Masterpiece Cakeshop Sued A Third Time, Ostensibly Over “Gender Transition” Cake
“They want to secure the right to force another person to operate against their wishes, particularly religious beliefs.”
Masterpiece Cakeshop in Colorado is once again the target of a lawsuit. This time, the family-run bakeshop is being sued not by Colorado but by the complainant, Attorney Autumn Scardina, in the dropped suit filed by the state.
Professor Jacobson provided a summary of the repeated attacks on this small business.
The second attempt by the State of Colorado to punish Jack Phillips and his Masterpiece Cakeshop has come to an end, once again, with a victory for the baker.
Round 1 was the baker’s refusal to create a custom cake for a same-sex marriage, on the ground that it violated the baker’s Christian faith to create a message celebrating same-sex marriage.
The baker also refused to create Halloween cakes and other cakes whose messages he viewed as religiously unacceptable. He didn’t refuse to sell to LGBT people, he just didn’t want to have to create the message. He won the case in the Supreme Court, mostly on procedural grounds with the court not reaching the larger constitutional issues of freedom of religion and freedom of speech (to avoid compelled speech).
Round 2 was when the State went after him because he refused to create a cake celebrating a transgender transition. We covered the lawsuit in Colorado goes after Masterpiece Cakeshop again – this time over “gender transition” cake:
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….
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…
Round 3 now appears to be in progress: Scardina has now filed suit against the bakery and is seeking “damages on claims of Colorado Anti-Discrimination Act violations and deceptive and unfair trade practices.”
Three months after Colorado settled a discrimination case with the baker who refused to make a cake commemorating a gender transition, the transgender woman who was denied the cake sued the bakery herself.
In July 2017, Denver-based attorney Autumn Scardina asked Masterpiece Cakeshop owner Jack Phillips, a devout Christian, to bake her a cake. Phillips refused, according to Scardina’s lawsuit, because she is transgender.
In addition to violating her civil rights, Scardina claims the bakery falsely advertised “they would be happy to provide a variety of baked goods, including birthday cakes, to all members of the public, including LGBT individuals.”
Scardina says she attempted to commission a pink cake with blue frosting, telling a bakery employee “the requested design had personal significance for her because it reflects her status as a transgender female.” She says she was then told the cake shop did not make cakes for “a sex change celebration.”
. . . . In March, Phillips and the state agreed to drop their cases against each other. At the time, state Attorney General Phil Weiser said while he would no longer use state resources to investigate Phillips, Scardina was free to pursue her own lawsuit.
Scardina seeks damages on claims of Colorado Anti-Discrimination Act violations and deceptive and unfair trade practices. She is represented by John McHugh of Denver-based firm Reilly Pozner.
Watch Masterpiece Cakeshop owner Jack Phillips discuss this third lawsuit against his small business on Fox News:
This is not about a cake, it’s not even about LGBT “rights,” it’s about, as Nicole Russell writing for The Washington Examiner notes, securing “the right to force another person to operate against their wishes, particularly religious beliefs.”
A third lawsuit, with slightly different details, but again accusing Phillips of discrimination, is an exercise in harassment, and demonstrates just how little Scardina and her supporters care about equality. Gays and lesbians can marry, people can transition to another gender and be accepted by society, and either event can be celebrated publicly, but it’s not enough for them. They want to secure the right to force another person to operate against their wishes, particularly religious beliefs.
How do I know? Because Phillips is not the only baker in the Denver area. There are likely dozens, maybe even hundreds, of bakers in Colorado who would willingly craft cakes specifically celebrating transgender transitions. Some would probably even do it for free, but that’s not the point.
It’s not about the cake. Scardina wants the religious Right to bend to the wishes of the progressive Left, even in the most benign spaces, like bakeries. They want to make an example of Phillips. A second lawsuit, Scardina hopes, will accomplish this goal.
This ongoing lawfare against a Christian baker and his small business seems to be ultimately, if not solely, part of the progressive left’s continued assault on the First Amendment.
Here is our previous coverage of the previous lawsuits filed against the bakeshop:
- Supreme Court Will Hear a Same-Sex Wedding Cake Case
- Masterpiece Cakeshop Theater
- Supreme Court Ruled in Favor of Colorado Baker Who Refused to Bake Wedding Cake for Gay Couple
- Colorado goes after Masterpiece Cakeshop again – this time over “gender transition” cake
- Masterpiece Cakeshop wins again – CO drops prosecution for refusal to bake ‘gender-transition cake’
Donations tax deductible
to the full extent allowed by law.
