Slicing the Masterpiece Cake – Part 3

The Masterpiece case is about a Christian business owner making a business decision based on deeply-held religious beliefs. Although the Court ruled for Phillips, the “win” isn’t the precedent-setting decision I’d hoped to see. AND

Still… I conclude my 3-part blog with HOPE! I found it in the Concurring Opinion by Justice Thomas, with Justice Gorsuch.

The Court’s ruling centered on the obvious bias of the Colorado Civil Rights Commission against Phillips’ religious reasons for his decision-making… thus, denying his free exercise of religion.

Justice Thomas, on the other hand, made a compelling case why and how Phillips’ freedom of speech was also clearly violated. Although the Court did not rule on this, I am heartened that Thomas recognized this as another key issue.

Freedom of speech is at the heart of many similar cases moving through the judicial hierarchy. For those who want to also be encouraged, I recommend you read Thomas’ 8-page opinion for yourselves.

Some highlights…

“When a public accommodations law ‘has the effect of declaring… speech itself to be the public accommodation,’ the First Amendment applies with full force.” (Thomas, p.3)

“[This Court has] rejected the notion that governments can mandate ‘thoughts and statements acceptable to some groups, or, indeed, all people’ as the ‘antithesis of free speech.'” (p.3)

“Once a court concludes… conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.”  (p.5)

“The conduct… the Colorado [Appeals] Court ascribed to Phillips — creating and designing custom wedding cakes — is expressive… To [Phillips,] a wedding cake inherently communicates… ‘a wedding has occurred, a marriage has begun, and the couple should be celebrated.'” (p.6)

“Wedding cakes do, in fact, communicate this message… Although the cake is eventually eaten… its primary purpose [is]… to mark the beginning of a new marriage and… celebrate the couple.” (p.7)

“A wedding cake needs no particular design or written words to communicate [this] basic message… by forcing [Phillips] to provide the cake, Colorado is requiring [him] to be ‘intimately connected’ with the couple’s speech, which is enough to implicate his First Amendment rights.” (p.7)

“According to the… respondents, Colorado can compel Phillips’ speech to prevent him from ‘denigrat[ing] the dignity’ of same-sex couples, ‘assert[ing] [their] inferiority,’ and subjecting them to ‘humiliation, frustration, and embarrassment.’ … These justifications are completely foreign to our free-speech jurisprudence.” (p.12)

“States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified…. A contrary rule would allow the government to stamp out virtually any speech at will. (‘After all, much political and religious speech might be perceived as offensive to some.’)” (p.12)

“The First Amendment gives individuals the right to disagree about the correctness of Obergefell [Supreme Court case legalizing same-sex marriage] and the morality of same-sex marriage… [Without]… freedom of speech… Obergefell [could be used] to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.'” (p.14)

What say you?

Please post your comments below.

Diana Furr, a.k.a. Abba’s Girl

This blog may have raised questions for you. If you’d like to connect, engage, or get further help from me, you can…  EMAIL me at [email protected]; CALL me at 863-446-1660; or request a complimentary initial CONSULT with me at


  • Carolyn Van Ooteghem says:

    Wow, thanks Diana, for posting Justice Thomas’ statements. It does give us hope to see reason and fairness recognized by some in power in the government who can counter the injustice believers have encountered. Amen!

    • Diana Furr says:

      Yes. Unfortunately, reason and fairness are not always practiced by those in power today. I hope Christian business owners — especially those whose creative expressions seek to honor the Lord — will carefully study Justice Thomas’ well-substantiated legal opinion. It is full of wisdom for how they can strategically pursue and defend their constitutional right to freely express their closely-held religious beliefs… even in the hotly-contested wedding space within the broader marketplace. You can bet religious freedom attorneys (and others) are also studying it carefully.

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