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June 19, 2024 18 mins
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Jack Phillips, the owner and proprietorand creative genius at Masterpiece Cake Shop,
and his attorney, Jake Warner fromAlliance Defending Freedom. They've both been on
the show with me plenty of timesbefore. I would just like to say
Jack that the reason I haven't beenin lately to get my chocolate mint brownies

is that we moved and I don'tlive as close to the store as I
used to. But I promised toget in there soon because I need more
of your chocolate mint brownies. Okay, I'll need a written excuse when you
come in. So you guys wereat the State Supreme Court yesterday because Jack
is still being harassed by the sameparticular attorney. And for listeners who are

new to the show, I makethe same point every time. I'm not
a social conservative. I don't shareJack's views about some of these underlying issues.
But in the United States of America, Jack absolutely has the right to
refuse to endorse a message he doesn'tbelieve in, and I sure wish liberals
would understand that. All right,So with that, why don't actually start

with Jake. Jake, what exactlywas an issue in the oral arguments yesterday,
and the government force an artist toexpress a message he does not believe.
That's the bottom line question that theColorado Supreme Court must decide, And
yesterday we argued that free speech isfor everyone, that the state cannot misuse

its wall to force Jack to expresssomething he doesn't believe. And this is
a freedom that not just protects Jack, but like you mentioned opening the show,
it protects all Americans, including thosewho disagree with Jack on some of
these underlying issues. So we verymuch hope that the Colorado Supreme Court will
get this right and uphold freedom foreverybody. So one thing that I think

a lot of people are gonna wonderabout, and maybe I'll go to Jack
for this, Jack, how thiscomes down in a significant way to the
idea that you're making a cake andwe're talking specifically about custom cakes made for
not just a particular person, butfor a particular reason. How do you

how do you explain how that issimilar to or the same as actual speech
that everybody understands is protected. Becausesome people might say, how is that
like speech? Well, Jake,an answer to like art being speech probably
better than I can. But whenthe conversation happened with this attorney who's assuing

you currently. The conversation started withcan you make this? Can you make
a cake on this day? Sure? Can you make a pink cake?
Yes? Can you make it withblue license? Yeah, we can do
that. Those colors are symbolic andthey are to express a celebration of a
transition from male to female. Andwhen the symbolism and the colors and the
message came out, that's when wehad to tell this person we can't create

that cake for you, but we'reglad to create other cakes for you,
even pink and blue cakes with adifferent message. But we can't express that
message. So, as always,the message, it's the what, not
the who. We tried to makethat clear to the attorney who's silliness that
it was not anything about that person'sidentity, because we had gladly served them

in any other way that we wouldserve you, Ross or any of your
listeners. But we can't express everymessage if people ask us to. Yeah,
look to me again, I thinkthis point is rather basic, But
Jake, let me go to youas as a question of law here,
So the Federal Supreme Court already ruledin three h three creative case, and
I think ADF represented Laurie Smith,right exactly. Yeah. So, and

we had you are one of yourpeople and Laurie on the show more than
once. And the Supreme Court ruledin favor of Laurie, who makes websites,
that as a person who does notbelieve, based on her religious faith,
does not support gay marriage, shecannot be compelled by the state to
make wedding websites for gay weddings.So, first of all, as far

as what I said there is thatcorrect. Yeah, that's exactly right.
Okay. So then my question oflaw for you is this, how could
the Colorado State Supreme Court not issuein forty seven seconds an immediate judgment in

favor of Jack Phillips based on thethree zero three creative decision. Yeah,
three or three creative directly controls theoutcome of this case. Even in that
case, the US Supreme Court saidthat the government can't compel even symbols that
express messages that someone disagrees with.And here the court found that this is
a highly symbolic cakes, a cakethat symbolizes a transition from male to female.

And the court said blue means male, pink means female, and people
often come the cake artists requesting customcakes expressing messages. That goes back as
far as Roman times for wedding cakesand then more recently gender reveal cakes.
Why do people come to artists likeJack? They want to express messages that
celebrate things, And of course symbolscan communicate ideas just as easily as words

or anything else. That's why wehave flags and other things, and we
all know what blue and pink revealabout gender in our culture. So the
fact that this cake expresses the message, and the fact that three are three
creative says that the state can't evencompel symbols promoting messages that someone disagrees with.
Is it you open and shut thecase? Jack? I'm gonna ask

you something that's a little bit moreof a personal question. For as long
as I've known you, and foreven longer when I were following the cases
before I got to know you,you have always said that this is about
the message in the cake and notabout the person. Right, So a
transgender person wants airthday cake that doesn'tnecessarily have any message on it, accept

happy birthday. You have always said, I don't care that person's transgender.
I'll happily make you a birthday cakelike that, but if you want me
to make a cake that is celebratinggender transition, I won't do that.
And my sort of personal question foryou is how in your mind do you
separate the person for whom that eventis important from the event itself. Well,

in the case of our current lawsuit, the person that's suing us told
us that there was a message involved. He said, these are the colors
that are symbolic of this celebration.That separated for us right there, And
we explained to the attorney suing us, well, glad we make you any
other cake that we make anybody else, sell you anything in our shop.
So it was pretty clear that thiswas a message that we're at to express.

