Opinion: All cake designers deserve the same First Amendment freedoms
An LGBT cake artist in Detroit was recently asked to create a custom cake with a religious message criticizing same-sex marriage. After she declined to express that message, the customer alleged she had illegally discriminated against him based on his religion.
The situation presents an interesting reversal of roles to those faced by Christian cake artist Jack Phillips, and as we search for peace in our diverse and polarized nation, it also presents a perfect opportunity for us to ask: How do public accommodation laws interact with the First Amendment? And how should government apply those laws to protect the rights of all Americans?
After his greatly publicized victory at the U.S. Supreme Court in 2018, Phillips was immediately targeted by two more hostile legal actions. Both those actions spurred from a call that Phillips’ shop had received on the same day that the Supreme Court decided to hear Phillips’ first case.
Knowing that Phillips was a devout Christian, a local attorney and activist asked Masterpiece Cakeshop to create a custom blue and pink cake celebrating a gender transition. Turns out that this attorney had targeted Phillips before, sending him hurtful emails back in 2012 calling him a “bigot” and a “hypocrite,” and continued that harassment afterward, requesting a different custom cake depicting Satan smoking marijuana, Phillips believes.
When this activist asked for those custom cakes, Phillips respectfully declined because those cakes expressed messages Phillips disagreed with, and the attorney sued, alleging discrimination on the basis of gender identity, which is included within a protected status under the Colorado Anti-Discrimination Act.
As we look at the situation in Michigan, the parallels are remarkable. April Anderson is known in her local community for being an LGBT cake artist, and the customer was well aware of that when he targeted her with his request for a cake — not just any cake, but a cake with a message that almost certainly would offend Anderson’s deepest beliefs. And like the Colorado attorney, when Anderson declined to create the Michigan customer’s requested cake, he alleged discrimination on the basis of a protected status (religion), tweeting, “No more anti-Catholic discrimination. See you in court.”
But neither April Anderson nor Jack Phillips engaged in illegal discrimination.
Phillips happily serves all people, and it appears Anderson does the same. They simply cannot create custom cake art celebrating messages that violate their core beliefs. Their decisions to not create these cakes were not based on who the customer was, but on what message the cakes expressed. And those message-based decisions are protected by the First Amendment.
Yet those who have opposed Phillips, like the American Civil Liberties Union, freely admit that Anderson was within the law. “When you are asked to do a particular message, you might be crossing the line of what could be compelled speech, especially if it’s offensive,” said Jay Kaplan, from the ACLU of Michigan. Indeed. And that same principle protects Phillips; the Constitution does not play favorites when it comes to speech.
As legal scholar Ryan T. Anderson has noted, public accommodation laws were created to protect ethnic and ideological minorities. These laws are supposed to be shields, not swords. And from a legal context, no state law can be used to undermine the fundamental rights of people like Phillips and Anderson that are protected by the U.S. Constitution.
Interestingly, the Constitution has become common discussion in pop culture since the Broadway spectacle Hamilton hit Disney+ last month. And the 10-dollar Founding Father has some wisdom that we would do well to remember when addressing this subject before us today.
In Federalist No. 1, the very first of his most prolific series of essays, Alexander Hamilton wrote, “[W]e, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation. … For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword.”
Hamilton had it right. It’s time to put down the swords, respect each other despite our differences and let creative professionals pursue their passions in peace. We don’t have to choose between Jack Phillips and April Anderson.
The world is wide enough for both of them.
Jake Warner is legal counsel for Alliance Defending Freedom, which represents Jack Phillips and Masterpiece Cakeshop. Follow ADF on Twitter: @AllianceDefends.