The Long Road to Freedom for Jack Phillips

National Review Online

Wednesday, October 09, 2024

 

Few living Americans have stood longer against government persecution for their freedoms than Colorado baker Jack Phillips. He has been repeatedly targeted under Colorado anti-discrimination law for adhering to his Christian faith. At long last, his third legal saga is over after the Colorado supreme court on Tuesday rejected the latest lawsuit against him on procedural grounds. After twelve years, Phillips is free of the courts. We can only hope he stays free — and that his fellow citizens will, too.

 

The end of the current round of persecution of Phillips is cause for celebration but not for unbridled joy. This is America. It is a scandal that any of the lawsuits against Phillips were brought, and it is a scandal that the courts have not rejected them squarely on the merits, in terms that made plain that this must not happen here again.

 

Phillips never aspired to be a political lightning rod. He didn’t volunteer for this. He just wanted to bake cakes. It was Colorado’s legal system that came for him, and a zealous transgender lawyer who kept the cases going. Fortunately, Phillips had the able counsel of Alliance Defending Freedom in his corner, and ADF is taking a well-deserved victory lap at having protected his rights. But the process has been the punishment. We have editorialized on this saga in 2015, 2018, 2019, and 2023. But as months and years have gone by when Phillips has been out of the headlines, he has still had to live with the legal sword of Damocles hanging over his head.

 

To describe Phillips’s legal odyssey is to condemn it. In 2012, Phillips declined to make a custom cake for a same-sex wedding, citing his religious objection to endorsing same-sex marriage. At the time, same-sex marriage was not even legally recognized in Colorado. Phillips has never refused to serve any individual or group; he just won’t use his talents for customizing cakes to deliver messages contrary to his faith. The same-sex couple filed a complaint with the Colorado Civil Rights Commission, which took six years of litigation before it was rejected 7–2 by the U.S. Supreme Court.

 

Then, the Court rightly concluded that the commission’s proceedings were pervaded with overt anti-Christian bias and therefore rigged unfairly against Phillips, but it stopped there. That left unsettled the question of the rights of Phillips and other believers to decline business that violated their faith. Justice Elena Kagan’s concurrence even offered a road map for Colorado to come out the other way in future cases so long as it was less obvious about what it was doing. Not until another case from Colorado, 303 Creative v. Elenis, was decided in 2023 did the Court make clear the right of creators on free-speech grounds to refuse expressive business that violated their conscience. Even after 303 Creative, Phillips has had to endure another 16 months of litigation.

 

The Masterpiece Cakeshop v. Colorado Civil Rights Commission case put a public target on Phillips’s back. He received hundreds of requests for cakes with “offensive messages, many of them with an intent to set him up,” according to his lawyers. As we explained last year:

 

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 . . . 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.

 

Scardina (a man who identifies as a woman) filed two lawsuits against Phillips, the second of which was the subject of Tuesday’s decision in favor of Phillips. The Colorado supreme court ruled against Scardina on the procedural ground that the Colorado Civil Rights Division had reached a separate settlement with Phillips (as part of the resolution of a federal lawsuit counter-filed by Phillips’s legal team), and Colorado administrative law required Scardina to appeal that settlement rather than file a new lawsuit without the approval of the Civil Rights Division.

 

Shamefully, this was still a close case. Numerous amicus briefs were filed urging the court to rule against Phillips, including a brief by 17 state attorneys general and, perhaps most shamefully, a brief by the Colorado chapter of the American Civil Liberties Union standing against civil liberty. The court’s opinion was only 4–3. The majority disclaimed any resolution of whether Phillips is free: “We express no opinion about the merits of Scardina’s claims, and nothing about today’s holding alters the protections afforded by CADA [the Colorado Antidiscrimination Act].” The dissent fretted that it was “concerned that Masterpiece and Phillips will construe today’s ruling as a vindication of their refusal to sell non-expressive products with no intrinsic meaning to customers who are members of a protected class (here, the LGBTQ+ community) if Phillips opposes the purpose for which the customers will use the products.” His right to do so, said the dissent, was “unfounded.”

 

So long as there are Americans like Jack Phillips, our liberties will be defended. But as long as there are those like the forces who arrayed against him, those liberties will need defending. For his sake, we hope his time on the front lines of that battle has passed, but if so, others will need to emulate his courage.