Photo courtesy Alliance Defending FreedomMasterpiece Cakeshop owner Jack Phillips works on a cake at his shop in Lakewood. On Tuesday, the Supreme Court is scheduled to hear a case regarding Phillips’ refusal to make a wedding cake for a gay couple in 2012.
On Tuesday, the U.S. Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission, and court observers are sure to be watching closely to see what the justices think about the work of cake artist Jack Phillips. After all, one of Phillips’ constitutional claims is based on the premise that his custom wedding cakes are artistic creations and therefore deserving of First Amendment protection.
That premise is surely true.
Like any artist, Phillips is driven by a passion to create beauty and is guided by his technical expertise, acquired over decades, with the tools of his trade. He’s not an inattentive operator of a cake conveyer belt assembly line. Nor is he — in the words of a legal brief signed onto by
33 family policy organizations — like “a gumball machine that mechanically dispenses a product when payment is inserted.” Rather, Phillips invests his “mind and imagination in the expression of ideas.” His wedding cakes are individually handcrafted — meticulously designed, sculpted, painted and otherwise adorned with color and form.
This combination of soul and skill enables Phillips to turn a palette of fondant and icing into a custom masterpiece that celebrates a most memorable occasion. Phillips is an artist, and his artistic expression is protected by the First Amendment.
But even if the Supreme Court acknowledges this, it doesn’t settle the matter, at least not according to the respondents, the Colorado Civil Rights Commission and the ACLU. They argue that Colorado’s law still may be used to force Phillips to create cakes for same-sex weddings if he creates cakes for opposite-sex weddings. They claim Phillips isn’t simply declining to express a particular message through his art, but rather that he is declining to serve individuals because of who they are. They are asking the high court to rule that if Phillips uses words or designs to create a custom cake for one customer, he must be prepared to use those same (or similar) words or designs to create a custom cake for any other customer.
That can’t be right, and a number of examples prove it. If a Muslim graphic designer created a flier that read “Worshiping the One True God” for a Muslim conference, the commission’s proposed rule would compel him to do the same for a Jewish event. If a musician-for-hire agreed to sing “This Land Is Your Land” at a peace rally promoting unity, she could not decline an invitation to sing it at a Klan rally promoting white nationalism. And a liberal cake artist who had previously crafted elephant-shaped cakes for children’s birthday parties adorned with the words “The best is yet to come!” could be compelled to create the same cake for the launch of President Donald Trump’s re-election campaign.
The examples above illustrate that identical words and symbols, in different contexts, have very different meanings. And that’s the point. That’s precisely why Phillips would make a birthday cake for a customer that says “Best day ever,” but would decline an invitation from that same customer to make a cake with those words in celebration of his divorce. Contrary to the claims of the commission and the ACLU, Phillips’ decisions aren’t based on who an individual is but on what particular message or event he is asked to celebrate. As Phillips has repeatedly said, he will welcome every person into his store and will create cakes for anyone, but he won’t design every cake.
Ours is a diverse society. If we are to maintain our rich diversity, we must protect it. A government that can compel Phillips’ expression can compel yours and mine as well. After all, today’s favored viewpoint might be tomorrow’s forbidden expression. This should alarm us, but more than that, it should persuade us to defend freedoms of expression and conscience, even when we don’t agree with a particular individual’s point of view.
Phillips should be allowed to have his cake and his freedom, because there is nothing sweeter than a free society.
James Gottry is legal counsel with Alliance Defending Freedom, which represents Jack Phillips and Masterpiece Cakeshop.
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