Law, College of


Date of this Version



Recommended Citation: Richard F. Duncan, A Piece of Cake or Religious Expression: Masterpiece Cakeshop and the First Amendment, NEB. L. REV. BULL. (Jan. 7, 2019), expression-masterpiece-cakeshop-and-first-amendment.


Sadly, religious liberty has become a matter of great controversy and division in our society. Although not so many years ago there was a nearly unanimous, bi-partisan consensus supporting the legal protection of religious liberty from laws substantially burdening the free exercise of religion, irreconcilable differences among us over contraception, abortion, sexuality, and the nature of marriage have made religious liberty a divisive partisan issue. Although most religious liberty cases concern religious minorities whose religiously-motivated conduct has been disregarded “by an insensitive majority,” a handful of cases involving Christian-owned businesses and ministries claiming a religious liberty right to refuse to supply contraceptives and abortifacients to their students and employees or goods and services for same-sex marriages have led progressives to turn their backs on religious liberty. As Professor Laycock puts it, progressives “persist in demanding not only the right to live their own lives by their own values, but also the right to force religious objectors to assist them in doing so.” As a result, “[r]eligious liberty is at risk” wherever progressive elites are in power.

Onto this desolate stage strode Jack Phillips, a wedding cake artist who deeply and reasonably believes “that ‘God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.’” Phillips considers his wedding cakes artistic expression celebrating the beauty of marriage as God designed marriage.

Jack Phillips is a man of deep and sincere conscience. His conscience will not permit him to use his artistry to celebrate an event that is not consistent with his understanding of God’s truth. He should not be treated like an outlaw by his government.