When Freedoms Collide: Colorado’s Civil-Rights Commission Supremely Spanked

by Phil Erwin

Supreme Court sides with Colorado baker…”!

So read the headline on FOX News’ website, announcing the Supreme Court decision in the Masterpiece Cakeshop case

Technically, the headline is accurate. But not very. The Supremes didn’t actually “side” with anyone. What they did was determine that Colorado’s Civil Rights Commissioners, in finding against cake-baker extraordinaire Jack Phillips, were guilty of unacceptable bias.

Specifically, the Supremes found that the Commission was hostile toward Phillips’ sincere religious beliefs, and that their hostility had affected their legal judgement. In his majority opinion, Justice Anthony Kennedy wrote:

“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

In fact, according to Phillips’ lawyer, Jeremy Tedesco, one of the Commissioners actually said she found the notion of religious freedom to be “a despicable piece of rhetoric.

The Constitution guarantees that the States cannot override the religious freedoms of their citizens. So Colorado had no legal right to prefer one side of this debate over the other one. Specifically, the members of the Commission could not back the “right” of a same-sex couple to a wedding cake because of the Commissioners’ hostility toward Phillips’ religious convictions.

But the news coverage is so bogged down in legalese, it obscures the essence of this controversy. And of course, the Media’s habit of bending stories (and headlines!) toward their point-of-view makes the truth even harder to ferret out.

And most of us rarely have time to read past the headlines, which makes us even more susceptible to editorial biases.

Here’s what really matters in this baker-vs-State case:

  1. Jack Phillips is not only a successful proprietor of a bakery, he is also very respected as a decorator of specialty-event cakes, especially wedding cakes. That is an artistic pursuit, not merely a commercial one. Phillips’ artistry is a form of self-expression (i.e., speech.)
  2. Phillips is a devout Christian, who believes it is important to live according to his spiritual beliefs .
  3. Phillips’ Christian beliefs preclude him from even celebrating a same-sex marriage.
  4. When the gay couple in question asked him to bake their wedding cake, he respectfully declined. But he did not refuse their business. He offered to make them another type of cake. Phillips had repeat customers whom he knew to be homosexuals. He never refused to serve anyone because of their sexual orientation. What he politely declined to do was to actively, artistically participate in celebrating a lifestyle forbidden by his fundamental religious beliefs.
  5. At the time this dispute started, same-sex marriages were not legally recognized in Colorado. So Phillips was not even violating state law.
  6. Nevertheless, when the original case was decided against Phillips, he chose to stop making any wedding cakes in order to comply with the ruling while he contested it. Wedding cakes were 40% of his business! That deliberate sacrifice clearly demonstrates the depth of his religious conviction.
  7. The gay couple were supported in their legal attack by the ACLU and other Left-wing/LGBTQ groups. The goal was a Supreme Court challenge to business owners’ First-Amendment freedoms.

It almost worked.

The Supreme Court’s decision was 7-2 against the ruling of Colorado’s Civil Rights Commission, which had held that Phillips discriminated against a same-sex couple on the basis of sexual orientation. The majority opinion held that in fact the Commission had discriminated against Phillips‘ religious rights, in that they were openly hostile toward his viewpoint.

Tedesco sheds further light on the inherently two-faced attitude of the Commission: Three other Colorado bakeries were asked to make cakes with messages opposing same-sex marriage. They refused because they support same-sex marriage. But they were not held to be discriminating by the Commission.

So… same-sex cakes are legally required of Colorado’s bakers, but hetero-sex cakes remain optional, at the baker’s discretion?

Because the Court’s decision only focused on the one-sided nature of the original opinion, it does not create case law guaranteeing the right of businesses to follow their own religious precepts. You can be sure there will be another challenge like this one soon.

Are we doomed to forever bounce back-and-forth between the civil rights of gays and the religious rights of the fervently religious? Or can we come to some understanding, some accommodation between the two, so that the rest of us can just get on with things that really matter?

Justice Ruth Bader Ginsberg, who wrote the dissenting opinion, won’t be much help. She wrote: “The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant… I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to [petitioners] Craig and Mullins.”

Sorry, Ruth. Wrong on both counts. Phillips clearly didn’t routinely “refuse service” to gays, nor did he “refuse to sell a wedding cake” to this couple. He declined a commission to create a unique artistic work commemorating their wedding. He refused a commission for a custom work-to-be.

Here’s the right way to view this controversy: Jack Phillips is a business owner who provides two services to the community: General baking, and custom, one-of-a-kind artistic expressions (decorating.) The former effort produces commodity items, with no specific, distinguishing, individual message involved. (Phillips had offered to sell any other of his products to this very couple.)

But the latter pursuit is an individual, custom service, requiring both the participation and the expertise of the artist (Phillips.) And in this particular case, the participation of the artist includes his religious participation, because he would be creating an artistic celebration in support of an event which his religion holds to be profane (violating the sacred.)

For Phillips to be required by law to provide a wedding cake to a same-sex couple would force him to participate – professionally, personally, artistically and spiritually – in an event that his religion fundamentally forbids.

Hmmm… Forcing someone to provide services, including speech, against his own free will, and in opposition to his own closely-held religious beliefs: I think there’s a formal term for that sort of thing.

It’s called: Slavery.

And when the Government enforces it, it’s also called: Tyranny.

So:  The Supreme Court decided that the Colorado Civil Rights Commission should not be allowed to sanction and enforce the enslaving of Phillips’ artistic hand, his personal views, or his very soul.

Good call. Supremely sensible.

And fundamentally American.

Phil Erwin is an author, IT administrator and registered Independent living in Newbury Park. He would like to support some Democrat ideals, but he has a visceral hatred for Lies and Damn Lies (and is highly suspicious of Statistics.) That pretty much eliminates supporting most Democrats, and a bunch of Republicans to boot.


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