Over a decade ago, Colorado officials began targeting Denver-area cake artist and owner of Masterpiece Cakeshop Jack Phillips, misusing state law to force him to say things he doesn't believe. Then an activist attorney piled on, first complaining to the state and then filing a separate lawsuit.
All together, state officials and the activist attorney have sued Jack three times, forcing him and his family to endure years of litigation, all while he peacefully worked to love his neighbors and design custom cakes for the Denver community, including those who identify as LGBTQ. Jack always decides whether to custom-design a cake based on what message he's asked to express, never who is requesting it.
But a new Colorado Court of Appeals ruling brought him no reprieve. To the court, the requested cake did not express a message. But that can't be right. The attorney who sued Jack told him that it did send a message—the custom cake's design "symbolized" and "celebrated" a gender transition. The U.S. Supreme Court has long held that symbols can convey messages—black armbands, flags, and salutes have all been forms of protected speech. In this context, where cake artists are often asked to create symbolic cakes, the requested cake expressed a message. The court just missed it.
As a result of that ruling, activists and state officials can continue trying to force Jack to express messages that violate beliefs that shape the very core of who he is. And not just Jack. Left unchecked, this harassment and compulsion of speech could happen to any Coloradan, whether their beliefs are the same as Jack's or different.
This cruel harassment of everyday Americans and callous disregard for their fundamental freedoms must be stopped. The U.S. Supreme Court has an opportunity to do that.
The same law being used to punish Jack is also threatening the free speech rights of graphic artist and website designer Lorie Smith, whose case I argued before the High Court in December. The case 303 Creative v. Elenis will decide whether government officials may force Lorie—or indeed any other artist—to create custom art and communicate messages inconsistent with her beliefs.
In both cases, Colorado has made its message clear: artists who agree with the government's current viewpoints may create freely, while those who don't will have their beliefs driven from the public square.
Case in point: on the same day in 2017 that the U.S. Supreme Court announced it would hear Jack's first case—in which Colorado tried to force him to create a custom cake celebrating a same-sex wedding—the activist attorney called Masterpiece Cakeshop asking Jack to create a custom-designed cake, pink on the inside and blue on the outside, to symbolize and celebrate a gender transition.
The attorney then called back, requesting another custom cake depicting Satan smoking marijuana to "correct the errors of [Jack's] thinking." Jack declined to create both custom cakes because they expressed messages that violate his beliefs. The activist then filed a lawsuit (the third Jack has endured) and later said under oath that more would follow if Jack won this case.
This has always been about using Colorado's law to punish those who hold views some might disagree with—a practice anathema to our Constitution.
But fortunately Colorado doesn't have the last word. With a strong ruling protecting free speech in 303 Creative, the Supreme Court can deliver a decisive response—one critical to the fearless pursuit of truth and a flourishing, democratic society. It can declare that every American is free to say what he or she believes without fear of government censorship.
The Supreme Court should reject Colorado's attempt to mandate adherence to government orthodoxy and the senseless targeting of decent and honorable Americans—chilling their speech and subjecting their families to death threats and harassment. Compelled speech crushes the speaker's conscience and is a tool of authoritarianism. That is why the High Court has never allowed it and should once again affirm that public accommodation laws cannot be used to compel speech.
As history demonstrates, cultural winds change, but our First Amendment does not. Free speech is rooted in love of neighbor—extending the same rights to others that we want for ourselves.
That's as true for Jack and Lorie as it is for an LGBTQ cake artist and graphic designer. It's why a win for them is a win for all Americans. No one should be forced to say anything they don't believe—much less be relentlessly and cruelly targeted for years just because they can't say what the government commands.
One need not agree with Jack or Lorie's personal views to affirm that law-abiding Americans have a right to speak consistent with their beliefs, including on the day's pressing topics. Because if the government can silence them, it can do the same to you or me.
Colorado's rap sheet is getting lengthy, but in 303 Creative, the Supreme Court has the opportunity to end this pattern. It can put a stop to the practice of unlawful censorship and affirm what it has long held—providing Lorie, Jack, and every other American artist a future where speech is protected, not silenced.
Kristen Waggoner is CEO, president, and general counsel for Alliance Defending Freedom. Follow Kristen on Twitter @KWaggonerADF or follow ADF @ADFLegal.
The views expressed in this article are the writer's own.
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