This sort of thing is why people hate lawyers. There really should be some controls around lawyers to stop people like Attorney Autumn Scardina making up fake cases-and-controversies then operating within the system to promote them.
The judge should rule it frivolous.
I agree. But, will such a ruling shut down the harassment, or will it be brought again from a different angle?
In Colorado, a frivolous suit will have a serious penalty for the attorneys who brought it.
Maybe Autumn Scardina is cut from the same cloth as Avenatti?
Tort reform would go a long way at reducing this kind of action. But don’t hold your breath it will happen in DC. Maybe states like TX or GA will be examples for others. But at the federal level it’s hard to image lawyers whose goal is to earn millions on the periphery of the legal system smack dab in the political system being willing to take money away from the “personal injury” type money making industry.
Lawyers are for the most part just hired mercenaries. And while law is imperfect, it is still better than what it replaced. Really, isn’t law about trying to create a framework to improve civilization?
This is open Lawfare. Instead of using firearms the leftists have weaponized the Courts.
He needs to file for a no contract order against this so called “attorney”.
Next file a motion to dismiss with prejudice citing “Res judicata”.
It’s not res judicata. No court has yet decided the question.
Tell us again why the statement “Gibson’s is racist” is not defamatory. Also tell us again why no Federal judge would intervene in the Florida 2018 recounts. — They did.
The statement “Gibson’s is not racist” is not defamatory, and had that been all Oberlin said the suit would have been thrown out.
And which federal judge intervened in a state election? On what grounds?
While you’re at it, tell us which court has already decided the questions at issue here.
Can he file a complaint with the State’s licensing authorities–this seems like an abuse on the part of the “attorney-victim”.
When is oh so courageous Autumn Scardina going to sue a muslim bakery who refuses service like these?
The target is Christianity and its Leader.
Sobran said it well: Christ makes people lose sleep in ways that others do not. His words and teachings touch a core that others never do. That the world bristles is a compliment. Jesus Christ must be taken seriously. You may be mad, or sad, or glad, but no one goes away from Jesus Christ unchanged or merely “informed.” His words have an authority that demands a response. The world seems to know this and thus bristles. Some love Him and some hate Him, but few are neutral.
Why is this so? Could it be that Christ really is who He says He is: Lord and God? Could it be that it is His voice echoing in every conscience? This strange, irrational, excessive fear; this anger toward and even hatred of Christ attests to the truth of His claim to be the one whom we will either love or hate. One cannot serve two masters (Matthew 6:24).
from Sobran Examines Hatred of Christ: Disbelievers can be His best witnesses,
Question: is this suit going through the same judge who did the last two?
The first case went to the Supreme Court and the second case never got to any judge.
The law will never be straightened out until freedom of association comes back, against the mistake in the civil rights law. It ought to have been freedom of association except in monopoly markets, to implement civil rights.
Monopoly would include threats of violence against those going against some rule.
A long-standing observation of Richard Epstein.
The 1964 Civil Rights Act, among others. got this nonsense started. I agree with you 100%.
Not really. Well, not at all. This isn’t a cultural or “systemic” tort (using the popular and current SJW term).
He is not challenging the civil rights laws, and they are not at issue here. I agree that they violate the right of freedom of association, and that if they had not been enacted this case couldn’t even start, but this case isn’t asking the courts to reexamine Heart of Atlanta or any related precedent.
Jack Phillips is happy to comply with all relevant laws. The only questions here are (1) whether he is in fact discriminating on the basis of sexual orientation (he isn’t); and (2) whether making custom cakes is protected speech (it is).
If he had refused to make the plaintiff any cake at all, because of who she is, then he’d be discriminating on the basis of her sexual orientation. But he didn’t.
The first amendment issue becomes clear when one asks exactly why she wants this cake (from anyone, not just him). She wants it not because it tastes good but to make a statement. That’s speech. And the first amendment says no law can force him to make that statement if he disagrees with it.
The trouble is it’s argued under religious freedom, where it should be freedom of association.
