In the Treatment of Jack Phillips, the Cruelty Is the Point

T he least surprising revelation this side of the millennium — albeit one we felt important to observe, for the record — is that the Colorado Civil Rights Commission is neither civil nor particularly interested in rights, at least as “rights” were conceived of by James Madison and his counterparts. The case of Jack Phillips is an instructive example.

In 2012, Phillips, a Christian baker based out of Lakewood, Colo., declined to provide a custom-designed cake celebrating a same-sex wedding. His reasoning — that he still hewed to the basic view of marriage professed by most of humanity for most of civilization’s history — was reflected by Colorado law at the time, which still prohibited same-sex marriage. The gay couple soliciting Phillips’s services, David Mullins and Charlie Craig, planned to lawfully marry in Massachusetts. But they were unimpressed by Phillips’s religious objections. “Our story is about us being turned away and discriminated against by a public business,” Mullins told the New York Times.

That wasn’t true: According to a court filing, Phillips informed “Craig and Mullins that he would be happy to make and sell them any other baked goods.” Nonetheless, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission, which resulted in a lawsuit, which resulted in a series of successive court rulings ordering Phillips to simmer down and bake the cake. In the course of that time, Phillips opted to stop making custom wedding cakes altogether, which he claims cut his business by 40 percent. Eventually, in 2018, the Supreme Court sided with Phillips — but only on narrow, proceduralist grounds. Rather than defending the plain meaning of the First Amendment’s religious-liberty protections, the 7-2 ruling sided with Phillips only on the basis that members of the Commission had expressed anti-Christian sentiments during the process of adjudicating the case.

Rather than “substantive protections for traditional religious exercise and speech,” the Masterpiece Cakeshop ruling took issue with “procedural flaws in the state’s adjudication of the conscience question,” as Andy McCarthy noted at the time. “In essence, Phillips won because the oxymoronic Colorado Civil Rights Commission was mean to him. The Court does not say how the commission should have decided the matter; it merely admonishes that, in future hearings, the commissioners must avoid being so indecorous, so overt in their hostility to unreconstructed Christians.” Writing for the majority, Anthony Kennedy’s opinion was brimming with caveats — his ruling against the Commission, he stipulated, came “whatever the outcome of some future controversy involving facts similar to these.”

Future controversies arrived in short order. Phillips’s public expression of his faith had placed a target on his back, and the narrow Supreme Court ruling in his favor had the two-pronged effect of further inflaming activists while simultaneously depriving the baker of decisive, precedent-setting protections against their agitations. In 2017, “the very day the Supreme Court agreed to hear Phillips’s case, Autumn Scardina, a transgender activist in Denver, called Masterpiece Cakeshop and requested a custom cake with a blue exterior and a pink interior to symbolize a gender transition,” David Harsanyi wrote. Scardina was allegedly a member of the Church of Satan, and court documents alleged the activist had also sought Phillips’s services for charming depictions such as a cake celebrating Satan’s birthday, which would feature “a large figure of Satan, licking a 9″ black Dildo,” with the requirement that the dildo must necessarily be “an actual working model that can be turned on before we unveil the cake.”

Phillips, of course, politely declined Scardina’s requests. Scardina, of course, proceeded to file a complaint with the Colorado Civil Rights Commission. The commission, of course, ruled against Phillips. In August 2018, two months after his initial Masterpiece Cakeshop victory, Phillips was back in court.

Last week, a panel for the Colorado Court of Appeals upheld an earlier court decision requiring Phillips to bake Scardina’s transgender cake. No surprise there — the same court had also upheld the state’s original injunction demanding that Phillips bake the same-sex wedding cake. What should be abundantly clear at this point is that “civil rights,” in this context, are more about power — wielded against disfavored groups, and in favor of privileged ones — than any neutral conception of legal protection. Even as it ruled against Phillips, the Commission upheld the right of bakers to refuse to make a Bible-shaped cake inscribed with the message: “Homosexuality is a detestable sin. Leviticus 18:2.” This double standard is a feature, not a bug, of how these bureaucracies function. As NR’s editors noted today, the practical effect of the Left’s weaponization of anti-discrimination laws “is to demand that the faithful kneel before favored identity groups.”

In any event, now that Phillips has once again been denied his rights by the Colorado Court of Appeals, it’s not out of the question that he will be headed back to the Supreme Court to once again petition for his constitutional freedoms. It’s possible, given the more conservative makeup of the Court, that any future ruling could be more consistent with what the Constitution actually says. But even then, what’s to stop the long line of Autumn Scardinas, with near-limitless resources at their disposal, from dragging the beleaguered baker back into the fray? Jack Phillips has now been immersed in litigation for a decade. The brief reprieves provided by the courts, while obviously preferable to the alternative, do little to alter the substantive nature of his persecution. The formal legal affirmation of his constitutional rights does not negate the clear message communicated by the Colorado Civil Rights Commission and its allies: You may have these rights, but the exercise of them will come at a dear cost.

It was not uncommon to hear the earlier Masterpiece Cakeshop ruling celebrated as a decisive win for religious liberty. “You have freedom secured by law to a greater degree than it has ever been secured by law in the history of the United States,” David French argued on his podcast, citing the success of religious-liberty litigation. The fact that Christians harbor a persistent sense of foreboding about their place in this country is evidence that “what was driving evangelical anxiety wasn’t really the loss of liberty,” he concluded. “It was the loss of power.”

If the case of Jack Phillips is any indication, it should be clear by now that the two are far from mutually exclusive. The enemies of traditional religion in this country have made it abundantly clear what they plan to do with their power. And they remain undaunted by the fact that the courts, from time to time, deign to acknowledge that the Constitution still exists.