Should an artist who serves all people be able to decline to create art for an event that conflicts with his deepest convictions? That question — much debated in recent years — seemed destined to reach the U.S. Supreme Court. And last Monday, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, it finally did.
The owner of Masterpiece Cakeshop, Jack Phillips, is a cake artist who creates custom works of edible art for special occasions such as weddings and birthdays. He serves everyone, no matter their race, sex, religion or sexual orientation. But he cannot create art for events that conflict with his faith. For years, that practice caused no disturbances. But when a couple asked Phillips to create a cake for a same-sex wedding, things got dicey.
He told the requesting couple that he would gladly sell them anything in his store, but designing a custom cake to celebrate a same-sex marriage was not something he could do. Phillips was compelled to decline that request because of his religious conviction that marriage is a husband-wife union — a belief that just two years ago the Supreme Court said is “decent and honorable” and held “in good faith by reasonable and sincere people.”
The Colorado Civil Rights Commission determined that Phillips’ decision to live by his conscience was unlawful and ordered him to “re-educate” his staff on the state’s anti-discrimination law, meaning he must create wedding cakes for same-sex weddings if he creates wedding cakes at all. The commission did this while simultaneously concluding that three other bakers were within their rights when they declined to create cakes bearing biblical messages they found offensive. That anti-religious bias is reason enough for the Supreme Court to reverse the commission’s decision to punish Phillips.
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But there is far more on the line than one cake artist’s freedom. At stake is whether the government can conscript artists to ply their expressive talents for events or ideas that they do not support.
If Phillips loses, the rights of all artists will suffer. Under that scenario, the government could compel a lesbian artist to design fliers for a religious event opposing same-sex marriage or a black woodworker to craft a cross for a Ku Klux Klan rally. Almost no one wants to live in a world like that, and thanks to the First Amendment, we don’t have to.
Those who oppose Phillips argue that the interests of same-sex couples seeking artists should outweigh his freedom. This argument, however, misperceives the competing interests.
On Phillips’ side of the scale is the future of his wedding-cake business and his very livelihood. If Phillips can’t create cakes to celebrate same-sex weddings, the government insists, he can’t make wedding cakes at all. So a loss in his case means the loss of a fulfilling part of Phillips’ work that accounts for roughly 40 percent of his income, a hit that will risk sinking his business.
Of course, the same-sex couple has an interest in obtaining custom art from businesses. But there is no shortage of cake artists willing to help celebrate same-sex marriages in Denver’s suburbs. That a same-sex couple must go to another shop cannot override Phillips’ freedom.
Same-sex couples raise another interest: avoiding the frustration and dignity harm that they feel when an artist declines their request. But someone’s offense at another’s exercise of his artistic and religious freedom is not a reason to suppress it. On the contrary, as the Supreme Court has explained, the First Amendment exists to shield artistic, expressive and religious choices that in someone’s eyes are hurtful.
In addition, same-sex couples don't have the market cornered on dignity harms. If the law deems Phillips’ beliefs odious and unfit for public life — which is precisely what a ruling against him would do — that would demean not only him but also millions of Catholics, Protestants, Mormons, Jews and Muslims who hold similar beliefs.
Some folks nevertheless insist that Phillips is like the racist business owners in the Jim Crow South and must suffer the same fate. This is simply not true. Jim Crow involved the systematic exclusion of black Americans from public life. Countless businesses flatly refused to serve a class of people. But that is not remotely true of Phillips or others like him. He will gladly serve people who identify as gay or lesbian; it is only custom orders for certain wedding cakes that he must decline. Phillips is not deserving of the social margins where racists now reside.
In this hotly contested struggle between artistic freedom and government coercion, it is impossible to predict the outcome. But because — to paraphrase Martin Luther King Jr. — the arc of the universe bends toward human freedom, Phillips should feel pretty good about his chances.
Campbell is senior counsel with Alliance Defending Freedom, which represents Masterpiece Cakeshop in the Supreme Court case “Masterpiece Cakeshop v. Colorado Civil Rights Commission.”