Masterpiece Cakeshop On Trial For Refusing To Bake A “Transition” Cake
The litigation against Jack Phillips hasn’t subsided after his Supreme Court victory. Now he’s on trial for refusing to bake a cake celebrating gender transition. The Bake Shop attorney says “Masterpiece Cakeshop has regular customers who are transgender. The issue has to do with the message …. This lawsuit isn’t about discrimination, it’s about the freedom to disagree.”
Masterpiece Cake Shop famously won a U.S. Supreme Court case over it’s owner Jack Phillips’ refusal to bake a cake that celebrated a same-sex marriage. Phillips said while he would sell anyone a cake, requiring him to put lettering on it celebrating the marriage violated his religious beliefs and was unconstitutional.
The Supreme Court ruled in his favor, though it didn’t announce any sweeping principles of law.
But it wasn’t over, the cakeshop was sued again by the State of Colorado after the same person requested a “gender transition” cake, Colorado goes after Masterpiece Cakeshop again – this time over “gender transition” cake.
The state eventually dropped the case, Masterpiece Cakeshop wins again – CO drops prosecution for refusal to bake ‘gender-transition cake’, but the woman sued privately, Masterpiece Cakeshop Sued A Third Time, Ostensibly Over “Gender Transition” Cake.
That was the last time we covered the attacks on the cakeshop, but that third case just popped up on the news because it is in trial.
Courthouse News reports on some details:
Three years after the U.S. Supreme Court sided with Masterpiece Cakeshop — albeit narrowly — in a case over a same-sex wedding cake, a transgender woman took the Christian bakery back to a Denver court Monday after the bakery refused to make a birthday cake commemorating her gender transition….
“Why not just bake the cake? That’s a question Jack Phillips gets asked a lot. Avoid years of litigation, avoid the death threats. Just make the cake. But Jack Phillips sees himself as an artist, and the cake as an expression of his soul,” explained Phillips’ attorney Sean Gates of the firm Charis Lex. “Jack Phillips’ cakes convey a message.”
The conservative Christian organization Alliance Defending Freedom is also supporting Phillips’ defense.
Showing a slideshow of racecar, cat and basket-shaped cakes, Gates said, “Even though he creates a lot of cakes, none of them are the same. When he makes a cake, he finds out what that person loves so he can create the right message for the right time.
“But Jack Phillips is a Christian and his religion affects what he can create,” Gates continued. “Jack Phillips will make cakes for all people, but he cannot make cakes for all messages.”
Phillips says that over the years he has declined to make cakes celebrating Halloween, alcohol, racism and marijuana as well as ones with demeaning messages.
“Masterpiece Cakeshop has regular customers who are gay, Masterpiece Cakeshop has regular customers who are transgender. The issue has to do with the message,” Gates argued. “The evidence will show that if Jack Phillips bakes that cake that it would mean he agrees a gender transition is something to celebrate. This lawsuit isn’t about discrimination, it’s about the freedom to disagree.”
Jones is presiding over the four-day trial, which is being held remotely in light of the Covid-19 pandemic.
CBS Denver reports that the plaintiff testified she was calling Phillips’ “bluff” by demanding the transition case:
On Monday, during a virtual trial being conducted by a state judge in Denver, Scardina said Phillips had maintained that, as a Christian, he would sell any other type of product but opposed making the gay couple’s wedding cake because it involved a religious ceremony.
She said she called Phillips’ Masterpiece Cakeshop to place the order after hearing about the court’s announcement because she wanted to find out if he really meant it.
When her lawyer Paula Greisen asked whether the call was a “setup,” she said it was not.
“It was more of calling someone’s bluff,” she said.
This never was about the cake or discrimination. It’s about compelling speech.
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Comments
Always remember the ‘rules’.
Liberals are allowed to sue anybody, at any time, for anything.
Conservatives are never allowed to sue anybody because MUH PRIVATE COMPANY.
