Bakers should be allowed to have their cake — and their freedom

On Dec. 5, the U.S. Supreme Court will consider the plight of Jack Phillips, a creative professional in Colorado who has lost 40 percent of his business because of his government’s hostility toward his beliefs. One of Jack’s constitutional claims hinges on a straightforward question: Are Jack’s custom wedding cakes artistic creations?

The answer, and the outcome of Jack’s case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, could impact artists throughout the country and shape a generation’s understanding of the First Amendment and the specific freedoms that it guarantees for all Americans.

Of course, if you knew the steps of Jack’s journey that carried him to his shop in Lakewood, Colorado, or if you spent a day watching him perform his craft, or if you simply viewed the video collage of cakes featured on his website, you may well conclude that the answer is as uncomplicated as the question.

{mosads}Jack is an artist, and his custom wedding cakes are his masterpieces.

In high school, Jack took every art class he could, seeking to develop his natural artistic gifts. After Jack graduated and took a job in his neighbor’s bakery, he soon discovered that he could blend his talents as a baker with his skills as a pastry chef to build a career as a cake artist. And, after nearly two decades of learning, practicing, and dreaming, Jack opened Masterpiece Cakeshop.

In his shop, Jack’s custom designs are brought to life on a canvas of edible ingredients, as he paints, carves, shapes, and adorns his art, armed with his tools and brushes, informed by his imagination, and driven by his passion to create.

The results of Jack’s wedding artistry are displayed in Jack’s “art gallery of cakes,” and their equal cannot be found in a box on a shelf at the local supermarket or in a Costco bakery. His custom wedding cakes reflect a level of mastery that is measured in years; they cannot be produced on a conveyor belt or purchased for $14.99. In short, Jack’s custom pieces of art are no “Moist and Sugary” counterpart to a Little Caesars’ “Hot and Ready.”

Because Jack’s wedding cakes are custom works of art, the state of Colorado cannot force him to design those cakes to celebrate ideas about marriage that conflict with his faith.

Artistic expression has long been protected by the First Amendment—an uncontroversial proposition that is well established in the Supreme Court’s case law. Equally plain is the compelled speech doctrine, which establishes that expressive and artistic freedom includes “the choice of what not to say.” Taken together, this means that the government cannot compel artistic expression. Unfortunately for Jack, that’s exactly what the government did to him.

In 2012, two men asked Jack to create a wedding cake to celebrate their same-sex marriage. Jack told the couple that he would gladly sell them any of the premade baked items in his store or create a cake for them for another occasion, but he was unable to create a custom cake to celebrate a same-sex marriage. The couple left the store and, shortly thereafter, filed a complaint with the Colorado Civil Rights Commission.

In 2014, the commission determined that Jack’s artistic freedom didn’t extend to a choice not to celebrate same-sex marriage (a strange and remarkable decision given the commission’s subsequent deference toward cake artists who declined to create cakes expressing disapproval of same-sex marriage). The commission ordered Jack to celebrate same-sex marriages through his artistic designs to the same extent he celebrates any other marriage. This order forced Jack out of the wedding industry, which has cost him about 40 percent of his business and left him struggling to keep his family business afloat.

It also instructed him to teach his staff, which includes his family members, that he was wrong to operate his business consistently with his religious beliefs. Finally, it directed Jack to file quarterly reports with the government for two years, explaining to state officials when and why he declined any commissioned order. In other words, Jack was ordered to provide a defense every time he exercised his First Amendment right to be free from compelled expression. The Colorado Court of Appeals upheld the commission’s ruling in 2015.

Jack is going to the Supreme Court to vindicate not only his own First Amendment rights, but also the freedom of other artists to decline to celebrate events or express ideas that they do not support. Thus, freedom for Jack is freedom for all artists.

The government shouldn’t force artists to speak through their art. This simple principle should take the cake.

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