BreakPoint: Jack Phillips Before the Supreme Court

“Tolerance Is a Two-Way Street”

I was honored yesterday to rally in support of Jack Phillips on the steps outside the Supreme Court. Now I’d like to tell you what went on inside.

Yesterday, the Supreme Court heard oral arguments in Masterpiece Cake Shop v. Colorado Civil Rights Commission. Eric Metaxas and I have given you the details before, of Colorado master cake designer Jack Phillips who declined to design a wedding cake for a same-sex couple.

As David Brooks wrote in yesterday’s New York Times, “Phillips is not trying to restrict gay marriage or gay rights; he’s simply asking not to be forced to take part.”

Neither the couple or the state of Colorado saw it that way. Phillips was found to have violated the state’s anti-discrimination law, and forced to choose between his convictions and losing forty percent of his business. Phillips appealed to the Supreme Court.

While Phillips’s actions were grounded in his religious beliefs, the legal argument was primarily about whether Colorado had violated his right to free speech.  Unlike those commentators who disparaged the idea that creating custom cakes constitutes a form of speech, yesterday the Court took the question seriously.

Phillips’ lawyer, Kristen Waggoner of the Alliance Defending Freedom, argued that “the first amendment protects bakers such as Mr. Phillips against being forced to express any belief, and that as a custom-cake maker, he sketches, sculpts and hand-paints—in other words, he’s an artist.”

Waggoner had barely gotten started when the questions began.

Responding to Justice Ruth Bader Ginsburg, she reiterated that neither she nor her client were challenging his obligation to sell his ordinary wares to everyone. In fact, he offered to sell the couple any already-made cake in his store.

Custom cakes, Waggoner told the Court, were a different matter. The use of writing and symbols convey a message in a way that a cake off the shelf does not.

Inevitably the comparison to race came up. The best answer was given by U. S. Solicitor General Noel Francisco. Francisco, in response to several justices, argued that discrimination on the basis of race, such as refusing to serve an interracial couple, was different than refusing to participate in a ceremony.

He also argued that upholding Phillips’ free speech rights would not damage civil rights protection because it would only apply to “a small group of individuals” in “narrow circumstances.” However, Justice Breyer disagreed.

But the roughest treatment was reserved for Colorado’s Solicitor General Fred Yarger because of Colorado’s treatment of Phillips throughout the whole ordeal. Justice Kennedy—likely the swing vote in this case—told him that tolerance must go both ways, adding that, “It seems to me the state has been neither tolerant nor respectful” of Jack Phillips views.

He cited a comment by a member of the Civil Rights Commission, who called Phillips’ religious beliefs “one of the most despicable pieces of rhetoric.” He then asked Yarger to disavow the comment. After Yarger lamely replied that he wouldn’t counsel a client to say a such a thing, Kennedy pressed him, and Yarger disavowed.

It’s never a good thing when a judge asks you to disavow your client’s statement.

So where are we? Justice Kennedy definitely seems troubled by the way Phillips was treated, and it’s encouraging that he insisted tolerance is a “two-way street.”

Heartening as well was Justice Breyer’s asking Yarger if some kind of compromise might be possible. Whatever else Breyer is thinking, he seems to be concerned that Colorado didn’t make sufficient allowance for people with dissenting views.

I can’t tell you whether Phillips will prevail, but there’s reason to be encouraged. It’s also possible that Kennedy could side with Phillips, but in a narrow opinion that would open the floodgate for future cases. Even then, that better, far better than a Phillips loss.

So let’s continue to pray earnestly that Phillips, and freedom, prevails.

 

Jack Phillips Before the Supreme Court: “Tolerance Is a Two-Way Street”

As both John and Eric have stated, this free speech case is extremely important. So continue to pray for the justices of our Supreme Court, that God would guide them in their deliberations and decision in this free speech and religious freedom case.

Resources

All eyes on Kennedy
  • Emily Belz | WORLD magazine | December 5, 2017
The Great Supreme Court Cake-Off: Christian Bakers vs. Gay Weddings
  • Kate Shellnutt | Christianity Today | December 5, 2017

Comment Policy: Commenters are welcome to argue all points of view, but they are asked to do it civilly and respectfully. Comments that call names, insult other people or groups, use profanity or obscenity, repeat the same points over and over, or make personal remarks about other commenters will be deleted. After multiple infractions, commenters may be banned.

