In 1950, Eileen Barton’s rendition of “If I Knew You Were Comin’ I’d’ve Baked a Cake” hit No. 1 on the Billboard charts. Until 2012, that song might well have been Colorado baker Jack Phillips’ favorite. But that year, his three-decade love of making cakes and other baked goods for those who patronized his Masterpiece Cakeshop in Lakewood, Colorado, turned into a decade-long nightmare of legal and cultural battles.
Today, Phillips would like nothing better than to return to the quiet hum of his baking establishment’s kitchen. Why isn’t that possible? Why can’t he resume preparing confections for customers without members of sexual minority groups demanding that he adopt and help celebrate their own peculiar view of human sexuality? Why is the state of Colorado menacing an upright citizen like Phillips with criminal complaints and fines?
Let’s briefly trace Jack Phillips’ unhappy legal trek.
In the 1970s, Phillips became a Christian and was convicted that his faith put limits on the types of customized cakes he would bake in his own private business. For example, he refused to portray “witches or ghosts for Halloween” or “sexually suggestive images.” In keeping with his Christian belief that marriage is between one man and one woman, he concluded that he could not take part in the celebration of same-sex unions by designing custom wedding cakes for such occasions.
Schutz must concede that the law cannot compel citizens to engage in speech that is contrary to their convictions.
Phillips’ faith commitments did not pose problems for him until 2012, when he respectfully declined a request from two gay men to bake them a custom wedding cake. That got him in trouble with the Colorado Civil Rights Commission after the pair filed a claim alleging that Phillips had discriminated against them because of their sexual orientation. Phillips defended his refusal, asserting that his religious liberty and his freedom of speech, including the right not to be compelled to express a certain message, were being violated. To his chagrin, the administrative law judge hearing the case ruled that Phillips had to bake cakes either for all weddings or for none. Furthermore, the judge’s order required that Phillips “retrain his staff” to accept gay-wedding-cake requests and “report,” over a two-year period, all cake orders he refused.
To make matters worse, when Phillips appealed, the Colorado Court of Appeals supported the commission and the judge’s order, and the case went to the U.S. Supreme Court. There, in 2018, the Supreme Court ruled in favor of Phillips, but only on the weakest possible grounds. During the proceedings, some members of the Colorado Civil Rights Commission made outlandish public statements about Phillips’ religious beliefs, referring to them, in one example, as “despicable pieces of rhetoric” that allowed him “to use [his] religion to hurt others.” All of this was too much for the Supreme Court. Then–Justice Anthony Kennedy, along with six other justices who joined in or concurred with his opinion, wrote that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” (Keep in mind that Kennedy wrote the Obergefell v. Hodges decision, which made same-sex marriage the law of the land.)
The Kennedy opinion, though a temporary victory for Phillips, was based on flagrant and foolish public misconduct by the Colorado governmental body hearing his case, conduct that was not likely to be repeated. Unfortunately, Kennedy’s opinion failed to address the central issue: whether the recently devised use of “public accommodation laws” — like the Colorado Anti-Discrimination Act (CADA) — to advance the claims of sexual minorities for equal treatment should override the long-standing constitutional rights of free speech and free exercise of religion. The court’s failure to face head-on that set of issues opened up providers like Phillips to further legal challenges.
And that is precisely what has happened. Autumn Scardina, an attorney who identifies as a transgender woman, is doggedly pursuing Phillips and Masterpiece by every legal means available.
Literally on the same day in 2017 when the U.S. Supreme Court agreed to hear Phillips’ original case involving the two gay men, Scardina placed an order with Masterpiece Cakeshop for a cake intended to celebrate Scardina’s birthday and transition. Scardina first placed the order without mentioning the cake’s purpose, noting only that the cake was to be blue on the outside and pink on the inside. But during a second call on that same day, Scardina made clear the cake’s intended use for a trans celebration. At that point, Lisa Eldfrick, Phillips’ daughter, said that the business could not bake such a cake. Phillips explained the reason why in testimony: He “believes that God designed people male and female, that a person’s gender is biologically determined.” Making such a cake to celebrate a gender transition would force him to express views contrary to his religious beliefs.
Scardina filed a complaint with the Colorado Civil Rights Commission. Before that case could be heard, however, Phillips and Masterpiece brought an action in federal court against Colorado. Eventually, Phillips and Colorado settled by each withdrawing their respective suits. But the dispute was not ended.
Scardina then filed a civil suit against Phillips in a state court, the current case being litigated. Phillips lost there at the trial court level, and again when he appealed that unfavorable decision to an intermediate appellate court in the Colorado system — the Colorado Court of Appeals.
The latest legal ruling was penned by Judge Timothy J. Schutz, writing for a three-judge panel of that court. The opinion first dealt with several technical procedural issues, then turned to the substantive issues. His opinion supported the trial judge’s conclusion that Masterpiece’s refusal to bake a gender-transition cake for Scardina violated CADA. CADA’s language makes it unlawful “to refuse, withhold from, or deny an individual” — on the basis of “sex, sexual orientation, gender identity, [or] gender expression” — “the full and equal enjoyment of the goods [or] services … of a place of public accommodation.” Schutz endorsed the reasoning of the trial court judge, who emphasized the initial “willingness” of Masterpiece to bake the cake, which was followed by its retraction only once the cake’s purpose became clear. He also pointed to Phillips’ statement that “a pink cake with blue icing” does not necessarily have any “intrinsic meaning.”
