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.
Jonathan
Looks like whack-a-mole should stick to Monty Python. Dennis thinks that Phillips has been running around filing lawsuits for 11 years. He thinks phillips is the Plaintiff in this case.
He also demonstrates his preference for mob rule, by insisting that Phillips should just capitulate, because thats what the “majority” of Americans want. Someone tell him that the constitution isn’t a Vox poll.
And of course, every case, the outcome of which he doesnt agree, is just the illegitimate offspring of that right wing cabal. He loves to applaud the processes and actions of government until he doesnt.
Again we see why he likes to parachute in, drop a deuce, and leave. EVERY time he tries to engage, he steps in it.
The courts mistake and yours is fixating on expression
Everything is expressive in some way
The punishment for those whose business choices offend you is not to do business with them
This is not limited to free speech
All laws limiting the rights of buyers and sellers to choose whether to transact are morally wrong.
We fixate on slavery today
It is slavery to force anyone to do as they choose not to
No matter how offensive you think their reasons
“DICTATORSHIP OF THE PROLETARIAT (I.E. HIRED HELP)”
Now you understand what Karl Marx’s “dictatorship of the hired help” means: To force or compel free individuals to perform and obey the orders of the collective state, the inverse of freedom.
The Constitution and Bill of Rights provide maximal freedom to individuals, including the right to choose, to accept or deny, and to discriminate. A free society is configured and shaped by the choices of free individuals, not by governmental edicts or dictates.
If one adheres to the Constitution, one understands that the Colorado Anti-Discrimination Act (CADA) is unconstitutional as it constitutes an attempt to deny constitutional rights and freedoms, including those of speech, religion, private property et al., and to nullify and supplant the U.S. Constitution and Bill of Rights.
The prevailing constitutional argument for Jack Phillips is that of the 5th Amendment right to private property. Jack Phillips’ freedoms of speech and religion notwithstanding, the baker alone holds sole dominion over his private property in every aspect and facet. The property owner may allow or deny access to, or engagement with, any member of the public, for any reason and for any purpose, and at the sole discretion of the private property owner.
Individuals are free to patronize, or not patronize, private property, free enterprises.
Private property, free enterprises are free to serve or deny service to any or all individuals.
_________________________________________________________________________________________________
“IN EXCLUSION OF EVERY OTHER INDIVIDUAL”
“[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
– James Madison
___________________
5th Amendment
No person shall be…deprived of…property,….
The Democrats’ relentless persecution of Mr. Phillips provides yet another example of Epstein’s Second Law of Democrat Behavior:
That which the Democrats can’t control, they will destroy.
Too bad the majority ignored the minority that claimed gay marriage acceptance would lead to all kinds of imbecilic new threats to society and the waste of time and resources in fighting an inane left agenda.
OT
THIS CHILDISH BULL—- HAS GOT TO BE STOPPED
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“Ninth Circuit issues partial stay in California large-capacity gun magazine case”
“The four dissenting judges railed against the majority decision, calling the Ninth Circuit’s attitude about the Second Amendment ‘laughably absurd.'”
– Courthouse News Service
______________________________
How and why is it that judges cannot read and comprehend the English language, specifically, “Shall not be infringed?
It’s as if the anti-American, anti-Constitution, equivocating judges posited that although people enjoy the freedom of speech, those people are not allowed to think and deliberate to determine what they intend to say.
Thoughts are critical components of speech, as magazines are critical, essential and absolute components of arms.
Magazines are arms and arms are magazines – Americans may keep and bear them both; arms and magazines.
These judges must be impeached and convicted for dereliction, negligence, abuse of power, usurpation of power et al., and prosecuted criminally for gross, egregious fraud and corruption.
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2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The prosecutor is a gutless jerk. He wouldn’t dare try that at a Muslim bakery for fear he would be leaving with his head under his arm.
I wonder how applicable to this case might be the Closely Held ownership structure of a small bakery related to its free speech rights that it was in the Citizens United case.
This case is not about an alleged political agenda held by Jack Phillips. It is about freedom of expression as protected by the First Amendment. It doesn’t matter what your political beliefs are, or what your customer’s political beliefs are, the state government can’t coerce you as an artist, against your will, into creating messages that promote the state’s ideology.