Okay, so I should ask thequestion more clearly, so I understand
what you just said. That wasn'tand that wasn't the question I meant to
ask. I don't mean, howcan you tell whether the cake is a
message or not a message. Let'sjust assume you know this cake a cake
is a message. But in yourmind, what is the important distinction between

the person and the message The personwants to have commemorated in a cake.
So if the message they want isa birthday, Happy birthday, that's great.
I love to celebrate birthdays. That'sone of the reasons I open the
shop. But when I'm told thatthere's a message, and then the message
is something that goes against my deeplyheld religious beliefs, personal beliefs, core

convictions, then that's when I haveto draw the line. When I'm told
that there are other cakes besides tothe one that took us to the spring,
I don't do cakes with profanity onthem. I a won't say it,
not I can write it cakes thatare on an American So it's not
a fine line, it's a clearline. And when that line is crossed,

then I have to try and goanother direction. Can we make another
cake for you for another celebration?Jim and Ross had here. You know,
celebrating a person no matter who theyare, like, that's just a
simple message that Jack would express foranyone. But when the message changes to
not just celebrating someone for who theyare, says no, a person can

transition from male to female, thenthat's a totally different message. So really
it comes down to what is thiscake expressing Is it expressing an idea?
Just a general celebration for someone.Sure, Jack is going to create that
happily, and the child court foundthat. But when the cake expresses a
message that Jack doesn't believe, forexample, that someone can transition from male

to female, that's the one cakethat he can't create for anyone. That
expresses a message that Jack can't expressfor anyone. So Jack really tries to
know what is this cake going tocommunicate? Right? And my understanding,
having followed this stuff pretty closely,is that no court has ever ruled,

and I don't think any lawyer hasever argued in court in these cases that
Jack has any kind of bias againstthese people as people, right. I
don't think anybody's arguing that. Justto be clear, Yeah, certainly Jack
serves everyone. He loves all people. You know, these courts have held

that Jack serves people from all backgrounds. He just can't express every message.
In fact, the court here foundthat Jack would create birthday cake celebrating someone
who identifies transgender. It's not whothe person is, and it's just always
about the message, right, Andthat as a matter of as a matter
of law, and also I thinkas a matter of ethics. I think

that distinction is really important for thosejust joining. We're talking with Jack Phillips,
the proprietor of Masterpiece Cake Shop.By the way, they're they're near
Hampden and Wadsworth. And if you'reever going to be anywhere near there going
into Masterpiece Cake and buy, youknow, a cake, a pastry,
try the chocolate mint brownies. Theywill not let you down there. One

of my favorite things on earth.So I was kind of struck by some
of the questioning from the from thestate Supreme Court justices. William Hood said,
and I'm quoting from a Reuter's article, public accommodation laws are designed to
get us away from your kind isn'twelcome here, And it feels to many

like this just substitutes kind with theword message. So I think I'll stick
with Jake for this question for asecond. It seems to me again that
this justice is completely missing the point, and that someone who is smart enough
to be a Supreme Court justice ofthe State of Colorado, I think he

must be intentionally missing the point.You probably won't go that far on a
radio show, But haven't we justanswered this questionquestion already? By everything we
just talked about regarding Jack will happilymake a birthday cake for a gay or
trans person, but just won't makea message he doesn't agree with. Absolutely.
I was shaking my head pretty vigorouslywhen that comment came up. That's

this or argument, because the realityof it is col Raad's non discrimination law
is going to still protect millions oftransactions every day. We're just asking the
court to recognize the distinction that theUS Supreme Court has held for decades that
someone can serve all people but declinedto express certain messages for anyone. This
is not we're not breaking ground here. We're just asking the court to recognize

a simple distinction that when the lawis misused to compel someone to express an
idea, if that person serves everyonegenerally, it shouldn't be a violation of
the law. At the very least, the First Amendment ensures that that decision
is protected. Let me go backto Jack, Jack after the first version
of this controversy, which was abouta cake for a same set, and

you correct me if I'm wrong here, but my recollection is that in order
to protect yourself from an overreaching government, you stopped making wedding cakes. So
is it right that you stopped makingwedding cakes? And did you ever,
If so, did you ever startmaking wedding cakes again. Well, we
hope to start making them again oncethis is all cleared up in our favor,

and it should be cleared up wheneverthey figure out how to write their
opinion. But I want to bringout something else about serving days and trands.
In our current lawsuit, we hada gay man testify on our behalf.
He came in initially to see whothis man is who won't serve days.
He realized after we got to knoweach other, that's not the case.

