Nike has unveiled its 30th anniversary ad campaign, and Colin Kaepernick is its headliner. A black-and-white photo of a solemn Colin is overlaid with the phrase &#8220;Believe in something, even if it means sacrificing everything.&#8221;
Why not use Kaepernick? After all, according to Gino Fisanotti, Nike&#8217;s vice president of brand for North America, &#8220;Colin is one of the <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://www.espn.com/nfl/story/_/id/24568359/colin-kaepernick-face-nike-just-do-30th-anniversary-campaign&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNEqxnEllj9nLb-TQVXtPlBoruYDzw" href="http://www.espn.com/nfl/story/_/id/24568359/colin-kaepernick-face-nike-just-do-30th-anniversary-campaign" target="_blank" rel="noopener noreferrer">most inspirational </a><a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://www.espn.com/nfl/story/_/id/24568359/colin-kaepernick-face-nike-just-do-30th-anniversary-campaign&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNEqxnEllj9nLb-TQVXtPlBoruYDzw" href="http://www.espn.com/nfl/story/_/id/24568359/colin-kaepernick-face-nike-just-do-30th-anniversary-campaign" target="_blank" rel="noopener noreferrer">athletes</a> of this generation, who has leveraged the power of sport to help move the world forward.&#8221;
Nike is right about one thing: Sacrificing everything for something you believe in is inspirational and can stimulate national discourse on important topics. And Kaepernick&#8217;s stated motivation &#8212; <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=https://www.nytimes.com/2017/09/25/opinion/colin-kaepernick-football-protests.html&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNFVOG61g84ZYQl3kPYGFmABxKKdbQ" href="https://www.nytimes.com/2017/09/25/opinion/colin-kaepernick-football-protests.html" target="_blank" rel="noopener noreferrer">protesting police brutality</a> &#8212; is unquestionably worthy. No good-willed person endorses brutality by the police. But were his tactics effective? Did they prompt the kind of response that &#8220;move[s] the world forward&#8221;?
Some strongly endorse Kaepernick&#8217;s decision to kneel, while others vehemently disagree and believe Kaepernick&#8217;s actions have unfairly smeared hundreds of thousands of law enforcement personnel rather than focusing on the despicable actions of a few. I&#8217;ll leave that question for others to debate. Here&#8217;s what I want to know.
What is Nike really celebrating: a particular narrative or a national principle? On its face, it&#8217;s the latter. The ad applauds Kaepernick&#8217;s principled exercise of his free speech and freedom of conscience to communicate his view on a contentious issue. The fact is, Kaepernick would almost certainly be on a National Football League roster had he not chosen to kneel. But he did, and he isn&#8217;t.
Kaepernick isn&#8217;t the first to take a stand (or kneel) on a controversial issue. Other men and women are putting principle over popularity, and some are paying an even greater cost.
Colorado cake artist Jack Phillips sought to live out his conscience even though it might not be popular, just like Kaepernick did. Jack took a principled stand that put his career at risk, just like Kaepernick did. Jack serves any individual that comes into his shop, but he doesn&#8217;t create custom cakes that express certain messages, like those advancing atheism, racism, or indecency. <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://thefederalist.com/2017/08/30/christian-artists-free-speech-game-colin-kaepernick/&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNElw83QLQ1kaFShxiDwVFtcOZvYCw" href="http://thefederalist.com/2017/08/30/christian-artists-free-speech-game-colin-kaepernick/" target="_blank" rel="noopener noreferrer">He also doesn&#8217;t create anti-American cakes</a>, so if you want a flag-burning cake for a Kaepernick protest, Jack is probably not your guy.
You see, Jack believes that the First Amendment protects his choice of what to express and what not to express. What&#8217;s more inspiring than a principled defense of the First Amendment &#8212; one that cost Jack greatly, both financially and emotionally?
Colin Kaepernick took a knee. Jack Phillips took a stand. But Jack is never going to be the face of a Nike campaign. Because the views on which Jack <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://thehill.com/opinion/judiciary/363802-in-masterpiece-case-the-supreme-court-will-decide-what-tolerance-requires&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNHVJnbi8ew5cvYZoBzGhVi3UVIDrg" href="http://thehill.com/opinion/judiciary/363802-in-masterpiece-case-the-supreme-court-will-decide-what-tolerance-requires" target="_blank" rel="noopener noreferrer">took a stand</a> &#8212; when he declined an invitation to create a custom cake celebrating a same-sex marriage &#8212; are not deemed socially acceptable. Unfortunately for Jack, in today&#8217;s culture, there doesn&#8217;t seem to be much tolerance left over for his biblical view of marriage.
