Colorado Baker Wins Case

High court: Colorado erred in its hostility toward Jack Phillips' religious beliefs

After six years of legal struggle and financial loss, Jack Phillips, the devout Christian baker who in 2012 found himself in the crosshairs of Colorado officials and gay activists for declining to create a wedding cake for two gay men, is planning to create wedding cakes again.

The U.S. Supreme Court’s long-awaited June 4 ruling in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, a case it heard last December, held that the state violated Phillips’ free exercise of religion by its flagrant hostility toward Phillips’ beliefs on marriage.

“This is a free exercise win,” Jeremy Tedesco, senior counsel and vice president of U.S. advocacy at Alliance Defending Freedom (ADF), which represented Phillips, told Decision.

In 2012, Phillips was forced to cease the wedding portion of his business after a lawsuit and state judgments against him. He endured protests and even death threats six years ago, but he appeared energized following the court’s decision.

“I’m profoundly thankful that the court saw the injustice that the government inflicted on me,” Phillips said in a statement on the ADF website. “This is a great day for our family, our shop and for people of all faiths who should not fear government hostility or unjust punishment.”

Tedesco and Kristen Waggoner, the ADF attorney who argued Phillips’ case before the high court, both confirmed Phillips’ plans to create wedding cakes again. Since his ordeal began, Phillips has had to trim his staff from 10 employees to four after cutting the wedding portion of his business—which amounted to some 40 percent of his revenue.

Over the years, Phillips has refused to create Halloween cakes, divorce cakes or cakes with disparaging messages. Phillips had offered to sell the gay couple any premade cake they wished or a designed cake for another event, but not a wedding cake.

After the state found Phillips guilty of violating the state’s nondiscrimination law, Colorado civil rights officials ordered Phillips and his staff to either create wedding cakes for all customers or stop designing wedding cakes altogether. Also, the state ordered the Masterpiece staff to complete classes on the nondiscrimination law and to file quarterly reports noting when they had declined a custom cake request and why.

Waggoner expressed confidence that the 7-2 decision vindicates Phillips and provides legal precedent for similar cases, despite criticism by some that the majority opinion, written by Justice Anthony Kennedy, doesn’t offer clarity on questions of free expression.

“The court was very clear multiple times in its decision that the government was wrong to punish Jack and cannot express hostility toward people of faith,” Waggoner told reporters in a media conference call.

She added, “So as the issue continues to be litigated in the lower courts and the circuit courts of appeal and comes back up to the Supreme Court, we continue to expect that the court will affirm that all Americans should have the right to speak and live consistent with their beliefs, regardless of what they believe about same-sex marriage.”

Kennedy was considered the swing vote prior to the decision. Justices Elena Kagan and Stephen Breyer of the court’s liberal wing joined with the majority, which included conservatives Samuel Alito and Neil Gorsuch. Justice Clarence Thomas joined in part, offering his own opinion. Justice Ruth Bader Ginsburg wrote the dissent, joined by Justice Sonia Sotomayor.

“When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires,” Kennedy wrote for the majority.

Kennedy fumed at a civil rights commissioner’s assertion that Phillips’ religious objections to serving gay weddings are akin to justifications used for slavery and the Holocaust. Kennedy also scolded Colorado officials for allowing bakers in several instances to refuse to create cakes bearing anti-gay messages while at the same time prosecuting Phillips for refusing to create a gay wedding cake.

“I think the takeaway in this case,” Waggoner said, “is that the government has to treat people of faith and all cake designers, all graphic artists, all creative professionals [by] following the same rules.”

Rena Lindevaldsen, a professor at Liberty University School of Law, told Decision the ruling seems “limited in scope” at points, but that it affirms that “those in the business sector do still have First Amendment rights in the face of public accommodation laws that prohibit discrimination,” even if those rights were not clearly defined.

The question of what constitutes “expressive conduct” protected by free speech is significant yet remains unanswered, Lindevaldsen contends.

Justice Thomas, joined by Gorsuch, seemed frustrated the ruling didn’t tackle free speech directly. Thomas wrote that Colorado’s treatment of Phillips’ free speech rights “should not pass without comment.” Thomas took to task the Colorado Court of Appeals for describing Phillips’ crime “as a refusal to ‘design and create a cake to celebrate [a] same-sex wedding,’” and yet concluding that Phillips’ conduct was “not expressive and was not protected speech.”

“It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. This reasoning,” Thomas wrote, “flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.”

Nonetheless, Lindevaldsen said, the court clearly shot down government hostility toward religious viewpoints, which slows down “what had been a fast-moving train of silencing Biblical beliefs as offensive and hateful speech.”

ADF’s Tedesco noted: “The fact that the Supreme Court directly addressed the fact that religious people have every right to establish their religious identity and practice their religious beliefs in the broader marketplace is very important. Now, how far that principle extends, that will play out in future litigation. But that is a key principle and something that I think is going to help people of faith for years.”