds of culture are always shifting, but the Constitution’s protections of our rights must remain firm.

Turning a blind eye when the government takes away a neighbor’s freedom is never the end of the story. If the government can become so powerful that it can override the will of some people to think, speak, and work according to their beliefs, then civil society has become so feeble that freedom depends on being on the “right side” of government.

This only works until you’re on the “wrong side.” Whatever one believes about marriage, surrendering control to the government to enforce its preferred beliefs on other citizens is a betrayal of freedom.

Jack Phillips and others like him could lose their freedom to create art, run businesses, and even retire with their life savings simply because they won’t bargain away their belief that marriage is between one man and one woman.

America’s founders believed in the simple principle that people of all faiths should be able to think, speak, and work without government oppression. This idea has endured for two and a half centuries and enabled people of vastly different religious beliefs to flourish here. 

Now, Jack Phillips is going to the Supreme Court to ensure that the First Amendment will continue to protect all Americans at all times.

This piece originally appeared in The Hill on 12/5/2017