It’s the 10th year of litigation for Jack Phillips, the Colorado baker whose Christian belief that marriage is between one man and one woman means that he declines to design custom wedding cakes for same-sex unions. Or rather, it’s the 10th year of his persecution as a Christian by the militantly secular powers that be, both public and private.
In June 2018, six years after the wedding cake dispute began in 2012, he won a partial victory in the U.S. Supreme Court overturning a ruling by the Colorado Civil Rights Commission, and, in turn, the Colorado state courts, that his refusal violated the state’s Anti-Discrimination Act, which forbids businesses open to the public from declining service to people on the basis of, among other things, their gender and sexual orientation. The high court ruled 7–2 that statements by one of the commissioners during the proceedings comparing Phillips’s beliefs to defenses of slavery and the Holocaust evidenced a hostility to his faith impermissible under the First Amendment’s guarantee of the “free exercise” of religion.
Philips was lucky: If that commissioner hadn’t shot her mouth off, he might have lost his Supreme Court case.
But that wasn’t the end of his travails.
His case involved two gay men who, in July 2012, visited Phillips’s business, Masterpiece Cakeshop in Lakewood, a Denver suburb, to order a custom cake commemorating their wedding in Massachusetts (same-sex marriage wasn’t yet legal in Colorado). After Phillips turned them down (he said he was willing to sell them a cake off the shelf), the men filed a complaint with the commission. It not only ordered Phillips to bake and custom-decorate cakes for same-sex weddings in the future but mandated “comprehensive” staff training and quarterly reports for the next two years documenting his treatment of same-sex customers.
Phillips’s response, the only one that he could square with his conscience, was to stop making custom wedding cakes altogether. That cost him 40 percent of his business and forced him to lay off several long-term employees. The U.S. Supreme Court ruling, following Phillips’s unsuccessful trek through the Colorado state-court system, seemed to grant a reprieve.
Even if Phillips wins at that level, he’s likely to languish for even more years as the litigation drags through higher courts—and then starts all over again when he gets sued for not baking cakes to celebrate polyamorous unions or consensual incest.
It’s appalling that in a country with a theoretically robust First Amendment, someone who, on the basis of sincerely held Christian beliefs, declines to go along with a government demand that he not only tolerate but celebrate the LGBTQ revolution must pay the steep price that Phillips has paid for a decade. Even in purely secular terms, it’s repugnant that an artist—and as Phillips’s own beautiful creations attest, cake decoration is certainly an art—can be forced to create art that violates his conscience but serves goals approved by the government and the reigning culture.
But the blame, alas, lies directly with the U.S. Supreme Court itself. A 1990 Supreme Court case, Employment Division v. Smith, involved two drug counselors who were fired from their jobs after drug tests revealed that they had been using peyote that they said was part of their religious ritual in the Native American Church. As a result, they were denied unemployment benefits by the state of Oregon. In an opinion written—paradoxically—by the religiously conservative Justice Antonin Scalia, the Supreme Court ruled 6–3 that as long as a law is a “neutral, generally applicable law” that doesn’t specifically target religious beliefs and practices, it doesn’t violate the First Amendment’s protection for the free exercise of religion.
The Smith decision might have made some sense—common sense—at the time. Do we as a society really want to hire drug counselors who use hallucinogenic drugs that have no recognized medicinal function? And perhaps Scalia’s implicit reasoning—that it would be chaotic to allow people to carve out their own personal religious exemptions to laws they didn’t like—made some sense, too. But it was inevitable that as culture, at least as practiced by its ruling progressive elites, became more militantly secular, it would use seemingly neutral laws designed to ensure equal treatment of minorities to enforce conformity to its ruling ideology.
That’s why Colorado activists can’t let go of Jack Phillips—and why few other bakers who might have moral objections to crafting cakes for same-sex weddings have chosen to follow his courageous example to the detriment of their livelihoods.
The time has certainly come for the Supreme Court to reconsider its 1990 decision and take the exercise of religion seriously.
