Jack Phillips is back in the news, or perhaps he never left. On Jan. 26, the Colorado Court of Appeals decided that he violated state law by declining to create a custom cake to celebrate a man’s “gender transition.” The decision shows that courts still don’t get what religious freedom really means.
Phillips and his wife, Debra, are Christian co-owners of Masterpiece Cakeshop in Lakewood, Colorado. In business since 1993, Masterpiece sells pre-made goodies in the store, and custom cakes that Jack designs and creates. Phillips has said that he strives to be obedient to Jesus Christ “in all aspects of his life,” including in his business and in exercising his personal skill in creating designer cakes. To that end, the Masterpiece website states that Phillips “cannot create custom cakes that express messages or celebrate events that conflict with his religious beliefs.”
Like other states, however, Colorado has a law, the Colorado Anti-Discrimination Act (CADA), that prohibits discrimination in “places of public accommodation,” including businesses, on the basis of, among other things, sexual orientation. LGBT activists claim that, by declining to create cakes for same-sex weddings or to celebrate gender transitions, Phillips violates the CADA by discriminating on the basis of sexual orientation.
Here's a recap of Phillips’ first round. In 2012, a same-sex couple asked him to create a cake for their wedding. When he declined, they filed a discrimination complaint with the Colorado Civil Rights Commission (CCRC). The U.S. Supreme Court eventually ruled in Phillips’ favor, but on factual grounds unique to that case. Statements and actions by CCRC members, the Court held, “cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”
That’s a polite way of saying that the CCRC’s overt and ugly anti-religious bigotry fell far short of “the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” The Court stopped there, however, and did not address more generally how to handle these conflicts between civil rights statutes and the First Amendment right to freely exercise one’s religion.
Which brings us to Phillips’ second round. Autumn Scardina, a biological male who identifies as a woman, asked Masterpiece to create a custom pink birthday cake with blue frosting. Another Masterpiece employee initially said that Phillips could create such a cake but, when Scardina then revealed that the party, and the cake, were to celebrate Scardina’s gender transition, Phillips declined.
Scardina could have purchased a pink cake with blue frosting almost anywhere, but chose Masterpiece. Scardina specifically sought a custom cake that Phillips would personally create, asking for one without an explicit message and withholding the information certain to elicit a refusal. This gambit was so that Phillips’ religious exercise objection would be based on how the cake was used rather than its objective appearance. One way or another, Scardina was determined to deprive Phillips of any room for exercising his faith while staying in business.
Scardina’s suit alleged that, by refusing to sell “a birthday cake” because Scardina “is transgender,” Masterpiece violated both the Colorado Consumer Protection Act (CCPA) and CADA. The trial court, however, rejected Scardina’s CCPA claim. Scardina claimed to have gone to Masterpiece because of Phillips’ public statements that he would sell cakes to LGBT customers. That might have constituted commercial speech under CCPA’s jurisdiction. In fact, the court noted, Scardina targeted Phillips because he had explained his religious beliefs when discussing his previous Supreme Court case. This was, instead, speech about “a matter of public concern” that was beyond CCPA’s reach.
The trial court, however, agreed with Scardina on the CADA claim. The court concluded that, if the cake Scardina requested conveyed “a celebratory message about gender transitions,” it would be attributed to Scardina rather than to Phillips and, therefore, did not amount to compelled speech. And the trial court rejected Phillips’ religious exercise claim because CADA is “a neutral law of general applicability” that did not target religious belief.
The Colorado Court of Appeals affirmed the trial court’s decision. Withdrawing its initial agreement to make the cake after Scardina disclosed “what the cake was for,” the court said, showed that it was “Scardina’s transgender status…that caused Masterpiece and Phillips to refuse to provide the cake.”
The court was simply wrong on the facts. Phillips has no problem making a custom pink cake with blue frosting for a man who identifies as a woman and, had that been the request, would have done so for Scardina. The disclosure of “what the cake was for,” however, turned that generic request into one that would require Phillips to knowingly contribute to celebrating something that violated his religious beliefs. That, no doubt, was exactly what Scardina had in mind.
In other words, Phillips made his decision about making this custom cake not based on anything related to Scardina, but on something very important to him: his exercise of religion. This is what courts, like the one in this case, don’t seem to grasp.
Phillips, like other religious business owners, is simply trying to preserve a small, but vital, “safe space” in which he can pursue both his commercial skill and his personal faith. Doing so will not prevent any customer from obtaining any cake they want for whatever purpose they choose. One website, for example, lists no less than 49 cake shops and bakeries in Denver – and those are just the “best” ones.
Crossing this line, however, means that Phillips must either violate his religious beliefs or pay dearly for being faithful. LGBT activists bringing these legal challenges do not simply want to buy a particular cake, floral arrangement, or photograph, they want to obtain such things by forcing someone to violate their religious beliefs.
The Supreme Court found a way to avoid addressing this conflict in Phillips’ first case but hopefully they will address it soon. We’re witnessing what once was considered a fundamental and inalienable right to exercise religion—a right with roots extending long before the United States was born—being overwhelmed by an ideological campaign that, so far at least, seems to have the courts confused about what religious freedom really is.
This piece originally appeared in RealClear Policy