June 20, 2018
I have already written several times about the Supreme Court’s recent Masterpiece Cakeshop decision, in which the Court struck down Colorado’s discrimination charge against a Christian baker who declined to make a custom wedding cake for a same-sex couple. The majority’s ruling rested on its finding that the proceedings against baker Jack Phillips in Colorado were tainted by anti-religious bias. I described each of the five opinions written in the case here, and explained why media referred to a 7-2 decision as “narrow” (in its reasoning, not its margin) here.
There is one more aspect of the Masterpiece case that I found interesting. The key parties to the case were the baker, Jack Phillips, and the same-sex couple, Charlie Craig and Dave Mullins. The experiences and perspectives of these men had been discussed and recounted repeatedly as the case made its way through Colorado’s adjudicatory process and then through the appeal to the Supreme Court.
In the end, however, there were two lesser-known figures who played a key role in the outcome of the case. From the pro-family perspective supportive of the baker Phillips, one—a man named William Jack—helped to expose the hypocrisy of the Colorado Civil Rights Commission. The other—a woman named Diann Rice—may have unwittingly doomed the state’s case by verbalizing the anti-religious hostility that was fatal to their side.
Diann Rice was a member of the Colorado Civil Rights Commission that heard the complaint against Masterpiece Cakeshop. During a July 25, 2014 meeting of the Commission, she made the following statement, which was recounted by U.S. Supreme Court Justice Anthony Kennedy in his majority opinion in the 2018 case:
I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
The quote was originally found on an audio recording of the meeting, and a transcript from that recording only identified the speaker as a “female speaker.” It was not until six months later that Phillips’ attorneys with the Alliance Defending Freedom identified the speaker as Rice.
Justice Kennedy explained the problem with this remark:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
The sad thing is that the kind of contempt for “freedom of religion and religion” voiced by Rice, including the over-the-top comparison of a belief in one-man-one-woman marriage with defenses of slavery and the Holocaust, is not even considered extreme on the Left today. On the contrary, that view is utterly commonplace. For example, writer Zack Ford of ThinkProgress openly defended the remark. That is why it was so welcome to have the Supreme Court declare that such contempt is not permissible as a part of government decision-making.
The other person who surprisingly proved central to the case was William Jack. (William Jack is not to be confused with Jack Phillips, the baker at the heart of the case.)
Even after he was cited in the Court’s ruling, little has been written about Mr. Jack’s background. The liberal magazine Mother Jones wrote the most detailed article about him, referring to him as “a foot soldier in the religious-right evangelical movement.” They also linked to a brief he filed in the case in support of Phillips, which describes him as “a Colorado citizen and Christian educator who teaches nationally on issues of Christian worldview, apologetics, and leadership.”
In a sort of reverse parallel of what happened to Craig and Mullins when they requested a wedding cake from Masterpiece Cakeshop, William Jack visited three Colorado bakeries requesting that they bake him cakes with a message of opposition to same-sex marriage. Justice Ruth Bader Ginsburg described Jack’s request most explicitly in her dissenting opinion. He wanted cakes:
“made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He]requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’[Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”
All three bakeries declined to bake the cakes requested by Mr. Jack, on the grounds that they considered the message (especially, it seems, the image of the grooms with the red “X” and the word “sin”) to be offensive. Mr. Jack brought discrimination charges against each of the bakeries, asserting that they had discriminated against him because of his “creed” (that is, religion), which is a protected category under Colorado’s public accommodations non-discrimination law. Yet the Colorado Civil Rights Commission in Mr. Jack’s case found the bakeries not to have been guilty of discrimination—in direct contrast to the outcome for Masterpiece Cakeshop.
Mother Jones referred to Jack’s requests as a “stunt.” Jack himself admitted, according to World magazine, that he made the requests in response to the Masterpiece case, “to see if those charging discrimination against gays would care about discrimination against Christians.” He never indicated that the cakes were intended for a particular social event. On the other hand, even Mother Jones admitted such experiments
aren’t uncommon among activist groups of all political leanings seeking changes in the legal system. Civil rights organizations use testers, for instance, to see whether a landlord is refusing to rent to people of color or a car dealer is charging them higher interest on auto loans. Activists who use wheelchairs visit businesses to see whether their buildings comply with the Americans With Disabilities Act, and file complaints if they don’t.
The point, of course, is not that the Colorado Civil Rights Commission should have punished the bakers who refused to make cakes for Mr. Jack with a message opposing same-sex marriage. Instead, it is the opposite. They should have allowed Jack Phillips of Masterpiece Cakeshop the same freedom—to refuse cakes with messages to which he has a conscientious objection—that they allowed to the bakeries approached by William Jack.
The message William Jack requested on his cakes may have seemed unusual, odd, or even, yes, offensive to some. But Justice Kennedy warned that “it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.”
William Jack did not get his cakes, but he did prove a point—possibly turning the tide of a Supreme Court case in the process.