Colorado baker makes case for Republican-appointed judges

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After Colorado cake artist Jack Phillips won another major victory for religious liberty, judges nationwide should start dissuading anyone else from using the courts to harass anybody in like manner.

Better yet, voters should stop electing Democrats on the state and federal levels who appoint judges and commission members who side with harassers rather than upholding First Amendment freedoms. Either way, though, judges should consider treating some of these cases as “frivolous lawsuits” with appropriate financial penalties and perhaps consider professional sanctions against lawyers who pursue particularly egregious claims meant solely to badger the defendant.

After 12 years in the news, Phillips’s situation is well known. A devout, traditionalist Christian, Phillips will serve anybody, but he will not create a message contrary to his beliefs. He was first punished by the Colorado Civil Rights Commission for refusing to make a cake celebrating a homosexual wedding ceremony. He eventually won a narrowly worded ruling at the U.S. Supreme Court, only to be subject to further suits by a transgender person for whom Phillips declined, on separate occasions, to make confections celebrating a gender transition and representing Satan smoking marijuana.

In this latest case arising from the transgender person’s demand, the Colorado Supreme Court dismissed the lawsuit, but, unfortunately, only on technical grounds. Rather than accept the logic of the U.S. Supreme Court’s rulings in Phillips’s earlier case and others, which would have meant affirming Phillips’s rights, and the rights of all Coloradoans, to freedom of religious conscience, the Colorado court merely decided the transgender suit had been filed in the wrong form and venue.

“We express no opinion about [the underlying] claims,” the court’s 4-3 majority wrote before quickly pivoting to verbiage showing more sympathy for the plaintiff’s supposed “antidiscrimination” rights than for Phillips’s religious liberty.

In other words, Phillips wins for now, but the plaintiff and others remain tacitly encouraged, if they have the resources for more legal battles, to continue tormenting Phillips with lawsuits that, one way or another, surely will end up being slapped down by the U.S. Supreme Court — but only after continuing to drag Phillips through legal hell.

That’s exactly what the transgender and Satan cake requests were: sheer harassment rather than serious requests for fancy pastries. As the plaintiff’s lawyer said, the real reason for the suit was to “call [Phillips’s] bluff.”

It would help if the U.S. Supreme Court would be even more definitive in affirming that religious liberty encompasses the expressive rights of owners of businesses that rely on personal creativity. In Phillips’s earlier case, the high court identified an openly anti-Christian bias from the Colorado Civil Rights Commission but did not fully acknowledge Phillips’s underlying First Amendment liberty. In the other key recent case affirming business owners’ expressive rights, 303 Creative LLC v. Elenis, the court ruled in 2023 on the grounds of free speech rather than free exercise of religion.

Still, the moral and constitutional imperatives, not to mention the overwhelming trend of Supreme Court case law, should make it obvious that business owners and their workers merit robust protection of their religious liberty. If one combines the reasoning in 303 Creative and Masterpiece Cakeshop with that from the 2014 Burwell v. Hobby Lobby case and the 2023 case of Groff v. DeJoy, among others, the conclusion is clear: Except in unusual circumstances, people cannot be forced to act or make expressions in violation of their faith.

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From the Puritans, Quakers, and Catholics fleeing to various New World colonies in the 1600s expressly to escape religious persecution to James Madison’s amendment to the religious-liberty wording of the Virginia Declaration of Rights in 1776 to the nation’s ratification of the Madison-drafted First Amendment to the Constitution in 1791 and all the way through to those landmark decisions above and that of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania in 2020, the “liberty of conscience” pertaining to faith has always been America’s “first freedom.”

To ensure that judges and government agencies protect that first freedom, citizens must elect people who make a priority of choosing the right judges.

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