Even though the U.S. Supreme Court ruled 7-2 in Jack&#8217;s favor in June, finding that the state of Colorado had demonstrated &#8220;clear and impermissible hostility&#8221; toward his religious beliefs, officials in the state of Colorado <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=https://www.dailywire.com/news/34741/gottry-what-persecution-jack-phillips-teaches-us-james-gottry&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNEI07QO54ai_YO79i9gL2EbgdeKJg" href="https://www.dailywire.com/news/34741/gottry-what-persecution-jack-phillips-teaches-us-james-gottry" target="_blank" rel="noopener noreferrer">continue to target him</a> for prosecution. Sound familiar, Kaepernick fans? Only instead of a private business &#8212; the NFL &#8212; not offering Kaepernick a job (<a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=https://www.cnn.com/2018/08/17/sport/john-elway-colin-kaepernick-broncos-spt-intl/index.html&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNGu6sCkzuWaerfdddDN6u5xexK52Q" href="https://www.cnn.com/2018/08/17/sport/john-elway-colin-kaepernick-broncos-spt-intl/index.html" target="_blank" rel="noopener noreferrer">or at least not one he was willing to take</a>), in Jack&#8217;s case, it&#8217;s the government seeking to sack him permanently.
Jack isn&#8217;t the only defender of freedom who &#8220;just did it.&#8221; Barronelle Stutzman is a 73-year-old grandmother from Washington state, and when it comes to sacrificing everything for your beliefs, she&#8217;s got game. Though Barronelle happily serves all people through her business, Arlene&#8217;s Flowers, she chose <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=https://www.thegospelcoalition.org/article/state-turned-life-upside-religious-beliefs/&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNGj9U6dgm0PaCoai3aJjo6q07PD-A" href="https://www.thegospelcoalition.org/article/state-turned-life-upside-religious-beliefs/" target="_blank" rel="noopener noreferrer">not to participate</a> in the same-sex wedding of a longtime friend and customer because of her religious beliefs about marriage. As a result, the Washington attorney general filed a lawsuit against her, as did the American Civil Liberties Union.
Like Kaepernick, Jack and Barronelle took a stand for what they believe. Unlike Kaepernick, Jack and Barronelle stand to lose everything because the government said there is no room for their views in the marketplace.
Kaepernick, who is not on an NFL roster, recently negotiated a <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://www.latimes.com/business/la-fi-kaepernick-nike-deal-20180903-story.html&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNH4Ray4yaPzJhX5kS5D3irM2jYFaQ" href="http://www.latimes.com/business/la-fi-kaepernick-nike-deal-20180903-story.html" target="_blank" rel="noopener noreferrer">multi-year deal with Nike</a>, and the company will feature him on commercials, billboards, and online ads, among other platforms. It will also create an apparel line for him and contribute to his charity. Kaepernick risked upsetting his fans and his employer, and his decision certainly impacted his playing career. But he is getting something in return for sacrificing &#8220;everything.&#8221;
It&#8217;s pretty clear Nike won&#8217;t be promoting Jack or Barronelle anytime soon. But that&#8217;s alright. Barronelle and Jack &#8212; and others like them &#8212; don&#8217;t need an endorsement contract. They don&#8217;t need a stadium full of people cheering their name. They don&#8217;t need you to agree with them, because they know one of the best things about America is the chance to live freely in a society with many people who think differently than they do.
What Jack and Barronelle are looking for is freedom to live consistently with their views, and tolerance for what they believe. That&#8217;s something we should all believe in, and that&#8217;s something that would move our world forward.
James Gottry is legal counsel with <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://www.adflegal.org&amp;source=gmail&amp;ust=1536454244151000&amp;usg=AFQjCNE9fblcN-9LMn0SAaX7OjWFEyWpOQ" href="http://www.adflegal.org/" target="_blank" rel="noopener noreferrer">Alliance Defending Freedom</a>, which represents Jack Phillips and Barronelle Stutzman in their respective cases.