There is a cause of action called “malicious prosectution’ (also known as ‘abuse of process’).
https://www.findlaw.com/injury/torts-and-personal-injuries/malicious-prosecution.html
That is just not true. The rules are the same for both sides. Nobody can sue a private company on freedom of speech grounds, because they’re not bound by the first amendment, and because the first amendment actually protects their right to refuse to express messages they disagree with.
And nobody can sue anyone for political discrimination, except in those places that have made a law against it. In those places conservatives can sue just as easily as liberals can.
If you are correct wheelhouse how do you explain the fact that nine years on the cake shop is still fighting the fact that they don’t want to serve certain people?
That is not a fact. If it were a fact Phillips would be in the wrong and he’d have lost years ago.
He’s still fighting because this plaintiff has chosen to sue. He/she/it has that right, and the defendant therefore has to fight back. That’s how it works. The law is clearly on his side, so unless the plaintiff can come up with evidence that his real reason for refusing the commission is that he has a problem with its identity, it will lose.
But in the meantime, he has to hire lawyers who also have to eat, defend, and if necessary appeal. It’s using the legal system to intimidate and harass.
“plaintiff can come up with evidence that his real reason for refusing the commission is that he has a problem with its identity, it will lose.”
And if Plaintiff cannot present such evidence in its initial motion, the court should summarily dismiss. Plaintiff should not be allowed to use the court to harass or conduct a fishing expedition on a defendant.
True. How else could it work? But exactly the same thing would happen if he were a leftist and some right-wing nut were pursuing a frivolous suit against him. Suppose someone from the Phelps family had ordered a cake saying “God Hates Faggots”, and when he refused they had sued him claiming it was because of their religion. He’d have to defend himself too. That’s just how it is, and it’s not fair, but it applies equally to both sides.
Claims that this wouldn’t happen the other way are exactly as wrong as claims that the police treat black criminals worse than white ones, that white shooters get to surrender while black ones get killed. Which we all know isn’t true. Well, you’re doing the same thing.
“That’s just how it is, and it’s not fair, but it applies equally to both sides.”
I’m not disagreeing with you. I’m just pointing out that it can and is being abused. There’s a whole community that is attempting to cancel people who disagree with them – to hurt them and intimidate the rest of us to get in line. If I’m on the receiving end, 30,40,50 people could all decide to sue me in a short period of time – the legal equivalent of a DDOS attack.
Though I know it is highly unlikely, it would be nice if a Judge could occasionally say “Enough!” when this kind of crap takes place.
A Christian activist did sue a bakery that refused to provide him with the pair of cakes he ordered. The nature of the icing is disputed – decoration, Bible verses, God hates faggots, I don’t recall. Pretty sure it wasn’t the latter, but it might as well have been.
The courts ruled that offensive requests can be refused. The problem is what’s offensive to a Christian differs to what’s offensive to a Leftist court or an LGTP activist. In practice refusing and Left or LGTP types is dangerous, but refusing Christians is generally safe, despite what the law states.
“The rules” are not the same for both sides. All of the groups that receive invented non-discrimination protection are liberal ones. The Courts who that illegal immigrants, gays, trans, get special protection, often overruling the actual law.
There is no such special consideration for being a small business owner or a fat person, those are the wrong types of victims.
Well, duh! “Nothing to see here, folks, move along!” Thank you for your deep insight and profound wisdom.
Agreed Milhouse, the real question is whether or not its a frivolous lawsuit. In which case does the American system allow to award costs? It seems to me that the trans person suing is ‘attacking’ on the same basis as the previous lawsuit and therefore on the face of it is frivolous.
““Why not just bake the cake? That’s a question Jack Phillips gets asked a lot. Avoid years of litigation, avoid the death threats. Just make the cake.”
He should make the cake. Then in blue icing on top, he should write,
“This inscription has been removed for violating our community guidelines.”
Because MUH PRIVATE COMPANY.
He can do that, but the customer won’t pay for it.
