Phillips v. Colorado Civil Rights Commission: Will the Supreme Court Leave the First Amendment Intact? | Eastern North Carolina Now

    Publishers note: This post appears here courtesy of our sister site - Jefferson Rising.

Jack Phillips and his attorney, Kristin Waggoner, outside the Supreme Court building after Oral Arguments.    photo by Diane Rufino
    We've all heard of the case of the Christian cake artist who declined to bake a wedding cake for a same-sex couple because of his deeply-held belief in the Biblical view of marriage. What most people don't know are the details of the case.

    For example, the cake artist is Jack Phillips and he and his cakeshop (Masterpiece Cakeshop) were found guilty of discrimination in Colorado, in violation of an anti-discrimination law, at a time not only when the state constitution defined lawful marriage as only between a man and a woman, but also the law stated that no other type of marriage would be legally recognized in the state.

    Also, for example, Phillips himself was discriminated against on account of his particular religious views when the state granted multiple exceptions to other bakers to deny goods and services (ie, to "discriminate") when themes offended their sensibilities.

    You hear people refer to the man at the center of the case as a "Christian baker." What you don't hear is people referring to him as a cake "artist." You will hear this case referred to as one addressing the baker's free exercise of his religion; what you won't hear is that this case is also about his freedom of speech and expression.

    Most people hearing the limited facts gravitate to an issue that they are familiar with - religion v. gay rights - or the Right of one person to the Free Expression of Religion vs. Society's interest in not having certain individuals suffer discrimination. They right away see that the right that the state of Colorado is violating in the case is Phillip's right to live his life according to his religious beliefs. They see that Colorado is more interested in protecting the rights of homosexuals than in upholding the most essential right of all - the First Amendment's religious liberty guarantee.

    As it turns out, the case has not moved forward on that legal theory but rather on one most people would never have anticipated. Instead, the case is one about the scope of the Right to Free Speech and Expression. Under this umbrella of speech and expression, Phillips is bringing in his right to religious liberty by asserting that his religious beliefs, his creed, dictates how he will expresses himself.

    This (long) article seeks to acquaint you with the details and the many issues involved, including its inquest before the Supreme Court.

    The Supreme court must decide whether the First Amendment bars application of Colorado's public accommodations law (aka, the Colorado Anti-Discrimination Act) to compel a person to create expression (here, a wedding cake) that conflicts with that person's sincerely held religious beliefs about same-sex marriage. In other words, it must decide if Phillips deserves an religious exemption under the CADA.

    On Tuesday morning. December 5, 2017, the Supreme Court heard oral arguments in the case (Phillips v. Colorado Civil Rights Commission). I traveled to Washington DC, to the Supreme Court building for this event because I wanted to hear the issues on both sides in order to fully understand this case. I heard the issues and now I believe I understand what the case boils down to, in the minds of the justices.

    It was interesting to learn that the views and concerns of ordinary people are not necessarily the views held by the justices of the Supreme Court

    I snapped the photo above as Jack Phillips emerged from the Supreme Court building with his attorney Kristin Waggoner from the Alliance Defending Freedom (ADF). In their comments to the media and to the groups there in support of their cause, they were optimistic and hopeful. They appreciated the justices' questions and felt their case resonated with Justice Kennedy, the Court's critical swing-vote member.

    I hope the high Court will be able to weed out the critical issues at stake by the time it hands down its opinion next year, on June 26 or thereabouts.

    I. FACTS

    In July 2012, when same-sex marriage was still prohibited in the state of Colorado, residents Charlie Craig and David Mullins decided to get married in Massachusetts, where it was legal. They would return and celebrate with family and friends at a "wedding reception" for themselves in Lakewood, which is a suburb of Denver. When it came time to pick out a cake, they were referred by their wedding planner to the Masterpiece Cakeshop, also located in Lakewood. (The shop is located about 10 miles outside of Denver).

    The founder, owner, and proprietor of Masterpiece Cakeshop is Jack Phillips, a skilled baker and a talented artist. He calls himself a cake artist, and that is what he is known as. But most important for this case, he is also a devout Christian. His religious beliefs guide him in every aspect of his life, including his profession. "My bakery, the work I get to do... they are gifts from God and I want to honor him in everything that I do, including my art. When I finish in this life, I want Him to say: 'Well done. You've been a good and faithful servant." The name "Masterpiece" has particular meaning for him. First, it refers to artistry. Masterpiece Cakeshop indicates that the artistry is in relation to cakes - his cakes are artistic, not mass-produced. Second, the name "Masterpiece" refers to his belief that each person is created as a masterpiece by God. And third, the name "Masterpiece" includes the term "Master" which, as Phillips explains, references the gospel of Matthew which says that 'no man can serve two masters." (Matt: 6:24).

