Bench Memos

Law & the Courts

Jack Phillips Wins Again

Masterpiece Cakeshop owner Jack Phillips (Rick Wilking/Reuters)

Imagine this scenario: You’re a business owner who always works to do the best job for your customers, who gladly serves all comers, and who tries to run your business in accordance with your deeply held convictions. This means that sometimes you choose not to use your talents to express certain messages or celebrate certain events. Because of your convictions, members of your state’s Civil Rights Commission target you, publicly call you a “hater,” compare you with Nazis and slaveholders, and drag you through years of litigation.

Meanwhile, that same commission goes out of its way to defend the rights of other businessowners — the same rights they are trying to deny to you — as long as those businessowners’ convictions line up with the commission’s preferred opinions.

Now imagine this: The U.S. Supreme Court rules 7–2 in your favor and criticizes the Civil Rights Commission for its unequal treatment and anti-religious conduct. You would think that after all that, you’d be left alone to operate your business as best you can, serving all comers and abiding by your deepest convictions.

Well, you’d be wrong.

This is reality for Jack Phillips, a Colorado-based cake artist who, because of his convictions about marriage, chose not to create a custom cake celebrating a same-sex wedding. Phillips offered to sell the customers other items or to create cakes for them for different occasions, explaining that he simply couldn’t craft a cake to celebrate a same-sex marriage. Soon after, the Colorado Civil Rights Commission launched a years-long campaign against Jack, requiring him to cease all of his wedding work and to teach his staff, which includes his own family members, that he was wrong to operate his business consistently with his faith. Because he was prohibited from creating wedding cakes, Jack lost over 40 percent of his business.

After all this, in June 2018, the Supreme Court decided 7–2 in Jack’s favor. Former Justice Anthony Kennedy, who wrote the majority opinion, criticized the commission’s treatment of Jack, saying, “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward [Jack’s] sincere religious beliefs” (emphasis added).

It seems like this Supreme Court ruling should have been the last word in the situation. But just a few weeks later, the state of Colorado doubled down on its discriminatory treatment of Jack, targeting him with another complaint.

In 2017, on the very same day that the Supreme Court announced it would hear Jack’s first case, Jack received a request from an attorney to create a cake that was pink on the inside and blue on the outside. The attorney clearly explained that the cake was intended to celebrate a gender transition from male to female. Jack declined the request because the custom cake would have expressed messages that conflict with his deeply held beliefs. The state doubled down on its hostility toward religious convictions by announcing that it was prosecuting Jack for declining to create the gender-transition cake.

The evidence of the state’s anti-religious hostility is overwhelming. During the original case, one of the commissioners compared Jack’s desire to operate his business according to his religious beliefs with the justifications given by Nazis and slaveholders for their egregious treatment of others.

Fast forward to the second case, and a commissioner involved in that one publicly called Jack a “hater” on Twitter. And at a public meeting after the Supreme Court’s ruling, commissioners expressed their support for the very anti-religious statements and attitudes that the Court had sternly condemned, including previous Commissioner Diann Rice’s statement that Jack’s plea to protect his religious freedom is “a despicable piece of rhetoric.” One commissioner even said, “I was actually proud of what she said, and I agree with her.” The anti-religious hostility is so strong that, in November 2018, one of the commissioners blew the whistle on the others, by expressing the belief that “there is anti-religious bias on the Commission.”

After the commission’s second attack on Jack’s religious freedom, he and his attorneys with Alliance Defending Freedom filed a federal lawsuit against the state. That lawsuit uncovered substantial evidence of the commission’s anti-religious hostility. And on March 5, 2019, the commission finally announced that it was dismissing its charges against Jack.

So now, after more than six and a half years, the state of Colorado is ending its legal campaign against Jack. His victories — at the Supreme Court in 2018 and pressing the commission to drop its charges in 2019 — are good news for every American. Respect for others who hold differing opinions is at the very core of a diverse society like America.

Government agencies such as the Colorado Civil Rights Commission cannot be allowed to treat people with hostility simply because of their beliefs. And because Jack had the courage to stand up for his freedom — sacrificing business and years of his life, and withstanding hateful rhetoric about his character and reputation — we are one step closer to ensuring that all are free to live and work consistently with their religious convictions.

Kristen Waggoner is senior vice president of U.S. Legal Division for Alliance Defending Freedom and argued before the U.S. Supreme Court on behalf of Jack Phillips and Masterpiece Cakeshop.

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