The gay wedding cake, the baker who wouldn’t make it, and the legal crusade behind him
As the Supreme Court hears the Masterpiece Bakeshop case today, the meaning of “discrimination” may never be the same.
Jack Phillips wants to talk.
“But I can’t, not without my lawyers here,” laments the Masterpiece Cakeshop owner whose refusal to make a cake for a gay couple’s wedding has led to this year’s most closely watched U.S. Supreme Court case.
Alone in his Lakewood baker on Thursday, just after his lawyers livestreamed a broadcast about his legal battle from a perch overlooking the U.S. Capitol, Phillips paces behind his counter, then in front of it, clearly eager to chat – if not about the case itself, then around its edges. Like how he and his wife would be flying D.C. on Sunday so they could attend oral arguments today. And how one of his favorite creations is a cake bearing the image of Martin Luther King. And how he welcomes everyone into his shop, regardless of lifestyle, in hopes, he says, that they’ll stay to have coffee and conversation, and make themselves at home.
“Despite what people say,” he wants me to know, “I don’t discriminate.”
The question of who discriminated against whom one July day in 2012 is the crux of a case seen as a defining battle for religious liberties – mainly Christian ones – in the U.S. The legal argument goes like this: Phillips didn’t discriminate against would-be customers Charlie Craig and David Mullins by refusing to make them a custom wedding cake, but rather is the victim of Colorado’s overreaching anti-discrimination law whose insistence that he serve same-sex couples violates his belief that homosexuality is a sin and tramples on his constitutionally protected artistic expression as a self-described “cake artist.”
“Justice for Jack,” as the legal and public relations campaign around Phillips is called, is a project of Alliance Defending Freedom, a deep-pocketed, Arizona-based legal and policy juggernaut that’s leading the movement for “religious refusals” and other outward expressions of Christian convictions in the business sector and public realm.
ADF has made Phillips a darling of the far right. Since his legal battle started five years ago, the group has carpet bombed email boxes, social media feeds, talk shows, newspaper interviews, and church services worldwide with a narrative of Phillips as a martyr. “Would you risk it all for Christ?” reads one email about the baker, his 24-year-old cake shop, and his mission to follow his faith in all aspects of his life, including the buttercream and ganache he uses in cake decorations.
The group is quick to point out that Phillips doesn’t only refuse to make cakes for gay couples. He has turned down orders to create Halloween cakes (read: Satan), racy concoctions for bachelor parties, and a three-tiered wedding cake split down the middle that a customer sought to celebrate a divorce. By challenging the Colorado Civil Rights Commission’s insistence that he create a same-sex wedding cake to comply with Colorado’s Anti-Discrimination Act, the man ADF describes as “a courageous brother in Christ” teed up for the Christian right what one ADF email calls “the most important case in our lifetime.”
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is unlike previous religious refusal cases in that, rather than pivoting on free-exercise-of-religion claims, it argues that the laws safeguarding the civil rights of historically marginalized groups can violate the free-speech rights of the people and businesses refusing to serve them.
“The government is asking them to violate their core convictions,” Kristen Waggoner, ADF’s senior vice president arguing Phillips’ case today, said during the group’s video conference Thursday.
Civil rights advocates counter that ADF is on a crusade for constitutional protections to discriminate.
“We all know this case is about much more than just cake,” says Daniel Ramos, executive director of One Colorado, a Denver-based LGBTQ advocacy group. “If the Court rules in favor of the baker, the message they’re sending is that any individual and any business can pick and choose what laws to follow. For landlords, doctors and other people in business, it would give them permission to deny services not just to LGBTQ people, but to women, or people of certain races, and so on. Basically, it would be a license to discriminate.”
Watchdogs underscore ADF’s listing by the Southern Poverty Law Center as a national hate group. Among a host of what the center deems as “extremist” positions, it cites ADF’s record of linking homosexuality to pedophelia, claiming that a “homosexual agenda will destroy Christianity and society,” and defending state-sanctioned sterilization of trans people overseas.
ADF didn’t return an inquiry from The Colorado Independent about its branding as a hate group. It did, however, send a mass email from Waggoner on Monday asking for spiritual support. “Please pray for Jack tomorrow. Please pray for me as I argue the case. Please pray for the Supreme Court justices, the people on the other side of the case, and our nation. May God grant each of us His love, joy and grace.”