    Phillips believes he is serving Christ with each cake he makes. He especially believes so when it comes to creating wedding cakes. He sees a wedding as a religious sacred event and he knows the particular significance of the cake in the reception ceremony. The feeding of the cake to one another and sharing it with guests is probably the most significant part of the reception (with the giving of the toasts perhaps being the most entertaining!) Historically, the cake was a symbol of good luck, stemming back before Roman times - back to at least 1175 B.C. Of any form of cake, wedding cakes have the longest and richest history. In modern Western culture, the wedding cake serves a central expressive component at most wedding receptions; it not only communicates that the couple is now married, but forms the centerpiece of a ritual in which the couple celebrates their marriage by feeding each other cake and then sharing cake with their guests. Only a wedding cake communicates this special celebratory message; certainly the reception meal doesn't do this, nor does the liquor. Wedding cakes are so essential to a modern wedding that one author suggests, "A memorable cake is almost as important as the bridal gown in creating the perfect wedding." Because they are so important to creating the right celebratory mood, wedding cakes are uniquely personal to the newly married couple and require significant collaboration between the couple and the artist to create the perfect design.

    And so, Phillips devoted himself to creating a special unique cake for each customer, helping to celebrate the religiously sacred union of a man and a woman, and integrating his faith into each creation.

    The process of creating the perfect cake (the perfectly unique cake) involves input from the couple. Phillips meets with the soon-to-be man and wife to find out how they met, how he proposed marriage, what they love about each other, what their interests are... in short, what "their story is." Listening to the couple, Phillips tries to figure out what the predominant theme is to their relationship.... What it is about them that will hold them together and strong throughout their marriage. He wants the cake to embody that message as a way to celebrate their special day, and that is where the creativity comes in. He combines what he has learned about the couple, with some research, and maybe some meaningful phrases or words, to create an artistic cake that "shares their story" with family and friends. With each cake project, Phillips pours himself into its design and creation, marshaling his time, energy, and creative talents to make a one-of-a-kind "masterpiece" celebrating the couple's special day and reflecting his artistic interpretation of their special bond.

    Phillips opened Masterpiece Cakeshop in 1993 and has joyfully served the community of Lakewood for 22 years. In his years of business, he has been a part of major milestone events for many in the community. He's watched families grow from young couples requesting wedding cakes to parents requesting graduation cakes for their children.

    Wedding cakes and graduation cakes are not the only cakes created at Masterpiece Cakeshop. All kinds of people and groups have requested cakes for their various parties and celebrations. But Phillips is always guided by his conscience and his beliefs. And that has caused him to decline to bake cakes in the past. In fact, he has declined to bake cakes on several occasions since he started the business. He has turned down requests to create Halloween-themed cakes, lewd bachelor-party cakes, cakes with any type of profanity on them, cakes disparaging the LBGT community, cakes with anti-American themes, and a cake celebrating a divorce. No one has ever complained about these restrictions nor has he never been reprimanded over those decisions. But it would be the cake requested by Craig and Mullins that would get him in trouble.

    When the couple entered Masterpiece Cakeshop on that July afternoon in 2012, same-sex marriage was not allowed in Colorado; the Colorado Constitution stated that "Only a union of one man and one woman shall be valid or recognized as a marriage in this state." It was before the Obergefell decision which struck down state bans on same-sex marriages and gave the red light on gay marriage. That opinion wasn't handed down by the Supreme Court until 2015. Anyway, the couple arrived with Craig's mother and a book of ideas. As soon as the couple told Phillips that the cake was to celebrate their wedding, he cut them short and explained that he could not create a cake celebrating a same-sex wedding. As acknowledged by all parties, Phillips told the men, "I'll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don't create cakes for same-sex weddings." He recommended a baker who would certainly bake them a special cake. The couple became very angry, swore at Phillips, flipped him off, and stormed out of the bakery.

