When the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, some demonstrators held up signs that said, “IT’S NOT ABOUT THE CAKE.”
Oddly enough, the activists are right. It wasn’t about the cake then, and it isn’t now in 2024. It is especially not for custom cake baker Jack Phillips, who had to defend himself from two lawsuits in the last 12 years from claims of anti-LGBT discrimination.
The lawsuits Phillips has been fighting were at the forefront of the culture wars, a complex trifecta unraveling the intersection of anti-discrimination laws, the LGBT community, religious freedom, and free speech. Where does a religious person’s sincere beliefs end and a member of the LGBT community’s rights begin? Can U.S. law and policy uphold both equally in theory and in practice?
Phillips’s mostly conservative allies believe his 10-plus years battling these lawsuits have only reinforced the idea that the First Amendment protects the government from forcing a person to express a message within their business that violates their sincerely held religious beliefs.
Opponents think Phillips’s lawsuits, and cases like it, demonstrate how some conservatives, particularly religious people, use their free speech rights to trump others’ civil rights.
Still, Phillips’s fight may have finally come to an end: What has changed and what have we learned?
Masterpiece 2.0
In October, the Colorado Supreme Court dismissed Phillips’s most recent lawsuit, Masterpiece Cakeshop v. Elenis, which was filed against him in June 2017, the same day the U.S. Supreme Court agreed to hear Phillips’s first case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Autumn Scardina filed the lawsuit against Phillips when he refused to bake a cake for the Colorado attorney. Scardina had requested a custom cake with a pink and blue design to celebrate the lawyer’s new identity as a transgender person.
Scardina’s lawsuit sought monetary damages of more than $100,000 against Phillips. Although attorneys with Alliance Defending Freedom had requested that the case be dismissed, it percolated through the courts until now.
“The underlying constitutional question this case raises has become the focus of intense public debate: How should governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market?” Colorado Supreme Court Justice Melissa Hart wrote in the opinion on behalf of the majority.
“We cannot answer that question however, because of a threshold issue of administrative law and statutory interpretation: Could the district court properly consider the claims of discrimination presented here? In light of this dispute’s procedural journey, it could not,” Hart wrote.
Scardina attorney John McHugh was disappointed that the justices didn’t rule on the argument. “The Colorado Supreme Court decided to avoid the merits of this issue by inventing an argument no party raised,” McHugh said.
In the dismissal, justices said in the 6-3 majority opinion that Scardina should not have sued Phillips directly but instead appealed the Colorado Civil Rights Commission’s decision.
But Phillips’s attorneys at Alliance Defending Freedom believe even tossing the case out based on procedure is a victory.
“Jack Phillips has been dragged through the courts for over a decade,” ADF senior counsel Jake Warner told the Washington Examiner. “Now after the Colorado Supreme Court’s ruling to dismiss the lawsuit brought by an attorney who has been harassing Jack for many years, we can say enough is enough. It’s time to leave Jack alone.”
Scardina first filed a complaint against the Colorado Civil Rights Commission in 2017. In 2018 and after the U.S. Supreme Court ruled on the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, the same governing body still found probable cause that Phillips discriminated against her. Phillips countersued.
Then, in 2019, after ADF exposed anti-religious bias on the commission, the Colorado Civil Rights Commission and Phillips agreed to drop their lawsuits in a settlement. Scardina then sued Phillips directly in Denver state court. After a remote trial in March 2021, a judge found in favor of Scardina, saying the case was about refusal to sell a product and not compelled speech. The Colorado Court of Appeals affirmed the ruling last year. Phillips appealed to the Colorado Supreme Court. That court heard oral arguments in June.
The crux of the issue in the suit Scardina filed is similar to the original Masterpiece case but even more fraught. The transgender issue is already complex and nuanced in the medical world. Fleshing out law and policy for this wing of the LGBT community is difficult, too.
This became more so in 2020, when the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity. Conservatives were surprised to see textualist Justice Neil Gorsuch author the majority opinion. If gender and sex are both to be protected under the law, how does Phillips’s refusal to bake a custom cake for Scardina not equate to sex-based discrimination, which is unlawful?
Phillips argued he did not refuse to make the cake for Scardina because of her status but, rather, because of the message conveyed by its intended use to celebrate such status. Sexual orientation and gender identity are now codified into law as protected classes, so it’s easy to see how the appeals court got to its decision that Phillips was being discriminatory. A transgender person’s status and conduct, or behavior, cannot be differentiated. Therefore, to hold to the orthodox belief that gender fluidity contradicts God’s design or ancient religious traditions or belief systems is to be discriminatory. There is no provision or allowance for traditional beliefs.
The original Masterpiece
It was clear from the beginning that Scardina’s complaint and lawsuit were meant to make an example of Phillips. Scardina may have technically failed in this, but the fact that Phillips has been litigating nearly the same issues via two different lawsuits for a dozen years suggests otherwise.
In 2012, a gay couple, David Mullins and Charlie Craig tried to hire Phillips to bake a custom cake for their wedding ceremony. This was two years before same-sex marriage was legalized in Colorado and three years before the Supreme Court ruled states must recognize same-sex marriage in Obergefell v. Hodges.
