Self-described cake artist Jack Phillips is again at the center of the debate over religious freedom, this time as the defendant in a state trial after being sued for declining to design and bake a cake celebrating a gender transition.
“Jack’s been in the news for many years,” as Jeremy Tedesco, senior counsel at Alliance Defending Freedom, told The Daily Signal, referring to the Colorado Civil Rights Commission’s finding that Phillips, a Christian, discriminated against a gay couple when he declined on religious grounds to make a custom cake to celebrate the two men’s marriage.
Phillips, whose Masterpiece Cakeshop is in Lakewood, Colorado, took his case all the way to the U.S. Supreme Court.
“In 2018, the Supreme Court said that Colorado had engaged in religious hostility toward Jack. And so he won that case, 7 to 2,” says Tedesco, today’s guest on “The Daily Signal Podcast.”
“But then Colorado turned around right after that and considered another complaint against him, this time based on a gender transition cake that someone asked him to create. Eventually Colorado got the message and dismissed that complaint,” Phillips’ lawyer says, “but then the private citizen involved in filing that complaint filed a private lawsuit against Jack. And so that’s why he’s in court now.”
Listen to the full interview on “The Daily Signal Podcast” or read a lightly edited transcript below.
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Rachel del Guidice: We’re joined on The Daily Signal by Jeremy Tedesco. He’s senior counsel at Alliance Defending Freedom. Jeremy, it’s great to have you on The Daily Signal.
Jeremy Tedesco: Thanks for having me on. I appreciate it.
Del Guidice: For those who follow the issue of religious liberty, Jack Phillips is again at the center of this debate and he’s now a defendant in a state court trial that began March 22. Can you tell us about this latest development in his fight for religious liberty?
Tedesco: Sure. Well, Jack’s been in the news for many years—even won a case at the U.S. Supreme Court on this issue, right?
In 2018, the Supreme Court said that Colorado had engaged in religious hostility toward Jack. And so, he won that case, 7 to 2, but then Colorado turned around right after that and considered another complaint against him, this time based on a gender transition cake that someone asked him to create.
Eventually Colorado got the message and dismissed that complaint, but then the private citizen involved in filing that complaint filed a private lawsuit against Jack. And so that’s why he’s in court now, is defending against that private lawsuit.
I think it’s important for your listeners to understand that this was a setup. That the person who called Jack and asked him to create this cake was trying to set him up to be able to file a complaint against him, to harass him, and to put him out of business, or at least pause that risk.
So Jack continues to try to defend his First Amendment freedoms and Alliance Defending Freedom, where I work, we’re continuing to represent him in his fight.
Del Guidice: When it comes to this case, and this gender transition cake, and the setup, what kind of arguments have you used and are you using to kind of flush this case out and talk about it in terms of religious freedom and his rights?
Tedesco: Sure. Well, the bottom line is: Jack serves everyone at his shop. He just doesn’t create every cake or celebrate every message through his art.
So Jack does not create cakes that promote ideas that violate his religious convictions, and he’s got a First Amendment right of free speech to decline to express messages that violate his beliefs through his art. And that’s, of course, the same for everybody.
If an atheist was forced to create a billboard saying, “There is a God,” the state couldn’t force that atheist to do that through any kind of law that the state was trying to enforce against them, or a private citizen was trying to enforce against them. So these are rights that we all benefit from.
I think the biggest risk in the case, not just for Jack, of course, we don’t want him to lose the case, but for society, is that if one person loses these rights, everybody does. We don’t want a government that has the power to force people to express ideas that violate their core convictions.
Del Guidice: What does it have to say, in your perspective, about where we’re at in this country right now, where we’re being forced to create art that doesn’t go with our deeply held convictions and people are losing jobs and livelihoods over this?
Tedesco: Well, the fact that people are trying to go after something as sacred as artwork, as sacred as the creative process … I mean, you have to understand, for artists like Jack, it’s a deeply personal creative act to take a concept and then create something beautiful expressing that message. So artistic expression has always been fully protected by the First Amendment, precisely because of how sacrosanct that creative process and that expression is.
So if we’re at a place in society where we’re willing to force artists to create art that violates their core convictions, the rest of us are in a lot of trouble.
I think artists have one of the strongest claims to that right. And we all have a strong claim to it, but that creative, unique, creative process, and being forced to design and create something that’s not even in your mind and have a government kind of hanging over you with significant penalties if you don’t do what they’re telling you to do or what some private party wants you to do, that’s not a place we want to go. That’s not a free society.
Del Guidice: You were part of the team, as you mentioned earlier, that defended Jack Phillips at the Supreme Court. On a more personal note for you, what was it like to be part of and really at the center of the religious liberty debate in this country? That’s a big deal, and first of all, what was that like for you?
Tedesco: Yeah. It’s incredibly exciting to be a part of it, but I got to tell you, the best part of it is the client, so Jack Phillips. Just getting to know Jack, he is one of the best people I have ever met. I always tell people that they would be lucky to have him as a neighbor and just blessed beyond belief to have him as a friend.
When I went to his shop, I was blown away by the way that he cared for all of his customers. Literally everybody who came into his shop, he was on a first name basis with, and if he wasn’t, he would be by their second visit to the shop. He’s just the nicest, most kind guy.
