The goal of lawfare against people like Phillips is to destroy free speech, not by winning discrete battles, but by winning a war of attrition.
Jack Phillips, a smiling grandfather from the Denver suburbs, is about to face the tenth year of unceasing high-stakes lawfare against his religious convictions. His only ambition was to combine his visual and culinary artistic talents in a business that serves Jesus, the Master. Masterpiece Cakeshop, with its artist’s palette logo, makes this clear.
But on July 19, 2012, a couple walked into his shop who would unleash the opening salvo of nine years of belligerent litigation. Colorado did not allow same-sex “marriage” at the time, but it had recently inserted the language of sexual orientation and gender identity into its 1957 civil rights law. Armed with their relationship certificate from Massachusetts, the leftist lobby behind this same-sex couple would soon see how powerful a weapon this bias-crime law was.
The first charge was filed in September 2012. It was argued all the way up to the U.S. Supreme Court, where Masterpiece Cakeshop narrowly prevailed on June 4, 2018. Immediately, however, Autumn (formerly Adam) Scardina — who had been bombing Phillips with absurd email requests for months — filed a new charge, demanding he decorate a cake with transgender messages.
Within nine months, this case was dismissed by the Colorado Commission on Civil Rights. Without delay Scardina, an activist lawyer, sued in a private capacity. Last week, a Colorado judge leveled a $500 fine against Phillips. The amount is symbolic. The real game is the ongoing lawfare.
Once an artist puts his art on the market, do customers have the right to compel him to use those talents to convey any and every message? Can a consumer compel a Muslim artist to paint a mural that blasphemes Allah? Can an atheist be forced to create lyrics that glorify God? Can a Christian be forced to deny the deity of Christ?
The legal precedents preventing one person from forcing another to speak against his will are long-established and unassailable. So those prosecuting people like Phillips resort to legal contortions that twist the issue into something else. These contortions are three-fold.
Attacking Free Thought By Isolating the Target
First, they need to divide and conquer. So they single out conservative evangelicals as the targets of choice. Denying that secularism is also a religion, they pretend only conservative Christians have a religious conscience, ignoring Muslim bakers who share Masterpiece’s stance and bakers who have refused to bake Bible cakes.
Thus leftists have repeatedly targeted one of the very smallest of roughly 12 dozen bakeries in Colorado. This makes a mockery of equal treatment under the law, and it’s intended to minimize opposition by isolating the target from the support of those who share a common interest.
Atheists, agnostics, and non-evangelicals of all stripes should consider the cost of their silence on this issue. Even if the baker wins on the narrow grounds of “sincerely held religious belief,” it obliterates the underlying right of every citizen to speak his mind.
What if you simply think some politically correct idea is absurd? Should you be prohibited from acting on your belief simply because you lack a “religious” motive? If the First Amendment’s right to “free speech” is only valid when it is an “exercise of religion,” constitutional protections are denied to the non-religious. That should trouble everyone.
Minimizing Religious Convictions
Not only does the grievance machine swallow up free speech into the category of religious exercise, it narrows the question further. Invoking the constitutionally problematic Supreme Court decision from Employment Division v. Smith (1990), anti-free speech activists assert governments can infringe on the free exercise of religion so long as the infringement has “general applicability.”
Smith created such a furor Congress responded with the near-unanimous passage of the Religious Freedom Restoration Act (RFRA). Yet today’s enemies of free speech despise RFRA and circumvent it whenever activist judges allow.
When Masterpiece won its case before the Supreme Court three years ago, the court left Colorado’s “Anti-Discrimination” Act (CADA) in force, simply objecting that the Colorado Civil Rights Commissioners had directly insulted Phillips’s faith in their proceedings. If the commission had stuck to approved talking points and refrained from voicing their bigoted opinions in a public meeting, the court might have upheld their religious infringements.
In like fashion, Chief Justice John Roberts recently penned a majority opinion upholding the religious freedoms of Catholic Social Services in Philadelphia, but not because the city forced religious institutions to act contrary to their core doctrines. Rather, Fulton v. City of Philadelphia hinged on a clause in the city’s policy that might allow for arbitrary exemptions. In so doing, the court telegraphed that if the city had only trampled religious freedom with no exemptions, their discrimination could pass constitutional muster.
The third tactic of the judicial assault on free speech is to reframe speech as an “action.” In Wyoming, we saw this contortion in the case of Circuit Court magistrate Ruth Neely. The Wyoming Supreme Court acknowledged her speech was constitutionally protected by both the Wyoming and U.S. constitutions. But the 3-2 majority nevertheless punished her speech under the bizarre claim that her words discussing marriage outside of court constituted a punishable act.
A similar twist was employed against Masterpiece Cakeshop. The bakery demonstrably serves all customers without discrimination. Phillips demonstrated plainly, under oath, the sole reason for denying one specific request was because he would not be exploited to personally express an idea alien to his understanding.
The judge in last week’s ruling even acknowledged the cake shop’s argument “that they did not decline Ms. Scardina’s request because of her transgender identity, but rather because of the cake’s message.” Nevertheless, through tortured logic, he decreed that he understood the cakeshop employees’ thinking better than they did.
Even ‘Victories’ Are Chipping Away Freedom
This is why so-called “bias-crime” and “hate-crime” legislation is so dangerous. It appoints non-elected judges, bureaucrats, and activist lawyers to read minds. With sole discretionary power to decide what a person is thinking, they can manufacture thought crimes.
The incessant lawfare against Masterpiece Cakeshop was enabled by the insertion of ambiguous bias-crime language into Colorado law. Many legislators who supported this change had no idea how it would be used as a cudgel to make a public example of an unknown baker.
If Masterpiece Cakeshop has accomplished nothing else, it has blown away the smoke of ignorance and made clear the caustic effect of “bias-crime” legislation. Such laws dissolve every constitutional protection they encounter — not only the free exercise enjoyed by religious people, but free speech for all.
Masterpiece’s never-ending saga should be read as a cautionary tale. The ambiguities inherent in bias-crime legislation are intentional. The goal is to destroy free speech not by winning discrete battles, but by winning a war of attrition. Now you know.