The Alliance was co-founded in 1993 by James Dobson and a few dozen other Christian conservative leaders emboldened by the passage a year earlier of Amendment 2, an anti-gay measure that Colorado voters approved by a vote of 53 percent to 47 percent. Though the amendment was struck down by a 1996 U.S. Supreme Court ruling, ADF and its legal crusade kept gaining steam.
The organization trains law students and young lawyers, and now has more than 3,000 Christian attorneys working on its causes in the U.S. and internationally, including high profile cases in Australia, Belize, India and Russia. It specializes in religious freedoms, especially around the issue of marginalizing homosexuality, which the group has said “is sinful and offensive to God.” The Nation reported last week that ADF brought in $51.5 million in revenue for the 2015-16 tax year, more than the American Civil Liberties Union.
Nationally, ADF has fought for school districts’ right to recognize Christmas, and for other forms of public Christian expression such as keeping a monument of the Ten Commandments on the lawn of a city hall in New Mexico. It has supported conversion therapy, the discredited effort of trying reprogram LGBTQ youth into being straight.
In Colorado, the group’s efforts have been led primarily by Mike Norton, former U.S. Attorney in Colorado under Ronald Reagan and George Bush, and husband of Jane Norton, who was lieutenant governor to Republican Gov. Bill Owens.
ADF filed suit on behalf of a senior at Colorado Springs’ Pine Creek High School who was told that he and other students couldn’t meet to pray during free time in school. That case prodded the school district to drop its ban on religious expression and discussion during free periods.
Lawyers for the group have testified for religious freedoms in state universities, supported limiting trans people’s access to locker rooms, and opposed legislative efforts to pass end-of-life options before voters approved the policy in 2016.
ADF represented the Colorado-based business that was the first in the nation to win a preliminary court order against the Obama administration’s abortion pill mandate, which required employers to provide insurance for abortion-inducing prescriptions, regardless of their spiritual or moral beliefs. It supported Douglas County School District’s voucher program, which a new school board abandoned Monday. It represented a donor to Colorado School of Mines who was thwarted from including a biblical reference on a nameplate honoring his donation. And it has targeted abortion providers in Colorado, state funding of Planned Parenthood programs, and Planned Parenthood itself with accusations of trafficking aborted baby parts for profit.
An ADF lawsuit prodded Colorado State University to drop policies that enabled university officials to deny a student group funding request because of its members’ pro-life views.
The group represents a Colorado designer, Lorie Smith, who has posted a notice saying she won’t design graphics for same-sex weddings. That case is pending until the Supreme Court hands down a decision on Masterpiece.
According to The Nation, President Donald Trump has appointed or nominated at least six attorneys with ADF ties to judgeships or leadership positions in the federal government. Among those is Solicitor General Noel Francisco who will be arguing today in support of the group and its call to exempt conservative Christians from civil rights laws.
“What you have here is an organization that’s committed to undoing all of the protections for LGBTQ people” and a presidential administration that’s supporting them “in full force,” One Colorado’s Ramos says.
There was no sign of that force last week in the strip off South Wadsworth where Masterpiece Backshop is located between Tanglz and Co. hair and nail salon and Mojo Massage, down the way from Green Mountain Guns and an Arthur Murray Dance Studio, and opposite a restaurant called Namaste. Nearby merchants describe Phillips as quiet yet friendly – hardly the firebrand you’d expect to be driving what could be a U-turn in constitutional precedent. Those I interviewed didn’t seem much aware of Phillips’ religious views, or about the details of his case. Rather, they spoke of the warmth of his coffee, the richness of his butter cookies, and the frequency with which TV crews and newspaper photographers seem to skulking around his bakery.
“He seems just like the rest of us,” says the manager of a nearby shop. “He’s wants business, plain and simple.”
The “We now have gluten free!” sign above Masterpiece’s counter might suggest that Phillips is open for business like his neighbors. But the coffee can he keeps next to his cash register sends a message that’s neither plain nor simple.
“Donate here,” it reads. “Alliance Defending Freedom.”
Photo of Philips by Susan Greene, homepage display image by U.S. Army for Creative Commons on Flickr.
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