When Masterpiece Cakeshop won its case on June 4, 2018, in the U.S. Supreme Court over refusal to bake a cake celebrating a gay wedding, many people assumed it was a win for religious freedom and free speech (the right not to have government compel your speech).

The cake shop did not refuse to sell cakes to gays, it simply didn’t want to prepare a custom cake with a specific message on it which it believed was contrary to the owner’s religious beliefs. But as we covered at the time, the Supreme Court decision was tailored to bias against the cake shop in the Colorado administrative process. Justice Kennedy authored the 7-2 opinion:

“The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” the majority opinion said.

“While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other member of the public, the law must be applied in a manner that is neutral toward religion.”

The decision left an opening large enough for the state arguably to go after Masterpiece Cakeshop or others provided the process was fair. That would await the next test case.

The next test case was set up a year before the Supreme Court decision.

On June 26, 2017, the very same day the Supreme Court agreed to take the Masterpiece Cakeshop case, Attorney Autumn Scardina called  the cake shop to request a “gender transition” cake. The cake shop declined, so on July 20, 2017, Scardina filed a complaint, with the Colorado Civil Rights Commission:

I believe I was unlawfully discriminated against because of my protectcd class(es) in violation of the Colorado Anti-Discrimination Act (CADA). 1.) On or about June 26. 2017, I was denied full and equal enjoyment of a place of public accommodation. Specifically, the Respondent refused to prepare my order for a cake with pink interior and blue exterior, which I disclosed was inttended for the celebration of my transition from male to female. Furthermore. 1hc Respondent indicated to me that to prepare such a cake would be against their religious beliefs. 2.) I believe I was discriminated against because of my protected class(cs).

It appears that Colorado waited for the Supreme Court ruling in the wedding cake case, because it was not until June 28, 2018, that the Colorado Civil Rights Commission issued a finding of probable cause. The agency provided the following factual recitation of what happened:

Under the authority vested in me by C.R.S. 24-34-306 (2), I conclude from our investigation that there is sufficient evidence to support the Complainant’s claim of discrimination. As such, a Probable Cause determination is hereby issued….

On or about June 26, 2017, the Complainant contacted the Respondent to order a cake and spoke with Debi Phillips (“D. Phillips”) (female), Co-Owner. The Complainant contends that she requested a custom birthday cake. D. Phillips acknowledges that the Complainant called and requested a custom cake, but asserts that based on their conversation, it was not clear that she was requesting a birthday cake. D. Phillips states that she solicited details about the Complainant’s wishes for the cake, including the date it was needed, the size, and desired flavors. The Complainant responded that she would need the cake by July 6, 2017, needed it to serve 6-8 people, and wanted the cake to have a blue exterior and a pink interior. The Complainant asserts that she “explained that the design was a reflection of the fact that [she] transitioned from male-to-female and that [she] had come out as
transgender on [her] birthday.” D. Phillips states that after the Complainant informed her that the cake was “to celebrate a sex-change from male to female,” she instructed the Complainant that the Respondent would not make the requested cake. At this point, the phone call ended….

Shortly thereafter, the Complainant called the Respondent again and spoke with Lisa Eldfrick (“Eldfrick”) (female), Service Representative. The Complainant states that she told the person who answered, Eldfrick, that she had just called and was
disconnected. She asserts that she told Eldfrick that she “was calling to order a birthday cake and that [she] wanted it to be blue on the outside and pink on the inside because [her] birthday was the same day as the day [she] came out as transgender.” Eldfrick asserts that she informed the Complainant that the Respondent would not fulfill this request. The evidence indicates that the Complainant questioned the Respondent’s policies and that Eldfrick ended the phone call without responding to the Complainant’s inquiries. Jack Phillips (male), Owner, who admittedly makes all final business decisions for the Respondent, affirms this position, contending that the Respondent will not create custom cakes that address the topic of sex-changes or gender transitions. He contends that he will not support a message that “promote[s] the idea that a person’s sex is anything other than an immutable God-given biological reality.”

The Respondent asserts that it declines to make more than two to five custom cakes per week, due to time constraints. The Respondent also states that it refuses to make custom cakes for other expressions that it deems to be objectionable.