Or he can just do what he has done, and turn the commission down. The law as it stands is on his side. No change in law or in jurisprudence is needed for him to prevail in this lawsuit.
The problem is he is being maliciously harassed via the legal system. Defending yourself against these torts is quite expensive and mentally draining. I wish judges would be more forceful pushing back against this sort of abuse and use summary judgement with greater assertion. I understand there is an interest in trying to make sure people are not barred from legal redress via the courts, but sometimes lines must be drawn in the sand. Of course, where to draw the line? The alternative is to make the process much more streamlined, simpler, and less expensive. Right now, the judicial process is designed to try and force settlement between parties at odds, and hence the expense and complexity, which turns the advantage to well financed parties in a dispute, and hence hurts the poor, and even the ordinary person, from attaining legal redress.
However, the whole notion that one person can compel another to make something against their will was supposedly settled in 1865. Why we have to revisit this in 2021 is a mystery.
Because in 1964 the Supreme Court rejected that argument, and said that anti-discrimination laws do not violate the 13th amendment. That’s been the law of the land now for 57 years, so whether you think the court was right or wrong, there’s no mystery.
Mr Phillips doesn’t dispute the validity of anti-discrimination laws, and for all I know he may actively support them. His argument is simply that he has at all times been in full compliance with them, and the plaintiff’s complaint is false. He is completely willing to do business with the plaintiff, and make it any cake it likes, so long as that cake doesn’t express a message he finds offensive.
“Because in 1964 the Supreme Court rejected that argument, and said that anti-discrimination laws do not violate the 13th amendment. ”
The courts did not in 1964 rule that one person can compel another person to create something for them. It did not rule that just because I may be in a protected class, you must do what I say. If I do not make cakes celebrating lesbian weddings, you cannot compel me to make cakes celebrating lesbian weddings. If I make cakes, I will make a cake for you, but how it’s made, and when it’s made, is up to me and I am not obliged to follow anyone’s whimsical directives. The 13th amendment does not an has never been ruled as a mandate for servitude. You own your labor, or you do not own anything at all.
Yes, they did — if and only if the second person’s reason for refusing the commission is prohibited by law.
Nor do any courts today say that. There aren’t any “protected classes”; only protected grounds. If you are in business making cakes for the public, and I can prove on the balance of probabilities that your only reason for not making one for me is that I’m white, or that I’m black, or green, or whatever, then you must make it. It makes no difference which race it is that you’ve got a problem with.
Indeed, that is still true.
Unless your reason for refusing my directives is my race, or my sex, or my age over 40, etc. That’s what the supreme court said in 1964, and it specifically said this does not violate the 13th amendment. It may be wrong, but that is the explanation for how such cases can be brought.
You are grossly expanding the rulings you harken too, and in the process deny Defendant relief. Upon your logic, either the court then, or the court now is wrong. In any event, Defendant cannot be compelled to make a cake for Plaintiff by whatever criteria Plaintiff demands. Plaintiff cannot demand Defendant make a cake outside of normal business hours, for example, or produce that cake in any other fashion Defendant would not normally produce a cake. Defendant has control over the process and means of creation and manufacture, and cannot be compelled by Plaintiff to perform work to a means and specification not agreed to by Defendant.
Defendant is perfectly willing to make a cake for Plaintiff, but Plaintiff rejects this and instead demands Defendant make such a cake as per specifications demanded by Plaintiff to which Defendant objects and thus force Defendant into contract. This is the crux of the tort. Plaintiff cannot be compelled to comply, and there is no ruling from any court that says otherwise. Defendant is offering his services, but Plaintiff wishes full control over Defendant’s labor and intellectual capacity. Defendant declines to become a slave of Plaintiff.
“The law as it stands is on his side. No change in law or in jurisprudence is needed for him to prevail in this lawsuit.”
Pardon me if I point out that the plaintiff — a Colorado lawyer — might know something you don’t.
