By the time I visited Masterpiece Cakeshop in 2016, Jack Phillips, the man who had famously refused to bake a specialty cake celebrating the wedding of a gay couple, had been the victim of a four-year campaign of harassment by the authoritarians at the Colorado Civil Rights Commission intent on punishing him for a thought crime.
Now Phillips is back in the news, as his lawyers attempt to get new charges against him dismissed on appeal from a Colorado judge’s decision last year.
For the past decade, the media and lawyers and judges and leftists have misrepresented Phillips’ position. No, the baker never turned a gay couple away from his shop. Or a transgender person. Or anyone else. No, he never refused to sell anyone a wedding cake (ceremonial, in the case that made him famous, as the request predated both Obergefell and Colorado’s recognition of gay marriage). Philips refuses to create any specialty item from scratch that features any message that conflicts with his long-held religious beliefs. He will refuse to create such cakes for any customer, gay or straight or black or white.
After years of fiscal hardship, Phillips finally won a 2018 Supreme Court decision, in which the Court ruled that the Colorado commissioners had displayed “a clear and impermissible hostility toward [Phillips’] sincere religious beliefs” in their efforts to punish him—by which the justices meant members had compared Phillip’s faith to that of Nazis and segregationists. While it was a personal victory, it did almost nothing to preserve religious liberty or free expression rights.
Really, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission wasn’t much of a personal victory, either. All the commission now had to do was avoid openly attacking faith. A person can still walk into a business in Colorado and demand the proprietor create a message that conflicts with their sincerely held convictions — as long as that message comports with the contemporary left’s evolving virtues.
We know this is true because it happened again. In June 2017, on the day the Supreme Court agreed to hear Phillips’s case, a transgender activist named Autumn Scardina called Masterpiece and requested a custom cake with a blue exterior and a pink interior symbolizing gender transition. Scardina, who was almost certainly the same person who called Masterpiece later to order “a three-tiered white cake” with a “large figure of Satan, licking a 9″ black Dildo” and another cake with “an image of Satan smoking marijuana,” knew the baker would turn the offer down.
“I was stunned,” Scardina lied to the Colorado Civil Rights Commission, later admitting that the activism was about wanting to “correct the errors” in Phillips’s thinking. A thought crime. The commission — this time, doing its unconstitutional work without any superfluous commentary — agreed that Scardina had been discriminated against as a transgendered person. Judge A. Bruce Jones of the Second Judicial District upheld the commission’s decision. Now, Phillips has to go through the entire ordeal again. And we have to listen to people distort the case and the law.
The Associated Press claims that these types of cases “pit the rights of LGBTQ people against merchants’ religious objections.” Again, this is factually incorrect, since Phillips wouldn’t create a transition cake requested by a non-transgendered person or a straight pornographic cake or a cake pronouncing Xenu the one true God, either.
Michael Shermer, publisher of Skeptic magazine, argues that the best way to signal “your opinion that this baker is on the wrong side of moral history” is to not solicit his services. “Boycott his business. Contract with other bakers. If his income stream diminishes he’ll either go out of business or rethink his policies,” he tweeted. Does anyone who’s spent more than a minute reading about this case believe that Scardina, or any of the other people harassing Phillips, are happening on Masterpiece Cakeshop looking for transition cakes? When I wrote about Phillips in 2016, I counted a dozen other bakeries within a five-square-mile radius of Masterpiece. Is the right side of “moral history” compelling people to say things when there are 12 other establishments that will cater to your needs?
There is no legal “right” to compel others to say things they don’t believe. Until the Supreme Court explicitly reaffirms the foundational protections of religious liberty and free speech, there will be no end to the state compulsion or harassment. There is some hope in the case of Denver-area web designer Lorie Smith, who refuses to create websites for same-sex couple marriages, which the Supreme Court has taken up this term. Let’s hope the justices do their jobs this time.
Reporting from The Federalist.