On Monday, the Supreme Court announced that it was seeing double. No, it wasn’t an optical illusion or a visual aberration — rather, the court identified a problematic double standard of justice.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a decisive 7-2 majority of the justices called out the double standard that Colorado had applied against my client, Jack Phillips. The Supreme Court reversed the decision to bully Jack for his faith and further clarified that the “government has no role in expressing or even suggesting whether the religious ground for [Jack’s] conscience-based objection is legitimate or illegitimate.”
Commentators will offer their various interpretations of this important case. Specifically, the American Civil Liberties Union (ACLU) claims that this case simply addresses Jack’s situation and offers no relief for other creative professionals. But the ACLU’s reading of the decision misses the mark.
My team and I presented two First Amendment issues to the court for review—artistic freedom and free exercise of religion. The court decided to tackle only the religious freedom issue because the evidence of anti-religious hostility against Jack was so profound that the court didn’t need to reach the speech question.
By now, many people know the facts of Jack’s case. As the court described him, Jack is “an expert baker and devout Christian.” The logo for Masterpiece Cakeshop features a paintbrush, and Jack puts his creative genius into each custom design that he creates.
Jack has never refused to serve any person based on who they are. Everyone is welcome in his shop — even the two men who sued him. But Jack cares deeply about the messages he communicates through his artwork. So over the years, he has declined to create many custom cakes because of the messages on them or the events that they celebrate.
In 2012, Phillips declined a request to create a wedding cake celebrating a same-sex marriage. But he was quick to tell the couple that he would design a cake for them for another occasion or sell them anything else in his store.
Instead of respecting Phillips’ belief about marriage, the state labeled his beliefs discriminatory. One state official even said that using religious freedom “to justify discrimination” is “a despicable piece of rhetoric,” comparing Phillips’ efforts to protect his freedom to arguments raised by slaveholders and Nazis. And the government ordered Phillips to re-educate his employees, which even included his mother, and teach them that he was wrong to operate his own business consistently with his beliefs.
To make matters worse, the same commission that sidelined Jack’s convictions elevated the convictions of other Colorado cake artists, who were faced with requests for messages that they did not want to create, specifically messages that opposed same-sex marriage.
By so doing, the commissioners showed their bias and demonstrated a nearly poetic double standard concerning the cake artists’ expressive freedom and their willingness to sell other products to the same customers.
It is true that the court’s decision did not directly resolve all the claims of our other creative professional clients — filmmakers, calligraphers and printers, to name a few — who wish to live out their convictions within the public square. It did, however, reiterate these vital principles:
- “[R]eligious and philosophical objections to gay marriage are protected views and, in some instances, protected forms of expression.”
- The government (at local, state and federal levels) is obligated to consider these kinds of cases “with the religious neutrality that the Constitution requires.”
- The government is not allowed to pass “judgment upon or [presuppose] the illegitimacy of religious beliefs and practices,” as it did in Jack’s case.
These principles matter for our other clients because government officials throughout the country routinely target people of faith for adverse treatment. This means that other artists who share Jack’s religious beliefs about marriage will also benefit from the court’s decision.
Justice Neil Gorsuch said it well in his concurrence: “Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.”
The ACLU and its friends might choose to cuff “religious liberty” in scare quotes, but the government — according to this ruling — may no longer deride religion in that way.
This week, when the Supreme Court saw double, it fixed the problem. That’s good news for Jack. And despite what some might say, it’s good news for other creative professionals as well.
Kristen Waggoner is senior vice president for the U.S. legal division of the Alliance Defending Freedom, a Scottsdale, Arizona-based nonprofit devoted to defending the First Amendment rights, especially religious freedom of expression and practice. She was ADF’s lead attorney in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case before the U.S. Supreme Court.
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