All Commentary
Sunday, December 17, 2017

The Courts Take the Cake When it Comes to Intolerance

A pluralistic society that can tolerate differences should be able to respect the conscience of everyone.

Three years ago, when Oregon Christian baker Melissa Klein was prosecuted for not decorating a wedding cake for a same-sex couple, one of my law school classmates bemoaned the government’s overreach. He was politically conservative and openly gay. Baffled by his stance, I argued intensely with him, holding him for so long that he regretted making such comments on his way to the bathroom. Recently, I told him what most attorneys like to hear: You were right.

Wedding Cakes and Courtrooms

This June, the US Supreme Court agreed to hear Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The facts of the case are similar to the Oregon one: a same-sex couple tries to buy a custom-decorated wedding cake from a business owned by a Christian baker; they were refused based on the bakers’ religious beliefs. Both couples asked their states’ civil rights agencies to prosecute the offending bakers. Both prosecutions were upheld by state courts.

Come December, though, Colorado baker Jack Phillips will have his day in the US Supreme Court. According to Phillips’s petition asking the Court to hear his case, he built Masterpiece Cakeshop 24 years ago in Lakewood, Colorado, with his faith in mind. Utilizing his artistic background, Phillips marshals his time, energy, and creative talents to decorate unique cakes that he believes can honor God.

Phillips cordially refuses to make cakes that celebrate events or ideas that violate his beliefs, including Halloween.

Phillips has been a Christian for 35 years. He closes shop on Sundays, helps employees with personal needs outside of work and declines to make cakes with offensive, vulgar, or profane messages.

He cordially refuses to make cakes that celebrate events or ideas that violate his beliefs, including Halloween (which costs him significant revenue), anti-American or anti-family themes like divorce, atheism, racism, or indecency. On Nov. 8, at a freedom rally held in his hometown, a soft-spoken Phillips mentioned a time when he rebuffed a request for an anti-same-sex marriage cake because it was hateful. In addition to not creating cakes with messages that go against his convictions, Phillips does not sell any products with alcohol.

Charlie Craig and David Mullins visited Masterpiece on July 19, 2012, expecting to buy a wedding cake to celebrate their upcoming marriage. Phillips advised them that he would be happy to make and sell them any other baked goods. Craig and Mullins immediately left without discussing any details of their cake. The entire incident was about 20 seconds long.

The following day, Craig’s mother, Deborah Munn, called Phillips, who said he doesn’t make wedding cakes for same-sex weddings because of his religious beliefs and because Colorado law did not recognize same-sex marriage at the time. Despite obtaining a free wedding cake with a rainbow design from another bakery, Craig and Mullins filed a charge of discrimination with the Colorado Civil Rights Division under the Colorado Anti-Discrimination Act (CADA), which prohibits businesses open to the public from discriminating based on sexual orientation.

After investigating, the Division issued a notice of determination, finding probable cause to credit the allegations of discrimination. Craig and Mullins then filed a formal complaint with the Office of Administrative Courts, alleging that Phillips had discriminated against them in a place of public accommodation because of their sexual orientation. The administrative law judge ruled in favor of Craig and Mullins.

Then What Happened?

He also refused to comply with the State’s orders, instead opting out of the wedding cake business altogether.

The Colorado Civil Rights Commission issued a final cease and desist order, requiring Phillips to (1) take remedial measures, including comprehensive staff training and alteration to the company’s policies to ensure compliance with CADA; and (2) file quarterly compliance reports for two years describing the remedial measures taken to comply with CADA and documenting all patrons who are denied service and the reasons for the denial.

Phillips appealed. He also refused to comply with the State’s orders, instead opting out of the wedding cake business altogether.

The Colorado appellate court cited a US Supreme Court case, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006). There, a federal statute required law schools to allow military recruiters onto their campuses on an equal basis with non-military recruiters. The law schools argued that by forcing them to treat non-military and military recruiters alike, they were being forced to send the message that “they see nothing wrong with the military’s policies” regarding gays in the military. The Supreme Court rejected this argument, saying “that students ‘can appreciate the difference between speech a school sponsors and speech that the school permits because [they are] legally required to do so.’”

The Colorado court analogized:

It is unlikely that the public would view Masterpiece’s creation of a cake for a same-sex wedding celebration as an endorsement of that conduct. Rather, we conclude that a reasonable observer would understand that Masterpiece’s compliance with the law is not a reflection of its own beliefs.”

However, an institution like a law school is inherently different from an individual, small business whose policies and procedures are personally established and tailored. From Phillips’s perspective, he views his own action as an endorsement and his work as part of his testimony to his God. Besides, Phillips was not requesting taxpayer subsidies, unlike the law schools.

Interestingly, while the Masterpiece case was ongoing, the Colorado Commission found that three secular bakeries did not discriminate based on “creed” when they refused a Christian customer’s request for custom cakes that criticized same-sex marriages on religious grounds. The Commission reasoned that, like Phillips, (1) the bakeries declined the requests because they objected to the particular message of the cake, and (2) the bakeries were willing to create other items for Christians.

Though I do not agree with Phillips’s actions, a pluralistic society that can tolerate differences should be able to respect the conscience of everyone, including Jack Phillips.