What Is Wrong with the Lawyer Persecuting Jack Phillips?

By Charles C. W. Cooke

Thursday, June 17, 2021

 

Once again, Jack Phillips, the beleaguered owner of Masterpiece Cakeshop, has been fined by a court for refusing to bake a cake carrying a message of which he disapproves. Once again, the fine was the result of activist legal action by a personal-injury lawyer named Autumn Scardina. Once again, Phillips’s case seems destined to reach the chambers of the U.S. Supreme Court.

 

And, once again, I am left asking: What the hell?

 

I am strongly of the view that, because his objection relates solely to the content of his professional speech, Jack Phillips is protected by the First Amendment. Indeed, if his case does return to the Supreme Court, I expect Phillips to win on precisely those grounds. But forget the specific details of this lawsuit for a moment. Forget the plaintiff and the defendant; forget the underlying Colorado statute; forget the Constitution of the United States; and, instead, look at this on a purely human level: What on earth is wrong with Autumn Scardina?

 

I understand the justification for anti-discrimination laws. I do not, however, understand why anyone would try to use them, as Scardina has, in order to repeatedly torture an individual such as Jack Phillips.

 

Under English common law, “public accommodation” standards typically applied where consumers had little or no choice. The only inn along a 60-mile stretch of road might be deemed a “public accommodation” on the grounds that its refusal to take a given customer could plausibly lead to that customer’s death. A ferry business that had sole control over a particular point in a river might be deemed a “public accommodation” in order to ensure that nobody was prevented from traveling along an important route. Common carriers, such as railroads, were included under the same rule. This approach obtained in the United States, too, until 1964, in which year the Civil Rights Act expanded the concept beyond all recognition — though not, given the scale of persistent racial segregation in the United States, beyond all comprehension. Prior to 1964, “just go somewhere else” was simply not an option for many black Americans, who, as a result of both longstanding government policy and widespread social pressure (including violence), were effectively locked out of entire realms of commercial activity. An African-American citizen who chose to sue a recalcitrant store in 1965 was doing so not out of individual pique, but out of public service, in that in most cases he was not so much suing one store as suing all of them.

 

This is not even close to being the case with Masterpiece Cakeshop. Masterpiece Cakeshop is not a monopoly. Masterpiece Cakeshop is not caught up in a web of legal or corporate choices that, taken together, serve to restrict the ability of a given group to fully access the market. And Masterpiece Cakeshop is not unique. It is a good business, I am told, but it is merely one business among many, and its owner has views that differ considerably from those of others within his field. All of this being so, it is simply inexplicable to me that Autumn Scardina is so determined to bend Masterpiece Cakeshop — and its owner — to her will. Again: Forget the legal dispute. My quarrel here is more elementary than that. Clearly, there is something deeply, deeply wrong with this person, and something deeply, deeply wrong, too, with anyone who has helped stage her relentless, psychotic persecution.

 

The judge in the most recent case against Phillips suggested that the law he was enforcing was designed to ensure that certain people “are no longer treated as ‘others.’” And I daresay it was. But this is a silly and illiberal aim, and those who seek to achieve it are ultimately demonstrating an inability to live among people who do not share their core beliefs. It is one thing for a person to demand that he be treated as an equal by his government or by a monopoly or by anyone with whom he is forced by custom to interact; but it is quite another to demand that every last person in this nation of 330 million approve of him, endorse him, or consent to speak on his behalf. We hear a great deal these days about the importance of “diversity,” and yet the definition we see most commonly prescribed seems in practice to cut against the bedrock value of pluralism, rather than in favor of it. With her decade-long crusade against Jack Phillips, Autumn Scardina has done just that.

 

Far from seeking utopia, a truly liberal person will accept that there will always be some among his fellow citizens who will strongly disapprove of him — and, for that matter, that there will always be some who will dislike and maybe even hate him. It can certainly be difficult to come up with laws that strike the right balance between individual rights and commercial regulation, but it is not so difficult to come up with personal conduct that does, and it seems self-evident to me that the correct course of action for a person who meets resistance when demanding artistic work from an ideological foe is simply to walk away. In a truly tolerant culture, it would not especially matter whether the law demanded that a Jewish baker make a Holocaust-denial cake or a black baker make a pro-slavery cake or a Christian baker make a “transition” cake, because the instinct of the person requesting such a cake would be to seek out a vendor who was not caused anguish by the request.

 

Time and time again, Autumn Scardina has gone out of her way to take the exact opposite course of action — and, in so doing, she has made us all worse off, for while it will take time to learn what effects her conduct has had upon America’s most elementary set of laws, the civic rot she has repeatedly exposed is obvious even now.