This post has been updated with a response from Colorado Governor John Hickenlooper.
If Jack Phillips had hoped a Supreme Court ruling in his favor would bring an end to his saga, he was sadly mistaken. The owner of Masterpiece Cakeshop is in another legal fight in Colorado, this time over an order for a birthday cake that would also honor a gender transition.
On June 4, the Supreme Court ruled 7-2 that the Colorado Civil Rights Commission acted with animus when they tried to punish Phillips for refusing to bake a wedding cake for a gay couple, citing his Christian beliefs. The Supreme Court victory was the culmination of a six-year legal battle for Phillips and the Alliance Defending Freedom, a prominent Christian legal group that has won a number of high-profile religious liberty and First Amendment cases before the high court in recent years.
The Colorado Civil Rights Commission filed a new complaint against Phillips on July 20. The crux of the new charge is that Phillips refused to bake a birthday cake that also celebrated a gender transition. According to a release from the Alliance Defending Freedom:
This time, the Alliance for Defending Freedom has gone on the offensive, filing a federal lawsuit against Colorado Gov. John Hickenlooper and the Colorado Civil Rights commissioners, accusing the state of persecuting Jack and seeking punitive damages.
In the Supreme Court case, the court ruled that the CCRC acted with animus in its prosecution of Phillips, but didn’t definitively address the question of whether a cake could be considered expressive speech. Specifically, Justice Elena Kagan voted with the majority on the basis of the animus question but argued in a footnote to her concurrence, that a wedding cake was not a unique statement : “It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike… And contrary to Justice Gorsuch’s view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance.’”
One interesting angle with this story is that the complainant claims to have called to the store to request a birthday cake that also marked the seventh anniversary of transition. As Phillips told the gay couple whose complaint led to the Supreme Court case: “Right off the bat I tried to make it clear to them that I would sell them anything in my store. It’s just that this was a cake that presented a message I couldn’t create for them.”
But Scardinia didn’t ask for any birthday cake, or simply request a birthday cake that was pink and blue. According to the complaint, “I explained I am a transexual and that I wanted my birthday cake to celebrate my transition by having a blue exterior and a pink interior.”
As such, any argument that the cake requested here is for a generic celebration and isn’t communicating a specific message is virtually impossible to make.
It also appears that Scardinia may have been engaged in a campaign to harass Phillips. According to the complaint filed by ADF:
In the past year alone, Phillips has declined several requests to create custom cakes because of the messages that they would have communicated or the events that they would have celebrated. Phillips believes that many of these requests are not genuine; rather, they are setups designed to get him to decline the desired message. Phillips believes that the originator of a number of these requests is attorney Autumn Scardina. In late September 2017, someone emailed Phillips asking for a custom cake “to celebrate” Satan’s “birthday.” The customer requested that the cake have “red and black icing” and include “an upside down cross, under the head of Lucifer.” The customer described the cake as “religious in theme” and reminded Phillips that “religion is a protected class.” Phillips declined to create that cake because it included designs that would have expressed messages in violation of his religious beliefs. A few days later, someone called Phillips asking for a similar custom cake. Phillips noticed that “Scardina” appeared on the caller-identification screen. Phillips believes that the caller was Autumn Scardina. The caller asked Phillips to create a “birthday” cake for Satan. The caller requested that the cake feature a red and black theme and an image of Satan smoking marijuana. Phillips declined to create that cake because it included designs that would have expressed messages in violation of his religious beliefs. On June 4, 2018, the day that the Supreme Court issued its Masterpiece decision, someone emailed Phillips claiming to be “a member of the Church of Satan.” That person asked for the following custom cake:
Phillips declined to create that cake because it included designs that would have expressed messages in violation of his religious beliefs. A few weeks later, two people visited Masterpiece Cakeshop and asked for a custom cake with a pentagram, a symbol commonly linked to witchcraft. When Phillips asked for the customers’ names, one responded “Autumn Marie.” Phillips believes that customer was Autumn Scardina. Phillips declined to create that cake because it included designs that would have expressed messages in violation of his religious beliefs.
Given that the ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission hinged on the question of the Colorado Civil Rights Commission acting with animus towards Phillips, the current charges once again raise the question of hostility toward Phillips. Little more than a month after being rebuked by the Supreme Court, the commission filed new charges based on a complaint that was over a year-old and appears even more legally dubious.
It’s noteworthy that the lawyers at ADF felt they had grounds to take this latest complaint straight to federal court. One reason why egregious decisions made by state and local civil and/or human rights commissions are difficult to fight is that legal precedents created by what’s known as “abstention doctrine” mean that accused parties such as Phillips have to exhaust state and local administrative proceedings (which often have procedures and evidence rules slanted against them), then go through state courts, before federal courts will take up any questions that their First Amendment rights have been violated. The process takes years and the legal costs can bankrupt individuals and businesses.
If the U.S. District Court refuses to take up the case, Phillips could be in for another several years of legal proceedings. The Colorado Civil Rights Commission is requiring him to attend state mandated mediation this week.
On Wednesday, Colorado Governor John Hickenlooper responded to the lawsuit saying, “Certainly I can’t imagine we have a vendetta against anyone,” he said. Hickenlooper also gave an interview with Colorado Public Radio where he denied that there was a free speech or expressive component to baking a cake and insisted Phillips is discriminating, even though Phillips only denies cake requests based on the specific message. “If you’re making someone a cake or you’re making a bicycle, it’s something that you do every day for a broad cross-section of people and it’s open to the public, I don’t think there should be bias involved in who you choose to serve and who you don’t,” he said.
