Not Rights, But Power

Jack Phillips claims to be an artist—and he is. Photos of the beautiful hand-decorated cakes he has created, each one as different as the brides and grooms who commission them, abound in legal briefs and all over the internet. Far less beautiful is the legal case in which Phillips is embroiled.

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the “anti-gay bakery” case argued before the Supreme Court on November 5, is a dispute about whether Phillips, an evangelical Christian baker, can be compelled under a state’s civil-rights law to provide a custom-designed cake for a same-sex wedding reception, thus implicitly endorsing a ceremony that violates his Bible-based belief that marriage is a union between a man and a woman. That’s the case’s legal focus: freedom of speech and expression protected by the Constitution’s First Amendment. But behind the scrim of those constitutional issues, we find what the Masterpiece Cakeshop case is actually about: not rights, but power. The power of militantly liberal governments to persecute Christians. 

Phillips opened the family-owned Masterpiece Cakeshop in 1993, in robustly liberal Colorado. Nineteen years later, the state’s Civil Rights Commission, in a decision upheld by the Colorado Court of Appeals, ruled that Phillips, in declining to make a custom cake for a pair of gay men celebrating their Massachusetts marriage (same-sex marriage wasn’t legal in Colorado in 2012), violated the state’s civil-rights law prohibiting discrimination on the basis of sexual orientation. It didn’t matter that Phillips was willing to supply the couple with off-the-shelf baked goods from his shop, including cakes, for their wedding reception. Nor that he has taken other stances with respect to his business that accord with his Christian principles: He doesn’t bake Halloween cakes or cakes with vulgar themes or offensive messages.

The commission lowered the boom on Phillips, ordering him either to custom-bake and decorate cakes for same-sex weddings, or quit the wedding-cake business altogether. Further, the commission ordered Phillips to set up re-education sessions for his employees (several of whom were his family members), instructing them to subordinate their religious beliefs to the demands of the state—and, in an especially Big Brother–ish twist, file regular written reports with the commission on their progress. The message was clear: Suppliers of custom services to weddings—bakers, florists, photographers, dressmakers—who believe that marriage is a union between a man and a woman, which mirrors the union between Christ and His church . . . had better find different lines of work. Which is, in a sense, what Phillips did. He stopped baking wedding cakes, thereby reducing his business income by 40 percent, and was obliged to lay off most of his non-family employees.

Today’s bièn-pensant progressives don’t claim to want to shoot or behead those who don’t go along with the politically correct program. That would be crude. Their modus operandi is to deprive the opposition of their livelihoods, thus sending a deterrent message pour encourager les autres. After the Phillips decision and others like it in other states, we haven’t heard much from Christian bakers elsewhere in America. Bakers and other purveyors of wedding services tend to have families that need to eat, and they seem to have gotten the message.

A clue to what is at stake in the Masterpiece Cakeshop case lies in a line of questioning by Supreme Court Justice Anthony Kennedy during the November 5 oral argument. Kennedy called Colorado Solicitor General Frederick Yarger’s attention to a statement made by one of the Colorado civil rights commissioners, Diann Rice, during their July 2014 hearing in the Phillips case: “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 . . . . And to me it is one of the most despicable pieces of rhetoric that people can use . . . their religion to hurt others.” It was pretty clear which “religion” Rice was talking about. In May 2017, according to the Denver Post, Republican state senators in Colorado blocked Rice’s reappointment to the commission, noting that she, an LGBT advocate, had pushed for a “sue your boss” measure that would have expanded the ability to sue and collect stranglehold punitive damages from small businesses deemed to have violated the rights of employees and potential employees. Call your office, Jack Phillips.

Kennedy wasn’t the only Supreme Court justice to notice the anti-Christian animus infecting the commission’s actions. Trump-appointed Justice Neil Gorsuch chimed in: “Mr. Yarger, you actually have a second [italics mine] commissioner who also said that . . . if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system.” Gorsuch counted two out of the seven members of the Colorado Civil Rights Commission as having taken the position that Christians must relinquish their traditional beliefs on same-sex marriage if the government so demands—or face the consequences.

As Justice Samuel Alito noted, Rice’s statement exemplified “what appears to be a practice of discriminatory treatment based on viewpoint.” Alito pointed out that the Colorado Civil Rights Commission had rejected three complaints by customers who, citing Judeo-Christian principles, wanted cakes expressing opposition to same-sex marriage, and who were turned away by bakers. “But,” said Alito, “when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”

The Supreme Court, of course, won’t be ruling on the Colorado government’s shoot-the-wounded impulse to crush any remnants of Christian resistance to same-sex marriage, mandated as a constitutional right by the Supreme Court in 2015 and now supported by a majority of Americans. Indeed, the justices explicitly refused to consider in oral argument any of the freedom-of-religion arguments proffered by Phillips’s lawyers in their briefs—which means that freedom of speech is now the case’s only constitutional issue. (A 1990 Supreme Court decision, Employment Division v. Smith, held that states don’t violate the First Amendment’s religious-freedom guarantees by enforcing laws that are neutral on their face.) Many observers expect the high court’s conservatives, joined by Kennedy, and perhaps others, to draw some sort of line of protection around Phillips’s expressive activity, which would enable him to get back into the wedding-cake business. But they ought to be aware of what is at stake. If they’re wrong, the outcome will be as ugly as Phillips’s cakes were beautiful.

An earlier version of this essay misidentified Commissioner Diann Rice as Heidi Hess. 

Charlotte Allen is a writer living in Washington, D.C.

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