  • Just One Voice

    My wife sent me an article about this instance that happened in Canada a couple years ago (before my days on BP, so maybe there was a bunch of coverage about it.)

    https://www.washingtontimes.com/news/2015/may/23/canadian-jeweler-makes-rings-for-gay-wedding-still/

    I’m certainly not trying to stir things up, but out of sheer curiosity, I’d be interested to see what Phoenix says about that one. Especially since it’s opposite of Jack Philips’ case in some ways (the jeweler didn’t decline service to the couple, being the most obvious). He gave them what they asked for. Why create all the extra fuss?

    And this? Seriously? “I have no issues with them believing in what they believe in. I think
    everyone’s entitled to their own opinion. But I don’t think they should
    put their personal beliefs inside their business.”
    So, she has no problem with others’ beliefs. Until, apparently, she’s offended by them & has to hear them or see them. And therefore, expression of said beliefs should be ceased in all manner? Even in their own place of business?

    It’s nothing new. LGBT’s have no problem with opposing beliefs or expression thereof, until they have to hear it or see it, in any way. At that point, it must stop in all manner. Meanwhile, it’s perfectly okay for them to shout, raise banners & flags, march in the streets, etc.

    Meanwhile, we prayed for Phillips’ case last night. I hope true freedom prevails, the freedom this country was founded upon.

    • Phoenix1977

      “I’d be interested to see what Phoenix says about that one.”
      What do you think I have to say about that one? I absolutely agree with the two women here. This jeweler is willing to take their money but at the same time attacks them. He has been very lucky they only asked for a refund.

      “But I don’t think they should put their personal beliefs inside their business.”
      I absolutely agree with this as well. Personal believes and preferences have no place in business. As this jeweler noticed, it’s bad for business. It will cost you customers and money. It will cost you your reputation, even years later.
      People should simply do their jobs and leave their personal believes and convictions at home.

      “I hope true freedom prevails, the freedom this country was founded upon.”
      I wouldn’t count on it. Since the 1960s the Supreme Court has never, not once, ruled against anti-discrimination laws. And in it’s current composition it’s quite unlikely the Court will start now. Not only are the 5 pro-LGBT justices who ruled in Obergefell vs. Hodges still on the bench, but “conservative” Justice Neil Gorsuch has always championed minorities, including the LGBT community.

      • Steve

        What we are hoping for are pro-Constitution justices.
        There is no room for pro-this group or pro-that group.
        Unless there is fairness it will come back to bite all of us.
        Do you think a Jewish butcher should be made to serve non-kosher meat? Do you think a Muslim store owner should have to sell alcohol?
        I am a Catholic surgeon. Hell will freeze over before I am compelled to commit murder through abortion or even refer someone to an abortionist.

        • Phoenix1977

          “Do you think a Jewish butcher should be made to serve non-kosher meat? Do you think a Muslim store owner should have to sell alcohol?”
          Your comparisson is flawed, once again. Because a Jewish butcher doesn’t sell non-kosher meat to anyone, just like a Muslim store doesn’t sell alcohol to anyone. But Jack Phillips only refused to sell custom made wedding cakes to same-seks couples. Big difference.

          “Hell will freeze over before I am compelled to commit murder through abortion or even refer someone to an abortionist.”
          I’d suggest you pack a warm sweater than, Because the US is one of the view countries where you aren’t required to at least refer women wanting an abortion to an abortionist. And in several states you are already required to do so.

          • Scott

            “Jack Phillips only refused to sell custom made wedding cakes to same-seks couples. Big difference.”

            Except the point is Jack Philips is an artist and artists have the right of conscience. Creatives who are commissioned to make a specific item that requires artistic ability, have the right to reserve their artistic talent based on conscience.

          • Phoenix1977

            Told you before and will tell you again, cake decorating has never been recognized as an art form. It’s a service and therefor a product which requires Jack Phillips to sell it equally to everyone who requests it.

          • Scott

            You are not the authority determining whether Jack Philips is an artist or not. Lets see what the Supreme court says.

