Jack Phillips, the proprietor of Masterpiece Cakeshop, is once again in the dock. This time, he stands accused of violating Colorado’s anti-discrimination law by declining to create a cake that would symbolize and celebrate a customer’s gender transition. Phillips stood trial in March, and on June 15, a Denver County court ordered him to pay a fine.
The court framed the case as a simple matter of applying public-accommodation law to punish an unlawful refusal of service. “The anti-discrimination laws,” the court wrote, “are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right of access of businesses to buy products, are no longer treated as ‘others.’” The court flatly rejected the notion that issues of constitutional import were at play, concluding: “This case is about one such product — a pink and blue birthday cake — and not compelled speech.”
I represented Jack Phillips during his trial. To say his case is about a pink-and-blue birthday cake is akin to arguing that the Declaration of Independence was about a local dispute among Boston tea merchants. In the law, great questions are often debated through the lens of everyday life. Jack’s case raises great questions: What does tolerance look like in 2021 America? Who is entitled to civil rights? Are all Americans equal under the law? Or are some more equal than others?
In his work Repressive Tolerance, the German intellectual Herbert Marcuse explained his view that tolerance, properly understood, does not imply a level playing field. Rather, in Marcuse’s view, a “liberating tolerance” requires “intolerance against movements from the Right and toleration of movements from the Left.” According to Marcuse, this subversive form of tolerance was necessary “as a means of shifting the balance between Right and Left by restraining the liberty of the Right, thus counteracting the pervasive inequality of freedom” and “strengthening the oppressed.”
To most Americans, this odd form of “tolerance” sounds like a recipe for the oppression of disfavored beliefs. Applied to public-accommodation laws, this subversion of tolerance to promote intolerant ends is corrosive of the bedrock value of equality before the law and the maintenance of fundamental civil liberties. The trial of Jack Phillips, like a modern-day morality play, illustrates how pernicious — and far advanced — this subversion has become.
From the beginning, the plaintiff, a lawyer who identifies as female named Autumn Scardina, intentionally targeted Phillips for persecution. At one point, Scardina called Phillips and requested a cake depicting Satan smoking a joint to “correct Mr. Phillips’ errors of thinking.” Scardina also called Phillips on the day the U.S. Supreme Court agreed to hear Phillips’s first case and requested a pink cake with blue icing. Scardina carefully crafted the conversation as a “test” and “verification” of Phillips’s beliefs — only revealing the purpose of the cake to celebrate a gender transition after confirming that Masterpiece Cakeshop could, in fact, create a pink and blue “birthday cake.”
And while the court found that “the act of making a pink cake with blue frosting is not speech,” Scardina candidly testified that “the blue exterior . . . represents what society saw me as on the time of my birth,” and the “pink interior was reflective of who I am as a person on the inside.”
Why the elaborate ruse? Why not simply tell Phillips that Scardina identifies as a woman and ask for goods that do not carry a message that obviously conflict with Phillips’s well-known religious and conscientious beliefs? Wouldn’t that be a better test of Phillips’s intent? The reason, as the evidence at trial established, is that Phillips serves everyone, regardless of any number of characteristics, including sexual orientation and gender identity. He just won’t communicate certain messages that conflict with his core beliefs.
Lisa Eldfrick, Jack’s daughter who works at Masterpiece Cakeshop, testified about gladly serving gay and transgender customers, including some who are repeat customers. Mike Jones, a gay man and former prominent gay activist, testified about his deep friendship with Jack and the profound love and respect he experienced each time he stepped into Masterpiece Cakeshop. Jack Phillips showed the court the artist’s tools he uses to create custom cakes and explained that, while he serves all customers, his conscience does not allow him to use his God-given artistic talents to create messages that contradict his deep faith. And Jack’s wife, Debi Phillips, who answered the phone the day Scardina called to request the pink and blue cake, testified with tears in her eyes that she prays for Scardina to know God’s love, because God “loves us all. He gave His Son for us all.”
The court heard this evidence, yet still found that Phillips violated Colorado law because “the refusal to provide the bakery item is inextricably intertwined with the refusal to recognize Ms. Scardina as a woman.” In short, Jack Phillips must pay a fine because he will not violate his conscience and change his thinking about a matter fundamental to his faith and that of many others. This troubling result conflicts with the First Amendment and the core religious-speech liberties it protects, but it would have been celebrated by Herbert Marcuse.
The trial of Jack Phillips is indeed a tale of intolerance — the intolerance of an aggressive woke ideology determined to target, harass, persecute, and punish all who disagree with its tenets. That includes those, like Jack Phillips and his family, whose faith commands them to love and serve everyone.
Scardina could have obtained a cake celebrating gender transitioning from nearly any other bakery in Denver. But this case was never about ensuring that “members of our society who have historically been treated unfairly” receive “the every-day right of access of businesses to buy products.” It was, from the beginning, about “correcting” the perceived “errors” of Jack Phillips’s thinking.
Jack Phillips’s trial, then, is a case study in the application of repressive tolerance. To paraphrase Marcuse, sometimes the civil rights of men such as Jack must be stripped away to rebalance the scales of power in favor of those whom the elite deem sufficiently oppressed. Such a system, which dispenses legal privileges and disabilities based on shifting perceptions of one’s position within a hierarchy of oppression, will never guarantee fundamental liberties. It is a recipe for the sort of despotism our Founders risked everything to overcome.
Rather than grant privileges and rights to favored groups, our Founders restrained the state based on an understanding of equality before the law coupled with God-given inalienable rights. As Jack Phillips has shown us, that understanding is under assault. The hour is late. The battle must be joined.