Some conservatives say that Justice Neil M. Gorsuch’s nomination to the Supreme Court was not worth four years of President Trump. But for Jack C. Phillips, his livelihood, his freedom of expression and his right to religious liberty are now in the hands of the court that Trump’s election has shaped.
On Tuesday, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case brought by Phillips that will determine whether the government can compel a U.S. citizen to violate his conscience and participate in speech with which he fundamentally disagrees and that violates his sincerely held religious beliefs. The outcome is not assured. But Phillips and the cause of religious freedom have an exponentially better chance of winning with Gorsuch on the bench than with the liberal majority that Hillary Clinton would have installed.
In 2012, Phillips was asked by a gay couple, David Mullins and Charlie Craig, to design a custom cake for a same-sex marriage. Phillips politely declined. In so doing he was exercising his constitutional right not to use his chosen form of artistic expression — cakemaking — to advance beliefs with which he disagreed. He says he also declines to make cakes for Halloween, adult-themed parties or to celebrate divorce; cakes with vulgar or anti-American messages; and cakes that “disparage” the lesbian, gay, bisexual and transgender community. He uses his art to glorify Christ, and a cake celebrating a same-sex marriage, he believes, would have done the opposite.
Phillips’s critics compare him to Woolworth store owners in the Jim Crow South who refused to serve African Americans at their lunch counters. This is absurd. He sells cakes to people of all races, creeds and orientations, and offered to happily sell the couple in question anything in his shop. He did not decline to serve them. He simply declined to design a custom cake with a message that he, as a Christian, believed violated his faith.
Even if you disagree with Phillips, you have an interest in seeing him prevail. The First Amendment protects unpopular speech. Speaking out in favor of same-sex marriage was once unpopular. And views that are popular today may be unpopular in the future. To maintain a free society, we must have the freedom to disagree — and tolerance for those who disagree with us.
But instead of going to one of dozens of other bakers in the Lakewood, Colo., area who had no religious objections to same-sex marriage, this couple decided to compel Phillips to violate his conscience through the coercive power of government. They got an American Civil Liberties Union lawyer (who should have been defending Phillips’s right to free expression) and took him before the Colorado Civil Rights Commission, which ordered Phillips to begin affirming same-sex marriages through his art or face debilitating fines. Interestingly, as Robert P. George and Sherif Girgis pointed out in the New York Times, “three times the state [Colorado] has declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create given their own convictions on sexuality and marriage. Colorado was right to recognize their First Amendment right against compelled speech. It’s wrong to deny Jack Phillips that same right.”
But that is exactly what Colorado did. Phillips was ordered to file quarterly reports with the government for two years, detailing his compliance with its unconstitutional mandate. He refused, and stopped making custom wedding cakes entirely. As a result, he said, he lost 40 percent of his income and had to lay off more than half of his staff. Because he refused to create something expressing a message he personally rejects, the state government used its power to target his business — the means by which he supports his family — for destruction. This is authoritarianism.
The Phillips case shows that the makeup of the federal judiciary is not just a matter of concern for legal scholars at Federalist Society conventions. It affects real lives. It affects the lives of bakers and florists and wedding photographers. It affects the Little Sisters of the Poor. Indeed, it affects all of us.
The notion that the government can compel us to violate our consciences in the name of “tolerance” is Orwellian — and is a greater threat to our liberties than anything the most conspiracy-minded liberal imagines that the Trump administration might do in office. If Gorsuch ends up providing the deciding vote to uphold Phillips’s right to religious freedom, then Trump will have done more to avert a new era of authoritarianism than to usher one in.
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