            Also, commissioned art is a service… performed by an artist. A service is not a product. Business owners also may differentiate between what products they want to sell or not sell. A bookstore owner can choose to sell only certain kinds of books just like a wedding planner can choose to plan certain kinds of weddings. Content matters, separating one book from another just like it separates one wedding from another.

          • Phoenix1977

            I’m getting a little tired of revisiting the same steps over and over again.
            1. A service is a product and is required to be sold to everyone equally when offered;
            2. Businesses are bound by the same laws as individuals;
            3. The Supreme Court has never ruled against anti-discrimination laws since the 1960s;
            4. The Supreme Court has never, since the 1960s, allowed religion as an excuse to discriminate (which is probably why the ADF never brought Jack Phillips’ religion up because they knew they’d lose with that argument).
            All these elements are based on law or previous rulings by either the Supreme Court or lower courts. If the Supreme Court follows the rule of law it will rule against Jack Phillips. It’s as easy as that.

          • Scott

            “1. A service is a product and is required to be sold to everyone equally when offered;”

            Commissioned artistry is a service and the right of conscience for artists/creatives here in America is still protected by law.

            
”2. Businesses are bound by the same laws as individuals;”

            And individuals in America have the right to determine what kind of business they run. Jack Philips sells cakes and he would have sold any cake in his bakery/shop to the LGBT couple. Jack also decorates custom cakes using his own artistic talent. He is allowed to reserve that artistic talent based on his conscience as all artists are. For example he does not decorate halloween themed cakes, divorce party cakes as well as other types of cakes that violate his conscience. As an artist, he has that right.

            
”3. The Supreme Court has never ruled against anti-discrimination laws since the 1960s;”

            Disagreement is not discrimination and the government does not have the right to force ideology. Jack Philips is an artist and no one has the right to bully Jack into creating something that violates his conscience… including the government.

            
”4. The Supreme Court has never, since the 1960s, allowed religion as an excuse to discriminate (which is probably why the ADF never brought Jack Phillips’ religion up because they knew they’d lose with that argument). All these elements are based on law or previous rulings by either the Supreme Court or lower courts. If the Supreme Court follows the rule of law it will rule against Jack Phillips. It’s as easy as that.”

            Not necessarily… The Supreme Court has also championed individual rights and freedom of conscience, so it will be interesting to see what they decide. The individual rights of creatives, artists and small business owners are in play and the Supreme Court has a history of supporting all that as well.

            “I’m getting a little tired of revisiting the same steps over and over again.”

            I’m sorry if my opinion is causing you frustration. Since neither of us write the laws here in America, perhaps we should agree to disagree and see what the Supreme Court decides. : – )

          • Phoenix1977

            “For example he does not decorate halloween themed cakes, divorce party cakes as well as other types of cakes that violate his conscience.”
            Another useless example, because Phillips refused to decorate halloween cakes for ANYONE. He refused to make divorce cakes for ANYONE. But custom designed wedding cakes he only refused to same-sex couples. How is it you refuse to see how that is different?!

            “The Supreme Court has also championed individual rights and freedom of conscience”
            In Loving vs. Virginia religion was used as one of the arguments against interracial marriage. The Supreme COurt quashed that argument. In Lawrence vs. Texas religion was used as an argument in favor of anti-sodomy laws. The Supreme Court refused to entertain that reasoning. In the case that led to repealing DOMA the Supreme Court refused to hear arguments favoring religion as a reason to keep DOMA intact.
            Why do you think the ADF did not go for the religious freedom argument? Perhaps because that has been a losing argument in several important cases in recent history?

            “Disagreement is not discrimination and the government does not have the right to force ideology.”
            Really? Than why did the Supreme Court force (private) schools in the state of Virginia to enroll blacks students after racial segregation was ended but Virginia refused to end segregation? Sounds pretty forceful to me.

            “I’m sorry if my opinion is causing you frustration.”
            It’s not your opinion that frustrates me. It’s your hardheadedness and your refusal to see how refusing to treat same-sex couples exactly the same as opposite sex couples is anything other than discrimination!

          • Scott

            “Another useless example, because Phillips refused to decorate halloween cakes for ANYONE. He refused to make divorce cakes for ANYONE. But custom designed wedding cakes he only refused to same-sex couples. How is it you refuse to see how that is different?!”

