Denver—Twenty-two states, six Colorado state legislators, and multiple advocacy groups have filed friend-of-the-court briefs with the Colorado Supreme Court, asking it to uphold the First Amendment freedoms of cake artist Jack Phillips and Masterpiece Cakeshop.
The case name is: Scardina v. Masterpiece Cakeshop
Alliance Defending Freedom (ADF) attorneys representing Phillips and his cake shop filed an appeal last month with the state’s high court after an appeals court held that the state can force Phillips to express messages that violate his beliefs.
The same attorney who had filed an unsuccessful complaint with the Colorado Civil Rights Commission in 2017 commenced a lawsuit in state court over the same custom cake request that the attorney had originally made in 2017.
The cake request was for a custom-designed cake, pink on the inside and blue on the outside, to reflect and celebrate a gender transition.
The response: Masterpiece Cakeshop declined that request because the customer specifically requested that the cake express messages and celebrate an event in conflict with owner Jack Phillips’ religious beliefs. The decision was not because of the person who requested it, as Phillips would not create a cake expressing the requested message no matter who asked for it.
Free speech matters
“Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” said ADF Senior Counsel Jake Warner.
“More than a decade ago, Colorado officials began targeting Jack, misusing state law to force him to create art celebrating messages he does not believe.
“Then an activist attorney continued that crusade. This cruelty must stop. One need not agree with Jack’s views to agree that Americans should not be compelled to express what they don’t believe.”
Same issue on U.S. Supreme Court docket
“The same law being used to punish Jack is also at issue now at the U.S. Supreme Court in 303 Creative v. Elenis,” says Warner.
“The court there should reject Colorado’s attempt to drive views it disfavors from the public square and affirm that graphic artist Lorie Smith and all artists—writers, painters, photographers, filmmakers, calligraphers, cake artists, and more—have the right to create freely without fear of government punishment,” Warner adds.
What’s at stake
“Cultural winds may shift,” Warner underscores, “but freedom of speech is foundational to our self-government and to the free and fearless pursuit of truth.”
Activist attorney & strategy behind the CO lawsuits
On the same day the U.S. Supreme Court announced it would hear Phillips’ prior case where Colorado tried to force him to create a custom cake celebrating a same-sex wedding—a case in which Phillips prevailed in 2018—an activist attorney called Masterpiece Cakeshop requesting that Phillips create a custom cake that would symbolize and celebrate a gender transition.
The attorney then called again to request another custom cake, one depicting Satan smoking marijuana, to “correct the errors of [Phillips’] thinking.”
Phillips declined both requests because the cakes expressed messages that violate his core beliefs. The activist then filed this lawsuit. Phillips works with all people and always decides whether to create a custom cake based on what message it will express, not who requests it.
ADF attorneys are litigating both Phillips’ case, Scardina v. Masterpiece Cakeshop, and Smith’s case, 303 Creative v. Elenis.
A brief led by Arkansas and joined by 21 other states explains that “Phillips’s religion teaches him that biological sex is immutable,” so he cannot “create a cake symbolizing gender transition. The lower courts held that Phillips” must create “the cake anyway. But compelling Phillips to speak contrary to his religious beliefs violates the First Amendment. This Court should take Phillips’s case and reverse.”
“The beacon of liberty fails to shine when freedom dies on the pulpit of the civil authority’s demands to supplant its will and opinion of morality for that of its citizens,” six Colorado state legislators wrote in their supporting brief.
“The promise of liberty amounts to nothing more than empty subterfuge when the State punishes its citizens for expressing their thoughts and views inhering in their personal identity. Persecution of religious identity via compelled speech imposed by the State upon [Phillips and Masterpiece Cakeshop], must not stand in the United States.
The First Amendment, promulgated to protect free expression and religious tolerance, requires reversal of the Court of Appeals overreaching judgment.”
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