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The Persecution Of Jack Phillips

They’re at it again: Colorado leftists, abetted by the state’s civil rights commission, are harassing Masterpiece Cake Shop baker Jack Phillips. This time, a transgender who has been trolling Phillips for some time filed an anti-discrimination complaint against him. David French gives background: [1]

Here’s what happened. According to a verified complaint filed today [2] by my old colleagues at the Alliance Defending Freedom, on June 26, 2017 — the very day the Supreme Court granted Jack’s request to review his wedding-cake case — a lawyer named Autumn Scardina called Masterpiece Cakeshop and “asked Masterpiece Cakeshop to create a custom cake with ‘a blue exterior and a pink interior’ — a cake ‘design’ that, according to the lawyer,” reflected “the fact that [the lawyer] transitioned from male-to-female and that [the lawyer] had come out as transgender.”

Lest anyone wonder whether this request was made in good faith, consider that this same person apparently made a number of requests to Masterpiece Cakeshop. In September 2017, a caller asked Phillips to design a birthday cake for Satan that would feature an image of Satan smoking marijuana. The name “Scardina” appeared on the caller identification. A few days earlier, a person had emailed Jack asking for a cake with a similar theme — except featuring “an upside-down cross, under the head of Lucifer.” This same emailer reminded Phillips that “religion is a protected class.”

On the very day that Phillips won his case at the Supreme Court, a person emailed with yet another deliberately offensive design request:

I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9″ black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake. I can provide it for you if you don’t have the means to procure one yourself.

And finally, two days later, a person identifying as “Autumn Marie” visited Phillips’s shop and requested a cake featuring a pentagram. According to ADF, “Phillips believes that person was Autumn Scardina.”

Now the state’s civil rights commission is charging Phillips with illegal discrimination. It’s as if the state is giving a finger to the Supreme Court.

Phillips and the Alliance Defending Freedom are suing the state, and thanks to ADF’s deep pockets, they will probably win again. But this just goes to show how petty the left can be in power. If not for ADF, how would a Christian small businessman like Jack Phillips defend himself?

Andrew Walker of the Southern Baptist Ethics & Religious Liberty Commission explores the meaning of this latest move. [3] He makes a strong point that “the attempt by progressives to make an example of Phillips is a sign of civic sickness.” He means that there are ways to deal with these conflicts that don’t require going to the courts — as long as people don’t demand that they get their way in every instance. He brings up an interesting case of this happening recently to the ERLC. Excerpt:

A few months ago, our creative director responsible for branding the ERLC’s logo on various clothing items such as polo shirts or jackets was informed by a nationally-known brand that the ERLC’s mission did not align with their corporate values, and we were prohibited from putting our logo on their clothing. To put it bluntly, the Ethics and Religious Liberty Commission, an entity of the Southern Baptist Convention, was unabashedly discriminated against.

When our creative director walked into my office to notify me of this, my first response was to smile. Why? Because the ERLC had been the victim of discrimination, and I knew an opportunity like this meant the ERLC could pursue the moral high ground. What progressivism does to dissenters, we would not do to them.

I’m not going to identify what the particular brand was that discriminated against the ERLC, because the ERLC is not looking to score points against this particular company nor are we looking to file any type of lawsuit.

Another option was available: Avail ourselves of the hundreds or thousands of other companies that would be willing to take our money in exchange for their product. We did.

Read the whole thing.  [3] Bravo, ERLC! It could have made a big public case out of this, but the ERLC decided to live by its own principles.

Progressives could take a lesson from the Southern Baptists on how to be civil.

Here’s a political lesson from a leading Evangelical:

https://platform.twitter.com/widgets.js [6]

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108 Comments (Open | Close)

108 Comments To "The Persecution Of Jack Phillips"

#1 Comment By Difficult Dilemma On August 18, 2018 @ 4:49 am

Rod, to the extent that the customer was deliberately trying to be a troll, rather than genuinely wanting a cake (as the same-sex couple actually did), I think these types of cases are bad because they create conflict for no good reason when neighborliness should be the way to go.