            Let us use the other example then. He also refused to make some bachelor and bachelorette cakes (while not refusing others) because the requests were lewd. All of these refusals had one common thread, they violated Jack Philips conscience.

            “The Supreme Court has also championed individual rights and freedom of conscience”
In Loving vs. Virginia religion was used as one of the arguments against interracial marriage. The Supreme COurt quashed that argument. In Lawrence vs. Texas religion was used as an argument in favor of anti-sodomy laws. The Supreme Court refused to entertain that reasoning. In the case that led to repealing DOMA the Supreme Court refused to hear arguments favoring religion as a reason to keep DOMA intact.”

            Once again this is not about religion, it is about freedom of conscience. It is not even about inherent biology, it is about a lifestyle.

            “Really? Than why did the Supreme Court force (private) schools in the state of Virginia to enroll blacks students after racial segregation was ended but Virginia refused to end segregation? Sounds pretty forceful to me…It’s not your opinion that frustrates me. It’s your hardheadedness and your refusal to see how refusing to treat same-sex couples exactly the same as opposite sex couples is anything other than discrimination!”

            You may call me names if it makes you feel better. I am rather “hardheaded.” : – ) But you are quite the same as me in that regard. Skin color is not something somebody can change. Behavior is. Until you can prove to me that there is no God, you cannot force me to do something that jeopardizes my eternal fate. You may choose to live your life as you will, but you cannot make that choice for others, that includes forcing them to act against their conscience. I will not tell you that any one certain form of marriage (whether that be polygamists, same-sex, married couples that swing, etc.) shouldn’t be legal. I will not tell you that all different kinds of married couples shouldn’t have equal tax rights. But I will tell you that people have the right to disagree with differing life styles. They also have the right to refuse to participate in them… and if that means that a person does not want to use their God given talent to create ceremonial piece representing something that violates their conscience (and perhaps their eternity), then they should have the right not to do so.

            This is what pluralism is. The right for ALL people to coexist peacefully. Marriage from couple to couple is not the same. A marriage is more akin to a book, each with the potential to have vastly different content… and like a book we all have the right to endorse it or not.

      • Just One Voice

        Haha, yeah nothing new. Like I said, no problems until LGBTs have to hear or see our beliefs expressed. Only then, are we basically hardened criminals.

        So, tell me Phoenix, would you have willingly joined the USSR, or other similar regime? Only one belief system allowed?

        Yeah I’m hoping, but honestly, not counting on freedom either. But that’s okay. A much better life awaits me on the other side of death.

        • Phoenix1977

          “Only then, are we basically hardened criminals”
          Not only then. If you review your religion’s (recent) history on dealing with LGBTs you will find some truly criminal things there as well.

          “Only one belief system allowed?”
          You have me confused, apparently. I have no problem with your believes. I have a problem with them being in the public square. As long as people keep their believes out of my sight, in their houses of worship and their own homes, I’m fine with them. But religion should be kept from the public square, workplace or courts of law entirely. It should have no place there. Luckily, in my country it doesn’t have a place there.

          • Just One Voice

            Ah, thanks for clarifying that point about how you see the boundaries of religion.

            I mis-worded when I said “not only then.” I didn’t mean that’s the only time criminal things have done under the name of Christianity. I’m fully aware there’s plenty of acts & expressions that are truly violent being done by so-called “Christians.”

            Let me say it slightly different. What I meant was, LGBTs seem to have no problems at all with Christians, until they have to hear or see the Christian faith proclaimed in any way whatsoever. At that point, we become just as bad as the violent criminals; even if we’re trying to do it peacefully & lovingly.

            No need to answer if you don’t want to. I won’t be coming back to this thread. Just beating an already dead animal at this point.

  • Phoenix1977

    There is one thing not mentioned in this article. Justice Kennedy might not be a swing vote in these cases anymore. Justice Gorsuch has always proved to be a champion for LGBT rights during his professional and personal life. So perhaps the LGBT camp already has it’s 5 required votes …

    • Steve

      I thought this was about justice and the Constitution, not one camp or the other.
      If you compel one group of people to do, speak, act against their conscience then you can compel all people to do that.