It’s such an honor to represent people like Jack, and yeah, to be part of these religious liberty battles. The litigation to try to protect religious freedom is incredibly rewarding, but the most rewarding part is serving people like Jack Phillips.
Del Guidice: Big picture, what’s your perspective on the state of religious freedom in this country right now, as we see it?
Tedesco: I think there’s significant threats. There’s open hostility, and it’s not just from a new administration that certainly is promoting a lot of policies that threaten religious freedom, threaten women and girls, but there’s also an enormous move to try to weaponize other institutions in our culture against free speech and religious freedom, essentially to turn as many institutions as possible into tools of cancel culture. And one of the ones that’s a great concern to us at Alliance Defending Freedom is corporations.
Left-wing activists have really weaponized corporate America against ideas that the left opposes, and that has enormous ramifications for our society. I think especially when you consider Amazon’s censorship of books, Amazon has 53% of the book-selling market. Generally speaking, they have 80% or so of the e-book market. And so when Amazon decides not to sell a book, it basically renders that book and the ideas expressed in it unsellable.
Del Guidice: You mentioned the Biden administration. Are there one or two different big challenges you see in the years coming ahead where you feel like we’re really going to see big fights in these specific areas?
Tedesco: Absolutely. I think the Equality Act is a significant concern. If the Equality Act were to be passed or even provisions of it be forced through regulations or executive orders, then you’re going to have religious institutions’, women and girls’ free speech at risk.
Just consider female athletes who are being forced to compete against biological males. And our clients in Connecticut, good example, are losing races to them, losing scholarship opportunities to them. And it’s undermining the fair playing field that women deserve when it comes to sports.
In Connecticut, 15 of the state championships that used to be held by women are now held by these two biological males who identify as women. And so they’re being boxed out of their entire sport.
Del Guidice: We’ve talked about this a little bit, but my next question was specific when it comes to schools. How do you see schools being affected by the issue of religious freedom? We’ve talked about the gender debate, but are there other ways that you’re seeing schools are especially targeted?
Tedesco: Absolutely. Religious colleges and even religious K through 12 schools are going to be under significant pressure from the Biden administration and from activists on the left to abandon their religious beliefs as the price to being able to continue to operate.
There’s a lawsuit that was recently filed by an organization, their acronym is REAP, and they’re trying to eliminate a religious exemption in Title IX for religious colleges and universities that has existed for decades and protects religious freedom.
So the sad truth is that left-wing activists want to eliminate religious freedom. They want to eliminate any instances in law where the laws are respecting the right of religious organizations to organize around their own beliefs. So that is upon us right now.
We actually filed an intervention motion in the lawsuit that REAP filed against the Department of Education, and we’re continuing to resist efforts to remove these religious exemptions, which are essential to religious institutions being able to operate.
Del Guidice: What about churches? Where do you see them being affected by issues of religious liberty and attacks on that?
Tedesco: Yeah. Well, the limitations on churches come from a lot of different places. It’s going to come from employment laws. The left is going to try to use those employment laws to limit the ability of churches and religious institutions to hire on the basis of their religious beliefs.
But I think churches also have to be worried about their public witness and whether they can express their messages.
We were talking about it before, but the broader context of the way that the entire corporate sector is being weaponized against religious and conservative values, it won’t be that long, if the left has its way, until churches aren’t able to express their views about marriage or the real differences between men and women on social media platforms.
So if you can’t bear witness to the truth in all these settings, then you can’t change hearts and minds, you can’t win the culture over.
Del Guidice: When it comes to churches, I wanted to ask you about the whole situation we’ve seen in the past year with different COVID restrictions. For example, in California, we saw a strip club that was allowed to stay open, but the churches had to stay closed. Is there a double standard? And what’s your perspective on what happened over there?
Tedesco: Yeah, absolutely, there’s a double standard. And you see a lot of these cases where we’re winning and other organizations are winning cases. It’s where the government has decided to value secular activity over religious activity.
One of the cardinal rules is that if the government has exemptions in their law for secular conduct, secular behavior that’s similar to what the religious institutions want to engage in, then they can’t treat the religious institutions differently and less favorably.
So you’ve seen the Supreme Court on a couple of different occasions step in and right the ship when it comes to that, where casinos, or like you said, strip clubs, or big box stores are allowed to operate much more freely than churches. And I think, obviously, the Supreme Court is doing the right thing there.
We need to have robust religious protections and people need to go to church. People need their community, especially their religious community, during these kinds of times for the support, both spiritually and materially, to meet the needs that they have during a pandemic like this.
Del Guidice: Lastly, what would you encourage the average American do to work for religious liberty? I know there’s probably a lot of people that are involved and then there’s some people that think, “Well, there’s nothing I can do.” What would you encourage them to do?
Tedesco: Yeah. I just think people need to continue to talk about why it’s important with their friends and their family, and whoever is within their network of influence.
There’s a tendency to, I think, not want to push back on some of the cultural touchpoints and difficult areas to have conversations, but people need to equip themselves on how to talk about gender identity, how to talk about the importance of free speech, and the right of religious institutions to operate consistent with their faith and make the case.
I mean, we can change the hearts and minds of the five, 10, 15 people that are within our core universe of influence. If we all do that, we make a huge step forward for everybody.
Del Guidice: Jeremy, thank you for joining us on The Daily Signal. It’s been great having you with us.
Tedesco: Thank you.