The Persecution of Jack Phillips Should End

National Review Online

Monday, January 30, 2023

 

Jack Phillips never did anybody any harm. We cannot say the same of the government of Colorado.

 

In 2012, before same-sex marriage was even legally recognized in Colorado, Phillips declined to make a custom cake for a same-sex wedding, citing his religious objection to endorsing same-sex marriage. That objection was, at the time, in common not just with the law of his state but with the view of the majority of the population of nearly every American state to have voted on the question, as well as with the traditional doctrine of nearly every Christian, Jewish, and Muslim sect going back millennia. But even if his had been an unpopular minority view, this is America: There is supposed to be room for dissenters and for a diversity of thought.

 

Phillips never refused to serve any individual or group, and nobody has ever offered evidence that his simple refusal to participate in same-sex weddings left anyone without options for a wedding cake. In the eleven years since, Phillips has been relentlessly hounded by the government of Colorado, while he has received hundreds of requests for cakes with “offensive messages, many of them with an intent to set him up,” according to his lawyers. One of those was from Autumn Scardina, an attorney who called the cake shop on the day the Supreme Court took Phillips’s case, asking this time for a cake customized to celebrate a gender transition. Phillips would have been willing to bake the same generic pink-and-blue color-schemed cake for the same person, but not to endorse the message — which is exactly what he was asked to do, and why he was asked to do it.

 

Phillips is the wronged party in this case. He says that Scardina had been after him for five years, berating him and requesting, among other things, another custom cake that depicted Satan smoking a marijuana joint. Even Scardina’s lawyer says that the purpose of these requests was about “calling someone’s bluff” — hardly a sincere desire to do business with Phillips. The Colorado courts found that Scardina’s phone conversation with Phillips’s wife “was sequenced so that Masterpiece did not learn the purpose for which the cake would be used until after Masterpiece committed to making the cake” — a sequence that was held against Phillips because the call came in on a day when he was too busy to answer the phone himself and immediately recognize an antagonistic lawyer’s laying a trap. Plainly, Scardina’s only interest in Jack Phillips was in taking him to court.

 

Phillips has never had a fair hearing from the progressive Democrats who run Colorado — not in the original Colorado Civil Rights Commission proceeding over the wedding cake, not in the 2021 hearing on the gender-transition cake, and not before the Colorado Court of Appeals panel that ruled on Thursday against his appeal in the Scardina case. In fact, he is being punished for not having had a fair hearing the first time, because the Supreme Court used that as an excuse not to decide, five years ago, whether he had a right to decline to bake a cake if he disagreed with its message. The high court is finally getting around to deciding a related issue this term.

 

In prior cases, Colorado allowed cake bakers to refuse to adorn a cake with Bible verses denouncing homosexual acts. The court’s hairsplitting rationale for why Phillips could not take refuge in the same right against compelled speech is that this particular cake request was framed by Scardina so that the message of the cake would be known to Phillips — thus forcing him to knowingly violate his conscience — but not actually written on the cake to distinguish it from a birthday cake. And yet, as the court acknowledged, asking detailed questions about the “the intended use of the cake” was a customary part of Phillips’s “creative process.” Thus, the court reasoned, hijacking Phillips’s conscience in his creation of an expressive cake is not compelled speech — even though compelling Phillips to endorse Scardina’s message was the entire point of Scardina’s request.

 

Colorado’s executive branch has been run exclusively by Democrats since 2006, and governors John Hickenlooper and Jared Polis appointed not only the leadership of the Colorado Civil Rights Commission but also the judges who ruled against Phillips. While we commend Hickenlooper and Polis for their occasional moderation on other issues, they cannot evade ultimate responsibility for the shameful yearslong persecution of Phillips, which they have openly supported. What a scandalous waste of public resources.

 

The illiberalism of Phillips’s pursuers is displayed not only in their relentless harassment of a simple cake baker, but also in the inconsistency of their standards. When a left-wing dissenter such as Colin Kaepernick seeks the right to protest publicly against a popular orthodoxy, progressives demand that he be permitted without consequence to broadcast his dissent on his employer’s time and property, no matter whom it offends. When the dissent is one they dislike, however, the dissenter must be not only precluded from openly airing it, but must be compelled by force of law to publicly endorse the orthodoxy in order to demonstrate his submission.

 

Likewise, in concluding that rejecting Scardina’s message was tantamount to discriminating against Scardina’s transgender identity, the court rejected “efforts to differentiate between discrimination based on a person’s status and discrimination based on conduct that is inextricably intertwined with such status.” Thus, a person’s homosexual or transgender identity is discriminated against unless others endorse the person’s conduct and views. This was the theory of those who demanded that the National Hockey League’s Ivan Provorov publicly wear a Pride jersey. Yet, the Christian identity of Phillips or Provorov must give way when he seeks to put it into action, words, or even simple silence. The right of Christians to faith-based conduct and expression, or even the right of nonreligious people to remain true to themselves if that means differing in opinion on the nature of gender and sexual orientation, must be forcibly separated from their identity.

 

The liberal promise of anti-discrimination laws is that they secure the same rights to all in a neutral fashion. The illiberal reality of their deployment by progressives in clashes between sex-based identity and faith-based identity is to demand that the faithful kneel before favored identity groups. A decent and liberal society would leave Jack Phillips alone. The Colorado government’s pursuit of him has sent a public message that it is neither decent nor liberal.