      • Phoenix1977

        “If you compel one group of people to do, speak, act against their conscience then you can compel all people to do that.”
        I know. The LGBT community experienced that for the better part of 2 millennia. And in 18 states in the US LGBTs still experience that because coming out might cost them their jobs.

        • Steve

          Doesn’t make it fair either way.

          • J

            Based on Scotusblog.com, who seems like an objective observer:

            “Justice Neil Gorsuch, who until recently lived in Colorado, seemed to object to part of the state’s order in Phillips’ case, which required him to provide “comprehensive training” to his employees. Why wouldn’t the training be compelled speech, Gorsuch asked, when it would require Phillips to tell his staff that his Christian beliefs are discriminatory?”

            Later it said, “Kennedy returned to this idea again a few minutes later, telling Yarger that “tolerance is essential in a free society.” But Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case. And, following up on Gorsuch’s suggestion that the training required of Phillips would amount to compelled speech, Kennedy commented (more than a little derisively) that Phillips would “have to teach that state law supersedes our religious beliefs.””

            It also said, “Although making predictions based on oral argument is always dangerous, it seemed very possible that there are five votes for Phillips among the court’s more conservative justices, even if it is less clear how broadly they will rule.”

            http://www.scotusblog.com/2017/12/argument-analysis-conservative-majority-leaning-toward-ruling-colorado-baker/#more-264747

            From what I have read, it seems to still come down to Kennedy. As FRC said,”
            For the majority of the hearing, however, all eyes were on Justice Anthony Kennedy, largely considered the swing vote on the case.”

            http://www.frc.org/updatearticle/20171205/masterpiece-theater

          • Phoenix1977

            And yet we never heard you people complain about it before when we were (and in 18 states still are) suffering from it.

  • bobsprinkle

    How far can this go????? Must we now be legally forced to engage in homosexual acts because if we don’t, it can be argued we are biased against gays and might hurt their “feelings”?

  • Andrew Nielsen

    I posted this comment yesterday, but it seems that because I don’t agree, and indeed stand with Scriptural standards of our Elohim Yahuah, my comment was never posted…..

    We’re not suppose to tolerate what Yahuah our Elohim says is an abomination, and punishable by death…Wayiqra/Lev 20:13

    13 ‘And a man who lies with a male as he lies with a woman: both of them have done an abomination, they shall certainly be put to death, their blood is upon them.

    Messiah never did away with the Torah as He clearly explained in MattithYahu/Matt 5:17-20

    17 “Do not think that I came to destroy the Torah or the Prophets.*n5 I did not come to destroy but to complete. 18 “For truly, I say to you, till the heaven and the earth pass away, one jot or one tittle shall by no means pass from the Torah till all be done.*n6 19 “Whoever, then, breaks one of the least of these commands, and teaches men so, shall be called least in the reign of the heavens; but whoever does and teaches them, he shall be called great in the reign of the heavens. 20 “For I say to you, that unless your righteousness exceeds that of the scribes and Pharisees,*n7 you shall by no means enter into the reign of the heavens.

    Anyone who is tolerant of the acts or relationships of homosexuality, is not a true follower of Messiah, for He again says in Yochanan/John 14:15

    15 “If you love Me, you shall guard My commands.*n1 (See Ex. 20:2-17, vv. 21&23, RomiYah/Rom 1:18-32, QorintYah Alef/I Cor 6:9-11, 1 John 2:1-6, 15-17, 5:2-3, 2 John v. 6.

    • David Carlson

      Actually, I just missed it. My apologies.

    • Kenny Martin

      It is a shame you misinterpret the Bible so thoroughly and misunderstand that God Says let the evil be evil still, you say we “should not tolerate”? And yet God tells you many, many times to carry your Cross, He never tells you to attack, to harm to do damage.. He always Says to allow.Beware of both what you believe but moreso of what you teach, for that is what you will be Judged the most harshly for and may not even stand in That Day. Feed and lend to your enemy, not offend any.He Says If MY PEOPLE would turn from THEIR wicked ways!! He is not speaking to the evil.. “if my people who are called by my name humble themselves, and pray and seek my face and turn from their wicked ways, then I will hear from heaven and will forgive their sin and heal their land”.