The agency then found probable cause, citing the language quoted above from the Supreme Court decision:

The Complainant is a member of protected classed based on her sex (female) and transgender status (gender identity). On or about June 26, 2017, the Complainant sought goods and service from the Respondent by requesting a custom cake. The
Complainant was a qualified recipient of the services by the Respondent. An employee of the Respondent initially indicated that she was willing to assist the Complainant with this request, however, when the Complainant requested a blue exterior and a pink interior, explaining that the design reflected the Complainant’s gender transition from male to female, the Respondent refused to provide the requested service to the Complainant. The Respondent asserts that it will not provide the service of creating cakes that “promote the idea that a person’s sex is anything other than an immutable God-given biological reality.” The evidence thus demonstrates that the refusal to provide service to the Complainant was based on the Complainant’s transgender status. A claim of discriminatory denial of full and equal enjoyment of a place of public accommodation has been established. As asserted by the Supreme Court, “It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions are offered to other members of the public.” Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. _ (2018).

Alliance Defending Freedom, which successfully litigated the prior case, has filed suit.

In a press release ADF writes, Hostility unabated: Colorado seeks to punish cake artist Jack Phillips again:

Although the U.S. Supreme Court ruled in June that Colorado cannot treat cake artist Jack Phillips differently than others, state officials have continued to do just that in response to a more recent complaint filed against him. Alliance Defending Freedom attorneys representing Phillips and his cake shop filed a federal lawsuit late Tuesday against those officials for doubling down on their anti-religious hostility.

On June 26, 2017, the same day that the Supreme Court agreed to take up Masterpiece Cakeshop v. Colorado Civil Rights Commission, an attorney asked Phillips to create a cake designed pink on the inside and blue on the outside, which the attorney said was to celebrate a gender transition from male to female. Phillips declined the request because the custom cake would have expressed messages about sex and gender identity that conflict with his religious beliefs. Less than a month after the Supreme Court ruled for Phillips in his first case, the state surprised him by finding probable cause to believe that Colorado law requires him to create the requested gender-transition cake.

“The state of Colorado is ignoring the message of the U.S. Supreme Court by continuing to single out Jack for punishment and to exhibit hostility toward his religious beliefs,” said ADF Senior Vice President of U.S. Legal Division Kristen Waggoner. “Even though Jack serves all customers and simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held beliefs, the government is intent on destroying him—something the Supreme Court has already told it not to do. Neither Jack nor any other creative professionals should be targeted by the government for living consistently with their religious beliefs.”

The Introduction to the Complaint (pdf.)(full embed below) argues that the cake shop was targeted by the claimant/lawyer and Colorado (emphasis added):

1. The U.S. Constitution stands as a bulwark against state officials who target people—and seek to ruin their lives—because of the government’s anti-religious animus. For over six years now, Colorado has been on a crusade to crush Plaintiff Jack Phillips (“Phillips”) because its officials despise what he believes and how he practices his faith.1 After Phillips defended himself all the way to the U.S. Supreme Court and won, he thought Colorado’s hostility toward his faith was over. He was wrong. Colorado has renewed its war against him by embarking on another attempt to prosecute him, in direct conflict with the Supreme Court’s ruling in his favor. This lawsuit is necessary to stop Colorado’s continuing persecution of Phillips.

2. Phillips is a Christian and expert cake artist who owns and operates a small family business, Plaintiff Masterpiece Cakeshop Incorporated (“Masterpiece Cakeshop”). Both Phillips and Masterpiece Cakeshop serve everyone. All people—no matter who they are, what they believe, or what protected characteristics they have—are welcome in Phillips’s shop and may purchase anything available for sale. But as a devout man of faith, Phillips cannot create custom cakes that express messages or celebrate events in conflict with his religious beliefs.2 When a customer asks him to create such a cake, he cannot do it, no matter who requests it. Conversely, when someone asks Phillips to design a cake expressing a message or celebrating an event that is not contrary to his faith, he will create it, no matter who requests it. For exercising his faith this way, Colorado has doggedly pursued Phillips, turning his life upside down.

* * *

5. After six grueling years, the Supreme Court vindicated Phillips in a 7-to-2 decision. It declared that Colorado acted with “clear and impermissible hostility toward [his] sincere religious beliefs.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729 (2018) (“Masterpiece”). The Supreme Court held that the state manifested its anti-religious hostility by “disparag[ing]” Phillips’s religion, “describing it as despicable,” and enforcing a double standard that harshly punishes Phillips while exonerating other cake artists who similarly decline requests for cakes with messages they deem objectionable. Id. at 1729-31.

