December 05, 2017
After five long years of fighting, an hour and a half at the Supreme Court could be all it takes to redefine religious liberty in America. That's how long Jack Phillips stood before the most powerful justices in the country and asked for the freedom already guaranteed to him in a document barely a mile away. Ironically, the Christian baker, who came before the court as a symbol of thousands of men and women of faith, wasn't demanding anything liberals don't already enjoy. He simply asked for the same tolerance to live and work according to his beliefs.
Like too many Americans, he lost that freedom when his conscience clashed with same-sex marriage. After Jack turned down a wedding order from two men, the Phillipses' lives were forever changed. The Colorado Civil Rights Commission swooped in and hauled Jack to court. Surrendering his beliefs, Jack was told, is the price of doing business. Liberals, meanwhile, went to work destroying his shop, Masterpiece Cakes, launching a fierce social media campaign in an attempt to syphon off customers. Phillips eventually stopped creating any wedding cakes as the case made its way through the courts -- a decision that cost his family 40 percent of its income.
Outside the Supreme Court, Jack explained, "Though I serve everyone who comes into my shop, like many other creative professionals, I don't create custom designs for events or messages that conflict with my conscience... I am here at the Supreme Court today because I respectfully declined to create a custom cake that would celebrate a view of marriage in direct conflict with my faith's core teachings on marriage. I offered to sell the two gentlemen suing me anything else in my shop or to design a cake for them for another occasion." It's hard to believe, he went on, "that the government is forcing me to choose between providing for my family and employees and violating my relationship with God. That is not freedom. That is not tolerance."
Inside the courtroom, FRC's Travis Weber listened as the justices grilled Jack's attorney, Alliance Defending Freedom's Kristen Waggoner, about what, exactly, constituted an "artist." "What about a florist, a chef or a makeup artist?" Justice Elana Kagan asked. Obviously, Justice Stephen Breyer said, "we want a distinction that will not undermine every single civil rights law." As U.S. Solicitor General Noel Francisco stepped up to continue the argument for Masterpiece, Justice Sonia Sotomayor was openly hostile to Jack's position, arguing that protecting him would result in a gay couple being "left on the side of the highway."
For the majority of the hearing, however, all eyes were on Justice Anthony Kennedy, largely considered the swing vote on the case. Although his same-sex allegiances led to a complete redefinition of marriage, most everyone knows the longtime justice is passionate about protecting free speech. And he proved it, pouncing on Colorado Solicitor General Frederick Yarger, who insisted that what Jack had done was "despicable," calling this "hostility to religion."
"Counselor," Kennedy fired back, "tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs... There are," he went on, "other shops." Justice Samuel Alito piled on, asking why Colorado would let other bakers off the hook for declining other messages, but punished Jack – especially when same-sex marriage was still unlawful in the state at the time! Even Justice Breyer asked state officials how it thought it should protect religious freedom in this scenario.
If the Left's reaction to today's arguments is any indication, Kennedy was not the champion liberals were hoping for. The justice who delivered Obergefell into the Left's hands, "appears to be floating two entirely separate rationales for a decision in favor of Mr. Phillips here," ThinkProgress bemoaned in an article called "LGBTQ Rights Just Had a Horrible Day in the Supreme Court." "One could potentially be quite narrow, invalidating this particular ruling due to poorly worded statements by one or two state commissioners, but leaving intact Colorado and other states' ability to enforce their civil rights laws so long as their watch their tongues. The other rationale, meanwhile, could be extraordinarily sweeping..."
If Justice Kennedy sides with Jack, he wouldn't be the only one. Americans overwhelmingly do -- 68 percent, to be exact. So does the Trump administration, which, in a historic brief, became the first administration to fight a so-called "anti-discrimination" law in court. Another 86 members of Congress joined in, filing their own defense of religious liberty.
As Americans, consensus on religious freedom has historically recognized our God-given right to live all aspects of their lives according to their faith. That hasn't changed. Attempting to confine religious conviction to the four walls of a church isn't freedom, it's tyranny. Let's pray the Supreme Court agrees.
For more from today's landmark case, check out my remarks at this morning's rally and Travis's reaction immediately after oral arguments.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.