      • Andrew Nielsen

        The issue is that the ‘church’ is NOT turning from her wickedness, but is endorsing it and going along with it….Messiah said this in Luqas/Luke 6:46-49

        46 “But why do you call Me ‘Master, Master,’ and do not do what I say?*n4 47 “Everyone who is coming to Me, and is hearing My words and is doing them, I shall show you whom he is like: 48 “He is like a man building a house, who dug deep and laid a foundation on the rock. And when a flood came, the stream burst against that house, but was unable to shake it, for it was founded on the rock. 49 “But the one hearing and not doing, is like a man who built a house on the earth without a foundation, against which the stream burst, and immediately it fell. And the ruin of that house was great.”

        The ‘church’ is so intent on being PC (Politically Correct), trying “so hard” Not to offend anyone, so much so that they’ve become powerless and to a major point, ineffective. Is it not apparent that Messiah when He was here, offended many, He didn’t come here to sing kumbayah and say can’t we all just get along, No, He came here to teach His Abba’s/Father’s Royal Covenant Torah, to bring people to a knowledge of observing His Feasts, Festivals and His Sabbaths….the ‘church’ needs to be admonished and scolded for their mishandling of His Besorah/Word/Good News.

        Judgement will and is going to start with the assemblies — Kepha Alef/I Pet 4:17-19

        17 Because it is time for judgment to begin from the House of Elohim. And if firstly from us, what is the end of those who do not obey the Good News of Elohim? 18 And if the righteous one is scarcely saved, where shall the wicked and the sinner appear? 19 So then, those who suffer according to the desire of Elohim should commit their lives to a trustworthy Creator, in doing good.

        I do not judge by appearance, but we are to judge Righteously: Yochanan/John 7:24. Tell me Kenny, where is your scriptural backing on this: “He always Says to allow.”…..everything I’m telling you, is according to scripture, it is the words of Messiah and of Yahuah our Elohim. The ‘church’ doesn’t even know their “God’s” name, His true name, so how can anyone have any type of relationship with a “god” they don’t even know, nor their Messiah….No, I’m not bashing, I’m speaking truth, because I was there for a very long time, then realized the church isn’t teaching/instructing in all truth, nor do they instruct anyone to follow His Ways and commands, Feasts, Festivals, or His Sabbaths.

        All in all, the ‘church’ needs to repent of her whoring and idolatry before time runs completely out, and the door be shut….see the parable of the “Ten Maidens” MattithYahu 25:1-13….I’m not attacking anyone, if you feel like you’re being attacked, then it could be His Ruach ha Qodesh/Holy Spirit convicting you of something in your life….I’m admonishing all, and in love, to return to the ancient path, that Abraham, Isaac, and Jacob walked, they all followed the ways of their Elohim, our Elohim. You can’t just teach one part of His Besorah/Word, it has to be the whole thing or nothing at all, I learned this the hard way, now I know…..Yahuah’s word is worthless if we don’t use the whole Book (front to back) from Beresheit/Gen to Gilyahna/Rev, and everything inside, is about His people, Yisra’el….you and me and all others who have aligned themselves with Messiah Yahusha…to return to observing and obeying His commands, Covenant, His Feasts, Festivals and Sabbaths…

    • Phoenix1977

      So can you tell me when you have planned the next stoning for people eating shell fish or wearing clothes of mixed materials?

    • Just One Voice

      Can you tell me the last time some serious Bible thumping solved the problem/s?

    • Scott

      Your post is interesting. You are no doubt correct about Jesus coming to uphold God’s (Elohim Yahuah’s) moral laws.

      But it is also my understanding that Christ Jesus opened the door for all His people (Jews and gentiles – all sinners) to receive forgiveness. He did this by demonstrating His love for everyone as illustrated within the pages of the New Testament. How should we understand the story of the adulterous woman as told in the gospel of John? Does not God love all? Is not one sinner repenting and giving his/her life back to Elohim Yahuah worth more than any idol made (by hands or mind)? Did Jesus come to love/heal? Was his judgement not reserved for the Pharisees and teachers of the law? How are we to act in judgement if we turn to Jesus as our model?

      Christians do not advocate sin… but how do live out the love and mercy Jesus has shown us so that others may turn back towards Yahuah? Stones in judgment are not the answer.