BLOGJustice Department Right to Support Artist’s First Amendment Freedoms

By Michael P. Farris Posted on: | September 26, 2017

A Post editorial headline described the Justice Department as “go[ing] out of its way” to file a brief supporting cake artist Jack Phillips in the Masterpiece Cakeshop case, but that gets it exactly backward. “Going out of its way” is what the department would have had to do to remain silent.

Masterpiece Cakeshop is not only one of the most prominent cases to be argued during the Supreme Court’s upcoming term, it addresses citizens’ artistic, expressive, and religious freedom under the First Amendment at a time where that freedom is increasingly controversial. It’s just the sort of case that traditionally receives input from the Justice Department.

While the Post describes Phillips’s artistic freedom as “a right to discriminate against gay customers,” elsewhere it concedes that his refusal was directed only to the couple’s request that he custom-design a cake for their wedding—requiring him to help celebrate an understanding of marriage that conflicts with his faith. Indeed, Phillips offered to sell to this couple anything in his store or to design cakes for them for other occasions. As the DOJ brief explains, Jack’s custom wedding cake work creates visual art in the context of a religious ceremony, and that naturally brings the First Amendment into the equation.

Artists and creative professionals should be free to create art and other expression consistent with their beliefs. Marriage as a man-woman union is one such belief—one that cuts across race, culture, and time. Are we going to banish the many Muslim, Jewish, and Christian artists who hold that belief from the marketplace?

This constitutional protection for artistic liberty arises in a narrow set of circumstances—only when a potential client requests a custom artistic creation. Recognizing that limited freedom will hardly “blow a hole” in nondiscrimination law, as the Post claims. And if we don’t protect that freedom for Jack, then none of us—no matter our faith or sexual orientation—will enjoy that liberty. That’s why you can both support same-sex marriage and support Jack’s artistic freedom.

The Post offers its opinion that “there is little reason to believe that wedding guests would attribute to the cake baker an endorsement of the festivities as a whole.” But uninformed third-party perception is not a controlling legal consideration in this context. May a speechwriter who doesn’t support President Trump be forced to draft a speech for him, so long as the writer’s identity isn’t revealed to third parties? Of course not.

The Supreme Court’s jurisprudence focuses on protecting individuals’ “freedom of mind” and their decisions to create art or expression or to refrain from doing so—not on the community’s awareness of the creator or its opinion about what the creator might be thinking. To be sure, this even has implications for the freedom of The Post itself to print the ads and other content it wants without interference from the government.

The Justice Department’s support of First Amendment expressive freedom is not an effort to “turn back the clock” against our nation’s “moving forward” after Obergefell. If government coercion of artists’ work is now deemed necessary to “move forward,” then turning back the clock to a time when constitutionally protected freedoms were deemed valuable and honored in law would seem to be the better option.


Get the latest news on our fight to secure justice for Jack—and how it impacts you—from the legal team defending him before the Supreme Court.
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Michael P. Farris

President, CEO, and General Counsel

Michael P. Farris is president, CEO, and general counsel of Alliance Defending Freedom. He brings to the role wide recognition for his successful work on both the national and international stage.

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