Schutz neglected to mention, however, that the order was placed on a day when the Masterpiece Cakeshop employees were distracted by the unexpected good news that the Supreme Court would take up their case involving the gay men. That very same day, once Jack Phillips knew that the order would involve his artistry in a gender-transition celebration, he unequivocally said he would not bake the cake.
Schutz also rejected the argument by Masterpiece and Phillips that the Civil Rights Commission had applied an unfair double standard by refusing the complaints of religious customers who were denied service on orders they placed with Colorado bakeries for cakes containing a strong biblical message against homosexuality.
The Colorado Appeals Court still had to deal with the obvious problems of free speech and religious exercise. Concerning speech, Schutz recognized that Colorado had no right to compel a citizen to speak a message to which he objected. However, the opinion questioned whether requiring Phillips to bake a pink cake with blue icing was really “speech” at all. Schutz had to acknowledge that the courts have long recognized that conduct intended to express a position on an issue or advocate a point of view, even if not accompanied by actual words, still falls in the category of speech. The U.S. Supreme Court, for example, has protected the “speech rights” of students who protested the Vietnam War by silently wearing black arm bands to school and of laborers who were picketing, even though no words were spoken.
This long line of precedent forces Schutz to concede that a conduct that conveys a certain message that is understood by those who view it must be regarded as speech — and the law cannot compel citizens to engage in speech contrary to their convictions.
From here on, however, the opinion loses its credibility. It claims that the baking of the blue/pink cake itself conveys no message, even when the cake is part of a gender-transition party — one extolling a man now identifying as a woman. In fact, inexplicably, Schutz refers to the very testimony of a witness who stated that if he attended such a party where a blue/pink cake was featured, the cake would convey a message. And what would that be? According to the witness, “It would represent [a change] from male to female, the colors.” But Schutz defies ordinary understanding and logic when he writes: “[T]he information [about a man becoming a woman] is not derived from any artistic details or message by the baker. Rather, the message … would be generated by the observer based upon their understanding of the purpose of the celebration.”
This part of the opinion is simply nonsensical. The positioning of the proposed cake’s colors — blue on the outside and pink on the inside — makes the message that the baker of the cake is compelled to convey clear: The host of the party may appear to be a male on the outside (blue), but nevertheless, on the inside, he is female (pink). If Phillips bakes a white cake with chocolate icing, that message is not conveyed. If he bakes what he has been directed to bake, pink with blue icing, he helps to send a message that violates his beliefs and convictions.
Despite its faulty reasoning, the court concluded that Masterpiece is not compelled to produce a message contrary to Phillips’ convictions because baking the cake in this way is “not inherently expressive and any message or symbolism it provides to observers would not be attributed to the baker.”
The Supreme Court must face the issues squarely and not avoid them.
What about the question of the free exercise of religion? Here the Colorado Court of Appeals relied upon a Supreme Court case, Employment Division v. Smith (1990). In that case, two defendants claimed that their free exercise of religion was infringed upon because they were criminally prosecuted for taking an illegal drug — peyote — during a Native American religious ceremony and, when they were fired, could not claim unemployment compensation from Oregon. The Supreme Court found that if the law in question is “neutral” and “generally applicable,” which the Oregon law against using peyote was, the persons who disobeyed it would not be protected by the free exercise clause as long as the state could show a rational reason for the law.
This is what Colorado claims about CADA as applied to Masterpiece and Phillips. Colorado asserts that CADA is “neutral” and “generally applicable” and that Colorado’s commitment to preventing discrimination is within the rational state interest. Therefore, the free exercise of religion that is arguably thwarted by CADA is not sufficient to override the Colorado public accommodations statute under the doctrine of Smith.
Schutz is still left with another part of the Smith decision that he has to address. Under Smith, the court allowed that the government would have to meet a higher standard, usually called “strict scrutiny,” if the litigant asserting a religious-liberty violation could show that his free exercise claim was coupled with another independent constitutional right, like freedom of speech. This coupling of two different rights is sometimes called the “hybrid-rights” argument. If two rights are at stake, the government has to show that the interest it is trying to further by enforcing the law is “compelling” — that is, absolutely critical to its success. This is a very high legal hurdle over which Colorado would have to leap. Specifically, Colorado would have to show that, for example, certain limited exceptions for the religious scruples of service providers would crucially and fundamentally undermine the state’s overall anti-discrimination policy. Schutz simply sidestepped this question by saying that, in the court’s opinion, since Masterpiece and Phillips were unable to show a wrongful interference with their freedom of speech, they could not avail themselves of the hybrid-rights defense.
If this case reaches the U.S. Supreme Court, what should the court do? It must face the issues squarely and not avoid them. At the very least, it should use the hybrid-rights portion of Smith to place a heavy burden on Colorado to show why the clear abundance of alternative cake artists not bound by religious convictions still compels it to force Phillips and others like him to choose between violating their beliefs or facing business-destroying fines. Further, the court should make clear that if states refuse to craft reasonable religious exceptions to their public accommodation laws, then the court will be left with no other alternative than to strike those statutes down as unconstitutional because they contravene the free speech and exercise protections accorded citizens by the First Amendment.
Dr. John A. Sparks is the retired dean of Arts & Letters at Grove City College and a fellow for the Institute for Faith & Freedom. He is a graduate of the University of Michigan Law School and a member of the state bar of Pennsylvania.
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