6. In the meantime, some Colorado citizens, emboldened by the state’s prosecution of Phillips, have targeted him. On the same day that the Supreme Court announced it would hear Phillips’s case, a Colorado lawyer called his shop and requested a cake designed with a blue exterior and pink interior, which the caller said would visually depict and celebrate a gender transition. Throughout the next year, Phillips received other requests for cakes celebrating Satan, featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use. Phillips believes that some of those requests came from the same Colorado lawyer.

7. Phillips declined to create the cake with the blue and pink design because it would have celebrated messages contrary to his religious belief that sex—the status of being male or female—is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed. A mere 24 days after Phillips prevailed in the Supreme Court, Colorado told him that he violated Colorado law by declining to create that cake. In so doing, the state went back on what it told the Supreme Court in its Masterpiece briefing—that its public accommodation law allows Phillips to decline to create cakes with pro-LGBT designs or themes. Br. for Resp’t Colo. Civil Rights Comm’n at 35, Masterpiece, 138 S. Ct. 1719 (2018) (No. 16-
111) (U.S. Oct. 23, 2017). And by citing the Masterpiece decision as support for the state’s renewed efforts to harass Phillips, Colorado ignored the Supreme Court’s numerous references to the state’s anti-religious bias and hostility.

8. It is now clear that Colorado will not rest until Phillips either closes Masterpiece Cakeshop or agrees to violate his religious beliefs. The state’s continuing efforts to target Phillips do not just violate the Constitution; they cross the line into bad faith. This Court should put a stop to Colorado’s unconstitutional bullying.

The Complaint focuses on the message that was demanded of the cake shop:

184. After the lawyer disclosed the design and message of the desired cake, Masterpiece Cakeshop politely declined the request because Phillips cannot in good conscience express the messages that the cake would have communicated (i.e., that sex can be changed, that sex can be chosen, and that sex is determined by perceptions or feelings) or celebrate the event that the cake would have commemorated (i.e., the announcement of a change from one sex to the other based on perceptions and feelings).

185. Phillips would not create a custom cake that expresses those messages for any customer, no matter the customer’s protected characteristics.

186. Masterpiece Cakeshop did not decline this request because of the customer’s transgender status or other protected characteristic. Rather, it declined the request because of the messages that the cake would have expressed.

187. When Masterpiece Cakeshop told the lawyer that it could not create the requested cake, the lawyer asked the shop’s representative to repeat that statement so that someone listening over the speaker phone could hear it.

188. Masterpiece Cakeshop offered to create a different custom cake for the lawyer or to sell the lawyer any of the pre-made items available for purchase in the shop.

* * *

199. The Division acknowledged Masterpiece Cakeshop’s position that it declined to create that custom cake because Phillips did not want to express through his cake art “the idea that a person’s sex is anything other than an immutable God-given biological reality.” Scardina v. Masterpiece Cakeshop Inc., Charge No. CP2018011310, at 3 (Colo. Civil Rights Div. June 28, 2018) (Ex. A).

200. But the Division ignored Masterpiece Cakeshop’s message-based reason for declining to create the cake; instead, the Division concluded that Masterpiece Cakeshop declined to create the cake “based on [the lawyer’s] transgender status.” Scardina v. Masterpiece Cakeshop Inc., Charge No. CP2018011310, at 4 (Colo. Civil Rights Div. June 28, 2018) (Ex. A).

* * *

212. As a general matter, if a discrimination complaint is filed against a Colorado cake artist for declining to create a custom cake expressing a message he or she opposes, Colorado defers to the cake-shop owner’s message-based objection and, consistent with what state law requires, does not “presume” that the owner discriminated against the customer based on his or her protected status. Colo. Rev. Stat. § 24-34-305(3).

213. But if a discrimination complaint is filed against Phillips for declining to create a custom cake expressing a message that conflicts with his faith, Colorado rejects his message-based objection and presumes that he discriminated against the customer based on his or her protected status

How does this end?

In the Supreme Court, again.

With Justice Kennedy off the bench, and assuming Kavanaugh is confirmed, the Court will not be constrained to reach a wishy-washy consensus decision that leaves huge holes in constitutional protections against compelled speech that violates religious beliefs of the compelled speaker.

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Masterpiece Cakeshop Federal Court Complaint (Gender Transition Case) by Legal Insurrection on Scribd

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