Published On: Thu, Nov 30th, 2017

ADF to Supreme Court: ‘Artists shouldn’t be forced to express what government dictates’

Alliance Defending Freedom attorneys representing cake artist Jack Phillips filed their final brief Wednesday prior to oral arguments at the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Phillips serves all people but cannot express all messages through his custom art. The brief argues that the commission is stripping expressive freedom from all people who create and sell art for a living.

As the brief explains, “Expressive freedom is central to human dignity. It requires that artists be free to make their own moral judgments about what to express through their works. And it forbids governments from commandeering the painter’s brush, the sculptor’s hand, or the soloist’s voice to convey what is not in their minds or hearts.” The brief points out that this essential freedom crosses ideological lines. In fact, many groups, professors, and individuals that support same-sex marriage have filed friend-of-the-court briefs in support of Phillips.

“As our brief explains, artists shouldn’t be forced to express what the government dictates,” said ADF Senior Counsel Kristen Waggoner, who will argue before the high court on behalf of Phillips and his shop on Dec. 5. “The commission ordered Jack to celebrate what his faith prohibits or to stop doing the work he loves. The Supreme Court has never compelled artistic expression, and doing so here would lead to less civility, diversity, and freedom for everyone no matter their views on marriage.”

gavel court scales justice ruling

photo via Pixabay user Succo

“The Commission has devastated Phillips’s small family business because his conscience does not allow him to create art that expresses support for same-sex marriage,” the brief explains. “To justify this punishment of a man who serves all people but declines some messages, [the government] seek[s] to strip all for-profit speech creators of core constitutional protections. That would undermine First Amendment freedoms across the board, compelling speech on topics far beyond marriage, and leaving our society less civil and less free for generations to come. The Court should reject [the government’s] invitation, reverse the Court of Appeals’ decision, and affirm expressive freedom as a fixed star in our constitutional constellation.”

“Phillips is willing to serve any and all customers. He objects only to expressing certain messages through his custom art,” said ADF Senior Counsel Jim Campbell. “Jack should have that basic freedom. But if the government has its way, it would compel not just cake artists to celebrate what their faith prohibits, but other professionals who create art for a living, such as graphic designers, filmmakers, photographers, and painters.”

The case reached the U.S. Supreme Court after the Colorado Supreme Court declined to review a Colorado Court of Appeals ruling in the case. That ruling affirmed a Colorado Civil Rights Commission decision from May 2014 that ordered Phillips to design custom wedding cakes that celebrate same-sex marriages if the shop designs other wedding cakes.

The commission’s order also required Phillips to re-educate his staff, most of whom are his family members—essentially teaching them that he was wrong to operate his business according to his faith. He must also report to the government for two years, describing all cakes that he declines to create and the reasons why. Because the order has forced Phillips to stop designing wedding cakes, he has lost approximately 40 percent of his income and is struggling to keep his small business afloat.

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