Photo: Alliance Defending Freedom

The Colorado cake artist, Jack Phillips, who has been prosecuted twice for refusing to make cakes for events that contradict his religious beliefs, seems to have finally gotten the law off his back.

The Colorado Civil Rights Commission announced on Tuesday that it will dismiss its most recent charges against Phillips. This comes in the wake of newly discovered evidence of the state’s ongoing hostility toward religious freedom, says the Alliance Defending Freedom, which has defended him since 2016.

It is six and a half years since Jack Phillips first found himself in trouble for turning down a gay couple who wanted him to make them a wedding cake. Phillips is a Christian who is willing to serve gay people but not to put his stamp on their weddings, since his faith does not countenance gay marriage. His frustrated customers complained to the Colorado authorities, who held that he had violated state anti-discrimination law. Phillips appealed the decision on religious freedom grounds.

The state’s Civil Rights Commission then took up the cause of the complainants and there followed a series of rulings and appeals that ended up in the US Supreme Court as Masterpiece Cakeshop v. Colorado Civil Rights Commission. In June last year the Justices ruled 7-2 in favour of Phillips; they were influenced by evidence that the CRC had acted “without the religious neutrality that the Constitution requires” – in others words, out of hostility to Phillips’ religious beliefs.

Meanwhile, another attempt had been made to force Phillips into submission.

A year before, on the very day that Supreme Court had agreed to take up the Masterpiece Cakeshop case, an attorney asked Phillips to create a cake designed pink on the inside and blue on the outside, to celebrate a gender transition from male to female. Phillips declined the request because the custom cake would have expressed messages about sex and gender identity that conflict with his religious beliefs. (The same man later asked Phillips to design a cake with satanic themes and images.)

Less than a month after the Supreme Court ruled for Phillips in his first case, the state surprised him by finding probable cause to believe that Colorado law requires him to create the requested gender-transition cake. It is this case that the state has now dismissed, after Alliance Defending Freedom filed a federal lawsuit against it.

Announcing Phillips’ victory yesterday ADF spokesperson Kristen Waggoner said in a statement: “Jack’s victory is great news for everyone. Tolerance and respect for good-faith differences of opinion are essential in a diverse society like ours. They enable us to peacefully coexist with each another. But the state’s demonstrated and ongoing hostility toward Jack because of his beliefs is undeniable.”

About that hostility ADF’s statement went on to say:

“The fact that one commissioner called Phillips a “hater” on Twitter was already publicly known. But a Colorado state legislator recently disclosed that he spoke in November 2018 to a current commissioner who expressed the belief that “there is anti-religious bias on the Commission.” And just last week, ADF attorneys uncovered statements from a 2018 public meeting in which two commissioners voiced their support for comments that a previous commissioner, Diann Rice, made in 2015. Those comments, which the US Supreme Court sternly condemned in its ruling in favor of Phillips last year, called religious freedom “a despicable piece of rhetoric.”

“At the June 22, 2018, public meeting, members of the commission discussed the U.S. Supreme Court’s ruling. During that discussion, Commissioner Rita Lewis said, “I support Commissioner Diann Rice and her comments. I don’t think she said anything wrong.” Later, Commissioner Carol Fabrizio added, “I also very much stand behind Commissioner Rice’s statements…. I was actually proud of what she said, and I agree with her…. I’m almost glad that something the Commissioner said ended up public and used, because I think it was the right thing.”

ADF says it is pleased that the state will be dismissing its case against Jack Phillips, and hopes that “the state is done going along with obvious efforts to harass Jack” for his religious beliefs and his desire to live consistently with them.

Phillips himself said:

“When I set out to build my dream of opening my own cake shop, combining my love for art and baking in a family business, I never imagined this chapter would be part of the Masterpiece Cakeshop story,” said Phillips. “I have and will always serve everyone who comes into my shop; I simply can’t celebrate events or express messages that conflict with my religious beliefs. The Supreme Court affirmed that government hostility against people of faith is unconstitutional, and that Colorado was hostile to my faith. That hostility cost me 40 percent of my business and the wedding work that I love to do.”

He added: “Today is a win for freedom. I’m very grateful and looking forward to serving my customers as I always have: with love and respect.”

In an earlier article law professor Steven Smith, who was involved in the Masterpiece Supreme Court case, quoted a famous statement by former Justice Robert Jackson in the celebrated case of West Virginia State Board of Education v. Barnette, that

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

The Phillips case can also be seen from the perspective of “forced speech”, which was part of his case to the Supreme Court, but did not feature in the court’s decision. Even the protection of religious freedom was affirmed with reservations, and Jack Phillips may not be the last baker – or florist or photographer or wedding reception venue -- to be pursued by those who are not satisfied with being granted contentious rights but insist that everyone approve of them as well.

Carolyn Moynihan is deputy editor of MercatorNet.