    This point is very important: Phillips was willing to sell them any pastry, and any type of baked goods they wanted for their affair. And he was perfectly willing to sell them a cake, one suitable for a reception. But what he couldn't do, due to his religious beliefs, was decorate it with a gay wedding theme or to custom design one specifically celebrating gay marriage. As Justice Alito emphasized strongly during oral arguments, the record was undisputed that Phillips did not refuse to sell the couple a wedding cake; he refused to "create" a special cake for them. Phillips was very careful to use the word "create." (see pg. 67 of the transcript of Oral Arguments)

    The couple, as anyone would understand, felt humiliated and demeaned. The outcome at the bakery bothered Mullins so much that he immediately took to Facebook, describing in a public post what happened. "If you feel like the treatment we received is wrong, please contact Masterpiece Cakeshop and let them know you feel their policy is discriminatory."

    [NOTE: Colorado's state constitutional ban on same-sex marriage was struck down in the state district court on July 9, 2014, and by the U.S. District Court for the District of Colorado on July 23, 2014. Furthermore, the Tenth Circuit Court of Appeals had already made similar rulings with respect to such bans in Utah on June 25 and Oklahoma on July 18, which are binding precedents on courts in Colorado].

    Pretty soon, newspapers started calling the couple. And almost immediately, members of the LGBT community and supporters began calling Masterpiece Cakeshop. Phillips, his daughter, and others were called all kinds of names and they began receiving death threats. According to Mullins, it was only after they were turned down service that they learned that Colorado has an Anti-Discrimination Act (the Colorado Anti-Discrimination Act, or "CADA") which includes a provision banning discrimination, including based on sexual orientation, in public accommodations.

    The pertinent part of that statute reads: "(2)(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation......"

    Although Craig and Mullins easily obtained a wedding cake, and a free one at that, with a rainbow design from another bakery, they went ahead, on Sept. 4, and filed a charge of sexual orientation discrimination with the Civil Rights Division, the board created by CADA to review its complaints. Phillips responded in a timely manner and explained his refusal to bake the cake. Phillips argued that he did not discriminate based on sexual orientation in violation of CADA because his religious objection to creating custom wedding cakes for same-sex wedding ceremonies is based on the celebratory message those cakes promote. He explained that he serves all customers regardless of their sexual orientation. He simply believes that only marriage between a man and a woman should be celebrated. Thus, he declined to create custom art for a specific event because of the message it communicated, not because of the persons requesting it. In addition, he argued that CADA should be read narrowly to avoid a constitutional violation because requiring him to create custom wedding cakes to celebrate a same-sex wedding ceremony would violate the "Compelled Speech Doctrine" (an element of Free Speech) and his right to the Free Exercise of religion under the First and Fourteenth Amendments of the US Constitution.

    The administrative law judge ("ALJ") did not side with Phillips, declined to interpret CADA narrowly, and on May 2013, it filed a formal complaint against Phillips and Masterpiece Cakeshop alleging that the refusal to create a wedding cake celebrating Craig and Mullins' wedding constituted sexual-orientation discrimination in violation of CADA. It disregarded his religious liberty argument. It further alleged that requiring Phillips to create custom cakes to celebrate same-sex weddings did not violate his rights under the First and Fourteenth Amendments. The ALJ reached this conclusion by not characterizing the cakes as "art" or "artistic creations"; in other words, because he did not characterize the products as "art" which implies creativity and expression, he avoided characterizing the cakes as speech and hence the First Amendment - and by incorporation to the States, the Fourteenth Amendment - do not apply.

    Again, note that the Commission interpreted the law to be able to force a baker to bake a cake to celebrate a same-sex wedding even though the state constitution said that "Only a union of one man and one woman shall be valid or recognized as a marriage in this state."

    Finding that Phillips violated the Colorado Anti-Discrimination Act and rejecting his First Amendment defenses, the ALJ proceeded to order him to: (1) create custom wedding cakes celebrating same-sex marriages if he creates similar cakes for one-man-one-woman marriages, (2) retrain his staff to do likewise, and (3) report to the Commission every order he declines for any reason for a period of two years. In contrast, and this is especially important, while this case was still ongoing, the Commission found that three secular bakeries did not discriminate based on creed when they refused a Christian customer's request for custom cakes that criticized same-sex marriage on religious grounds (despite "creed" under CADA encompassing "all aspects of religious beliefs, observances, and practices ... including the beliefs or teachings of a particular religion").
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Comments

( May 8th, 2018 @ 1:03 pm )
 
Hello Diane. Thanks for visiting BCN, and this record long (for BCN), extra-informative post where you deftly explain all manner of societal propriety.