But on the other hand, I don’t quite understand the distinction you are trying to make. So let me put the question to you this way: Would there be any cake that Jack Philips must sell to a transgender customer, assuming that he casually mentioned offhand (and not to be a troll) that this was to celebrate a transition? For example, if someone walked in and said: “Hey Jack, a small group of friends and I are celebrating my gender transition. Make me any cake you want – I’ll leave the design up to you” – would there be any cake that Jack Philips could in good conscience design that would NOT express a message in contradiction to his religious beliefs? Is the answer Yes, because he would make a regular chocolate cake, and not a pink and blue one? Or is the answer No, because there is no possible cake in the universe that he could make in good conscience for a transgender client for his stated purpose?

If your answer is No, then it seems that he is, in fact, discriminating against the client, and not objecting to an inherent expressive message in the cake. Because even a regular chocolate cake with no wording or images on it would be seen as “expressive” because of the client’s intention to use it.

If that’s what you think should be legal, I think it would clear matters up to say that this is what you want, rather than alluding to arguments about cakes being expressive.

The better test case for liberals would be to have a cisgender person walk in and customize a birthday cake, and then have a transgender person walk in two weeks later saying he saw the cake at his friend’s celebration and loved it and wants the exact same cake, and he’d like to order it. If Philips declined to make the cake in such a situation, I can’t think of any court, conservative or not, that could justify it given current law.

#2 Comment By Siarlys Jenkins On August 18, 2018 @ 12:00 pm

So let me put the question to you this way: Would there be any cake that Jack Philips must sell to a transgender customer, assuming that he casually mentioned offhand (and not to be a troll) that this was to celebrate a transition?

Anything on the shelf, made for no special purpose except to be taken home and eaten.

For example, if someone walked in and said: “Hey Jack, a small group of friends and I are celebrating my gender transition. Make me any cake you want – I’ll leave the design up to you”

If he is asked to custom design the cake, with that purpose in mind, it would be compelled speech to ask him to do so.

Now where you might have a grey zone, is if someone asked “Can you design a cake exemplifying earth, green living plants, and the heavens?” and the baker agreed, he could do that, and then the customer added, this is for my pagan group’s celebration of Midsummers Eve. The baker was willing to do the exact design, no questions asked. No expression the baker finds in the least offensive. But, he would be putting the beauty of creation in a pagan context, rather than “All thy works shall praise thy name in earth and sky and sea.” I could see room to quibble at that point. But I would err on the side of free speech.

There is probably a plain chocolate cake on the shelf already. Or, several could be made, knowing this customer will buy one of them. Or it could be a regular catalog item, made whenever a customer was available to pay for it. Refusal to sell at that point could be invidious discrimination against the person.

The better test case for liberals would be to have a cisgender person walk in and customize a birthday cake, and then have a transgender person walk in two weeks later saying he saw the cake at his friend’s celebration and loved it and wants the exact same cake, and he’d like to order it.

I’m not aware that Jack Phillips has any conscientious objection to celebrating birthdays. We were all born of woman, gay, trans-sexual, or whatever. But if some obscure sect considers it an abomination unto the Lord to celebrate a birthday, a baker who belonged to that sect could refuse to bake ANY birthday themed cake for anyone.

or that they are fine opening the doors to wedding bakers turning down interracial couples.

That’s a false syllogism. A wedding baker who had a religious belief that people of different races should not marry could indeed refused to CUSTOM DESIGN a cake celebrating an inter-racial marriage. Freedom of speech isn’t limited to Speech That Most Of Us Deem Socially Acceptable. But for the most part, bakers who simply “don’t like n*****s” and consider any “white” who would marry one beneath contempt would have a harder time. On the other hand, as I’ve mentioned many times, I don’t believe any American of African descent would consider spending their hard-earned savings on a Ku Kluxer’s bakery — they would prefer to find someone whose heart and soul would be in doing a great job celebrating the happiest days of their lives. Only the LGBTQWERTY seem to possess the self-destructive narcissism to take pleasure in cutting off their own nose to spite someone else’s faith.

