(Photo Credit – Matthew Staver for The New York Times)
by Diane Rufino, January 11, 2019
GREAT NEWS !!
But first the bad news: Religious liberty continues to be in jeopardy in Colorado, the home of Christian baker and cake artist, Jack Phillips, and his Masterpiece Cakeshop.
But here is the good news: The judicial system has once again ruled in its favor. A federal district court in Denver has ruled that Christian cake artist and baker, Jack Phillips, can proceed in his lawsuit against the State of Colorado for its alleged continued harassment of him on account of his religious beliefs. The district court, in allowing the case to go forward, found there is evidence that there continues to be hostility against Phillips on account of his religious beliefs which is responsible for the unequal treatment against him.
You may remember that Phillips was censured by the state of Colorado (the Colorado Civil Rights Commission) for declining to create a cake for a same-sex couple back in 2012. The couple had asked for a 7-layer cake, representing the colors of the rainbow, with two men in tuxedos being married on top. Phillips declined the request, explaining that the message he would be sending through his design would offend his sincerely and deeply-held religious beliefs. The couple filed a complaint with the Colorado Civil Rights Commission claiming Phillips and the Masterpiece Cakeshop discriminated against them in violation of the state’s public accommodations law, the Colorado Anti-Discrimination Act (CADA). The Commission agreed and ordered the cakeshop owner and his staff to undergo a rigorous re-education program (teaching “tolerance”), as well as to invoke certain serious restrictions on them [by requiring that he bake cakes for same-sex couples (ie, he cannot discriminate for any reason) and requiring that he and his staff record, subject to regular state audits, every customer who requests a custom cake and the reasons when a request is denied]. Phillips appealed but was denied, and then finally appealed the Commission’s decision to the Colorado appellate court. The court upheld the Commission’s finding and decision. Phillips chose to stop creating wedding cakes rather than cave to government coercion. He lost a significant portion of his income and could no longer support the staff he had working for him. He, with help from the pro-First Amendment legal team, Alliance Defending Freedom (ADF), appealed the decision to the Supreme Court.
In June 2018, the Supreme Court issued its opinion in the case (Phillips v. Colorado Civil Rights Commission), ruling that Phillips was wrongfully prosecuted for declining to bake the cake. Rather than address the actual issue of “compelled speech” or religious liberty (see below), the decision rested on the obvious hostility towards religion that clearly motivated the Commission to take action and penalize the Christian baker. For example, in 2014, Commissioner Diann Rice makes the following comment just before denying Phillips’ request to temporarily suspend the commission’s re-education order:
“I would also like to reiterate what we said in…the last meeting [concerning Jack Phillips]. 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… I mean, 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 use their religion to hurt others.”
On June 26, 2017, the same day that the U.S. Supreme Court agreed to hear Jack Phillip’s appeal, an attorney, Autumn Scardina, called Masterpiece Cakeshop and requested a birthday cake. During a discussion of the customer’s preferred specifications for the confection, Scardina revealed that she wanted the cake to have a pink interior and a blue exterior. Then she added that the colors were to celebrate her coming out as transgender on her birthday, some years earlier. At that point, Debi Phillips (Jack’s wife, and the co-owner of the cake shop) declined to create the cake because of the Phillips’ belief that gender is biological, and immutable.
Scardina later asked Phillips to design a cake with satanic themes and images—a request that Phillips also declined because of the message the cake would communicate. Scardina then filed a civil rights complaint against Phillips and his Masterpiece Cakeshop with the Colorado Civil Rights Commission, charging discrimination on the basis of gender identity, a protected status under Colorado anti-discrimination law.
Less than a month after the Supreme Court ruled for Phillips in his first case (June 2018), the state of Colorado surprised him by finding probable cause to believe that he violated the CADA by declining to create the requested gender-transition cake. The Commission concluded that the statute includes transgender individuals in its prohibition against discrimination based on gender.
As with his decision not to create a cake celebrating gay pride and same-sex marriage, Phillips’ decision not to make the pink/blue cake which clearly was intended to express a message celebrating Scardina’s transgender status was based on his connection to (and what outsiders might view as his acceptance of) that message and not based on the identity of the customer.
In response to this renewed attack against him, Jack Phillips and his lawyers with Alliance Defending Freedom (ADF) filed their own suit, in the US district court in Denver, against the Colorado Civil Rights Commission and specifically, Aubrey Elenis, the director of the Colorado Civil Rights Division. It was Elenis who issued the finding that that there is “sufficient evidence” to support a claim of discrimination against Phillips. ADF argued that “the state of Colorado is violating Phillips’ First Amendment free exercise of religion rights by continuing to treat him differently than other cake artists and by acting with hostility toward him and his faith.” District court Judge Wiley Y. Daniel issued a ruling on January 4, concluding that Phillips may proceed with a second lawsuit claiming the state of Colorado is again wrongly prosecuting him. Judge Daniel said there is evidence of unequal treatment against Phillips, given that the state of Colorado, through the Commission, allows other cake artists to decline requests to create cakes “that express messages they deem objectionable and would not express for anyone.” This “disparate treatment,” the court said, “reveals” the state officials’ ongoing “hostility towards Phillips, which is sufficient to establish they are pursuing the discrimination charges against Phillips in bad faith, motivated by Phillips’ religion….” The ruling further added that Phillips “has adequately alleged his speech is being chilled by the credible threat of prosecution.”
