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ADF to CO Supreme Court: Protect Jack Phillips’ expressive freedom

Free-speech advocates unite in support of Masterpiece Cakeshop
Jack Phillips is seen decorating a cake at Masterpiece Cakeshop in Colorado

DENVER – Alliance Defending Freedom attorneys representing Colorado cake artist Jack Phillips of Masterpiece Cakeshop filed their opening brief Tuesday with the Colorado Supreme Court, asking the court to protect Phillips from being forced to express messages that violate his beliefs. Additionally, 23 states, six Colorado legislators, and several free-speech advocates filed friend-of-the-court briefs with the court in support of Phillips.

ADF attorneys representing Phillips and his cake shop are at the state high court after appealing a Colorado Court of Appeals decision. Following the U.S. Supreme Court’s landmark decision in 303 Creative v. Elenis that upheld free speech for all, ADF attorneys filed a supplemental notice with the Colorado Supreme Court, asking it to apply that ruling and similarly affirm Phillips’ free-speech rights in Masterpiece Cakeshop v. Scardina. An activist attorney and Colorado officials have misused the same state law that was at issue in 303 Creative to punish Phillips for more than a decade. The court agreed in October to hear Phillips’s appeal.

“Free speech is for everyone. As the U.S. Supreme Court held in 303 Creative , the government can’t force artists to express messages they don’t believe,” said ADF Senior Counsel Jake Warner. “Because the activist attorney asked Jack to create a custom cake that would celebrate and symbolize a transition from male to female, the requested cake is speech under the First Amendment. We are urging the court to apply 303 Creative to reverse the appeals court’s decision punishing Jack. As the 23 states and free-speech advocates who showed their support for Jack affirm, you don’t have to agree with Jack’s views to agree that no one should be compelled to express ideas and messages they don’t believe.”

On the same day the U.S. Supreme Court announced it would hear Phillips’ first case —in which he prevailed in 2018 after Colorado tried to force him to create a custom cake celebrating a same-sex wedding—the activist attorney called Masterpiece Cakeshop requesting that Phillips create a custom cake that would symbolize and celebrate a gender transition. The attorney then called again to request another custom cake, one depicting Satan smoking marijuana, to “correct the errors of [Phillips’] thinking.” Phillips politely declined both requests because the cakes expressed messages that violate his core beliefs. The attorney then filed the current lawsuit, threatening to continue harassing Phillips until he is punished.

“Phillips has suffered enough,” the opening brief explains. “[Colorado’s] past prosecutions generated death threats and vandalism and cost Phillips six years of his life, a significant part of his business, and most of his employees—harms that endure even though he eventually won his legal cases. He’s now been in courts defending his freedom for more than a decade. This crusade against Phillips should stop.”

The multi-state brief also supports the idea that laws should support—not punish—free expression, including the right to decline certain messages: “Phillips isn’t the only Coloradan whose right to refrain from speaking conflicts with Colorado’s antidiscrimination laws. The Supreme Court held in June that the First Amendment prevents Colorado from using those laws to compel a website designer to create websites for same-sex weddings. That decision effectively overruled the decisions of the lower courts here by holding that the First Amendment protects ‘a speaker’s right to control his own message’ and distinguishing that expressive control from ‘status-based discrimination unrelated to expression. This ‘distinction between status and message’ is ‘a fundamental feature of the Free Speech Clause.’”

“The beacon of liberty fails to shine when freedom dies on the pulpit of the civil authority’s demands to supplant its will and opinion of morality for that of its citizens,” adds the brief from the Colorado state legislators. “The promise of liberty amounts to nothing more than empty subterfuge when the State punishes its citizens for expressing their thoughts and views inhering in their personal identity. Persecution of religious identity via compelled speech imposed by the State upon Petitioner must not stand in the United States.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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Jake Warner
Jake Warner
Senior Counsel
Jake Warner serves as legal counsel for Alliance Defending Freedom’s Appellate Team.