The First Amendment prohibits the government from telling private citizens “what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc. Int’l, Inc., 133 S. Ct. 2321, 2327 (2013). It is undisputed that the Colorado Civil Rights Commission (the “Commission”) does not apply CADA to ban (1) an African-American cake artist from refusing to create a cake promoting white-supremacism for the Aryan Nation, (2) an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists from refusing to create cakes opposing same- sex marriage for a Christian patron. App. 78a; App. 297a-App. 331a.
Neither should CADA ban Jack Phillips’ polite declining to create a cake celebrating same-sex marriage on religious grounds when he is happy to create other items for gay and lesbian clients. See Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (“[T]hose who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”).
This is interesting, because it was not the refusal to sell anything: rather, the issue is whether the government can compel speech.
Because of the artistry associated with custom cakes, Phillips also honors God through his work by declining to use his creative talents to design and create cakes that violate his religious beliefs. App. 282-283a, ¶¶ 57-58, 62. This includes cakes with offensive written messages and cakes celebrating events or ideas that violate his beliefs, including cakes celebrating Halloween (a decision that costs him significant revenue), anti-American or anti- family themes, atheism, racism, or indecency. App. 283-284a, ¶¶ 61, 63-64. He also will not create cakes with hateful, vulgar, or profane messages, or sell any products containing alcohol. Id., ¶¶ 59, 61.
Consistent with this longstanding practice, Phillips also will not create cakes celebrating any marriage that is contrary to his understanding of biblical teaching. App. 276-277a, ¶¶ 21, 25. As a Christian, Phillips believes that God ordained marriage as the sacred union between one man and one woman, a union that exemplifies the relationship of Christ and His Church. App. 274- 275a, ¶¶ 10-15. And Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design. App. 275-277a, ¶¶16-22, 25. For this reason, Phillips politely declined to design and create a cake celebrating Respondents Craig’s and Mullins’ same-sex wedding, App. 287a, ¶ 78, but offered to make any other cake for them, id., ¶ 79.
This was not bigotry: he did not refuse to sell them anything. He merely treated the couple the same as he did every other patron: there were some-things Jack would not say. Irrespective of how one feels about the underlying wedding, one should be concerned if the government can force speech under threat of penalty. Think of it this, would you like President Obama or President Trump (or both) telling you what you had to say? You can’t pick the guy “on your side”.