Congratulations to Jack Phillips for finally having his case heard by judges who have not lost their damn minds. Unfortunately, it had to make it to the Supreme Court before he would receive some retribution. After six long years of litigation the justices ruled almost unanimously that the Colorado Civil Rights Commission, who forced Phillips out of the wedding cake business altogether, was clearly operating unconstitutionally by exhibiting anti-religious sentiment in their handling of Masterpiece Cakeshop. This is a small win for Christians looking to live out their faith in the public square, but a win nonetheless. The question still remains if artisans are constitutionally protected, against the intrusion of government, to follow the tenets of their beliefs when providing a public service. Almost like magic, gay rights activists throughout the country have targeted and attacked Christian operated small businesses in their crusades to conscript their uncompromising beliefs onto the larger public.
To recap, in 2012 Charlie Craig and David Mullins had made plans to travel to Massachusetts, legally recognized unions between same sex partners did not exist in Colorado, to enter into a marital contract and then travel home and celebrate. They asked Masterpiece Cakeshop to create a custom wedding cake for their reception to which Jack Phillips declined on the grounds of his Christian beliefs. He did not, however, decline to sell them a cake; rather he told them he would not create one for their event. This is the point on which his attorneys with Alliance Defending Freedom attempted to argue the case. His refusal of service was not a broad one, they could purchase anything in the store, it was specifically over his customized works. In other words, he was not discriminating against gay people as an identity group. The couple could purchase any confection on the shelves, rather he was refusing to participate in a celebration—by creating a custom cake—that rejected the anthropology of his Christian faith. Craig and Mullins complained to the Colorado Civil Rights Commission for discrimination, and it in turn found Phillips must provide custom cakes to same-sex marriages, change its company policies, offer comprehensive staff training about public accommodations, and provide quarterly reports for the next two years of steps it has taken to comply with the Commission’s judgment.
Keep in mind, gay marriage was not even legal in Colorado when Jack Phillips declined to make the cake, and the Civil Rights Commission is a bureaucratic organization that does not represent the people of the state. They clearly exhibited animus towards Mr. Phillips beliefs. This ultimately caused their decision to be thrown out at the Supreme Court, but what the SCOTUS refused to consider is whether Masterpiece Cakeshop had a right to refuse to commission Jack Phillips’ art for the couple in the first place. The decision to narrowly consider this case on the grounds of religious bigotry displayed by the Civil Rights commission was probably an act of pragmatism by the ideological conservative justices on the court. It is unlikely a 7-2 split would have occurred on this case if they had ruled more broadly. In fact, the ever-elusive Justice Kennedy– as well as Breyer and Kagan– would have been more likely to align with the progressive wing of the court had the consideration been broader than the grounds on which it was heard. From that perspective, instead of a striking win for Jack Phillips and his right to practice his faith, we are looking at a 5-4 split for the Civil Rights commission and his indentured servitude.
Make no mistake, this is a win for the Christian faithful, and by extension religious freedom, no matter how minimal. Presumably, Phillips should return to his business and once again make custom wedding cakes while observing the tenets of his faith. This should be celebrated. A man was returned his constitutional right to operate according to his conscience, but this is only the tip of the iceberg for SCOTUS considering where the consumer’s rights begin and the owner’s rights end. The gay marriage debate has rendered this question highly toxic, but livelihoods and faithful Christian’s job market prospects require an answer. SCOTUS dodged the broader question this time, but the day is coming where it must be addressed.
Our best bet for having a case like Jack Phillips’ decided in favor of the artisan is if Justice Kennedy retires very soon and Trump replaces him with another justice with Neil Gorsuch’s credentials. Until then, we can expect to keep treading water with small victories for religious freedom.