Could the baker bring science into this lawsuit as part of discovery? Or countersue? Get a DNA test of the plaintiff. Make them prove that the accuser has a Y chromosome, therefore cannot be an actual female. Keep it simple. Or just put up a sign that reads “We reserve the right to refuse service to anyone”.
He’s fighting for freedom of association, not religious freedom.
Civil rights law got it wrong. It ought to have been freedom of association except in monopoly (de facto or de jure) markets. Cake making is not a monopoly market, end of case.
Though a valid argument to any real constitutionalist, commercial freedom of association breathed its last at Lester Maddox’s lunch counter.
“Coexistence” and “tolerance” are impossible. Also, I doubt if the “person” suing is paying the tab. Crushing one’s religious tenants is the true target. They don’t understand that if they “win” they really didn’t because they didn’t change his mind or beliefs. They may cheer on the lions but they never could withstand the arena.
If a business can require you to wear a mask to enter and deny service if you don’t, then a business can refuse to make a cake for anybody for any reason. You can’t have one without the other. So which is it libtards?
No, that is not true. It seems that I have to point out for at least the twentieth time that all discrimination is legal except on grounds specifically prohibited by law.
It would be illegal for Mr Phillips to refuse to make a cake for someone because of their race. And since he is in Colorado it would be illegal for him to refuse to make a cake for someone because they’re gay or transsexual. He does not dispute that at all.
The point here is that he has not done that. He has no objection to making cakes for gay people, Satanists, or anyone else. He doesn’t care who his customers are. He doesn’t care about their race, their religion, their sexual orientation, or anything else.
What he refuses to do is make a cake that expresses a message he strongly disagrees with and finds offensive. He would happily make a cake for the first couple who sued him, celebrating any occasion but their “wedding”. He would happily make a cake for this plaintiff celebrating anything but his/her “transition”. He will happily make a cake for a Satanist, but not one that endorses Satanism.
This is not a freedom of religion case, it’s a freedom of expression case, which according to the Supreme Court gets a whole lot more protection. Forcing him to make the cake this plaintiff ordered would be exactly like forcing a black baker to make a cake with the lettering “KKK” and a depiction of a lynching.
So what is his basis for “freedom of expression”? Religion. The later is the foundation for the former. Yes, it is about “freedom of expression” but I contend that an unmentioned component fueling this is also religious hatred. You are right that in this present arena “religion” gets one nowhere.
No. Freedom of expression has nothing to do with religion, and is certainly not based on religion. Freedom of expression is the core American value, and according to the supreme court’s jurisdiction it is a lot more strictly protected than the free exercise of religion is. If this were a free exercise case Phillips would almost certainly have lost it long ago, since the law he was accused of violating is not directed at religious people, and applies to everyone.
all discrimination is legal except on grounds specifically prohibited by law.
Okay, but does the Constitution not protect freedom of association (de jure, if not de facto)? If a state legislates that I may not refuse service to someone because of their race, doesn’t the Constitution supersede that on First Amendment grounds?
(I understand full well that this is not how the courts have ruled, but then the courts also ruled it was fine and dandy for New London, CT to take Suzanne Kelo’s house away because tax revenue. I’m asking about the law as written and intended.)
Freedom of association isn’t in the constitution. It’s at best an unenumerated right protected by the ninth amendment, but it’s difficult to prove it. I don’t think any law has ever been struck down on ninth amendment grounds. So congress and the states are free to make laws that override it.
“It seems that I have to point out for at least the twentieth time that all discrimination is legal except on grounds specifically prohibited by law.”
As we have to continually point out that just because there is a law making something allowed or prohibited, doesn’t mean it is constitutionally justified.
That’s not the point. People like dave34952 are constantly asserting that discrimination is discrimination is discrimination, and that if any is illegal then all must be. And that’s just not true. The presumption is always that discrimination is legal; to show otherwise in any given case one must point to a specific law that it violates.
This just looks like petty harassment by whoever’s providing the financial backing, since this guy already lost once at SCOTUS level, unless they can invent some new gay right that wasn’t an issue the first time.
