Shake and Bake

Who’s the best known baker in America? Duff Goldman? That Buddy guy from Jersey? Or is it Jack Phillips? You remember Phillips, the owner of Colorado’s Masterpiece Cake Shop, who took his case to the Supreme Court when he refused to bake a wedding cake for a gay couple? He won, but not really, as the Court punted on the big issue of whether he could be compelled to bake a cake when its purchasers, its purpose, conflicted with his beliefs.

The gave rise to two problems. The first is that the issue raised by the case went unanswered. The second is that it left Phillips with a target on his back.

The first legal action against him came via the Colorado Civil Rights Commission, when in 2012 he declined to bake a custom cake for a same-sex wedding and found himself accused of unlawful discrimination on the basis of sexual orientation. This time he’s being sued because he wouldn’t bake a cake celebrating a gender transition.

“Jack is being targeted for his religious beliefs,” says Kristen Waggoner, general counsel for the Alliance Defending Freedom, who defended Mr. Phillips in his first case and continues to represent him. “His opponents are weaponizing the law to punish and destroy him because he won’t create expression that violates his Christian faith. They want to make the law an arm of cancel culture.”

That this arose in the first place, and now arises again, reflects how outlandish the cultures have become. On the one hand, when someone wants to buy a cake, who cares what their sexual orientation is? It’s a cake. Bake it. Get paid. It’s only a political issue if you are so exercised that you have to make it one. Otherwise, it’s just a friggin’ cake. Delicious and artistic, but a cake.

On the other hand, if a baker tells you that he’s not up for making your cake, find another baker. There are tons of them, and most would be thrilled to bake your cake. If this about getting a cake, then get a friggin’ cake. If one baker doesn’t want to do it, get another baker.

No, this isn’t to argue that there was neither merit nor issues of whose rights prevailed, given Colorado’s law requiring individuals to be tools of the state and perform the functions under the dictates of state law. But when Colorado, butthurt from being called stupid and ugly by the Supreme Court in Masterpiece, tried to go for two, it was plain vindictive.

The latest trial started Monday in Colorado state court. It dates to 2017, when Autumn Scardina called Mr. Phillips’s shop. She requested a custom cake—pink on the inside, blue on the outside—reflecting her gender transition. When the shop refused, she complained to the commission.

The commission pursued the case but dropped it in 2019 after Mr. Phillips filed a federal lawsuit against the state. Ms. Scardina then filed her own suit. Given that Mr. Phillips has already lost 40% of his business because he has stopped making his signature custom wedding cakes, these suits are plainly aimed at harassing him into submission.

The case proceeds, even though the state lost its appetite for the fight, when the plaintiff sued personally. This wasn’t because Autumn Scardina felt so strongly that Phillips’ cakes were astoundingly yummy, but because she saw the target on his forehead and decided that she would be the hero who took this evil baker down.

They are fighting over a cake. They are fighting over a cake that’s pink on the inside and blue on the outside. It’s still a cake.

To the Alliance for Freedom, who is backing Phillips’ defense, the issue here is religious freedom against a state dictating that discrimination by a private business based on a customer’s sexual orientation. There was a time when religious freedom, as protected by the First Amendment, was held in very high regard. No more. It’s now an pariah right, associated with evangelicals, crazies and haters.

In contrast, anti-discrimination, at least with regard to certain identities that are favored at the moment, which is protected against government intrusion under the Fourteenth Amendment and against private, non-governmental action by emanations and penumbras, not to mention absolute certainty that the government’s proper role is to tell individuals and businesses how to behave, think and conduct themselves. To be fair, it’s still highly circumscribed, as Phillips could discriminate against a person for voting for a candidate he disfavored, their eye color, the car they drive or their preferred television news show. But not for their sexual orientation.

Poor Jack Phillips just wanted to bake cakes, but didn’t want to bake them for people whose conduct conflicted with his religious views. It may have been a dumb, if principled, move, but the worst that says is that Phillips is dumb but principled. He’s a baker, for crying out loud. But Scardina went after him not because his cakes were tasty.

In her court filing, Ms. Scardina says she asked for a birthday cake, not a cake celebrating her transition, and accuses Mr. Phillips of refusing her because she is transgender. But her story has shifted. In her original complaint to the commission, she wrote that she’d told the bakery the design was “intended for the celebration of my transition from male to female.”

After Masterpiece turned down this cake, Ms. Scardina called to request another. This one would feature Satan smoking a joint. Mr. Phillips declined, again because of the message.

“Jack didn’t single Scardina out for being transgender,” Ms. Waggoner says. “He wouldn’t bake cakes with those messages for anyone.” This is a baker who won’t even make Halloween cakes, she adds, and serves everyone regardless of gender identity or sexual orientation.

You don’t have to agree with Phillips’ perspective on religion. In fact, you can think he’s weird as an be and pretty nuts. But it’s hard to doubt his sincerity, and why shouldn’t he be as entitled to hold sincere beliefs as anyone else?

It’s not clear exactly why Ms. Scardina wanted a cake featuring Satan, apart from provoking him. When asked why she ordered the Satan cake, she said she wanted to believe Mr. Phillips was a “good person” and hoped to persuade him to see the “errors of his thinking.”

A lot of people these days believe they have not merely a duty, but a right, to correct the errors of other people’s thinking. The government not only sees no problem with this, but enacts laws to facilitate correcting the way a “good person” thinks wrong.

That’s some deal for someone you say is a “good person”: Change your thinking or I will try to ruin you.

And yet, a lot of folks who passionately believe they’re the “good guys” share this sentiment.