It is a matter of record and an uncontested fact that the owner of Masterpiece Cakeshop in Lakewood did not refuse to serve the two gay customers who entered his bakery in 2012.  He gladly opened his doors and sold any displayed baked goods to all customers, including birthday cakes and special occasion creations. He did not care and did not inquire about any customer’s sexual identity, race or religious faith.

I offer these facts to correct the record, because there has been too much “fake news” and too many distorted characterizations of Masterpiece Cakeshop in the media.

So, what did Jack Phillips do to bring down on himself the full weight of the Colorado Civil Rights Commission and take him all the way to the United States Supreme Court?  What he did was refuse to design and create a customized cake to celebrate a gay wedding, an activity which in his opinion, would violate his religious convictions and his freedom of speech under the First Amendment of the U.S. Constitution. He was found guilty of violating Colorado law and ordered to pay a substantial fine. He has appealed that ruling all the way to Supreme Court, and the court’s nine judges heard the oral arguments in the case this week.

Contrary to the often inflammatory rhetoric of Phillips’ accusers, there is a substantial legal history supporting Phillips’ claim that his cake artistry is an expression of free speech and that applying the power of state government to compel him to use his artistry to design a cake celebrating a gay wedding amounts to compelling him to violate his freedom of speech. There is considerable irony in the ACLU’s involvement in the case when the ACLU has supported many expansions of free speech to include such things as flag burning and pornography.

Yes, it is absolutely the case that “speech” has for many decades been interpreted by both federal and state courts to include more than spoken or printed words. But now, Jack Phillips freedom to employ his cake artistry in a manner consistent with his beliefs is found by the Colorado Civil Rights Commission to be an affront to public safety, a violation of the rights of gay citizens, and maybe a threat to civilization. Really?

Let’s admit that it is not always easy to draw the line between protected freedom of speech and standards of public safety and “public accommodation.” But surely, there are many forms of entrepreneurship and artistic expression that ought to be protected forms of free speech. Would I have grounds to sue a Kosher or Halal butcher shop for refusing to sell me a Christmas ham? Should a rock music band be compelled to perform at a Ku Klux Klan rally if that violates their sincerely held convictions? Should a Catholic bookstore be charged with unlawful discrimination if it chooses not to sell the Koran?

At Tuesday’s Supreme Court hearing, Justice Anthony Kennedy asked some pointed questions of the ACLU attorneys and made some commonsense observations. Kennedy said, “Tolerance is essential in a free society. And tolerance is most meaningful when it is mutual….It seems to me that the state [of Colorado] in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Precisely so. Jack Phillips did nothing to interfere with or publicly criticize the two gay men’s right to a marriage ceremony-even though gay marriage was not yet legal in the state of Colorado in 2012.  Is it too much to expect the law to show as much respect for Jack Phillips’ right to express his own sincerely held beliefs in his own place of business? The ACLU says yes, it is too much, but I suspect that most Coloradans would join me in saying, no, it is not too much to expect – if we are still living in “the land of the free and the home of the brave.”

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