News and Commentary

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

The U.S. Supreme Court decision should have put an end to Colorado’s campaign against cake artist Jack Phillips. But Colorado remains undeterred, and so do some of its most “tolerant” citizens.

During oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission in December 2017, Justice Anthony Kennedy declared that “tolerance is essential in a free society.” He added that, by its crusade against Jack and Masterpiece Cakeshop, Colorado had been “neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

In June, the Supreme Court gave legal effect to these words, condemning Colorado’s “clear and impermissible hostility” toward Jack and his business. The court also chastised the commission for “implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.”

In short, the Supreme Court’s message was this: People like Jack should not be bullied by the government for peacefully living out their religious beliefs.

Colorado apparently didn’t get the message. Tuesday’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’s because Jack politely declined a request to make a cake — blue on the outside, pink on the inside — celebrating that attorney’s gender transition from male to female.

Lest you’re tempted to shed a tear for the attorney, keep in mind that the request wasn’t really about the customer; it was all about Jack. After all, the attorney “take[s] great pride” in suing businesses that allegedly “discriminate against lesbian, gay, bisexual, and transgender people and serving them their just desserts” (emphasis mine).

No, this latest episode didn’t arise because Jack intolerantly refused to serve a customer, because he didn’t. Jack will serve all people; he just can’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’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.The request certainly appears to be a setup. 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’s birthday. The unidentified individual asked for a cake with red and black icing and “an upside down cross, under the head of Lucifer.” The customer added that the cake was “religious” and reminded Jack that “religion is a protected class.”

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’t make cakes celebrating the devil’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:

I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” 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’t have the means to procure one yourself.

Jack declined, and I sincerely hope I don’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’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 free society allows artistic expression, belief, and the peaceful exercise of conscience. 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’t demand that Jack Phillips create a cake that violates his beliefs. A person who embraces the value of tolerance doesn’t seek to mandate unity of thought or action.

We can disagree on so many things…if we will simply agree on the principle of freedom.

James Gottry is legal counsel with Alliance Defending Freedom, which represents Jack Phillips and Masterpiece Cakeshop.