Colorado’s second case against Masterpiece Cakeshop and Jack Phillips crumbles
By Kristen Waggoner
Shortly after Jack Phillips’ victory at the Supreme Court, the state of Colorado embarked on a second campaign to crush the Colorado cake artist and his small family business, Masterpiece Cakeshop. By seeking yet again to punish Jack for living out his faith, Colorado left little doubt that it harbored hostility toward religious people like Jack.
Throughout its second legal battle, evidence emerged that removed all doubt of that continued hostility. And on March 5, Colorado quit its second, ill-advised crusade against Jack.
Colorado commissioners have every incentive to minimize their defeat or to describe it as a legal truce, but it isn’t. Colorado has relentlessly pursued Jack for over six-and-a-half years, stripping him of 40 percent of his business and the wedding work he loves. But, now, the state’s harassment has come to an end.
As Jack’s attorneys, we’re delighted that he gets to go back to focusing on his cake art. And as advocates for religious liberty, we’re hopeful that Colorado’s failed crusades serve as warnings to other government officials hostile toward religious freedom.
The first time Colorado officials came after Jack, they ordered him to create cakes celebrating a view of marriage that conflicts with his faith. That six-year ordeal was laced with government actions disparaging Jack’s religious beliefs. It also included unequal treatment: Colorado punished Jack for declining to create cakes with messages that he cannot in good conscience express, while allowing other cake artists—those whose views the state likes—to do the very same thing.
Then, in a decisive 7-2 victory for Jack, the U.S. Supreme Court declared unconstitutional the state’s efforts to punish him, finding that the state acted with “clear and impermissible hostility toward [his] sincere religious beliefs.”
But shortly after Jack’s win, Colorado officials came after him again, seeking to force him to create a custom pink-and-blue cake celebrating a gender transition. The request for that cake came from a Colorado lawyer, and it came on the very same day that the Supreme Court announced it would hear Jack’s case during a phone call where the lawyer told the shop’s representative that another person was listening via speaker phone. It wasn’t what you would consider an ordinary request. Our legal team eventually proved that this same attorney called Jack at least one other time and requested a cake celebrating Satan’s birthday with an image of Satan smoking marijuana.
Colorado tried to use that attorney’s request for the gender-transition cake as the basis for prosecuting Jack again. Unwilling to sit back while the state turned his life upside down for another six years, Jack filed a lawsuit against the state officials intent on punishing him for living out his faith.
Through it all, Jack remains the same. He continues to be the mild-mannered cake artist who serves everyone but declines to create custom cakes that express messages or celebrate events in violation of his faith. That includes cakes celebrating Halloween, glorifying divorce, or denigrating our country.
And he continues to befriend the homeless folks who wander into his shop, sharing a brownie and cup of coffee with them. This, after all, is the same man who offered free cookies to people who came out to protest him.
Consistent with Jack’s past practices, his shop declined the requested gender-transition cake because it would have communicated that the status of being male or female can be chosen and changed based on perceptions and feelings—a message that conflicts with his religious beliefs. For that decision, the state prosecuted Jack a second time, announcing that he must create that cake or be punished.
In forging ahead with that new complaint, Colorado officials confirmed that they applied their laws in an arbitrary way, which the Supreme Court has already said that they cannot do. Worse yet, Colorado commissioners—functioning as Jack’s judge and jury—had the audacity to express their continued support for anti-religious comments that the Supreme Court condemned in Jack’s first case.
That’s right—after the Supreme Court’s ruling, two of the current commissioners said publicly that they agree with a former commissioner’s comments declaring that religious freedom is a “despicable piece of rhetoric.” Once our legal team secured audio recordings of those statements (and added those to the Twitter post of another commissioner calling Jack a “hater”), Colorado’s legal attack fell apart.
With that, the government’s most recent crusade against Jack ends, not with a bang, but a whimper. We’re hopeful that this signals an end to state-sponsored hostility toward religion in Colorado and a new era of tolerance and respect toward people of faith.
Kristen Waggoner is senior vice president of Alliance Defending Freedom’s U.S. legal division and argued on behalf of Jack Phillips and Masterpiece Cakeshop before the U.S. Supreme Court in the case it decided in June 2018.