Free Speech Won't Save Jack Phillips
Christians cannot be content to ask for small safe havens in the heart of a hostile empire.
At this rate, Jack Phillips will be in court until the day he dies.
The now-famous Colorado baker, who has owned and operated Masterpiece Cakeshop since 1993, first faced the fury of the rainbow mob a decade ago, when he opted not to bake a cake celebrating a homosexual “marriage.” (In 2012, even the state of Colorado had not yet started to pretend that two men could be joined to each other as husband and wife.) The men who were denied one particular cake by this one particular baker filed a complaint to the Colorado Civil Rights Commission, which dismissed Phillips’s faith out of hand and issued a vindictive ruling—well beyond the scope of the complaint—requiring the bigot not just to bake the cake but to “change [his] company policies, provide 'comprehensive staff training' regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps [he] has taken to come into compliance and whether [he] has turned away any prospective customers.”
The Colorado Court of Appeals upheld the commission’s manifestly unjust ruling. Rather than comply, Phillips stopped baking wedding cakes altogether—which he said cost him 40 percent of his business. In 2018, after six years, the U.S. Supreme Court issued a narrow ruling overturning the CCRC’s decision on the grounds that it had not treated Phillips’s religion neutrally in its handling of his case.
This was not the end of the baker’s struggles. Just this week, the Colorado Court of Appeals heard oral arguments in Scardina v. Masterpiece Cakeshop, which originates in a nearly identical incident where the customer, Autumn Scardina, was asking for a cake—blue frosting with pink interior—to celebrate his beginning to identify as a woman.
Mr. Scardina is an attorney. He asked Masterpiece Cakeshop for his “gender transition” cake on the exact day that the Supreme Court announced it would be taking on his earlier case. Anyone could see that his actions were vindictive and targeted; that he didn’t really want a cake—just to put Jack Phillips in a bind. Of course, it helps that he’s practically admitted as much.
The legal dimension of Phillips’s plight has been discussed exhaustively elsewhere. The First Amendment still exists. The civil-rights regime that began with the legislative revolution of the 1960s has threatened it, to be sure; but at the end of the day, the fact that a man cannot be compelled by the power of the state to profess something he does not believe remains true, and just, and necessary to defend.
It is self-evidently true that a society in which a man can be forced halfway out of his business and dragged, time and time again, through years of vindictive legal action for refusing to act against his faith is not a society in which a man is free to practice his religion. That Phillips scored a narrow SCOTUS win is secondary, if not entirely irrelevant. Barebones legal backstops are not enough; they are not anywhere near enough.
And yet they are all Jack Phillips will ask for. All through this decade-long odyssey, the man has bent over backwards to highlight just how limited his request is: he will not lend his skill as a craftsman immediately to celebrations he believes to be immoral. There is no question that those celebrations should go on; he just asks not to be involved.
On Wednesday, Phillips co-wrote an op-ed in USA Today with Lorie Smith, a graphic artist and website designer in a similar predicament. They insisted therein: “Our cases aren’t about what any of us believe regarding marriage. They’re about freedom for all of us from government oppression. And respecting the right of each of us to our own opinion, even if we don’t always agree.”
Under a bootheel, Jack Phillips begs for the privilege of coexistence. Maybe this is a tactical move, advised by his lawyers for public relations purposes. Maybe Jack Phillips is just a man of saintly patience. But he will not get any victory, or even peace, this way. American Christians keep taking beatings and all they can think to ask for is a break; they ought to ask for a club.
They won’t leave Jack Phillips alone. They can’t leave Jack Phillips alone. He embodies a worldview that is diametrically opposed to their own, and that they recognize must be stamped out if they hope to secure enduring rule.
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There are things on which a society can tolerate disagreement and still survive, or even thrive. A polity can weather squabbles; it cannot long endure with no consensus on the nature of man and the relationships that define him. An alternate vision of marriage is necessarily an alternate vision of society itself.
This, if we’re being honest, is why the Court refused to address the fundamental question in Phillips’s initial case. A real resolution requires more than they can give—more than they are willing to give, that is. It requires a rollback not just of massive legal innovations but of religious and political ones as well. It requires the Court to admit that marriage is either one thing or another, and that swapping the building block of civilization for bales of straw may have been a grave mistake.
That won’t happen. So Jack Phillips will be in court until the day he dies. And it still won’t be enough for either side.