Come to think on it, that should take a rather long post indeed.
( May 7th, 2018 @ 6:18 pm )
 
Hello Antoinette, Hello Stan,
We need to get away from the mindset that the Supreme Court has the power to render decisions that are correct and that MUST be respected and enforced. As we all know, the federal judiciary, just like the other two branches of the federal government, occasionally abuses its power and interprets the Constitution incorrectly [usually for three reasons: (1) to give the federal government more power, as the government always believes it needs more power; (2) to make law from the bench when Congress refuses to do so; or (3) to effect the social change that voters are unwilling to vote for, or to effect it faster]. All of these reasons are unconstitutional. Technically, legally, constitutionally, an act of government (legislative, executive, or judicial) made in excess or abuse of delegated authority is null and void, and unenforceable. Thomas Jefferson, James Madison, Alexander Hamilton, and NC's James Iredell made this point very clear. The problem is this: The States and We the People give in. In the post-Lincoln era, in the post-Civil War era, the reigning sentiment is that the federal government can do whatever it wants, whenever it wants to, and to whoever it wants. Government knows best. "All tyranny needs to gain a foothold is for people of good conscience to remain silent." (attributable to Thomas Jefferson, although it is said that no one can actually find that statement among his papers).

I am VERY critical of the Supreme Court and have written many articles on Judicial Activism and the many decisions from the federal courts that are clearly unconstitutional. In fact, I wrote a recent article (March 201 on the Obergefell v. Hodges decision (which is the gay marriage decision, emphasizing the dissenting opinions of the 4 conservative justices - Justices Scalia, Thomas, and Alito, and Chief Justice John Roberts - to prove that the decision is unconstitutional. Each explains WHY the decision is unconstitutional. The article is titled "OBERGEFELL v. HODGES: An Example of the Very Real Tendency of the Federal Courts to Render Unconstitutional Opinions," and can be found on my blogsite - www.forloveofgodandcountry.com. The direct link to the article is here:
forloveofgodandcountry.com

In the Phillips case, I'm pretty sure Kennedy will side with the conservatives. The conservatives do NOT analogize the plight and the discrimination of gays and lesbians to that of African-Americans during the Jim Crow and anti-civil rights era, thank God. You are absolutely right that the analogy is intellectually dishonest and fatally flawed. I think Kennedy will side with the conservatives for 2 reasons:
(1) The Obergefell v. Hodges decision, written by Kennedy himself, made it ABSOLUTELY CLEAR, that people who have deeply-held religious beliefs about the definition of marriage must be respected and tolerated. (The Colorado Civil Rights Commission, as well as Colorado's Solicitor General, should have shown discretion according to the Obergefell case and recognized an exception to the Anti-Discrimination Act (CADA), just as it recognized exceptions for atheists, Muslims, and African-Americans; and
(2) Kennedy made it clear through his questioning that "tolerance goes two ways" and that the homosexual couple, as well as the state of Colorado, were completely intolerance of the Christian baker, Jack Phillips. In fact, Kennedy pointed out that the Commission went out of its way to punish and prosecute Phillips.

Thanks for your wonderful comments.
Diane Rufino
( May 7th, 2018 @ 12:13 am )
 
Well said: Wonderful summary of an outstanding summary.

I pray that this Supreme Court will understand that the rights of all people are at stake here; not just those of this extra-protected class.
( May 6th, 2018 @ 11:38 pm )
 
This is an excellent article laying out the facts and outcomes depending on how the SCOTUS rules in this case. To be quite honest, I don't think they have what it takes to render a just decision in this case because they either don't understand the full ramifications of a ruling against the baker, or they are unwilling to put their own political activism and bias aside to advance an agenda that will challenge the truth. I say this because I listened to the Oral Argument and surprisingly the justices kept comparing race to homosexuality as if they are equal and that is false. One is an immutable trait and the other is behavioral. They kept making the mistake again and again. This is also a court that found a right to same sex marriage in the Constitution when it is not even remotely part of the Constitution. I think they want Christians to be just as deceived as they are but that is not going to happen. Christianity is all about the truth and The People must hold SCOTUS accountable to the truth if they try to force people to accept lies as truth. I think at least five of the justices should be impeached for lying to America.



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