What Ginsburg was pontificating about is that if Phillips didn’t have to custom design a cake then a grocery store manager could refuse to serve customers based on race, creed, religion, national origin, etc. That just isn’t in the jurisprudence. Not at all.

Rich S is correct about standing. Even getting a case into court to over-rule Obergefell would be quite a challenge.

#3 Comment By Difficult Dilemma On August 19, 2018 @ 12:41 am

OK, Siarlys Jenkins. These types of cases don’t worry me too much for one simple reason. Now that LGBT groups are being written into law as protected classes, any denial of service exemptions that Christians can claim will also eventually be used against them. So I think that in time, the law and civil society will reach a good balance.

There will probably be a good deal of secular organizations, from Fortune 500 companies to smaller outfits doing custom advertising/consulting work that won’t want to serve Christian organizations/churches that will take advantage of these exemptions too, and so it might well end up that the Masterpiece case, while seemingly “anti-gay” will not have much effect on the liberties of gay people themselves, but will contribute to a further marginalization of Christians in civil society.

I just think it doesn’t pass the smell test that the baker in this case genuinely had a problem with baking a pink and blue cake with no message beyond the specification of colors. I don’t think anyone believes that. It wasn’t the cake or the cake design but the client. I think you misunderstood my liberal test case scenario. What I meant was if a cisgender client had walked in asking for a pink and blue cake for, say, the anniversary of his Mom and Dad’s wedding, and then a transgender client walked in and said: “Hey, I was at Scott’s parents anniversary and loved that pink and blue cake – make me an exact replica pls, thanks!” And then the baker finds out subsequently this client is going to use to celebrate a gender transition.

Perhaps the baker should still have the right to reject the request. I, for one, would love the right to decline service to all Catholics. Given the recent revelations, it is my strong belief that they are essentially a criminal organization of pedophiles and I do not want any of my products to be associated with such people. So I’m not disagreeing with the baker per se, but saying that it has nothing to do with whether cakes are expressive.

#4 Comment By Siarlys Jenkins On August 19, 2018 @ 3:04 pm

“Artificial Dilemma,” if you keep making your “liberal test case” more and more complex by adding appendages like a Rube Goldberg device, you may eventually make it so complex that anyone could be guilty of anything. But that makes poor law.

You can’t decline service to all Catholics, any more than Jack Phillips can decline service to all gays. Nor, unlike you, does he desire to do so. But if you own a print shop, you could decline to print a poster announcing a devotional service to the Holy Eucharist on the grounds that you don’t believe in trans-substantiation. There is a difference, even if you find it inconvenient to admit that.

I’m working on canceling out protected classes as a mode of judicial reasoning, but while we still have it, whether gays are, or are not, protected classes, has no bearing at all on the question at hand. A broad legal principle applies to everyone, no matter what other broad legal principles also apply to everyone, and no matter who invokes it.

Compelled speech is compelled speech. Most commercial goods and services do not involve speech at all. For instance, there is no expressive message in selling a can of corn.

Gays shop for groceries just like the rest of us, so it would be invidious discrimination to turn them away. Gays do not marry just like the rest of us. Nobody has the right to menace, assault, murder, or commit arson, but neither does anyone have a duty to be complicit.

#5 Comment By Difficult Dilemma On August 20, 2018 @ 1:26 am

Siarlys Jenkins, there’s nothing complex or artificial about the scenario described. All that a gay couple or a transgender client has to do when presented with a denial of service would be to ask: “Well, is there any cake that you can bake for me for this event then?”

If there is no cake design at all that the baker believes he can make, even something like a chocolate cake with flowers on top of it that could easily pass for a birthday cake, then it’s clear there’s nothing inherently expressive about the cake. This is not hard to understand.