Freedom of association lost in Heart of Atlanta. Public Accommodations can be forced to do business with people they don’t want to. Arguing otherwise will get you nowhere.
This case is entirely about the freedom of speech. Religion only enters into it because Jack Phillips’s objections to the message he was asked to convey happen to be religious, and because the CO civil rights commission went after him because of that.
The Supreme Court made no decision about whether the freedom of association prohibited anti-discrimination laws in Heart of Atlanta. It just found as follows: “We, therefore, conclude that the action of the Congress in the adoption of [Title II of the Civil Rights Act of 1964] as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years.”
It’s very clear that Autumn Scardina is a nasty person and is targeting Mr. Phillips in an effort not just to ruin his baking business, but to ruin his life.
From the bits and pieces I gather about who Scardina is, he/she/zim/zer is deliberately fomenting this case. He/she/zim/her has been recording calls, deliberately ordering cakes with obscene messages, and staging witnesses to build a case. This isn’t about Mr. Phillips refusing a reasonable, legitimate order for a cake, it’s about destroying a person whom Scardina wants destroyed.
It’s clear that the public needs to know who Scardina is and his/her/zix/zex agenda; I wish a news establishment would figure this out.
I guess we will have to depend on amateur pajama clad bloggers like LI and Power Line instead of classically trained professional journalists with the highest ethical standards.
I’d like a legal expert — Mr. Jacobson perhaps — to tell us whether there are any ethics rules associated with the sort of thing this attorney is doing here. Or are we all vulnerable to an attorney who finds a line of legal attack and decides to target us personally?
This is sort of a yes/no question. Is there any control that could be used to stop her (preferably in a way that makes her regret going this far, but even if not) or not?
This is the new left. Freedom of association, religion, and speech are not to be tolerated. The goal is to force us to do and say things that we’d never do on our own. I’m fairly sure we’ve seen this in the past and it’s never ended well.
Re GBM at 4:43pm 15 June: will one of you help me out with explanations or translations? Thank you from a non-attorney.
Res iudicata translates to essentially “the thing already judged/decided”. Once something has been adjudicated, it can not be tried again.
A lawyer would have to speak to whether that would be the case here. Logic would suggest that it would hold since it concerns the same action, but given a different offical plaintiff (Scardina rather than Colorado), logic might not work.
Res judicata is not applicable here. No court has ever decided that the plaintiff’s claim is incorrect.
1. No consideration paid, thus the damages are pure conjecture. The ‘order’ was never accepted.
2. The matter was previously decided. This is in fact true in an oblique manner, but the State of Colorado has decided that it will not take a hint and will destroy this man, bankrupt him, drive him insane, protest him, destroy his children and family until he …. commits suicide and his family surrenders.
1. The matter has not yet been decided.
2. The State of Colorado is not involved. It agreed to leave him alone, and it’s keeping its word.
I was explaining the meaning of the term, not the applicability.
You can only prod the elephant for so long. It will finally step on the midget.
“It will finally step on the midget.”
This. 1000X this.
And the longer this behavior from the legal profession is allowed to continue the more likely it is to happen.
Can Phillips sue Scardina for harassment? Seems that I keep seeing that name come up over and over in these cases against Phillips.
One area where people shouldn’t be hostile and demanding is food services. No matter how bad a dish is, I never send it back to the kitchen, for example. Food workers can do all sorts of things when the customer isn’t looking.
Interesting to me a non lawyer that Anti-Discrimination Act violations and deceptive and unfair trade practices haven’t been used against Facebook, Google, Twitter, etc etc…oh wait they are private companies and can do what they decide they want…but oh wait..wut!?!?
What anti-discrimination law do you claim they violate? Discriminating on the basis of political opinion is perfectly legal in most jurisdictions.
Although, interestingly, California is one of the few jurisdictions that does have a prohibition on certain forms of political discrimination by employers against employees. I think that will be an interesting issue to watch, especially with some creative lawyering as to the interaction with the California whistleblower laws (call the Attorney General first before calling Project Veritas?):
With regard to the social platforms, I think that the Pruneyard decision could be used to block them from discriminating on any basis that does not legitimately violate the terms of service.
Pruneyard seems to only apply to shopping malls in California.