A commissioner set to decide the state’s new case against Phillips has publicly referred to him as a ‘hater’ on Twitter, which was just one of several clear indications of the commission’s ongoing bias against him, the bad faith motivating its continued harassment of him, and its outright hostility towards his beliefs.
ADF also argued that Colorado is infringing Phillips’s due process rights, and that the Colorado Anti-Discrimination Commission’s adjudicative process is flawed because the same commissioners act as both accusers and adjudicators in the same case, an arrangement that the Supreme Court condemned in a 2016 decision. There is probably a 14th Amendment challenge as well, alleging arbitrary treatment under its Anti-Discrimination statute.
It is important to understand the issues at the center of this continued hostility towards Jack Phillips. It is not simply the case of one person claiming another violated his civil rights or aggieved him in some way. It is not simply the case of an employer being sued because he offer a job to someone else instead of the minority candidate. This situation is one where the state itself has taken a formal position that anti-discrimination rights and the rights of groups like the LGBT and transgender community are more important than the historic and founding right of religious freedom. Today it may be the state that is trying to take away our religious liberty right, but tomorrow, it may be 30 states, and then the federal government itself. The landmark U.S. Supreme Court ruling in Phillips v. Colorado Civil Rights Commission stemmed from the baker’s refusal, on the basis of his faith, to design a custom cake celebrating a same-sex wedding. The Colorado government then attempted to compel him to do so, and the Colorado Civil Rights Commission treated Phillips with open hostility, even comparing his invocation of sincere religious beliefs to defense of the Holocaust. Additionally, they treated him differently from other cake artists who had declined to design custom cakes because of the images they would have conveyed.
The Supreme Court found that Jack Phillips did not act out of animus (hatred) when he politely declined to make the same-sex couple a cake celebrating gay pride and same-sex marriage [which was not allowed, by the way, in the state of Colorado at the time of the suit (2012); in fact, according to the state constitution, the only marriage recognized in the state was between a man and a woman]. He offered them any other cake he had in the shop and offered to bake them any cake they liked, but he just could not “create” an artistic cake to celebrate same-sex marriage.
Animus and blind intolerance form the crux that makes discrimination so offensive. But that is not what happened in the case of Phillips v. Colorado Civil Rights Commission. It was a case of a man, a Christian, believing the First Amendment protected him in his right to exercise his deeply-held religious beliefs (Free Exercise of Religion) and protected him from being coerced into expressing a viewpoint that goes directly against what he believes (Free Speech and the Right to be free from compelled Speech).
The Colorado Anti-Discrimination Act (or CADA) outlaws discrimination in the area of public services, goods, and accommodations – yet it makes several exceptions for certain groups of people who have particular sensitivities – such as Muslims (can refuse a customer if they feel it offends Allah or the Koran), atheists (obvious; they don’t have to be compelled to make anything with a cross or a bible verse, etc), and African-Americans (don’t have to accept business which they feel discriminates against them, or which represents white supremacy). We all know that discrimination, in many forms, continues to exist in the marketplace. Fashion designers who were outraged over Trump’s election refused to design for our stunning First Lady, Melania (wow, what a stupid decision there!) Bruce Springsteen and other artists refused to perform concerts for those who hold political views they don’t agree with. Businesses choose states to move to or expand to that are favorable to their political views, and reject those that are unfavorable. The list goes on.
Indeed, over his years as a cake artist, Phillips has declined to create cakes with various messages that violate his faith, including messages that demean LGBT people, express racism, celebrate Halloween, promote marijuana use, and celebrate or support Satan. It was the refusal to create a custom cake for the same-sex couple, Charlie Craig and David Mullins, and the backlash created by the LGBT community, that prompted the Colorado Civil Rights Commission (tasked with reviewing challenges under the Colorado Anti-Discrimination Act) to file a suit against him. As the ADA continues to explain: “Jack serves all customers…But Jack doesn’t create custom cakes that express messages or celebrate events in conflict with his deeply-held beliefs.” He will tell you the same thing himself.
Apparently, tolerance is not a two-way street.
In addressing the issues presented in Jack Phillip’s case against the Colorado Anti-Discrimination Commission – Phillips v. Colorado Civil Rights Commission (2018 decision), the Supreme Court focused primarily on his claim that CADA, and the Commission itself (ie, the state of Colorado) was forcing or compelling him to engage in speech that he disagreed with. The creative process whereby Phillips designed a custom cake to represent and mark the particular occasion is a form “expression” or “expressive speech,” which is protected under the First Amendment’s Freedom of Speech provision. Therefore, as his ADF lawyers argued, he cannot be compelled or forced to create a cake that delivers a message that the government demands him to deliver but that he personally opposes.