All too often the process is the punishment.
As the Federal government has so convincingly shown with Scooter Libby and General Michael Flynn.
This guy/gal/whatever didn’t lose at the SCOTUS level. His/her/its suit is only now at the district court level. The state government was suing on his/her/its behalf, but agreed to drop it, so now the plaintiff is suing on a private basis.
(PS: In normal circumstances I would do the polite thing and refer to the plaintiff with its chosen pronouns. The plaintiff thinks of itself as a woman, and since it’s a harmless delusion it would be rude to refuse to play along. But in this context to play along with its delusion would be to concede its case, so I refuse to do so.)
I wouldn’t call it a harmless delusion since physical mutilation is required plus potent hormones but it’s its body as the feminists say.
“”This guy/gal/whatever didn’t lose at the SCOTUS level.””
That isn’t what the first few sentences seem to indicate.
Yes, it is. If you think it isn’t you need to read them again.
“But it wasn’t over, the cakeshop was sued again by the State of Colorado after the same person requested a “gender transition” cake, Colorado goes after Masterpiece Cakeshop again – this time over “gender transition” cake.”
Actually you are the one that needs to reread the article Milhouse.
In normal circumstances I would do the polite thing and refer to the plaintiff with its chosen pronouns
*******************************
then you are part of the problem
THIS IS EXTORTION
They are never going to stop until they destroy him. They have to make an example of him so the next guy thinks twice before resisting the LGBTQ+ mob. 2 to 3% of people want to tell the other 95+ percent what to do.
It is bullying. It is coercive. It is taking advantage of the good nature of American society. It is brainwashing kids so they question their gender b/c such questioning makes a few percent feel better about themselves. This is a slippery slope to hell.
This is precisely the same game the left played with gun manufacturers — baseless lawsuit after baseless lawsuit, until Congress took the easy way out by giving gun manufacturers — but only gun manufacturers — protection against this sort of legal harassment. Because at the time, only gun manufacturers were being targeted.
Now we have eased on down the road, and look at that — there’s that damn can again.
And, of course, don’t forget that on the Biden administration’s to-do short list is to repeal the law protecting the gun manufacturers.
When it comes to your rights, there’s no fire so destructive that Democrats won’t add gasoline to it.
It is time for the Court to take some action against this Plaintiff, who is clearly abusing the legal process to harass Phillips.
That’s an outright lie. Phillips never said such a thing. I doubt the original plaintiffs had a religious ceremony, and I doubt Phillips cared what kind of ceremony they had. His objection was to being forced to celebrate their “marriage” regardless of what form it took.
If I were in his place, I would have no objection to making them a cake celebrating a “civil union” or “partnership”, but I would refuse to make one for a “wedding” even if they had no ceremony at all and simply signed a register at City Hall. My objection is to the name, not the substance. I don’t know whether Phillips feels the same way, but it’s entirely possible.
He was willing to sell them other cakes just not bake them a special same sex marriage cake.
Not quite. He’s unwilling to make them any kind of wedding cake, knowing that the “wedding” in question is same-sex. If I were in his position I would do the same.
As I said, I don’t know how he would feel about making a cake celebrating a same-sex “civil union” or “partnership”, with no reference to weddings. I would have no problem making them such a cake, since my objection is only to such unions purporting to be marriages.
So can I go to a woke baker and force them to decorate with an “All Lives Matter” theme?
One would think they’d see the wind can blow in either direction, but the individual pushing it is a broken person.
Incidentally- recently read “The evil that men do” on profiling by the FBI (ie Mindhunders if you saw the Netflix series) and there are some very uncomfortable facts in there that woke leftist America will be working hard to erase.
Andy, in these times if you ask for “All Lives Matter “ at a “woke” bakery you run the risk of possible immediate harm and for sure immediate invective. Afterwards comes the doxxing and cancellation if possible.
Nice world we live in !