But don’t those social media platforms loose their copyright safe harbor from digital millennial copyright act if they edit content? I realize that they can enforce community standards, but no one knows what their standards are. For example, the YouTuber, Pewdiepie, has more subscribers than anyone, but even he, has no clue of what the standards are. If the standards are not clear, then discrimination laws come into play as far as I know.
No, they don’t.
Nobody has to know. The standards are whatever the platform likes, and it can decide them ad hoc.
No, they don’t. Anti-discrimination laws are in play regardless. No platform can turn down customers because of their race, sex, etc. In jurisdictions where sexual orientation is a prohibited ground for discrimination, they can’t turn people down for that either. Political opinion is not such a ground. But none of this is affected by the platform moderating content as it pleases.
But political is not the motive. The motive is that the baker wants to exercise his First Amendment right to practice his religion, and Scardina wants to prevent him from doing that. If it were based on politics, then a Muslim bakery would have also been targeted.
Your problem is that you are arbitrarily deciding that the unequal treatment people are receiving is not based on animus based on one or more of religion, race, and gender, when the overwhelming evidence of who and what is censored / regulated says otherwise. Your argument just cost Oberlin College 33 million, and it’s going to lose more.
You seem to be confused. The topic here is the social media platforms, and why they can’t be gone after the way Phillips was. The answer is because the (false) case against Phillips is that he discriminated against the plaintiff for her sexual orientation, which happens to be illegal in Colorado. A similar case against Facebook, etc., could not be made, because they are discriminating on the basis of political opinion, which is legal almost everywhere.
The first amendment right that Phillips is seeking to exercise here is not that of religion but of speech, specifically the right not to convey a message he disagrees with. That his objection to that message is motivated by his religion isn’t directly relevant.
The motives of the CO civil rights commission for going after him were properly scrutinized and condemned by the Supreme Court. But the motives of a private plaintiff are nobody’s business. A private plaintiff has every right to choose whom to sue on the basis of their religion, race, or whatever. If you want to see a Moslem bakery sued, go set up a case and sue them yourself. You don’t have to be gay to allege discrimination on the basis of sexual orientation.
Milhouse…they aren’t just discriminating based on political opinion…if you have been paying attention you might have noticed they are also doing it based on religious beliefs, race and sex. Not to mention the deceptive and unfair trade practices…..
No, they’re not. Whom have they banned for their race, sex, or religion?
The left has really started to ramp up the lawfare approach. They don’t really want to win in some or perhaps most cases. They simply want to bankrupt people. Make it financial unbearable to dissent.
That’s at the root of all the aggressive “investigations” seeking someone to prosecute somewhere within three degrees of Trump, too.
Tort reform is badly needed. But not going to happen.
….and further some places they serve it IS against the law to discriminate based on political opinion…
The bakery needs to standardize the decorations to offer for cakes and if the purchaser wants something different they can buy a plain cake and add their own decorations.
These would be a good start:
Marriage with Man+Women- bride+groom
Man + women = not a cake Phillips will make. ????
However, the bakery’s claim to fame is his high quality custom cakes, so he wouldn’t want to limit himself to standardized cakes.
The whole point of Phillips’s service is custom cakes. If he took up your suggestion he’d be out of business.
I assume the actual object of these lawsuits is no longer “justice”, however the plaintiffs define it, but bankrupting the cake shop with defense costs.
Important distinction –
He is not refusing to because of sexual orientation
He is not refusing to because of being transgender
Both of which may be illegal discrimination (or may not be).
He is refusing to commemorate an event and/or behavior which is legal discrimination.
Exactly. He’s perfectly willing to make any cake for these customers, so long as it carries a message he approves of, or no message at all.
It doesn’t have to be about freedom of religion or freedom of association. If we are talking about a product that is a custom creation that is made only after a contract is signed, then we are talking about the Freedom to say No to an offer of employment – A person’s reasons for saying NO are totally irrelevant to one’s right not to be coerced into a job.
Not if he’s providing a public accommodation.
I admire Jack Phillips for standing up for his principles. I probably would have just told her I’d be happy to make her cake, and the price is $5000, payable in advance for a custom cake.
And then have an “accident” delivering it, one hour before the festivities
Then she’d find out what you’re charging other customers for the same work, and allege that you charged her more because of her sexual orientation.