And the Supreme Court has upheld such a view. In its “compelled speech” rulings, the Supreme Court has protected the right not to be forced to say, do, or create anything expressing a message that one rejects. Its most famous cases are West Virginia v. Barnette (1943) and Wooley v. Maynard (1977). In the Barnette opinion, the Court barred a state from denying Jehovah’s Witnesses the right to attend public schools if they refused to salute the flag, and in the Maynard opinion, it prevented New Hampshire from denying people the right to drive if they refused to display on license plates the state’s libertarian-flavored motto “live free or die.” The justices of the Supreme Court addressed both cases during oral arguments and referenced them in the Court’s opinion as well.
The question, of course, was whether the liberal members of the Supreme Court would agree that cake design constitutes “expression.” It turned out that all agreed that it does.
The main purpose of having a cake “created,” as opposed to buying a ready-made cake, isn’t to satisfy a sweet tooth or to top off the meal; the main purpose is aesthetic and expressive. That is why they are displayed in such a creative way or in a choreographed fashion at receptions or parties, and that is why they are often the center of a live program (such as the feeding of the cake by the bride and groom to one another), much like a prop in a play. Luckily, the Court was able to distinguish between simple goods and services (not requiring expression) and services like those offered by Jack in creating a custom cake, which involve expression.
In that case, NC Family co-signed a “friend-of-the-court” brief to the U.S. Supreme Court and, in November 2017, led a North Carolina delegation of concerned citizens (including myself and several of my friends) to Washington, D.C. to show support for religious liberty and Phillips. In June 2018, the Supreme Court ruled 7-2 in Phillips’ favor.
While progressives (like those who sued Phillips in the 2017 case for not baking a gay marriage celebration theme for a same-sex couple, and now those currently suing him, transgenders) believe the First Amendment must remain silent when a person’s views make another feel uncomfortable or hurt their feelings or make them feel undignified, or when a person’s religious beliefs result in what may be viewed as discrimination against a group of persons, the reality is that the First Amendment has no “conditions” on it. And, as the plain language of the Amendment, as well as the Preamble to the Bill of Rights, makes clear, there is no right for the federal government to impose any conditions on it. Incorporation of the First Amendment on the States (thru the 14th Amendment, or even per the Bill of Rights included in the state constitution) prohibits the state legislature as well from making any law that abridges the right of free speech and the right to exercise one’s religious beliefs. The First Amendment is precisely needed when one’s ideas offend others or when it contradicts the orthodoxies of the reigning social and political majority. In those times, in particular, it protects more than one’s freedom to speak one’s mind; it also guards one’s freedom not to be forced, compelled, or coerced (including by law) to speak the mind of another.
Here is some sobering information: Since 2014, approximately $9.9 million in grant funding has been collected for the sole purpose to oppose religious liberty and protections for religious freedom. Welcome to the new America. The grants predominantly come from LGBT groups, backers of the LGBT movement, abortion supporters, and those calling for government-provided contraception coverage. These grantees, in general, hold the position that abortion rights and anti-discrimination laws protecting LGBT individuals are equally important, or more important than religious freedom. Next time you hear the LGBT community demand tolerance, keep this in mind.
Again, welcome to the new America.
Friends, the fight continues. Either we have the Right to Speak freely or we don’t. Either we have the Right to Believe as we want and to Freely Exercise our Religion or we don’t. In other words, either we are free or we are not.
I will keep you updated as this new case develops.
NC Family Staff, “Jack Phillips Can Continue His Fight Against Government Harassment,” NC Family Policy Council bulletin, January 11, 2019. Referenced at: http://my.ncfamily.org/site/MessageViewer?em_id=5170.0&dlv_id=9031
Robert P. George and Sherif Girgis, “Opinion: First Amendment Wedding Cake,” New York Times, December 4, 2017. Referenced at: https://www.nytimes.com/2017/12/04/opinion/first-amendment-wedding-cake.html
“Colorado Loses Bd to Dismiss Cake Artist’s Lawsuit,” Alliance Defending Freedom, January 7, 2019. Referenced at: https://www.adflegal.org/detailspages/press-release-details/colorado-loses-bid-to-dismiss-cake-artist-s-lawsuit
“Christian Cake Baker’s Second Lawsuit Can Go Forward, Federal Judge Says,” Catholic News Agency, January 7, 2019. Referenced at: https://www.catholicnewsagency.com/news/christian-cake-bakers-second-lawsuit-can-go-forward-federal-judge-says-24315
“Revealed: Colorado Commission Compared Cake Artist to Nazi,” Alliance Defending Freedom, January 12, 2015. Referenced at: http://www.adfmedia.org/News/PRDetail/9479