In fact, the style of reasoning you are using is much closer to denying gays groceries than you realize, because the grounds for a conscientious objection derives not from any inherent message that is identifiable in the goods or service provided, but from association with an event or a person that he doesn’t believe really exists in the way that he describes himself (as with the case of transgender people). In the Philips case, he would like a blanket exemption from serving all gay weddings, even if all he was asked to provide were generic cupcakes with no design. He has stated as much. He would now also like to not serve clients insofar as he believes his products affirm they are transgender, even if it’s just a pink and blue cake.

There are lots of services that have no expressive messages that reasonable people would conclude involve more participation that Jack Philip’s act of baking a cake. Should an atheist architect who objects to Catholicism have the right to reject a church that comes to his firm to add an additional structure to their existing building? Is your answer Yes or No? The architect would likely spend weeks, instead of the half a day it takes to bake a cake on the project, so his ongoing “participation” is more severe and even more compromising.

If, as you say, no one has a “duty to be complicit”, and assuming we even agree that baking cakes for transgender people makes you complicit in their transgenderism, then surely this complicity has absolutely nothing to do with whether an object has already been made or not. Philips would like to be able to reject all goods, even pre-made ones, for events he disagrees with, and one could ask you why that’s not in fact the most reasonable characterization of moral scruples. Why should he be forced to provide even a pre-made cake to an event he deeply disagrees with?

I think these are silly ways of drawing distinctions that don’t even fully respect the consciences of those making these arguments. If you really want opt-outs, you should simply admit that these actions would constitute discrimination, but that it is a price society can pay if exercised in a limited fashion. For example, only shops with less than four employees, and only if similar services cannot be located within a 5-mile radius, and if some advance notice is given so that the client is spared any potential indignity.

No need to interrogate the specific basis of the objection. If you are a small shop with less than 4 employers, you can choose not to bake wedding cakes, whether pre-made or not. And the atheist baker can choose to decline all products to all Catholics, pre-made or not. All businesses not falling within this limited scope would subject to the usual public accommodations laws.

I think these types of legislative opt-outs would be best during this transition period. There will be no one like Jack Philips in a decade, so this is a price society can pay for a little while.

#6 Comment By not in my neighborhood / city / state On August 20, 2018 @ 9:20 am

“Progressives could take a lesson from the Southern Baptists on how to be civil. “

Sure. Bravo ERLC, but fat chance. Progressives aren’t interested in civility. They’re interested in using the police power of the state. Boot-in-the-face. And increasingly it looks like boot-in-the-face resistance will be required.

#7 Comment By Siarlys Jenkins On August 20, 2018 @ 10:28 pm

All that a gay couple or a transgender client has to do when presented with a denial of service would be to ask: “Well, is there any cake that you can bake for me for this event then?”

The operative phrase is “for this event.” And the answer is no. The baker does not have to exercise his creativity to make something that will glorify “this event.”

If the customer wants a chocolate cake with flowers on top they can easily get one off the shelf.

Let’s try this. A customer wants a cake to celebrate the Warsaw Ghetto Uprising. A baker who is a profound admirer of Adolf Hitler says he won’t design a cake for them. The customer says, well, is there ANY cake you would bake for this event? Sure says the baker, if you’re willing to accept a cake decorated with swastikas, and big candy “Arbeit Macht Frei” on the top, I will make that cake for your celebration of the Warsaw Ghetto uprising.

You see how silly “Is there any cake you would make for this event?” really is? This is not hard to understand, to anyone who understands the concepts of “free speech” and “compelled speech.” But to pathetic whining narcissists who demand “You will too make my design for my cake, and you will like it,” nothing that makes sense can penetrate the made up mind.

The grounds for denial are PRECISELY the message. Only by demanding a cake with no message at all, for an unstated event, can you remove your pathetic examples from the real issue, which is indeed the message.

