Since creating this cake would require Mr. Phillips to use his talents to endorse a cause he cannot agree with, he declined, and the attorney filed a complaint with the Colorado Civil Rights Commission. Less than a month after the Supreme Court dismissed the commission’s complaint over the same-sex wedding cake, the commission informed Mr. Phillips that it had found the denial of the gender transition cake unlawful and that he must engage in “compulsory mediation.”
So Jack Phillips has sued in federal court challenging the new prosecution as a violation of his constitutional rights. Hopefully the federal courts will again vindicate his rights.
But this situation raises other important issues. We are inclined to think of religious liberty being primarily threatened by government prosecutions, but as political science professor Darel E. Paul has noted, this situation involves a mixture of private and public litigation. A private individual who wants to punish another for their religious beliefs about marriage or sexuality, for instance, files a complaint with a public agency that then determines whether to use state power to carry out the punishment. Thus, as Paul explains, “the state does actively supply weapons to any guerrilla fighter wishing to take up arms and punish the wicked.”
Even an insincere claim can wreak havoc, since in a lawsuit, the process is the punishment. After six years of litigation, with attendant costs in time and money and harassment, another claim of discrimination starts the process again. This appears to create an incentive for punitive claims to be made: Even if a small business owner is formally vindicated in court, the punishment of “unemployment and asset forfeiture” still looms. Phillips is fortunate to have extremely capable and diligent legal assistance. Others observing his situation, though, may opt to avoid it entirely.
Abuse or targeted use of state procedures, then, may constitute a new threat to free speech and religious liberty. A decisive court decision might help counter that threat, though legislation is a more reliable and longer-term fix. Courts or legislatures, for instance, could employ the distinction between distinctions based on identity (which the state could prohibit) and distinctions based on the conduct a person is asked to facilitate (which would not be subject to coercion). At the very least, governments could allow those charged with discrimination to show that they had been targeted for harassing claims and thus have the cases dismissed.
Dialing down the zero-sum rhetoric would certainly help. This and other changes must be made, or this new threat to speech and religious freedom will remain.