So . . . if a no-nukes activist owned a cake shop in Denver, and a customer requested a cake with the message nukes have kept the peace, the shop owner could refuse to create that cake, even if the state of Colorado’s political orthodoxy was that nukes have indeed kept the peace – and even if the state wanted to propagate that message. True, the shop owner couldn’t refuse to sell the customer a cake based on the customer’s race, nationality, ethnicity, sexual orientation, and so forth. But again, that’s not what this case is about. It’s about the state forcing private persons against their will to engage in artistic expression that promotes the state’s ideology.
The liberals on this blog complaining about Mr. Phillips would actually be glad if they really understood this was a First-Amendment-based restraint on state power. I’m talking about liberals who care about civil rights. The leftists are not glad, however, as they believe in total government power over individuals rather than civil rights.
There are liberals who care about civil rights? Asking for a friend…
Some, if you give ’em a double dose of truthiness, will see the light. Others won’t.
Jonathan: Remember the Monty Python sketch about the “Dead Parrot”? It was one of their classics. John Cleese plays the part of a customer who buys a parrot but shortly after getting it home he discovers the parrot is dead. He immediately returns to the pet shop and confronts the pet store owner. The owner makes all sorts of excuses. “The parrot is just resting”. Cleese takes the parrot out its cage and bangs the dead parrot on the counter. “This parrot is no more! He has ceased to exist!”. The pet shop owner then replies: “No, the parrot is just stunned”.
I mention this famous sketch because it reminds me of Jack Phillips and his 11 yr battle to discriminate against LGBTQ+ couples. He keeps losing in state court but hopes the USSC will side with him: “My Masterpiece cake is not dead, it is simply resting. Please help me revive it!”
The big Q is how a small baker can afford 11 years of litigation? He obviously doesn’t have the personal financial resources. Backing him in the litigation is the “Alliance Defending Freedom”, a right-wing Christian group, that supports recriminalizing sexual acts between LGBTQ+ adults. They want state-sanctioned sterilization of trans people. ADF claims the “homosexual agenda” is destroying Christian civilization. This is the organization backing Jack Phillips’s litigation.
So like the pet shop owner in the “Dead Parrot”, the ADF and Jack Phillips think beating back LGBTQ+ rights is a fight worth fighting having–despite all the polls that show most Americans support LGBTQ+ and transgender rights. It’s a fight Phillips and the ADF lost years ago in the public’s minds. But they think their anti-LGBTQ+ agenda is not dead–it’s simply “resting”. The sad part is that the right-wing cabal on the USSC will probably agree and you will support that decision.
I’m so glad you cleared that up for me. Jack’s 11 year battle to discriminate stems from all the lawsuits he’s filed against gay and trans folk. Got it.
Bob Lawblaw: Got it. So do you think if Phillips dropped all his lawsuits and decided to serve everyone regardless of sexual orientation, he might be able to go back to a peaceful life–just making wedding cakes? Phillips can complain his life has been chaos the past 11 years but, hey, you are in for a penny and you’re in for a pound. He voluntarily signed up to be the poster for ADF’s Christian campaign so he can hardly complain.
You didn’t get the sarcasm. Phillips isn’t the one filing the lawsuits, genius. He’s been persecuted by other people filing lawsuits against him, or prosecuting him in the case of the State of Colorado.
You see, the people persecuting him aren’t really interested in a cake; they target his shop purposely knowing he would have to violate his conscience, so they can then entangle him in decades worth of litigation.
But . . . the persecutors in this case are crying their eyes out because not only is Jack winning, he’s blazing a trail of liberty for other good people to follow in.
Lmao Dennis doesnt know a thing about this. Take him only one round deep and he steps in it. He thinks this phillips guy is the one filing lawsuits.
LMAO
Thats the problem with cutting and pasting from Teen Vogue.
Better stick to Monty Python, Denny. Like python, most of your commentary looks like parody.
“. . . LGBTQ+ rights . . .”
There is no such thing as special-interest “rights.” There is no such thing as the “rights” of some group you happen to like. And there is no such thing as the “right” to violate another person’s rights — which in this case is Phillips’s right to private property, a right that includes the prerogative to exclude others.
Sam
“DICTATORSHIP OF THE PROLETARIAT (I.E. HIRED HELP)”
Now you understand what Karl Marx’s “dictatorship of the hired help” means: To force or compel free individuals to perform and obey the orders of the collective state, the inverse of freedom.
