The Relentless Attack on Jack Phillips

Not that this should come as any big surprise, but Christian baker Jack Phillips once again finds himself under siege by the woke mafia. 

The latest round in the relentless attack on this man comes from the transgender mob.  In this case, a man pretending to be a woman by the name of Autumn Scardina filed a complete against Phillips after Phillips refused to bake him a cake celebrating his “transition” from male to female.  Phillips initially agreed to bake the cake, which was to be pink with blue icing.  But when Scardina told him the purpose of the cake was to celebrate his transition from man to woman, Phillips then refused on the ground that he did not believe someone could change genders and would not celebrate “somebody who thinks that they can.”

You may recall that Phillips won his 2018 case in the Supreme Court over an earlier legal attack on him for refusing to bake a cake for a same-sex wedding.  In that case, his lawyers argued successfully that forcing Phillips to bake a cake for a same-sex wedding, which Phillips opposed – correctly - on the ground that same-sex weddings were a violation of his religious beliefs, represented a violation of his First Amendment right to free speech. 

According to Phillips, he is “an artist who uses cakes as ‘canvas’ to express ideas and celebrate events.” The argument seems to be that by forcing him to bake a cake celebrating a same-sex wedding or a gender transition, he is being forced to say something that he does not want to say, and that violates his conscience as a Christian. 

As a Christian, I have a lot of sympathy for Jack Phillips.  It is an outrage that this man has been harassed for the past decade simply for wanting to live his professional life in accord with his Christian conscience.  I also understand why his lawyers have advised him to argue his case on First Amendment grounds.  His legal team probably considered it the clearest path to victory.  And they were right, at least up to a point.  Phillips did win his 2018 case before the Supreme Court.

But now he’s back in legal hot water again, and part of the problem is that his legal advisors did not attack the fundamental issue in his original case.  Phillips had the right to refuse to bake the same-sex wedding cake.  But the ground of his rightful refusal was not the First Amendment, but rather his rights as a private property owner. 

In 2017, The New York Times published an article related to Phillips’s original case titled “Where to Draw Line on Free Speech?  Wedding Cake Case Vexes Lawyers.” Floyd Abrams, a prominent First Amendment lawyer, is quoted in the piece as saying that he at first agreed with Phillips, that he should not have to bake the cake because doing so violated his First Amendment rights.  But then Abrams got to thinking about the matter further and concluded that this was not a good argument. 

“But the more I thought about it,” Mr. Abrams said, “the more I thought of other possibilities. Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people? Could a musician invite the world to his studio where he wrote songs about them for a fee but refused to do so for Jews or Muslims? The First Amendment protects a lot, but not that conduct.”   

I agree with Abrams’s take.  The First Amendment does not protect the right of a painter or a musician to refuse service to blacks or Jews or Muslims.  The First Amendment is about Congress not passing laws restricting free speech.  It also covers government agencies such as the FBI and CIA, preventing them from using social media platforms to subvert Americans’ right to free speech. 

Jacob Hornberger, a Libertarian thinker, also concurs with Abrams.  He writes, “The fact is that the wedding cake controversy has nothing to do with free speech. Instead, the issue is all about private property and the right to discriminate” (emphasis added).

In short, Hornberger argues, correctly, that a business is just as much private property as a homeowner’s house.  And just as a private homeowner has the right to choose whom to let into his house and whom to exclude, so too does a private business owner have the right whom to serve and whom not to serve.  Writes Hornberger,

Freedom necessarily entails the right of the homeowner to discriminate on any grounds he wants when it comes to who enters onto his property.

The same principle applies to a person’s business.  It’s his business.  It’s his private property.  He has just as much right to discriminate here as he does with his home. 

But America has largely abandoned the biblical and constitutional principles of private property and has substituted a regime of “equity” and “nondiscrimination” in their place.  Much of this problem can be traced to the 1964 Civil Rights Act which did a fantastic job of undermining civil rights in the United States.  Odd, isn’t it?  The way legislation so often has the exact opposite effect of what it claims.

Hornberger concludes,

Do you see how ludicrous all this is? And it’s all because many decades ago the courts abandoned the principle that liberty and private property necessarily entail the right of freedom of association, which necessarily entails the right to discriminate. If they hadn’t abandoned that principle, there wouldn’t be a wedding-cake controversy before the Supreme Court, and Americans would a less controlled and regulated by the state than they are today.

It is imperative that liberty-loving Americans, and Christians in particular, make the correct arguments when it comes to defending liberty.  American Christians are likely going to be facing many more such situations as Jack Phillips has faced.  The recently passed Respect for Marriage Act is one such avenue of attack.  This law, recently signed by Biden, concerns some that it could be used to go after churches that don’t support same-sex marriage.  The concern is that some gay couple might approach a Bible-believing church asking to use the facilities for the wedding ceremony.  When the church refuses, the gay couple will then sue the church for discriminating against them. 

Churches being sued for denying the use of their facilities for same-sex weddings may sound far-fetched, but this story from 2017 indicates that this is not a real possibility.  According to this piece, “An LGBT organization in Ohio has announced plans to target churches if they refuse to offer their property to be used in a homosexual wedding.” 

Churches have an absolute right and a Christian duty to discriminate against same-sex marriages, both on religious liberty grounds and on the grounds of private property.  It’s important for Christians to understand this.