Can government be the Cake Boss?

SSince he opened his doors in 1993, cake artist Jack Phillips has served the community of Lakewood. Inside his Masterpiece Cakeshop, Phillips has combined eggs and flour, artistry and skill, and heart and soul, into thousands of distinct masterpieces, including a countless number of cakes for the most special of days — weddings.

But in recent years, a blank canvas has partially overlaid what was once described as “an art gallery of cakes.” On Monday, the U.S. Supreme Court agreed to hear Phillips’ case, and its decision may well determine whether the full “gallery” can reopen.

In 2014, the Colorado Civil Rights Commission ruled that the government can force Phillips to create artistic expression that violates his beliefs. Stated differently, Phillips’ artistic freedom, which the First Amendment has long protected, is subject to the whims and demands of government officials. And because those officials have determined that Phillips’ views on marriage are tantamount to “discrimination on the basis of sexual orientation,” the government can compel him to “correct” those views by “educational or other means.”

In Phillips’ case, this meant that the Colorado Civil Rights Commission ordered him to “re-educate” his staff, file quarterly “compliance” reports for two years, and create wedding cakes for same-sex weddings if he creates wedding cakes at all. (The Colorado Court of Appeals upheld the commission’s ruling in 2015.)

So Phillips made the only choice he could: He sacrificed his wedding cakes to save his conscience. This was no small sacrifice; wedding cakes made up approximately 40 percent of his business. For many small business owners, a 10 percent decline in revenue would be concerning; a 20 percent decline would be distressing; and a greater percentage could be ruinous.

But despite the threat to his livelihood, Phillips stood on principle. When the commission first ruled against him, he put his wedding cakes on ice, hoping a higher court would vindicate his freedom of conscience and believing that artistic expression (and the First Amendment) would prevail in the end. And for the better part of three years, Phillips has stayed in business due to unflagging support from many in his community.

If the Supreme Court strikes down the Colorado Court of Appeals’ ruling, it would send an important message that the demands of activists should never be prioritized over the precepts of the Constitution.

If the Supreme Court rules against Phillips, his business’ very existence will be in doubt. Abandoning a core part of one’s business is hardly a recipe for success. A loss could mean not only that Phillips would be forced to close the doors of his family business, but also that we risk closing the doors on what it means to be a truly free society.

More than 60 years ago, perhaps foreseeing such a day, Illinois governor and presidential candidate Adlai Stevenson reminded Americans that “a free society is a society where it is safe to be unpopular.” Indeed, the First Amendment is most necessary for the protection of unpopular speech. This protection extends to what we choose not to say, which the Supreme Court has said is necessary to protect “the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

Increasingly, Phillips and others like him find themselves and their artistic freedom cast out because one side of that two-way street is demanding both lanes be cleared for its unimpeded progression into (and through) every part of society. Dissenters will be towed, impounded or crushed.

Creative professionals should never be forced to choose between their livelihood and First Amendment freedom. Phillips deserves to have his cake and freedom, too.