Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, is a Christian who uses his artistic skills as a baker to honor God. He decorates cakes for many occasions such as weddings and birthdays, but he does not accept requests to bake cakes with messages or to celebrate things he doesn’t believe in, such as Halloween, adultery, or same-sex marriage, among others. In 2012, Phillips was asked to create a one-of-a-kind wedding cake for a same-sex couple. Phillips politely declined. The homosexual couple filed a discrimination complaint with the Colorado Civil Rights Commission, which ultimately decided Phillips engaged in unlawful discrimination on the basis of sexual orientation, and ordered him to provide wedding cakes to same-sex couples in the future, undergo “re-education” concerning the law, and to report back on a regular basis as to the reasons he declines any request from a customer.
Phillips appealed to the Colorado courts, and lost. His appeal to the United States Supreme Court was accepted and scheduled for oral argument on December 5, 2017.
Here is how Phillips is described in the official documents filed with the Supreme Court:
Phillips opened Masterpiece Cakeshop more than 22 years ago to pursue his life’s vocation – creating artistic cakes. Designing and creating specially commissioned cakes is a form of art and expression, the pinnacle of which is wedding cakes. He’s also a Christian who strives to honor God in all aspects of his life, including his art. From the beginning of his business, Phillips has integrated his faith into his work. He closes his shop on Sundays, pays his employees well, and helps them with personal needs outside of work, all because of his religious beliefs.
Jack Phillips: "I want to live in an America where creative professionals of all kinds, regardless of their beliefs, can live without fear of government punishment, and so, I'm thankful the US Supreme Court took my case. I'm hopeful they will uphold the constitutionally-protected freedom of all artists to continue to be able to peacefully and freely create art and expression consistent with their faith and conscience."
Jim Daly, President of Focus on the Family: "I’ve met Jack Phillips, and he is a decent and godly man who just wants to run his bakery for the glory of God and do so without government punishing him for his faith. In this case he was found to have “discriminated” against a homosexual couple for declining, on religious conscience grounds, to decorate a cake for their same-sex wedding. His business and personal life have suffered greatly for his stand for Christ. No person, Christian or otherwise, should be subjected to hostility and retribution from the governing authorities for exercising their conscience in what messages they choose to endorse with their artistic abilities. We must pray for Jack’s success at the U.S. Supreme Court, because the cause of freedom for which he is persevering is our cause as well."
Kristen Waggoner, Lead Counsel for Masterpiece Cakeshop and ADF Senior Counsel: "Artists and other creative professionals should be able to peacefully live and work according to their beliefs without fear of punishment by the government. Jack has taken a brave stand for that principle, both for himself and for artists everywhere, even enduring death threats and sacrificing 40 percent of his business because the state won’t let him design any wedding cakes if he won’t design them for same-sex weddings."
Here are a few of the key issues the Supreme Court will be considering:
Do the First Amendment’s guarantees of freedom of speech and religion protect Jack Phillips from being required by the state of Colorado to use his creative and artistic talents to promote a message in support of same-sex marriage, contrary to his deeply-held religious beliefs?
The larger questions are: do artists’ creations amount to "speech" that is protected from government coercion under the First Amendment? If the answer is "sometimes," where are the lines drawn? Does a wedding cake qualify for protection?
Is the Colorado statute unconstitutional because it is only applied against Christians like Jack, while other bakers and vendors are free to decline business for other types of conscience reasons? If the government has discretion to choose which claims of conscience win, does that give too much discretion to the authorities, and violate the First Amendment?
The U.S. Supreme Court is scheduled to hear oral arguments in this case at 10 a.m., ET, on December 5, 2017. Transcripts and audio recordings of the argument can be found afterwards at the website for the Supreme Court: https://www.supremecourt.gov/
It’s undisputed that the First Amendment applies not only to the written or spoken word, but to various types of "expressive" speech. That could involve anything from parades to mimes to sculptures to interpretive dance. Each of the wedding vendor cases that have arisen under state or local non-discrimination laws involves different types of artistic "expression." In Jack Phillips’ case and others, cakes and decorating are involved. In other cases (florists, wedding photographers, graphic designers, etc.) other forms of "expression" are involved.
Watch to see whether the Supreme Court justices address "expressive speech" only as it affects wedding cake decorating, or whether they discuss more general guidelines that lower courts can apply to the ever-growing list of wedding vendor litigation.
In 2014, Hobby Lobby won an important religious freedom victory at the Supreme Court which involved another example of government coercion related to Obamacare and forcing religious employers to provide possible abortion-causing contraceptives in company healthcare plans. Could that decision help Jack Phillips’ case?
The answer is probably not directly. Hobby Lobby and the other cases (including Little Sisters of the Poor) were decided in their favor based on the federal statute called The Religious Freedom Restoration Act (RFRA). It’s a statute that complements the First Amendment’s guarantees of religious freedom. Using the balancing test in that statute, the Supreme Court decided that the government regulation at issue could not override the religious conscience objections of the Hobby Lobby owners.
Unfortunately, the federal RFRA does not apply to a state law like Colorado’s. And Colorado is not among the 22 states that have passed their own version of RFRA.
So, the Masterpiece Cakeshop decision will hinge on previous Supreme Court cases known as "precedents" decided under the First Amendment, and how they would apply to the specific facts of this case. The arguments will include both speech and religious freedom components.
However, the Hobby Lobby decision could help Phillips indirectly in that it’s a recent decision of the Court in which religious freedom was supported and defended by a majority of the Court’s justices. As such, it will be fresh on the minds of the justices that government coercion of religious conscience contradicts our country’s deepest values, and is permissible only for the narrowest of causes.
It’s always hard to predict when a blockbuster case like this one will be decided and an opinion published. Typically, it could take the Court anywhere from 2 to 4 months to issue an opinion. But this case is not typical, and the decision is expected to be close, possibly a 5-4 vote, with several dissenting and concurring opinions accompanying the main opinion. In such circumstances, it may take longer for the Court to hand down its official decision.
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