“We asked for a cake,” Craig told Adam Liptak in a New York Times story on it in 2017. “We didn’t ask for a piece of art or for him to make a statement for us. He simply turned us away because of who we are.”
Phillips had already been operating his bakery for decades, since 1993. He had already declined custom cakes for all kinds of events or issues with which he disagreed due to his Christian faith.
The lawsuit was often misunderstood in two ways, neither of which helped the public perception of Phillips. Early on, the case was often portrayed in media and news reports as a discrimination in public accommodations issue, such as the 1968 Newman v. Piggie Park Enterprises case. In that case, the Supreme Court rejected a BBQ restaurant owner’s claim that his religious beliefs allowed him not to serve African American customers.
“The case did, however, unearth a question decided half a century ago: Can business owners in America use their religious beliefs as a justification to discriminate?” Vanita Gupta wrote for CNN in 2018.
The couple themselves, Mullins and Craig, portrayed the case thusly as well.
“Our story is about us being turned away and discriminated against by a public business,” Mullins told Liptak in a New York Times piece.
“To this day, we still question whether talking about our relationship when we go in somewhere, we could be discriminated against again,” Craig added.
In 2015, the American Civil Liberties Union posted on social media, “It’s not about the cake. No one should be denied service for who they are.”
Put that way, Masterpiece seems despicable. It’s 2017, refusal of service for religious reasons isn’t just antiquated and bigoted but entirely unlawful. Is Phillips just an old-fashioned bigot?
Second, the case also appeared as a conflict between anti-discrimination laws and the First Amendment’s stance on religious freedom. This is partially true.
In their original complaint filed to the Supreme Court in 2017, ADF attorneys rejected the first argument and paired it with religious freedom arguing, adding a vital element: free speech protections.
“Phillips serves all people, but cannot convey all ideas or celebrate all events. He seeks to live his life, pursue his profession, and craft his art consistently with his religious identity. The First Amendment guarantees him that freedom,” the complaint said. “This Court’s compelled-speech doctrine forbids the Commission from demanding that artists design custom expression that conveys ideas they deem objectionable. Thus, a cake artist who serves all people, like Phillips does, cannot be forced to create wedding cakes that celebrate marriages at odds with his faith.”
Oral arguments were compelling. The justices asked questions about whether discrimination against a gay couple was the same thing as race-based discrimination and whether the Colorado Civil Rights Commission was overtly hostile to Phillips’s religion.
But the case still seemed like David versus Goliath. Justice Anthony Kennedy, the author of the Obergefell decision and a staunch free speech advocate, was the decisive vote.
Still, in 2018, the Supreme Court ruled in favor of Phillips 7-2 in a narrow ruling, with Kennedy scolding the government’s obvious animus toward the baker. “When the Colorado Civil Rights Commission considered [Phillips’s] case, it did not do so with the religious neutrality that the Constitution requires,” Kennedy wrote.
Many conservatives were disappointed in just how narrow the ruling was. At National Review, Andrew McCarthy went so far as to call the decision a “setback for liberty.”
“Confronted by a liberty twofer — an attack on free-expression rights that also burdens religious liberty — the justices punt on substantive protections for traditional religious exercise and speech (the latter liberty that could and should have decided the case in Mr. Phillips’s favor); they agitate, instead, over procedural flaws in the state’s adjudication of the conscience question,” McCarthy wrote after the ruling was released.
Moving forward
So here we are now, 12 years after the first lawsuit.
Our nation’s laws are crafted in such a way that they do strive to protect everyone equally, although this doesn’t prevent certain groups or beliefs from clashing in real life. One could argue it is lawmakers’ and judicial insistence on anti-discrimination laws that such conflict occurs. In a strange way, this is a good thing: the laws that protect Phillips protect Scardina and vice versa.
Despite a narrow ruling on the first Masterpiece case and a procedural ruling on the second, ADF attorneys believe the free speech and religious liberties of Phillips are secure. They argued a similar case, 303 Creative v. Elenis, at the Supreme Court in 2023. This time, though, it was about a woman of faith who designs wedding websites, not cakes. In a 6-3 ruling, the Supreme Court found in her favor.
“As the U.S. Supreme Court held in its opinion 303 Creative v. Elenis last year, the government cannot force artists to express messages they don’t believe. ADF argued that the Colorado high court should apply that ruling and similarly affirm Jack’s free speech rights in this case. Though the Colorado Supreme Court did not decide that issue in this case, 303 Creative provides enduring free speech protection for Jack,” Warner told the Washington Examiner.
Phillips’s arduous fight is over, but the lessons learned about the tricky intersection between religious liberty, free speech, and the LGBT community might just be that they’re difficult but worth fighting for. Even if it takes a bevy of lawyers, over a decade, and a whole lot of patience.
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“The campaign against Jack Philips is the most malicious, spiteful lawfare we’ve seen in the last decade,” author and constitutional attorney Ilya Shapiro told the Washington Examiner. “He’s an artist and a gentle soul whom rabid left-wing activists targeted out of pure spite. It’s heartening that his ordeal is finally over. The moral of the story is just leave people alone!”
At least we can all agree, it wasn’t really about cake. It was about something far more important. Even if it took 12 years to prove.
Nicole Russell is an opinion columnist for USA Today. She lives in Texas with her four children.