Before Nike And Kaepernick’s ‘Just Do It,’ These Defenders Of Freedom ‘Just Did It’

Colin Kaepernick

Nike

The U.S. Supreme Court decision should have put an end to Colorado&#8217;s campaign against cake artist Jack Phillips. But Colorado remains undeterred, and so do some of its most &#8220;tolerant&#8221; citizens.
During <a href="https://www.supremecourt.gov/oral_arguments/audio/2017/16-111" target="_blank" rel="noopener noreferrer">oral arguments</a> for <a href="http://www.adfmedia.org/News/PRDetail/8700" target="_blank" rel="noopener noreferrer">Masterpiece Cakeshop v. Colorado Civil Rights Commission</a> in December 2017, Justice Anthony Kennedy declared that &#8220;tolerance is essential in a free society.&#8221; He added that, by its crusade against Jack and Masterpiece Cakeshop, Colorado had been &#8220;neither tolerant nor respectful of Mr. Phillips&#8217; religious beliefs.&#8221;
In June, the Supreme Court <a href="http://www.adfmedia.org/files/MasterpieceCakeshopOpinionSCOTUS.pdf" target="_blank" rel="noopener noreferrer">gave legal effect</a> to these words, condemning Colorado&#8217;s &#8220;clear and impermissible hostility&#8221; toward Jack and his business. The court also chastised the commission for &#8220;implying that religious beliefs and persons are less than fully welcome in Colorado&#8217;s business community.&#8221;
In short, the Supreme Court&#8217;s message was this: People like Jack should not be bullied by the government for peacefully living out their religious beliefs.
Colorado apparently didn&#8217;t get the message. Tuesday&#8217;s lawsuit from Jack Phillips and his Alliance Defending Freedom attorneys revealed as much. The Colorado Civil Rights Division, working in cahoots with an activist Colorado attorney, are harassing Jack again. This time it&#8217;s because Jack politely declined a request to make a cake &#8212; blue on the outside, pink on the inside &#8212; celebrating that attorney&#8217;s gender transition from male to female.
Lest you&#8217;re tempted to shed a tear for the attorney, keep in mind that the request wasn&#8217;t really about the customer; it was all about Jack. After all, the attorney &#8220;<a href="https://www.scardinalaw.com/Employment-Disputes.shtml" target="_blank" rel="noopener noreferrer">take[s] great pride</a>&#8221; in suing businesses that allegedly &#8220;discriminate against lesbian, gay, bisexual, and transgender people and serving them their just desserts&#8221; (emphasis mine).
No, this latest episode didn&#8217;t arise because Jack intolerantly refused to serve a customer, because he didn&#8217;t. Jack will serve all people; he just can&#8217;t create all cakes. Rather, the second act of the persecution of Jack Phillips began because of a lack of respect and tolerance from Jack&#8217;s home state and citizens who deplore his beliefs.
Jack received the request for the transition-celebration cake on June 26, 2017, the same day the media announced that the Supreme Court would hear Masterpiece.<a href="http://thehill.com/opinion/civil-rights/402114-colorado-end-your-crusade-against-masterpiece-cakeshop" target="_blank" rel="noopener noreferrer">The request certainly appears to be a setup</a>. Approximately one month later, Jack learned the attorney had filed a complaint with the Colorado Civil Rights Division (which investigates complaints for the Colorado Civil Rights Commission). And while the division and commission have demonstrated their ready willingness to harass Jack, both of these campaigns against Jack have been enabled by the self-appointed enforcers of tolerance.
Not long after this interaction, another strategy for entangling Jack was launched, and it involved a devilish sweet tooth. In September 2017, someone e-mailed Jack and requested a custom cake to celebrate Satan&#8217;s birthday. The unidentified individual asked for a cake with red and black icing and &#8220;an upside down cross, under the head of Lucifer.&#8221; The customer added that the cake was &#8220;religious&#8221; and reminded Jack that &#8220;religion is a protected class.&#8221;
Just days later, someone called the shop (and the name on caller ID matched the last name of the attorney who filed the complaint against Jack) asking for a very similar cake: a red and black theme and an image of Satan smoking marijuana.
Jack declined both requests, not because of who requested the cakes, but because he doesn&#8217;t make cakes celebrating the devil&#8217;s natal day.
Fast forward to June 4, the day that the Supreme Court issued its ruling for Jack in Masterpiece, and Jack received this request in his inbox:
<blockquote>
I&#8217;m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9&#8221; black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake. I can provide it for you if you don&#8217;t have the means to procure one yourself.
</blockquote>
Jack declined, and I sincerely hope I don&#8217;t need to explain why. A few weeks later, two individuals visited Masterpiece Cakeshop and asked for a custom cake with a pentagram.
Granted, Colorado might have its share of citizens with an affinity for devil&#8217;s food cake and pot, but where are we as a society when activists request custom cakes featuring Satan licking a sex toy? Business owners are being harassed with outlandish requests, and the government is concerned about the actions of the business owners.
Jack is not the problem. His peaceful exercise of his religious views is not the problem. <a href="http://thehill.com/opinion/judiciary/363802-in-masterpiece-case-the-supreme-court-will-decide-what-tolerance-requires" target="_blank" rel="noopener noreferrer">A free society allows artistic expression, belief, and the peaceful exercise of conscience</a>. And while it is the responsibility of the government to protect our fundamental freedoms, it is our responsibility as citizens to live out the values of respect and tolerance. An individual who understands respect doesn&#8217;t demand that Jack Phillips create a cake that violates his beliefs. A person who embraces the value of tolerance doesn&#8217;t seek to mandate unity of thought or action.
We can disagree on so many things&#8230;if we will simply agree on the principle of freedom.
James Gottry is legal counsel with <a href="http://www.adflegal.org/" target="_blank" rel="noopener noreferrer">Alliance Defending Freedom</a>, which represents Jack Phillips and Masterpiece Cakeshop.