The Constitution and Bill of Rights provide maximal freedom to individuals, including the right to choose, to accept or deny, and to discriminate. A free society is configured and shaped by the choices of free individuals, not by governmental edicts or dictates.
If one adheres to the Constitution, one understands that the Colorado Anti-Discrimination Act (CADA) is unconstitutional as it constitutes an attempt to deny constitutional rights and freedoms, including those of speech, religion, private property et al., and to nullify and supplant the U.S. Constitution and Bill of Rights.
The prevailing constitutional argument for Jack Phillips is that of the 5th Amendment right to private property. Jack Phillips’ freedoms of speech and religion notwithstanding, the baker alone holds sole dominion over his private property in every aspect and facet. The property owner may allow or deny access to, or engagement with, any member of the public, for any reason and for any purpose, and at the sole discretion of the private property owner.
Individuals are free to patronize, or not patronize, private property, free enterprises.
Private property, free enterprises are free to serve or deny service to any or all individuals.
_________________________________________________________________________________________________
“IN EXCLUSION OF EVERY OTHER INDIVIDUAL”
“[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
– James Madison
___________________
5th Amendment
No person shall be…deprived of…property,….
So many people miss the very simple essence of the case. Baking cakes for sale is an art and art is an expression from the individual that created the art. To compel an individual to express a view or religious preference or other expression in their art, that the individual does not believe in or hold as their own truth, is illegal under freedom of speech. It really has nothing to do with religion. He could be an atheist and not believe in the concept of trans surgeries, because maybe that is repugnant to his own beliefs and therefore he would choose not to creat the cake. It’s all about compelled speech. It does not matter whether the customer is black, white, Christian, Jewish, atheist, Muslim, or an idiot like ATS, it is still an attempt to compel speech or freedom of expression of the cake baker (the creator). The customer then has the option of walking down the street and doing business with a different baker. Really so simple. People are trying to make this case something it is not. I would certainly think that must of us would have a lot more to do with our lives than try to make a baker create a cake repugnant to him. That is literally making a mountain out out of a molehill. I would truly have to question the sanity and thought process of any individual that was so focused on this issue.
Communists impose the “dictatorship of the hired help.”
Homosexuals impose the “dictatorship of the perverted.”
Every human being must be treated well.
Minorities, with their “rare diseases,” may never hold dominion under the Constitution.
Someone below equated a Mechanical Contractor refusing to work on a Homosexuals house is absurd. One, the contractor is not asked to perform work that is specific, (ie put a dildo is the vent), but to install new, repair or remove existing problems. But yes the contractor could refuse the work for any reason or no reason beyond I just don’t want to do it. The issue for Phillips is a cake made specifically to honor or celebrate (it does not matter). The key word is ‘specific’, a proper analogy could be requesting an animal rights artist/painter to render the trophy and pride of a hunter after killing an Elephant.
Once specific requests or decorations are added to the purchase it becomes the choice of the artist, contractor, or whomever to refuse the sale because you’re requesting modification of an existing product. Would you request a Chevrolet dealer to remove and replace their brand emblem with a Ford emblem, and then sue them if they didn’t honor your request (that’s how obtuse this is).
George W – the difference between a mechanical contractor and Jack Phillips is that Jack is engaging in expressive activity. There are public accommodation laws that generally prohibit a shop that is open to the public from discriminating as in refusing to serve a certain race or sexual orientation. Jack is not violating that law: he will serve any race or sexual orientation, the one thing he refuses to do is use his artistic skills to express ideas antithetical to his own belief system. It’s the expressive-activity facet of his work that brings this case within the scope of the First Amendment . . . as SCOTUS ruled in the 303 Creative case.
George, what old man means is Jack will sell an off-the-self cake to a gay or trans person, but he won’t make one with a message on it that violates his beliefs and principles. Clear now?
He’ll also custom make a cake for a gay or trans person, as long as the message on it doesn’t violate his conscience.
Democrats and Jihadists abhor Judeo-Christian religious principles except their own deeply religious dogmas.
Just 10-15 years ago, I would not have believed any of this possible. Does every case have to go to the Supreme Court to be smacked down with these people for the simple freedom to exist? The irony is thick with activist meatheads, and I think the answer is yes, it is part of their twisted strategy. The manipulation of our system is in and of itself reprehensible. I have not seen such self-centeredness in my lifetime in this country. This should have been a nothingburger from the start, but we live in the era of microaggressions and the people that encourage all of it. it’s maddening.