At its core, 'cake' case an issue of free speech

Tuesday, October 31, 2017
Chris Woodward (

U.S. Supreme CourtThe Supreme Court will hear arguments in early December on a baker who refused to make a cake for a same-sex "wedding," citing religious objections. But this case is much bigger than a cake.

In 2012, two homosexuals visited Masterpiece Cake Shop in the Denver area to order a wedding cake. Shop owner Jack Phillips said he couldn't provide that cake, a decision that led to the Colorado Civil Rights Commission and state courts ruling the baker violated state law by discriminating against the homosexuals. After a series of appeals, the case is now going before the U.S. Supreme Court. Arguments will be heard December 5.

"The question before the Court is whether the Constitution provides a constitutional right to discriminate based either on religion or on artistic freedom, in violation of long-standing laws that apply to businesses that are open to the public," said James Esseks of the American Civil Liberties Union (ACLU) in a media call Monday.


But Mat Staver, founder and chairman of Liberty Counsel, argues this case is about free speech.

"This is government coercion at its worst," he says. "This is the government trying to force an individual to use their artistic and expressive talents to promote a message with which, in this case, Jack Phillips disagrees based on sincerely held religious convictions."

Staver recalls that the Supreme Court once ruled against the Jehovah's Witnesses and their objections to saluting the U.S. flag.

"As a result, different kinds of temples and places of meeting were burned," he continues. "Then the Supreme Court, embarrassed by its decision, came back a couple years later and found that the government cannot coerce a message with which the person disagrees; and therefore allowed them to opt-out of the mandatory Pledge of Allegiance at the beginning of class time in the public schools."

Jack Phillips (Colo. baker)Staver believes that was the correct decision – and the same decision that the Supreme Court should reach in the case involving Jack Philips and Masterpiece Cake Shop.

"The government should not force any individual, whether they're an artistic cake baker, florist, or any other person engaging in speech –  that's what the issue is here – to present a message that is contrary to their values and their conscience and, in this case, their religious convictions," the attorney concludes.

More than just a cake

Friend-of-the-court briefs have been filed on behalf of the LGBT community and Jack Phillips. Among those filing in support of Phillips are Alliance Defending Freedom (ADF) in Arizona and the Memphis-based Center for Religious Expression (CRE).


"There's no license to discriminate going on because Jack doesn't discriminate at all," states ADF attorney Jonathan Scruggs. "He welcomes all people of all different statuses, of all different characteristics. He serves all people, including people from the LGBT community. He just can't promote a message that violates his faith."

As a way of comparison, the attorney suggests that a web-design studio owned by lesbians shouldn't be forced to create a website criticizing same-sex marriage. "So we're all seeking a kind of neutral playing field in this respect," he adds. "Ironically, it's the ACLU and groups like this who are really seeking to single out and compel people to go against the core of what they believe and who they are."

CRE attorney M. Anthony Mangini explains why the case is much bigger than a cake.

"There's been a suggestion that it's just a cake, that it doesn't really express a message – and in fact, the ACLU kind of suggests that the message couldn't really be the reason that Jack Phillips denied them because the gay couple hadn't yet explained what message they wanted on the cake," he says.

"But the fact of the matter is it was a wedding cake for a gay wedding," Mangini points out, "and the entire reason that people seek out designers to custom-design wedding cakes – rather than going out and buying one from Costco – is because [designers] put their artistic talent in it and show that the wedding that it's celebrating is worthy of celebration, that it's something valuable. And that's just not something that Jack can necessarily promote with his artistic talent."

Just as minority and civil rights organizations have spoken out against Phillips, some two dozen minority and civil rights organizations have voiced support for the Colorado baker. "They recognize the fact that the right to speak, the right to exercise your religion really is a fundamental right in the American experience," says ADF attorney Scruggs.

In September, the U.S. Justice Department filed a brief in support of Phillips; and last week, Trump administration attorneys asked the high court for permission to argue on behalf of Phillips.

Editor's note: Remarks from attorneys Scruggs and Mangini were added after story was originally posted.

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