By Michael Norton
Former U.S. Attorney for Colorado, G.L.O.B.A.L. Expert Council
This article was also published in Colorado Politics – December 7, 2017
No human beings on the face of this earth are more important to my friend Jack Phillips than his family. Jack is a very good cake artist and his artistry has enabled him to support his family. Until recently, he has made a decent living at Masterpiece Cakeshop in Lakewood, Colorado.
As important as his family is to him, however, Jack’s faith in his Lord and Savior Jesus Christ is even more important to him. To Jack, faith in Jesus means obeying God’s commands. One of those biblical commands is that marriage is the union of one man and one woman.
Fortunately, for a time, the Colorado’s constitution agreed with God on this issue. It provides that marriage is the union of one man and one woman. However, a new Colorado law, coupled with a hyper-aggressive Colorado Civil Rights Commission appointed by a new Governor, sought to break new ground in the battle to normalize gay rights.
When two men came to Masterpiece Cakeshop and asked Jack to design and create a wedding cake to memorialize their Massachusetts same sex marriage, Jack told the men he’d create any bakery product they wanted, but he could not design and create a wedding cake without violating his sincerely held religious beliefs. Rather than go to the local grocery store for a pre-made cake or walk down the block to the neighboring bakery, the two men filed a complaint with the Colorado Civil Rights Commission.
The Colorado Civil Rights Commission, ignoring Colorado’s constitution, ruled that Jack had engaged in sexual orientation discrimination under the Colorado Anti- Discrimination Act. The Colorado Court of Appeals found no violation of the Free Speech or Free Exercise Clauses because it deemed Phillips’ speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of Jack’s wedding cakes and the Commission’s exemption of other cake artists who declined to create custom cakes based on their message.
Jack said, “It’s hard to believe that the government is forcing me to choose between providing for my family and employees and violating my relationship with God. That is not freedom. That is not tolerance.”
Facing huge fines and even potential jail time, Jack stopped designing and creating wedding cakes. You see, he can’t design and create a wedding cake and then deliver and display it at a wedding without engaging in constitutionally protected expression. The income he lost from the sale of these expensive creations nearly drove him to bankruptcy. Death threats followed. His family’s safety hung in the balance.
When the Colorado Supreme Court refused to hear Jack’s case, he appealed to the United States Supreme Court. Finally, on December 5, 2017, nearly five years after his brief one-minute encounter with the Massachusetts’ same sex couple, the United States Supreme Court heard oral arguments in Jack’s case.
From all reports, the Supreme Court is again closely divided. And, yet again, Justice Anthony Kennedy seems to be the pivotal vote. While at one point in the oral arguments, Kennedy noted that the Colorado Civil Rights Commission evidenced “hostility to religion,” he also wondered if, were a baker to put a sign in his window saying he would not make cakes for gay weddings, that would be “an affront to the gay community.”
The important issue at stake is whether applying Colorado’s public accommodations law to compel Jack to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment. But, it will be months before we learn how the Supreme Court will rule. Another 5-4 decision is expected.
In my view, upholding the Colorado Civil Rights Commission’s decision not only will violate Jack’s individual conscience, it will also violate the U.S. Constitution. The negative impact of such a decision on people of faith could be catastrophic. But, while I am prayerfully optimistic for my friend Jack and his family, too many Justices seem to hold the view that the Constitution means not what it says but what the Supreme Court Justices say it means. So much for the rule of law.
After the Supreme Court’s oral argument today, Jack said, “I’m profoundly thankful to the Supreme Court of the United States for taking my case. I hope and pray it will affirm the freedom of artists to peacefully express themselves in ways consistent with who they are.”
I join Jack and his family in this prayer. I urge all Americans who value freedom and liberty to do likewise.
The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.