Like the Living Dead, this cake case just keeps coming back again and again.
Today lawyers for Jack Phillips, the owner of Masterpiece Bakeshop in Colorado, filed a Writ of Certiorari with the US Supreme Court, formally asking the Court to review the case they already lost back home three times. The lawyers' summary of their 32-page writ is this:
Jack Phillips is a cake artist. The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado AntiDiscrimination Act (“CADA”) when he declined to design and create a custom cake honoring a samesex marriage because doing so conflicts with his sincerely held religious beliefs.
The Colorado Court of Appeals found no violation of the Free Speech or Free Exercise Clauses because it deemed Phillips’ speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of Phillips’ cakes and the Commission’s exemption of other cake artists who declined to create custom cakes based on their message. This analysis (1) flouts this Court’s controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third, Sixth, and Tenth Circuits.
The question presented is:
Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
Good God, but this zombie wedding cake just keeps coming back again and again, like Michael Myers coming after Jamie Lee Curtis.
Here is the history of the case:
- Jack Phillips is a baker. His lawyers call him a "cake artist". He set up shop in Colorado. Here's one of his cakes:
- Among the business laws Colorado requires him to obey is one saying he cannot discriminate against customers based on their sexual orientation (or race, or religion, or national origin, etc.).
- David Mullins and Charlie Craig visited Masterpiece Cakeshop in July 2012, with Craig's mother, to order a cake for their upcoming wedding reception. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Mr. Phillips informed them that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding.
- The couple filed complaints with the Colorado Civil Rights Division, and an administrative judge found Phillips in violation of the law.
- After appealing to the Colorado Court of Appeals on August 13, 2015, Masterpiece Cakeshop appealed to the Colorado Supreme Court. When that Court declined to hear the case, Masterpiece Cakeshop asked the Supreme Court of the United States to hear the case. On June 26, 2017, The Supreme Court announced it will review the decision from the Colorado Court of Appeals.
Mykolai Mike Kolesinski reported an interview with the baker here. he says he'd make the same decision again.
This case gained national attention because it was new back when the marriage cases were before the Supreme Court back in 2013-2014. And the arguments Mr. Phillips' supporters were making then are still being dredged up from the dead today:
A business owner should be able to decide who he does and does not want to serve. It's his business after all.
Well, as a country, we've already been down this path. No, you cannot post a No Jews Allowed sign on your restaurant's front door. However, in most of the country, it's perfectly legal post a No Gays Allowed sign.
But not in Colorado. The people of Colorado, in their wisdom, long ago enacted a law prohibiting that kind of discrimination. If Mr. Phillips does not want to obey this law, he is free to move across the border to Nebraska, where discrimination against gay citizens is A-OK.
The baker is not discriminating on the basis of sexual orientation. He happily serves gay customers, but he just does not want to make them wedding cakes.
Yeah, right-- and my restaurant serves black customers... it's just that the steaks are reserved for whites only. Discriminating a little bit is still discrimination. And in Colorado, breaking the law a little bit is still breaking the law.
The couple could easily go to another bakery, and in fact another bakery made them a rainbow flag cake for free.
Yeah, yeah-- and Jews can go buy their gas in Jewtown and stop trying to get it at my gas station. It doesn't matter if the customers you reject can go elsewhere. Breaking the law is breaking the law, even if the people you discriminate against can go try and find second-best somewhere else.
Cake baking is speech, so telling the baker who he must bake for limits his freedom of speech.
There is no evidence that the couple in this case asked for anything specific to be written on the cake, for two plastic dolls in tuxes to stand on top of it, or that they asked for a cake that was in any way different from cakes Mr. Phillips had already baked for heterosexual couples dozens of times already.
Baking a wedding cake is participating in a religious ceremony. Baking a cake for a same-sex couple therefore violates the baker's freedom of religion by forcing him to participate in a religious ceremony that is contrary to his beliefs.
It's a cake, fergoshsakes, not a frackin' communion wafer. I've been to a lot of weddings in my life, and I've never seen a baker participate in one. Where does he stand-- next to the priest? Behind the bridesmaids?
The fact is that wedding cakes are not part of any marriage ceremony. They're served at wedding receptions-- AKA parties for people who are already married. If it's same-sex marriage the baker objects to, then he's going to have to decline to serve these customers when they come in for a sweet roll the morning after the wedding. Or for cupcakes for their kid's fifth birthday, or for an anniversary cake ten years from now. Because they're still gonna be just as married as they were at their wedding reception.
This case should be a warning to everyone about the slippery slope we're sliding down because of the legalization of same-sex marriage. Religious people will lose their rights as a result.
Yeah, except for one thing: according to Colorado law--and Colorado Law is what's being argued here--Nobody In This Case Was Married. The unmarried couple came to the bakery in July of 2012, when same-sex marriage was illegal in Colorado and when same-sex marriages performed out of state were null and void within Colorado's borders. Mr. Phillips was illegally discriminating against two unmarried customers who were planning--in the eyes of Colorado law--nothing more than a party.
This case is not some "consequence" of same-sex marriage. It's a case of plain old-fashioned bigotry. The sad part is that the only defense this cowardly baker and his supporters have been able to come up with is to try and hide their ugly bigotry behind Jesus.