The Corner

Law & the Courts

As New Evidence of Progressive Bigotry Emerges, Jack Phillips Finally Wins His Case

Baker Jack Phillips decorates a cake in his Masterpiece Cakeshop in Lakewood, Colo., September 21, 2017. (Rick Wilking/Reuters)

Today my former colleagues at the Alliance Defending Freedom announced that the Colorado Civil Rights Commission will dismiss its pending discrimination charge against Masterpiece Cakeshop’s Jack Phillips. Even after Phillips won a 7-2 decision at the Supreme Court rebuking the commission for its clear anti-religious bias, it had pursued new charges against Phillips for failing to design a cake celebrating a male-to-female gender transition.

Remarkably, the evidence showed that Colorado had actually doubled-down on the religious bigotry that caused it to lose at the Supreme Court. In his opinion, Justice Kennedy singled out this statement from Commissioner Diann Rice:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

And here was Justice Kennedy’s response:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. . . . This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.

Yet despite this clear language from the court, Colorado official continued to express the same sentiments. As ADF outlines in its statement, two commissioners actually endorsed Rice’s unlawful comments after the Supreme Court issued its ruling:

At the June 22, 2018, public meeting, members of the commission discussed the U.S. Supreme Court’s ruling. During that discussion, Commissioner Rita Lewis said, “I support Commissioner Diann Rice and her comments. I don’t think she said anything wrong.” Later, Commissioner Carol Fabrizio added, “I also very much stand behind Commissioner Rice’s statements…. I was actually proud of what she said, and I agree with her…. I’m almost glad that something the Commissioner said ended up public and used, because I think it was the right thing.

I’ve long argued that Justice Kennedy’s “narrow” opinion in Masterpiece Cakeshop was actually more far-reaching than many observers thought — in part because the anti-religious sentiments Kennedy condemned are far more common than many imagine. I’ve seen similar sentiments actually written into campus policies justifying their own acts of anti-religious discrimination.

Here, the anti-religious sentiment was so powerful that the commissioners couldn’t help themselves. They just had to take another stand against Phillips’s faith.

Over on the home page today, I argue that America is becoming a two-faith nation, sacred and secular. We’re steadily creating a dynamic not unlike the Sunni-Shia, Hindu-Muslim, or Catholic-Protestant conflicts that have caused such pain and suffering in other nations across the globe. The secular faith — because it proclaims no allegiance to any deity — believes that it can explicitly capture the levers of government power. And, to an extent, they’re not wrong. The secular nature of the social-justice gospel means that it can be preached from the government pulpit in a way that the divinity of Christ cannot.

However, the social-justice gospel may not be wielded as a government weapon against the faithful. If the First Amendment means anything, it means that public officials cannot engage in blatant viewpoint discrimination against people of faith.

Congratulations to Jack Phillips. The latest phase of his long ordeal has come to an end. Congratulations to my friends and former colleagues at the Alliance Defending Freedom. They secured justice for their client. And now let’s hope that progressive governments have learned the right lesson.

I’m not optimistic. There will be more cases like this — at least until courts decisively teach the radical cultural left that its bigotry may not attain the force of law.

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