Most of us understand the importance of fairness early in life. Whether it’s an umpire’s call in Little League or a teacher’s grading in elementary school, we all intuitively know that fairness is a big deal.
But fairness perhaps is no more important than when our rights are in the hands of courts or other government tribunals. It’s there that we expect not only actual fairness but the appearance of fairness.
That seems reasonable enough. Now imagine that your freedom was on the line. You spent decades building your career, and the government threatens to take it away because of how you practice your faith.
You’re confident in your arguments, but your case is placed before a court that the highest court in the land just said was hostile to your beliefs. You wouldn’t feel very good about your chances, would you? The assurance of fairness would be missing. The legitimacy of the whole process is called into question.
“No worries,” the court tells you, “we have some new judges since we punished you a few years ago.”
That’s supposed to make you feel better, but you dig a little deeper and find that the current judges opposed your appeal in the earlier case. “Well, that’s not a good sign,” you think, but you try to stay optimistic.
Then you learn that the old and new judges alike were selected by the same person. And his selection pool included many judges with ties to an advocacy group that firmly opposed you in your first case. Not feeling too hopeful at this point, huh?
If all this weren’t bad enough, you finally learn that one of the current judges called you a “hater.” Would you believe that you have a fair shot at justice? Not a chance.
But that’s exactly what is happening to Jack Phillips, owner of Masterpiece Cakeshop. It’s not what you’d consider a picture of justice in action.
The state of Colorado, through the Colorado Civil Rights Commission, an administrative agency that operates as part prosecutor and part jury, punished Phillips a few years ago.
His crime? He could not in good conscience design a wedding cake celebrating a same-sex marriage. He offered to sell the same-sex couple anything else in his shop or to create a different cake for them, but that wasn’t enough for the state of Colorado.
For six years, Phillips defended himself. And just when he began to wonder if all was lost, the Supreme Court intervened this past June and condemned the Colorado Civil Rights Commission for acting with “impermissible hostility” toward his faith.
That hostility consisted in large part of the commission’s unequal treatment of Phillips. While it allowed other bakeries and cake shops like his to refuse to make cakes with religious messages opposing same-sex marriage, it punished Phillips for declining to create a cake celebrating same-sex marriage.
There’s nothing fair about that.
But the hostility didn’t stop with the discriminatory treatment. It extended to commissioners who made hostile statements about Phillips. One referred to his plea for religious freedom as a “despicable piece of rhetoric.” And another took to Twitter to declare: “Freedom OF religion does NOT mean freedom FOR YOUR religion.”
With this sentiment running rampant on the commission, is it any wonder that less than a month after the Supreme Court denounced the state’s hostility, it was targeting Phillips again?
This time, his supposed crime is declining to create a custom cake with a blue and pink design that the attorney who requested it said would reflect and celebrate a gender transition. But Phillips doesn’t believe that people can choose or change their sex.
So the message of that design was not something he could express through his cake art. But Masterpiece Cakeshop told the attorney that Phillips would be glad to create a different cake if the attorney was interested in that.
Even so, the commission has launched another administrative prosecution against Phillips. Oh, but this time he’ll get a fair process, the state says, because the commissioners who made the hostile comments are gone.
The problem is, the state’s unequal treatment continues. It still allows other cake shops to decline to create cakes that express messages they consider objectionable, but insists on punishing Phillips when he does the same thing. The same unfair treatment that the Supreme Court just condemned is present in this new case.
Colorado’s claim that new commissioners are involved doesn’t begin to tell the half of it. All the current commissioners, except one, represented the state in defending the first order punishing Phillips. So even though they might not have been the ones who initially forced him to give up his wedding business, they are the ones who fought to keep that punishment in place.
Also of note, the same person—former Colorado Gov. John Hickenlooper—put the past and current commissioners in their positions. And one of the governor’s favorite groups to draw commissioners from is One Colorado—an outspoken critic of Phillips during his first case.
One of the commissioners presiding over the new case publicly serves with the National LGBTQ Task Force, another group that openly opposed Phillips the first time around.
Any hope for salvaging a semblance of fairness fades to black when a Twitter rant shows that another current commissioner referred to Phillips as a “hater.”
Fairness for Phillips, under these circumstances, is a mirage—a hopeless fantasy.
Anyone who suggests otherwise should honestly ask themselves a simple question: “Would you feel confident in the neutrality of those decision-makers if they held your fate in their hands?”
To ask the question is to answer it.
So no matter what you think about Phillips, his religious beliefs, or his desire to live them out in the public square, I hope we all can agree that he is entitled to something we’ve all sought since our earliest years—fairness. He can’t get that before this commission, a biased government agency that has targeted him for years.
Because of that, Phillips filed a lawsuit against Colorado in federal court through his attorneys with Alliance Defending Freedom, seeking to stop the state’s renewed efforts to punish him. The federal court saw enough of the problems to deny the state’s request to dismiss the suit.
State officials’ ongoing “disparate treatment” of Phillips reveals their “hostility towards Phillips, which is sufficient to establish they are pursuing the discrimination charges against Phillips in bad faith, motivated by Phillips’… religion … ,” the court wrote in its order Jan. 4.
Jack Phillips serves all customers, and he is even happy to serve the attorney who lodged the complaint against him. But he doesn’t create custom cakes that express messages or celebrate events in conflict with his deeply held beliefs.
Because he can’t get a fair shake before the state commission, he deserves to pursue—and ultimately win—his case in federal court. That will finally free him to live his life according to his beliefs, free from government coercion, just as the First Amendment promises.
Jim Campbell, senior counsel with the Christian legal group Alliance Defending Freedom, represents Jack Phillips and Masterpiece Cakeshop. He is also director of ADF's Center for Cultural Engagement and Scholarship.
Editor's Note: This piece was originally published by The Daily Signal.