No, you can’t, for the same reason that Phillips will win this case. But in your case you wouldn’t even get as far as this, because you’d have no offense to even allege he’d committed. The whole basis of this case is the plaintiff’s (false) claim that Phillips’s real motive is her sexual identity. If that claim were true, then she would have a case. In your case what could you even claim? What illegal motivation could you allege? (If you did allege an illegal motivation then of course your case could proceed, but eventually you’d have to produce evidence for your allegation.)
I really respect Phillips for standing up for his principles. I would have taken the easy way out: “Sure, I’d love to do the cake. That will be $5,000 payable in advance for a custom cake.”
Around the time of the original Masterpiece Cake lawsuit, I heard from a few people that “coming out parties” were contacting various Chik-fil-A’s for catering. Putting aside why coming out should involve a catered event, the goal was obviously to get them to refuse then sue. There were a few events where the newly out person couldn’t pay for the catering, and the manager let them out of their contract, because Chik-fil-A is almost universally run by decent people.
This is lawsuit shopping, plain and simple. It’s nothing new: Plessy v Ferguson was started by the railroad companies who didn’t want to have to comply with southern segregation. But at some point, can it become harassment? You are transisitioning . . . cool. Why do you want someone who hates you to bake you a cake? There is no shortage of LGBT-friendly bakeries in America, but you want to the guy who took a previous case all the way to the Supreme Court to bow to your whims. Is there any way Jack Phillips could sue over this? Honest question.
Just look at this as the hipster trash version of the ghetto lottery.
Why not? So long as you can pay for the catering, any excuse for a party is a good excuse.
I doubt Chik-fil-a would care if the food was being served at a coming out party.
The word slavery comes to my mind.
Am I the only one?
A question to the lawyers out there: In your evaluation of a potential client do you include an assessment of possible future litigation risk against you?
My former professional-services work had that question on our client-acceptance checklist. (Also risk of nonpayment of fees.) Now I’m wondering if such potentially “hurtful” judgements are even permitted any more.
I wouldn’t have described myself as an artist necessarily, but devoting significant time & resources to the creation of a unique product or service that doesn’t exist yet seems essentially the same as creative cake-baking.
The reasons everyone has difficulty with this are four very real reasons.
(1) As Milhouse says over & over, you can’t say “I won’t sell you a cake because you are [e.g., a same sex couple], but you can say that baking a custom cake celebtating [whatever] is an expressive act (“speech”) that you cannot be compelled by government or law to undertake. But sometimes the line berween these is fuzzy because it’s nit clear how expressive something is. Baking a custom cake? Yes. Baking a 7-layer wedding cake with specific rainbow colors? Wedding video editing? Who knows?
(2) The line is also fuzzy when there is inherently something expressive in the item. E.g., if the baker advertises that all his cakes say “Congratulations [names of couple]” and/or have a picture of the couple, and the baker says he won’t do it for a same-sex couple. Even thornier if he made the cake for X & Y but wouldn’t give it to them when he realized they were same sex.
(3) We have different reactions when we hear that a case is being pursued or funded “to make a point” or to harass a particular person.
(4) Race is different in the US, for historical reasons, so the retort, “Well, could he say that his religion prohibits celebrating a wedding of a black couple?!” doesn’t deal with the other situations.
These liberals LOVE to sue ! Why don’t they just all go to a cake shop, that is more in line with THEIR principles, and have THEM bake a cake for their “Transitioning out”, instead of always bothering THIS man ?
The Left figured out a while ago that it is easier to “make laws” via the courts than through the legislature.
Because the purpose of these lawsuits is to get the law changed via a court decision, as well as to retaliate and harass for standing in the way of “societal evolution”. One of the early gay liberation activists’ favorite slogans was “the whole world is gay”. They seriously envisioned a world where only lgbt. etc and their enablers existed.
Tell them you will make any cake they desire but special orders are $ 1 million dollars.
The fascist party (formerly known as Democratic Party) is officially trying to make being a fascist (aka Democrat) a prerequisite to take part in any activity economic or cultural.