The Colorado Supreme Court has dismissed the latest lawsuit against Jack Phillips, the Masterpiece Cakeshop owner relentlessly attacked for refusing to bake cakes conveying messages he disagrees with on religious grounds.
This time, he was sued for discrimination over his refusal to create a cake that was pink on the inside and blue on the outside, to reflect and celebrate a gender transition.
The case was brought by the same Colorado attorney who has targeted Phillips for over 12 years, beginning with a lawsuit over his refusal to bake a custom same-sex marriage cake. That case made it to the U.S. Supreme Court, which ruled in his favor in 2018.
Professor Jacobson summarizes the lawfare against the beleaguered small business in earlier posts, here and here:
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: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(es).
Round 2 ended when that case was dropped, as Professor Jacobson wrote here: Masterpiece Cakeshop wins again – CO drops prosecution for refusal to bake ‘gender-transition cake’.
But then came Round 3: Masterpiece Cakeshop Sued A Third Time, Ostensibly Over “Gender Transition” Cake. In June 2019, the same woman as in case no. 2, Scardina, sued on her own behalf, instead of the State of Colorado bringing the case.
Phillips looked like he was losing Round 3 in June 2021, when a state court judge ruled against him, imposing a fine: Colorado Judge Fines Masterpiece Cakeshop For Refusing To Bake Gender Transition Cake.
Things looked even more bleak when an appeal from that ruling was later denied, as we covered here.
But Phillips’s lawyers at the intrepid Alliance Defending Freedom appealed yet again, this time to the Colorado Supreme Court.
And yesterday, in a 4-3 ruling, the state’s high court finally handed Phillips a win, dismissing this third case, because Scardina failed to follow the proper process when she filed it in the district court.
The court expressed no opinion on the merits of the discrimination claim against him, having decided the case based on the procedural defects.
Again, that’s what happened in the U.S. Supreme Court’s 2018 ruling. There too, Phillips’s case wasn’t decided on the merits, more on procedural grounds. The Court didn’t address his free speech rights to refuse to bake cakes conveying messages that go against his religion.
Which raises the question—could there be more litigation? It was a close decision by the state high court. And it does not speak to whether the case could be refiled.
But, if this poor man is sued again, there is new U.S. Supreme Court precedent for the court to consider. Philips’s lawyers say the Court’s landmark 2023 ruling in 303 Creative v. Elenis protects his free speech rights going forward:
Meanwhile, it’s hard to see the years-long litigation against him as anything but harassment.
From the ADF statement:
‘Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone,’ said ADF Senior Counsel Jake Warner. ‘Free speech is for everyone. As the U.S. Supreme Court held in 303 Creative, the government cannot force artists to express messages they don’t believe. In this case, an attorney demanded that Jack create a custom cake that would celebrate and symbolize a transition from male to female. Because that cake admittedly expresses a message, and because Jack cannot express that message for anyone, the government cannot punish Jack for declining to express it. The First Amendment protects that decision.’
As his lawyers point out, “Phillips serves people from all backgrounds. Like many artists, he decides to create custom cakes based on what they will express, not who requests them.”
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