Cake shop owner is being coerced by arbitrary state authorities

Author: Jenna Ellis - December 11, 2017 - Updated: December 11, 2017

Jenna Ellis

The government has no authority to compel you or me to promote messages or use our creative skills and talents to participate in events that violate our sincerely held beliefs. This is the main issue the U.S. Supreme Court heard today in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that highlights that tolerance must be a two-way street.

Jack Phillips is the owner of Masterpiece Cakeshop in Lakewood, and he serves everyone who enters his shop. He creates beautiful masterpieces in cake design, thus, the name of his shop, which is also recognizing his Christian faith. Because of his Christian faith, Jack declines some custom pieces. As an artist, he cannot create pieces that celebrate all events or express all messages.

For example, Jack doesn’t create anti-American cakes, cakes that celebrate Halloween, adult-themed cakes, or cakes celebrating divorce. He has also declined requests for cakes with anti-LGBT messages. For Jack, it is never about the person, it is about the event and the message. If I as a heterosexual Christian woman requested a custom design from Jack to celebrate a friend’s same-sex wedding, Jack would decline to create that piece. It’s not about me, it’s about the event.

But our hyper-politicized government in Colorado punished Jack rather than preserving and protecting his freedom of conscience. In fact, the same Colorado Commission that punished Jack actually allowed three other cake artists to decline requests to create custom cakes that express religious views opposing same-sex marriage.

The agenda is clear: the Commission seeks to choose which messages you and I must support. Right now, that coerced message is pro-LGBT. What if tomorrow the government seeks to coerce an anti-LGBT message? This is what the opponents of Jack’s case fail to meaningfully consider. What happens when the government can tell anyone what message they must express? Jack’s opponents may like coercion now in this specific instance, but only because they agree with the message. But what happens when they don’t agree with the message?

In a truly free and tolerant society, every person no matter their beliefs are free to express their messages consistent with their convictions and decline to express messages they disagree with without government interference. If government gets into the business of selecting which messages are “approved,” we have lost the very first and fundamental freedoms essential to liberty, open dialogue, and free exchange of ideas.

What happens when the government can tell anyone what message they must express? Jack’s opponents may like coercion now in this specific instance, but only because they agree with the message. But what happens when they don’t agree with the message?

Our U.S. Constitution provides our government with specific, limited powers to operate only consistent with the mandate to preserve and protect our unalienable rights — rights that pre-exist government. Our Bill of Rights ensures that just in case government is unclear about what it cannot do, we have enumerated protections, which include freedom of speech and free exercise of religion.

Our rule of law has long held that the government cannot restrain expression — even expression that criticizes government. This is not an absolute right, but we have a litany of prior restraint doctrine cases that preserve our right as individuals to speak in the marketplace of ideas. Masterpiece is the opposite side of the free speech coin. Rather than the government seeking to restrain certain messages, government now seeks to compel certain messages. And the danger is precisely the same.

This case is not about what Jack may or may not do. Our law is very clear that he absolutely has the right to decline to promote messages he disagrees with. It’s also not about cake or same-sex weddings. This case is about whether the Supreme Court will determine that the government can compel you or me to speak against our conscience. And the government has no authority and certainly no business interfering and infringing upon our freedom of speech.

As David French wrote in National Review this week, “The Constitution and generations of Supreme Court precedent hold that he has the right to refuse to speak that message — regardless of whether it’s delivered by punditry or by pastry.”

Regardless of our differing beliefs, we should all hope and pray the Supreme Court does not effectively strip each of us of our fundamental right to express our sincerely held beliefs and only what we sincerely believe. As S.G. Tallentrye once wrote on the importance of freedom of speech, “I disapprove of what you say, but defend to the death your right to say it.”


Jenna Ellis

Jenna Ellis

Jenna Ellis is an attorney and professor of constitutional law at Colorado Christian University, a fellow at the Centennial Institute, a radio show host in Denver and the author of "The Legal Basis for a Moral Constitution."

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