When the U.S. Supreme Court earlier this summer ruled in favor of baker Jack Phillips in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the losing side should have learned not to treat someone, particularly Phillips, differently because of his or her religious beliefs. But these unelected state administrators didn’t, and they’ve set their sights on the Lakewood, Colo., baker again.
Unless a federal court intervenes, Phillips could find himself embroiled in another yearslong legal battle over his refusal, again, to create a cake with a message that violates his religious conscience. But Phillips and his legal team are ready.
Jeremy Tedesco, an Alliance Defending Freedom (ADF) attorney representing Phillips, said Colorado’s latest attempt to coerce Phillips into compliance with secular sexual ethics defies state law and demonstrates an animus toward the baker’s Christian beliefs, not his business practices.
“For the state to turn around less than a month after [the Supreme Court] ruling condemning them for that hostility and going after Jack again on the same basis is just another act of hostility,” Tedesco said. “They just won’t leave this man alone.”
The court’s 7-2 decision in early June adjudicated a 2012 discrimination complaint against Phillips for not creating a cake celebrating a same-sex marriage. The latest charge involves a cake order that celebrates transgenderism.
To avoid another six-year legal morass, ADF on Aug. 14 filed a lawsuit asking the U.S. District Court for the District of Colorado to impose a preliminary and permanent injunction against further application of the portion of the Colorado nondiscrimination statute used against Phillips. The suit names as defendants Colorado Civil Rights Division Director Aubrey Elenis, all seven Civil Rights commissioners, Attorney General Cynthia Coffman, and Gov. John Hickenlooper.
Hickenlooper, a Democrat, apparently had not read the lawsuit two days later because his interview Thursday with Colorado Public Radio contained all the requisite pro-LGBT talking points about not denying Coloradans goods and services.
“I don’t think there should be bias involved in who you choose to serve and who you don’t,” he said.
But a caveat to Colorado’s nondiscrimination law allows just that. Proprietors can reject orders deemed offensive, including LGBT-affirming messages. The commission upheld that standard by finding no fault against three bakers who refused to create cakes they believed conveyed anti-gay messages. Yet the commission did not afford Phillips the same discretion.
Elenis and the commission, Tedesco told me, acted in bad faith by “taking the bait” of a suspected serial harasser who filed the most recent complaint against Phillips in 2017. Autumn Scardina phoned Masterpiece Cakeshop to order a birthday cake. But when he told the shop employee the cake should be pink on the inside and blue on the outside to celebrate his gender transition, the employee declined to take the order. The cake would have proclaimed that humans created by God can change their sex—a message Phillips, because of his deeply held religious beliefs, could not convey.
On June 28, just three weeks after the Supreme Court ruled in the first complaint, Elenis found probable cause of “unlawful discrimination” by Phillips in the second complaint. In her ruling, Elenis ignored the high court’s admonition that the commission acted with “religious hostility” and “animus” toward Phillips and, instead, cited Justice Anthony Kennedy’s affirmation of LGBT nondiscrimination laws.
Phillips and his attorneys suspect Scardina is behind numerous objectionable cake orders placed at Masterpiece Cakeshop since 2012. These orders included cakes celebrating Satan and requiring illustrations of explicit sex acts.
Attempts by religious liberty advocates to reform the Colorado Civil Rights Commission through the state legislature this year failed along party lines, said Debbie Chaves, executive director of Colorado Family Action. The state Senate also attempted to balance the commission’s due process discrepancies that currently weigh in favor of the complainant but were not successful. However, the Senate did manage to reform the commission’s reappointment policy that had kept Heidi Hess on the commission even after the Supreme Court rebuked her after she made odious remarks about Phillips’ faith.
Jeff Hunt, director of the Centennial Institute at Colorado Christian University, noted that people of faith do not want to treat homosexual and transgender persons like second-class citizens, but he believes anti-Christian bigotry foments the repeated legal attacks against Phillips, a situation he finds disheartening.
“You can have [LGBT] protections,” Hunt told me. “But you also have to, as a society, find those carve outs that say, ‘We’re not going to force people to be a part of things they don’t want to be a part of.’”