Jack Phillips recently celebrated two anniversaries. On Labor Day, his bakery, Masterpiece Cakeshop in Colorado reached its 30th anniversary. The other anniversary this year was less celebratory. He has now spent 11 years in court fighting for his right to refuse to make cakes that conflict with his religious beliefs. In 2012, Charlie Craig and David Mullins asked Phillips to make a cake for their same-sex marriage. As a devout Christian, Phillips declined. He would sell any pre-made cakes to customer, but said that he could not morally make a cake for same-sex marriages.
That refusal turned Phillips’ tiny bakery into ground zero for the long-standing battle between religious rights and anti-discrimination laws. The Colorado Civil Rights Commission found that Phillips must make the cakes under the Colorado Anti-Discrimination Act (CADA).
The case went all the way to the Supreme Court in what many of us hoped would be a final resolution of this conflict. I had long criticized the framing of the case (and other cases) under the religious clauses as opposed to taking this as a matter of free speech. In the end, the Supreme Court punted in a maddening 2018 decision that technically ruled in favor of Phillips based on a finding that the Commission showed anti-religious bias against Phillips.
As a result, Phillips was thrown back into an endless grind of litigation as activists targeted his bakery for additional challenges by demanding cakes with other messages that Phillips found offensive.
This year, the Supreme Court delivered a major victory for free speech in 303 Creative v. Elenis when it ruled that Lorie Smith, a Christian website designer, could refuse service to a same-sex marriage. Justice Neil Gorsuch wrote “the framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’ … They did so because they saw the freedom of speech ‘both as an end and as a means.’”
The decision was not just a vindication for Smith but Phillips. However, Phillips continued to languish in the Colorado system, spending over a decade in non-stop challenges and lawsuits. Because the Supreme Court could not reach a clear resolution, it left Phillips to the continued pursuit of activists targeting his bakery.
Now, the Colorado Supreme Court has agreed to hear the latest case involving Phillips.
In 2018, the nine justices ruled that the state of Colorado was hostile to Phillip’s religious beliefs and that the government can’t force anyone to create custom works of art that communicate a message.
In 2018, Phillips faced a second lawsuit, this time from a transgender lawyer who requested a cake celebrating a gender transition. When Phillips declined, he was back in court on grounds that he discriminated against the lawyer. The Colorado Supreme Court just agreed to hear his case.
The latest case began the year that Phillips was tossed back to the Colorado courts by the Supreme Court. Autumn Scardina, who identifies as transgender, asked Phillips to make a cake celebrating a gender transition – pink on the inside, blue on the outside. When Phillips declined, Scardina then asked for a cake depicting Satan smoking a marijuana joint – which Phillips also declined.
In his filings, Phillips alleges that “Scardina promised Phillips that, were this suit dismissed, Scardina would call Phillips the next day to request another cake and start another lawsuit.”
The recognition of Phillips’ rights were simply untimely for the Court. He had to be sent back to languish in litigation until the Court could eek out a majority this year.
For those of us in the free speech community, the issue is not underlying values on either side but the right to maintain opposing values. A Jewish baker should not be expected to make a Mein Kampf cake or an African American baker a KKK anniversary cake. Likewise, a LGBT baker should not be required to make a cake denouncing equal rights or homosexuality. It is all speech when part of a creative product.
All of these businesses, however, must sell pre-made products to anyone regardless of their status. In 303 Creative, the Supreme Court emphasized that any discrimination against customers in obtaining non-expressive or pre-made products would remain unlawful.
Phillips has cited a gay man who testified on his behalf in court in affirming that he has not discriminated against LGBT members in such purchases.
The appellate court found that one of the cakes with only blue and red icing lacked expressive content. Phillips insists that it was made clear to him that it was a celebration for a gender transitioning.
That case presents a line drawing issue that I discuss in my forthcoming law review article, The Unfinished Masterpiece: Compulsion and the Evolving Jurisprudence over Free Speech, 82 Maryland Law Rev. (forthcoming 2023). In discussing the Masterpiece Cakeshop decision, I wrote about the concurrence opinion that touched on this point:
“While the majority opinion lacked the bold embrace of an autonomous view that some of us had hoped would emerge, the partial concurrence by Justice Clarence Thomas, joined by Justice Neil Gorsuch, hinted at something more for later cases. Thomas concurred to offer a broader view of free speech. He noted that the Tenth Circuit acknowledged that some cakes may have particular writing or imagery connected to a wedding, but he stressed that, regardless of such content, baking is inherently creative and, therefore, speech:
‘[A] wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes as wedding cakes.'”
We will now have a case that could establish greater clarity on that issue. In 303 Creative, Justice Gorsuch clearly indicated that the purpose of the cake weighed heavily in the free speech analysis. It is not clear whether other justices in the majority would join the dissenting justices in an alternative approach. In such a case, Jack Phillips could find his way back to the Supreme Court seeking constitutional relief.