Christian baker Jack Phillips remains under a government order to bake wedding cakes celebrating same-sex marriage, having lost his case before the Colorado Court of Appeals. He is now deciding whether to ask the Colorado Supreme Court to review the matter.
As Breitbart News has previously reported, Jack Phillips is a baker who owns Masterpiece Cakeshop in Lakewood, Colorado. In July 2012, Charlie Craig and David Mullins, who are homosexual, planned to get married in Massachusetts, because same-sex marriage was not then legally recognized in Colorado. Nonetheless, they wanted to wedding cake to hold a private wedding reception back in Colorado. They visited Masterpiece Cakeshop to order a wedding cake. Phillips explained that he could not bake such a cake because it would violate his Christian beliefs regarding what the Bible says about marriage.
Craig and Mullins filed a legal complaint, and the Colorado Civil Rights Commission held that Masterpiece Cakeshop—and Phillips personally—had violated Colorado law. Phillips and his business are represented by the Alliance Defending Freedom, which appealed the commission’s decision to the Colorado Court of Appeals.
In Masterpiece Cakeshop v. Craig, the appeals court acknowledged that Phillips “believes in Jesus Christ as his Lord and savior.” Moreover, “Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.”
Under the Colorado Anti-Discrimination Act (CADA), “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny an individual or a group, because of… sexual orientation… goods [or] services… of a place of public accommodation.”
The appeals court noted Phillips’s argument that he is not discriminating based on sexual orientation because he made clear that he was willing to bake them any other product for any other reason. Nonetheless, the court’s opinion declared it interpreted the U.S. Supreme Court’s recent same-sex marriage case Obergefell v. Hodges as holding that actions that do not recognize gay marriage are a form of “discrimination on the basis of sexual orientation.”
The court added that a person need not have “animus”—meaning strong negative feelings—regarding homosexuality in order to violate CADA, and instead CADA is violated whenever a person changes his action because he does not support gay marriage. The court concluded that “discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.”
Phillips argued that when he bakes a cake he is engaging in a form of speech. He claimed that forcing him to convey a message supporting gay marriage is therefore compelled speech, which is forbidden by the Free Speech Clause of the First Amendment.
The court rejected that argument as well, holding that “even if compelled by the government,” baking a cake with a wedding message “is not sufficiently expressive to warrant First Amendment protections.” The court later added that “the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it.” The court also reasoned that Phillips could post “a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by [Colorado law].”
The court then separately held that being forced to bake a cake for a same-sex wedding does not infringe upon Phillips’s fundamental right to the free exercise of his religion under the First Amendment. The appeals court admitted that the U.S. Supreme Court has held that exercising your religion includes the “performance of (or abstention from) physical acts.”
However, the Colorado court then held that CADA is “a valid and neutral law of general applicability,” rather than a law that targets religious people. Therefore it does not trigger the Constitution’s protections under the Free Exercise Clause even when it forces a person to engage in an action that violates that person’s sincere religious faith.
ADF senior counsel Jeremy Tedesco, representing Phillips and Masterpiece, reacted with statement:
Americans are guaranteed the freedom to live and work consistent with their faith. Government has a duty to protect people’s freedom to follow their beliefs personally and professionally rather than force them to adopt the government’s view. Jack simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message with which he disagrees. The court is wrong to deny Jack his fundamental freedoms. We will discuss further legal options.
The only options open to Phillips are either to begin baking gay wedding cakes that violate his faith, or ask the Colorado Supreme Court to review his case. ADF is expected to announce in the near future that Phillips will continue his legal fight to keep his faith.