But you can’t whip up the chimaera of public sympathy you desire unless you can compare refusal to exercise an individual’s creative talents to create a message the person despises, with refusal to sell a man a can of corn because “I think you’re gay.”

then surely this complicity has absolutely nothing to do with whether an object has already been made or not.

Oh, it surely does. If any object has already been made as part of the routine hum-drum of making cakes, that are intended for human consumption, then THERE IS NO MESSAGE. It is the act of using one’s creativity to create an expressive message that invokes the possibility of “compelled speech.”

Philips would like to be able to reject all goods, even pre-made ones, for events he disagrees with

Straw man. He is on record to the contrary. He would be happy to sell a gay man a dozen cupcakes off the shelf, no questions asked.

If you really want opt-outs, you should simply admit that these actions would constitute discrimination

I don’t want opt-outs at all. I support the recognition given by the U.S. Supreme Court in Hurley v. Irish Gay and Lesbian Brigade that even a well intended and laudable public accommodations law cannot be applied to compel speech — because that would be a violation of the First Amendment. The public accommodations law isn’t invalid. There are limits to how it can be applied, and what it can be applied to. Opt-outs are a weak whining infatuation that fails to recognize the enduring jurisprudence of the Bill of Rights.

I don’t deny that these actions would discriminate. I have been advocating for some time in this very venue that we need to learn some respect for discrimination. What the law can curb is INVIDIOUS discrimination. But we all discriminate all day long. I am too discriminating to eat poisonous mushrooms. A Roman Catholic priest is discriminating about the circumstances in which he will marry a couple. I once knew an Episcopal priest who was discriminating in choosing not to officiate at his own son’s wedding, because he didn’t believe the marriage would last. And it did not.

We need to get away from using terms as buzz words with instantly evil connotations, and put them in their proper context. Adjectives and adverbs make a great deal of difference.

For example, only shops with less than four employees, and only if similar services cannot be located within a 5-mile radius, and if some advance notice is given so that the client is spared any potential indignity.

Indeed, you are right that there is no need to interrogate the basis of the discrimination. If the police powers of the state are forbidden to compel speech or expression, then it doesn’t matter what the expression or the objection consist of. The only question is who makes the decision — the individual, or the state.

There is some merit to limiting this to businesses of a small size. Indeed, large capitalist corporations all seem to be lining up with the whole LGBTQWERTY agenda. There is already limitation on the Fair Housing Act of 1968 — it doesn’t apply to buildings of four or fewer units, one of which is owner occupied. That’s a sensible distinction, because the purpose of the law is to insure access to the general market. But, no matter how irrational one’s objections, renting to people who are going to be living in YOUR OWN HOME, upstairs from you, downstairs from you, on the other side of a paper-thin wall from you… entitles you to discriminate, just to preserve your own sanity.

I’m not sure a specific number is necessary here… but if there is not an INDIVIDUAL PERSON whose speech is compelled, then the case is greatly weakened that the First Amendment has been infringed by the demand for service.

There will be no one like Jack Philips in a decade

There is nothing so unreliable as projecting current fads on an infinite trajectory into the future. The Victorian era was a reaction to the unbridled licentiousness of the earlier Hanoverian period. And as we know, the so-called “sexual revolution” was a reaction to the suffocating conformity of the Victorian mindset. Things change, all the time. In the near term, those most interested in NOT approving of homosexuality will probably be found in the traditionally black churches — a fact neither the Democratic Party nor the gay movement cares to take notice of.

#8 Comment By Siarlys Jenkins On August 21, 2018 @ 11:08 pm

A closing note on the Hurley case: I have long advocated that the Irish Gay and Lesbian Brigade should simply have reorganized as the Sir Roger Casement Marching Band, and entered the parade playing “Banna Strand.” No Irish patriot could have refused such a contingent. Everyone knows that Casement’s homosexuality was used by the British government to discredit him at his trial for capital treason. He remains a hero of the Irish struggle for independence from Great Britain.