A small bakery in Lakewood, Colorado, has been the target of litigation for over a decade, and sadly, they will remain in the crosshairs of the woke mob without a more clear and decisive ruling from a court. “Bake the cake!” is the refrain of its critics, who allege that the bakery is hostile to gay and transgender rights. But the owner—Jack Phillips—simply declines to create art that goes against his personal, religious beliefs.
While lost in the news cycle of a major election, encouragingly, Mr. Phillips just won his second legal battle in defense of his right to say no, but as was the case the first time around, the ruling was on very narrow grounds. As a result, Masterpiece Cakeshop will inevitably face another legal challenge and Jack Smith will continue to endure additional years of torment for standing up for his deeply held beliefs. This is unacceptable.
First, in 2012, a same-sex couple sued Jack for not baking a cake for their wedding celebration. Colorado didn’t even recognize gay marriage at the time, but that didn’t stop the lower courts from siding with the same-sex couple. On appeal, Jack won his case before the U.S. Supreme Court in 2018, but only on narrow grounds—that the Colorado agency that prosecuted the case against him was biased against his religious beliefs. The ruling was 7-2.
And as previously mentioned, on October 8, 2024, Jack won a second major litigation victory, this time before the Colorado Supreme Court. There, a transgender plaintiff had sued Masterpiece Cakeshop for not baking a cake to celebrate a transgender transition party. Two lower courts had ruled against Jack, but the Colorado Supreme Court dismissed the entire case on a 4-3 vote. Once again, however, it was on narrow grounds—that the plaintiff suing Jack hadn’t followed the right procedures.
Is Jack the only baker in the State of Colorado? Of course not. But he is obviously the target of an intentional campaign to break his spirit and his business. (The request for the transgender cake came on the very same day that the Supreme Court granted review in his first case about the same-sex wedding cake). And he’s won twice now. But given the temporary nature of the victories on narrow grounds, he will likely soon face another lawsuit.
The tragedy in all of this is that forcing artists to create work against their will should obviously not be the right of any American.
My firm, Mountain States Legal Foundation, filed a brief in support of Masterpiece before the Colorado Supreme Court. We argued that the First Amendment right to freedom of speech includes the right not to create artistic works that will be used for messages that one disagrees with, like the idea that an individual can “transition” from male to female. That would have been the best grounds for the Court to have ruled on.
Unfortunately, Masterpiece’s victories so far only kick the can down the road. If another customer hasn’t already called Jack for a future transgender transition celebration cake, that call will likely come soon enough. And because Jack is a principled man, he will then face several more years of litigation, along with the headaches and inconveniences that come with them. The process is the punishment, sadly.
Worse still, there really is no end-game besides harassment. Even if these plaintiffs could force Jack to perform against his will, there would be no end to the litigation. Maybe the cake isn’t beautiful enough. Or the frosting isn’t the perfect balance of sweetness. Or the design isn’t as inspired as the last one, for a different occasion. At what point are artists allowed to simply say “no,” because their best artistry can’t be compelled by just anyone?
The good news is that after all this time, Jack Phillips and his bakery stand strong. Regardless of whether you agree with his religious beliefs, we should all be thankful to Jack for preserving our right to freedom and free speech. But his latest victory just spells more of the same—delay and harassment. Instead, it’s time for courts to rule, once and for all, that Jack’s labor is only his own.
William E. Trachman is the General Counsel of Mountain States Legal Foundation and a former Deputy Assistant Secretary for Civil Rights in the U.S. Department of Education.
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