He's become a good friend. I'vemade many cakes for him, many
other things, and he was convincedenough of my desire to serve everybody and
not create every message that he waseven deposed and testified on our beha in
court. So that really, inmy mind, just goes a long way
that the court should recognize I serveeverybody and I just can't create express every

message that they ask. Well,that information makes Justice Hood's comment even more
even more outrageous. Jack, thisis not a legal not a legal question.
And I know you and I havetalked about this in the past,
but for folks who are kind ofnew to your story, can you just
describe what it has meant to yourbusiness. You could talk about profitability if

you want, but also employment,like how many people don't have jobs anymore
because you stopped making wedding cakes.Well, the day before David and Charlie,
the two men who sued me thefirst time, came in, I
had ten people on my payroll.That went down to four including me.
Now I have more, but theyare mostly part time people who work one

or two days, so between allthe hours, it's like four people.
Maybe beyond that. When you geta wedding cake order, bright comes in,
they've never been in before. Youagree to do their wedding cake.
You sit down and you go throughall the details that they want, you
create the wedding cake, and ifyou do it right, and it's not
long before you're doing an anniversary cakeand a baby shower cake, the first

birthday and then husband's birthday's, lifebirthdays, anniversaries, and they get to
become part of your family almost Theycome in, you know, by name,
house, kids and all. Andwithout the weddings, we've also lost
that aspect of this, besides havingthe energy and the creativity involved in all
the people that are here. It'sjust there's a lot at stake besides money.

Wow. Yeah, I just thinkit's a a tragedy and a travesty
what has been done to you,Jake. If all were to go to
according to a typical time timeline,when would you expect a ruling from the
State Supreme Court on the case thatwas heard yesterday? Yeah, unlike the

US Supreme Court, there's no likestandard deadlines that I know of from the
calab out of Supreme Court. ButI would expect you know, we're probably
not looking at anything less than twomonths. It's probably going to be closer
to the six to eight months inthat timeframe before we hear a decision.
And I want to highlight for yourlisteners just the extreme nature of what the
other side argue before the court yesterday. They said that the government could compel

a Jewish artist to promote a Nazievent. But yet at the same time
they seem to recognize that Jack couldbe protected if the same attorney had just
come in and said, hey,can you create a custom take celebrating a
gender transition? But you make thedesign. Well, that's kind of a
worst thing there, right, orit is a worst thing here because Jack

was asked to create a cake witha particular design that everyone would know would
symbolize a transition from male to female. So the other side just didn't have
clear lines were protecting speakers and we'rethe principal ones coming in here asking the
court to protect free speech for everyone, including those who disagree with us.
All right, I have about ninetyseconds left, so I'll just say two
things in response to what you justsaid. It's it's very difficult to make

cogent arguments when you're not arguing fromprinciple, right, and the state is
not arguing from principle. The stateonly has an outcome they want to get
to. They don't care how theyget there, so they will they will
make arguments that even conflict with oneanother, but that's what they're forced to
do because they're not arguing from principle. The question I want to ask you

is I saw these very stupid questionsfrom Justices Hood and Heart, where there
was there other questioning from other SupremeCourt justices were that seemed more like understanding
of the actual federal Supreme Court rulingand the First Amendment. They give you
some hope that this is going tocome out the right way and you're not
going to have to go to theFederal court again. Absolutely. Justice Marquez

really seemed to get it well.Yesterday. She was asking some very probing
questions of the other side, youknow, what's the line here, and
really drew out some pretty big concessionsfrom the other side that hurt their case.
Justice Marquez realized, like, thisis symbolic expression and the government shouldn't
be able to compel it. Youknow, I'm optimistic that she understood that

the significance of this case, andI'm hoping that she will be able to
collaborate and persuade some of her colleaguesthat it's right to protect speech. Here,
Jack Phillips, since this case isabout you, I'll give you the
last nineteen seconds to say anything youwant. Well, I just want to
say a shout out to Alliance DependingFreedom ADF Hake Warner and the whole bunch.
How prepared Jake was for this argumentand how supportive and could Alliance Depending

Freedom has been to me. LaurieSmith, Paronel's stutsman, the Florist Washington,
all other clients. There's ADF isthe best, folks. If you
want to learn more about the AllianceDefending Freedom a d F legal ADF legal
dot org. If you go thereright now, you will see you will
see Jack Phillips's smiling face right thereat the top of the web page.

Jack, thank you so much again. I'm I'm sorry you're still going through
all this. I hope to getout to Masterpiece Cake Chop soon and buy
a brownie. All right, Ross, thanks for having us, glad to
do it. See you, gentlemen.

The Ross Kaminsky Show News

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