GOTTRY: What The Persecution Of Jack Phillips Teaches Us About ‘Tolerance’

Alliance Defending Freedom (ADF)

Constitution

First Amendment

Religion

Supreme Court

Well, that celebration was short-lived.
On June 4, the U.S. Supreme Court handed down its ruling in <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://www.adflegal.org/detailspages/case-details/masterpiece-cakeshop-v.-craig&amp;source=gmail&amp;ust=1528412386809000&amp;usg=AFQjCNHpwyMnD8m0apq7Re89YCLSJqFrqg" href="http://www.adflegal.org/detailspages/case-details/masterpiece-cakeshop-v.-craig" target="_blank" rel="noopener noreferrer">Masterpiece Cakeshop v. Colorado Civil Rights Commission</a>. While the ink was still drying on the decision, some pundits and advocates lined up to declare that the 7-2 victory for Jack Phillips and Masterpiece Cakeshop is little more than a guidebook for a future defeat.
The thrust of the argument goes like this:
<ol>
<li>Justice Anthony Kennedy was primarily concerned with the &#8220;clear and impermissible hostility&#8221; that the Colorado Civil Rights Commission demonstrated toward Jack and his beliefs.</li>
<li>Justice Kennedy was also adamant that &#8220;purveyors of goods and services&#8221; should not be allowed to act in such a way as to &#8220;impose a serious stigma on gay persons.&#8221;</li>
<li>Therefore, if government entities simply say it with a smile next time, they will be allowed to strip Jack and others of their First Amendment freedoms.</li>
</ol>
That sounds awful. It does not, however, sound accurate.
The Supreme Court&#8217;s concern is not simply that the government replaces hostility with respect. Justice Kennedy indicated during oral arguments that more than mere respect is required. He specifically stated that &#8220;the state in its position here has been neither tolerant nor respectful of Mr. Phillips&#8217; religious beliefs&#8221; (emphasis mine).
Writing for the majority, Justice Kennedy echoed this refrain, stating that &#8220;the record here demonstrates that the Commission&#8217;s consideration of Phillips&#8217; case was neither tolerant nor respectful of his religious beliefs&#8221; (emphasis mine).
The court addressed the commission&#8217;s outright hostility toward Jack because it was unavoidable. As Justice Kennedy wrote for the majority, that hostility was an assault on &#8220;the religious neutrality that the Constitution requires.&#8221; This hostility alone required the court to set aside the commission&#8217;s order.
But the court&#8217;s order fails to fully answer the question of <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://thehill.com/opinion/judiciary/363802-in-masterpiece-case-the-supreme-court-will-decide-what-tolerance-requires&amp;source=gmail&amp;ust=1528412386809000&amp;usg=AFQjCNH7SMYM2O5EGsIQMlE0_GYhNrswTg" href="http://thehill.com/opinion/judiciary/363802-in-masterpiece-case-the-supreme-court-will-decide-what-tolerance-requires" target="_blank" rel="noopener noreferrer">what tolerance requires</a>.
And to the extent that the opinion provides some guideposts for that determination in future contexts, it does not forecast a defeat for First Amendment freedoms. To the contrary, the boundary lines that have been sketched out leave ample space for a two-way street of tolerance.
Let&#8217;s consider what Justice Kennedy actually said in the majority opinion.
<blockquote>
The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the &#8230; rights and dignity of gay persons&#8230;. The second is the right of all persons to exercise fundamental freedoms under the First Amendment&#8230;. (Opinion, at 1-2)
</blockquote>
