The actual facts of the case are crystal clear. Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong. In fact, he’d frequently declined to design cakes that advanced messages he found to be offensive.

The First Amendment and nondiscrimination laws should point the Supreme Court to the just decision.

Forgive me for starting a piece with the oldest cliché in the practice of law. As the saying goes, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither are on your side, pound on the table.” In the run-up to the oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission on December 5, we’re seeing a lot of table-pounding from the Left. In fact, I’ve never seen a case more mischaracterized in my entire legal career.

The actual facts of the case are crystal clear. Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong. In fact, he’d frequently declined to design cakes that advanced messages he found to be offensive. But he never, ever — not once — discriminated against any customers on the basis of their identity. He baked cakes for people of all races, creeds, colors, and sexual orientations.

So why do so many on the left compare him to segregationists? Why do they use hypotheticals that have nothing to do with the facts of this case? Today the New York Times published a perfect example of pound-on-the-table misrepresentations. It’s by Barnard College professor and Times contributor Jennifer Finney Boylan. How does she distort the case? Let us count the ways.

She begins of course by comparing Phillips to the owner of a restaurant who claimed a religious justification for denying service to African Americans. Then she compares him to a doctor who wouldn’t care for a lesbian couple’s baby. She talks about landlords, clinics, and other businesses — all of which could deny services to people “because of who they are.”

She quotes a law professor (because of course law professors aren’t above misrepresenting cases) as saying, “We’ve never allowed a commercial business to justify discrimination against a protected class based on the First Amendment. We shouldn’t start now.”

Here’s the thing — if the court rules for Phillips, it wouldn’t be starting now. Phillips isn’t discriminating against a protected class. I’ll repeat this until I’m blue in the face. He serves gay customers.

If a black baker refuses a white customer’s request to design a Confederate-flag cake, he’s not discriminating on the basis of race. He’s refusing to advance a message.

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