Colorado case leads to unprecedented ruling

v35n37citzenshipby Joe Bollig
joe.bollig@theleaven.org

KANSAS CITY, Kan. — If the two men had asked for nearly anything else, Jack Phillips would have been pleased to help them.

What they wanted, however, was something that Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colo., could not in good conscience provide.

A wedding cake.

Now, Phillips is in the cross hairs of the American Civil Liberties Union and the state of Colorado.

It began one day in July 2012. Phillips was back in the bakery production area when Charlie Craig and David Mullins came in the front, where customers are served.

They said they wanted to look at cakes and were directed to a table and chairs where Phillips kept a portfolio.

When Phillips was finished, he came out and sat down with the men, and asked how he could help them.

The two men had been married in Massachusetts. They traveled home to Colorado and wanted a wedding cake to celebrate their new status.

Phillips, an evangelical Christian, told them he could make them anything else they wanted, but not a wedding cake. As he explained, the two men stood up and walked out the door, shouting expletives at Phillips about his “homophobic cake shop.”

This was not the first time he had turned down such a request, and he didn’t think much about it at the time. Nothing had ever come of it in the past.

“Within about 20 minutes, his phone started ringing and didn’t stop for the duration of that day,” said Nicolle Martin, allied attorney with Alliance Defending Freedom, which represents Phillips.

“[The calls were] angry, threatening vitriol, and enquiries if he was the cake shop owner that discriminated against a gay couple, if he was a bigot,” she continued. “And then emails started coming in. He was in a sea of vitriol and hate for several days.”

What had happened was that Craig and Mullins had written about Phillips on Facebook. Later, several other bakeries offered to take the job. One even offered to make the cake for free.

Despite getting their cake for free, the two men joined with the American Civil Liberties Union to file a complaint against Phillips with the Colorado Civil Rights Division.

Same-sex marriage has been constitutionally banned in Colorado since 2006, but the Legislature passed a law to recognize civil unions in March 2013.

The ACLU’s complaint alleged that Phillips violated Colorado’s public accommodation law, discriminating on the basis of sexual orientation.

Phillip’s defense was that creating and designing a wedding cake was a creative process, an expressive art form, and thus symbolic speech. Ever since they’ve been around, wedding cakes have symbolized marriage between one man and one woman.

The defense also argued that Phillips has the right to live out his faith even at his business, and to be free from interference and coercion from the government.

Probable cause was determined on March 5, 2013, that Masterpiece violated the public accommodations statute. Then, the Colorado Civil Rights Division filed a formal complaint on May 31, 2013. Oral arguments were heard in early December 2013, and an administrative judge ruled in favor of the state of Colorado and the two men on Dec. 6, 2013.

“Jack did not decline to design and create their wedding cake because of their sexual orientation,” said Martin. “He declined because of his belief about marriage. It wasn’t who they were; it was what they wanted to do.”

One of the ironies of the case is that Phillips and the state of Colorado have the same position on marriage and what it means, said Martin.

“The state of Colorado does not believe it is discriminatory to deny a marriage license to certain persons based on their gender identity or sexual orientation,” said Martin. “If the state doesn’t believe that is discrimination when issuing marriage licenses, how can [Phillips] be discriminating when deciding to make a cake for weddings they can’t have in Colorado?”

The judge’s ruling presents a whole new legal theory, said Martin, that says constitutional freedoms must bow to state sexual orientation statutes. And when you get a business license, you divest yourself of your freedom to express yourself and practice your faith.

The defense presented the judge with examples where other businesspersons, like Phillips, could be forced to do things that violated their rights and conscience if their discretion was taken away.

“[The judge] summarily dismissed the floodgates he was opening by ruling against [Phillip’s] free speech rights,” said Martin, “by saying the complainants just wanted a nondescript cake, and that was an entirely different matter than forcing a gay printer to create signs for the Westboro Baptist Church. Those [said the judge] are clearly offensive.”

This is where the judge made a presumption, resulting in a constitutional faux pas, believes Martin.

“What that illustrates is that we have the government and judges deciding which speech is hateful and offensive and which speech is not, and that is precisely what the U.S. Supreme Court has forbidden for decades,” said Martin. “The government is not in a position — nor do we ever want it to be in a position — of deciding which speech has merit and which does not.”

The next step is an appeal of the judge’s initial order of Dec. 6, which does not become final until sustained by the Colorado Civil Rights Division. A hearing on the matter is scheduled for May 30.  After this, either side would decide if they wish to appeal to the Colorado Court of Appeals.

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