Cake artist to Supreme Court: Affirm artistic freedom, free speech

WASHINGTON – Alliance Defending Freedom attorneys representing Colorado cake artist Jack Phillips and his family business, Masterpiece Cakeshop, filed their opening brief Thursday with the U.S. Supreme Court. In June, the high court agreed to weigh in on whether the government can force him to create a custom wedding cake celebrating a same-sex ceremony in violation of his faith.

“Tolerance should be a two-way street. Phillips gladly serves anyone who walks into his store, but, as is customary practice for many artists, he declines opportunities to design for a variety of events and messages that conflict with his deeply held beliefs. In this case, Jack told the couple suing him he’d sell them anything in the store but just couldn’t design a custom cake celebrating their wedding because of his Christian faith,” said ADF Senior Counsel Kristen Waggoner. “The First Amendment protects Jack’s right to create artistic expression that is consistent with his core convictions. Individuals can support both same-sex marriage and Jack, and people should have the right to disagree on critical matters of conscience. The same government that can force Jack to violate his faith and conscience can force any one of us to do the same.”

The brief argues that the government cannot coerce Phillips to create custom artistic expression that violates his conscience, and that the justices should affirm this longstanding constitutional principle.

“Discovering that he could blend his skills as a pastry chef, sculptor, and painter, [Jack] spent nearly two decades in bakeries owned by others before opening Masterpiece Cakeshop twenty-four years ago,” the opening brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission explains. “Long before television shows like Cake Boss and Ace of Cakes, Phillips carefully chose Masterpiece’s name: it would not be just a bakery, but an art gallery of cakes. With this in mind, Phillips created a Masterpiece logo depicting an artist’s paint palate with a paintbrush and whisk. And for over a decade, a large picture has hung in the shop depicting Phillips painting at an easel. Since long before this case arose, Phillips has been an artist using cake as his canvas with Masterpiece as his studio.”

“Phillips is also a man of deep religious faith whose beliefs guide his work,” the brief continues. “Those beliefs inspire him to love and serve people from all walks of life, but he can only create cakes that are consistent with the tenets of his faith. His decisions on whether to design a specific custom cake have never focused on who the customer is, but on what the custom cake will express or celebrate.”

The Colorado Supreme Court declined to take the case after the state’s Court of Appeals affirmed a Colorado Civil Rights Commission decision from May 2014. That decision ordered Phillips and his employees to design custom cakes that celebrate same-sex ceremonies if the shop designs cakes for opposite-sex ceremonies. It also required Phillips to re-educate his staff, most of whom are his family members—essentially telling them that he was wrong to operate his business according to his faith. He must also report to the government for two years, describing all cakes that he declines to create and the reasons why. As a result of this ruling, Phillips has lost an estimated 40 percent of his business.

In July 2012, Charlie Craig and David Mullins asked Phillips to design a wedding cake to celebrate their same-sex ceremony. In an exchange lasting about 30 seconds, Phillips politely declined, explaining that he would gladly make them any other type of baked item they wanted, but that he could not design a cake promoting a same-sex ceremony. Phillips regularly declines opportunities to create custom cakes for events that violate his convictions, including Halloween cakes, anti-American cakes, adult-themed cakes, cakes containing alcohol, and cakes that would disparage others.

Craig and Mullins, now represented by the American Civil Liberties Union, picketed Phillips and filed a complaint with the Colorado Civil Rights Commission, which eventually ruled against Phillips. The same-sex couple was easily able to obtain their desired rainbow-themed cake for free from another nearby cake artist.

In contrast to the ruling against Phillips, the commission found in 2015 that three other Denver cake artists were not guilty of creed discrimination when they declined a Christian customer’s request for a cake that reflected his religious opposition to same-sex marriage. The commission found those bakers had the right not to create custom cakes based on the requested message.

ADF-allied attorney Nicolle Martin of Lakewood is serving as co-counsel for Phillips and Masterpiece Cakeshop.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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