Brief to Supremes: Colorado 'consistently opposes' people of faith

Jack Phillips

The first brief has been submitted in a U.S. Supreme Court case that challenges the state of Colorado's position of "consistently opposing" anyone who objects to publicly supporting same-sex "marriage."

It comes in the well-known case of Jack Phillips, a Colorado cake artist who was ordered by the state's Civil Rights Commission to provide his customized wedding cakes to same-sex duos if he provided them to anyone. He also was forced to undergo state-mandated, homosexual-rights indoctrination, along with his staff.

A member of the state's Civil Rights Commission, Diann Rice, publicly exhibited bias against him during a hearing, comparing him to a Nazi.

"I would also like to reiterate what we said in the hearing or the last meeting," Rice said during consideration of Phillips' case. "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others."

Hear a recording of Rice's statement:

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The Alliance Defending Freedom, which is defending Phillips, said such "animus" in a state is "alarming" and "has no place in civil society."

ADF said Rice's comment "suggests that other members of the commission may share her view that people who believe marriage is only between a man and a woman are comparable to those who committed the Holocaust."

"This anti-religious bias undermines the integrity of the commission."

Now ADF has submitted its opening brief on behalf of Phillips to the U.S. Supreme Court.

"A review of all these situations reveals something striking: People of faith who do not support same-sex marriage always lose (in Colorado)," the legal team explained. "Whether they are the customer requesting an expressive item or the professional declining to create it, the commission consistently opposes them.

"This unequal application of the law impermissibly 'single[s] out' a specific religious belief 'for discriminatory treatment,'" it states.

The lawyers explained that Phillips' right to decline to promote homosexualityi s protected by the First Amendment's Free Speech and Free Exercise clauses.

"At issue here is whether Phillips may decline requests for wedding cakes that celebrate marraiges in conflict with his religious beliefs. The First Amendment guarantees him that freedom because his wedding cakes, each one custom-made, are his artistic expression.

"Much like an artist sketching on canvas or a sculptor using clay, Phillips meticulously crafts each wedding cake through hours of sketching, sculpting, and hand-painting. The cake, which serves as the iconic centerpiece of the marriage celebration, announces through Phillips's voice that a marriage has occurred and should be celebrated.

"The government can no more force Phillips to speak those messages with his lips than to express them through his art."

Lower-court decisions in the Colorado court system are, therefore, mistaken, the brief explains.

ADF Senior Counsel Kristen Waggoner said tolerance "should be a two-way street."

"Phillips gladly serves anyone who walks into his store, but, as is customary practice for many artists, he declines opportunities to design for a variety of events and messages that conflict with his deeply held beliefs. In this case, Jack told the couple suing him he’d sell them anything in the store but just couldn’t design a custom cake celebrating their wedding because of his Christian faith," Waggoner said.

"The First Amendment protects Jack’s right to create artistic expression that is consistent with his core convictions. Individuals can support both same-sex marriage and Jack, and people should have the right to disagree on critical matters of conscience. The same government that can force Jack to violate his faith and conscience can force any one of us to do the same."

The opening brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission explains: "Discovering that he could blend his skills as a pastry chef, sculptor, and painter, [Jack] spent nearly two decades in bakeries owned by others before opening Masterpiece Cakeshop twenty-four years ago."

"Long before television shows like Cake Boss and Ace of Cakes, Phillips carefully chose Masterpiece’s name: it would not be just a bakery, but an art gallery of cakes. With this in mind, Phillips created a Masterpiece logo depicting an artist’s paint palate with a paintbrush and whisk. And for over a decade, a large picture has hung in the shop depicting Phillips painting at an easel. Since long before this case arose, Phillips has been an artist using cake as his canvas with Masterpiece as his studio," the brief states.

"Phillips is also a man of deep religious faith whose beliefs guide his work," the brief continues. "Those beliefs inspire him to love and serve people from all walks of life, but he can only create cakes that are consistent with the tenets of his faith. His decisions on whether to design a specific custom cake have never focused on who the customer is, but on what the custom cake will express or celebrate."

The dispute erupted when Charlie Craig and David Mullins filed a complaint with the state after Phillips politely declined to promote their same-sex marriage.

He explains he also refuses, based on his religious convictions, to make cakes that promote Halloween, anti-America attitudes, adult-themes and alcohol.

ADF points out Colorado has established not only a reputation for bias against Phillips but against Christians.

"In contrast to the ruling against Phillips, the commission found in 2015 that three other Denver cake artists were not guilty of creed discrimination when they declined a Christian customer’s request for a cake that reflected his religious opposition to same-sex marriage. The commission found those bakers had the right not to create custom cakes based on the requested message," ADF said.

The brief notes that since the fight has moved up to the U.S. Supreme Court, "the Colorado Court of Appeals and the commission have conceded that some cakes are artistic expression protected under the First Amendment."

But, ADF said, "Philips's custom wedding cakes, they have told us, are not among them."

The Colorado state Supreme Court, including a justice who boasted on a state website of being a homosexual-rights advocate through the Denver mayor's GLBT Commission, refused to intervene.

The Colorado court said that Chief Justice Nancy Rice and Justice Nathan Coats would have reviewed the case because of the important questions it raises. But four other justices, including Monica Marquiz, who boasted of winning the Colorado GLBT Bar Association's 2009 Outstanding GLBT Attorney Award, joined with a growing social movement that insists homosexual rights trump the religious rights protected by the Constitution.

Family Research Council President Tony Perkins said earlier the U.S. Supreme Court "has an opportunity to issue a ruling that makes clear the government has no authority to force Americans like Jack Phillips to use their artistic talents to celebrate events with which they have a moral and/or religious disagreement."

"With Justice Gorsuch now on the bench, we are more optimistic that the Supreme Court will uphold our nation's long tradition of respecting the freedom of Americans to follow their deeply held beliefs, especially when it comes to participating in activities and ceremonies that so many Americans consider sacred.

"The First Amendment has long protected Americans from being compelled by the government to advocate a message to which one objects. As Americans, our consensus on religious freedom has historically recognized the God-given right of Americans to live all aspects of their lives according to their faith. This is no different today. Attempting to restrict religious conviction to the four walls of a church is not freedom, that is tyranny," concluded Perkins.