By acknowledging the need for a reconciliation, Justice Kennedy acknowledges there is room for reconciliation. Constitutionally guaranteed rights can coexist with socially valued principles of nondiscrimination. The trick is simply to find the proper balance.
Now, what balance may be found? The opinion suggests a way:
<blockquote>
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth&#8230;. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. (Opinion, at 9)
</blockquote>
Here the opinion says that LGBT persons and same-sex couples should be afforded freedom &#8220;on terms equal to others.&#8221; This includes those with &#8220;religious and philosophical objections to gay marriage.&#8221; Kennedy confirms as much when he condemns the commission for &#8220;implying that religious beliefs and persons are less than fully welcome in Colorado&#8217;s business community.&#8221;
He is essentially validating his remarks during oral arguments. First, &#8220;tolerance is essential in a free society.&#8221; And second, &#8220;tolerance is most meaningful when it&#8217;s mutual.&#8221; This might be the most pointed rebuttal to those naysayers who claim Justice Kennedy is inviting future conscience cases to be resolved by a more respectful infringement on First Amendment rights. After all, can you really label a society as &#8220;mutually tolerant&#8221; if it declares &#8220;decent and honorable religious&#8221; beliefs&#8212;language the Supreme Court used in Obergefell&#8212;wholly unwelcome in the marketplace?
But the question remains, how can a creative professional like Jack peacefully live and work consistent with his beliefs without violating the parameters that the majority opinion identifies? The opinion provides the framework for an answer, buried in the background section: &#8220;the ALJ [administrative law judge] determined that Phillips&#8217; actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended.&#8221;
While the ALJ reached the wrong conclusion, the Supreme Court highlighted a distinction key to reconciliation: namely, there is a difference between opposing an idea or an event and opposing an individual. And this is a principle that Jack Phillips has proclaimed since the case&#8217;s inception&#8212;he serves all people but cannot celebrate all events or express all messages.
Jack&#8217;s conviction not to celebrate messages or events contrary to his faith does not amount to discrimination against a person or class of persons. And no one should be bullied or banished from the marketplace for peacefully living out the belief that marriage is the union of a man and a woman.
In a tolerant society, we should expect creative professionals to serve all people. But in a tolerant society, we should also protect their freedom to decline to celebrate events or express messages that conflict with their conscience.
It&#8217;s true, the Supreme Court&#8217;s decision does not tell us everything that tolerance requires. But it left itself ample room, in future cases, to protect the constitutional freedoms of all Americans.
James Gottry is legal counsel with <a data-saferedirecturl="https://www.google.com/url?hl=en&amp;q=http://www.adflegal.org&amp;source=gmail&amp;ust=1528412386810000&amp;usg=AFQjCNHC5M2HQ5liV6Ilf6DPEnlrN5knpg" href="http://www.adflegal.org/" target="_blank" rel="noopener noreferrer">Alliance Defending Freedom</a>, which represents Jack Phillips and Masterpiece Cakeshop.

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James Gottry

Before Nike And Kaepernick’s ‘Just Do It,’ These Defenders Of Freedom ‘Just Did It’

GOTTRY: What The Persecution Of Jack Phillips Teaches Us About ‘Tolerance’

GOTTRY: Tolerance And Respect Are Two Separate Concepts