Victory: Colorado Supreme Court Dismisses Lawsuit Against Masterpiece Cakeshop for Refusing To Bake “Gender Transition” Cake
Lawyers: “Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone.”
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:
‼️BREAKING‼️ The Colorado Supreme Court ruled in favor of Jack Phillips of Masterpiece Cakeshop
Today, the CO Supreme Court dismissed Masterpiece Cakeshop v. Scardina because an attorney harassing Jack did not follow the correct process in suing Jack.
This win ends 12+ years of… pic.twitter.com/QKwwmHlDYV
— Alliance Defending Freedom (@ADFLegal) October 8, 2024
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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Comments
Is there any mechanism to forestall more harassment suits against the baker?
yes but you won’t like the answer.
its called the 2nd amendment.
You assume too much about me in asserting that I would dislike the answer.
Remind me what part of the Second Amendment (or the natural right to bear arms in self-defense that the amendment recognizes) authorizes the use of deadly force to prevent harassing lawsuits.
Jumping the gun. Literally.
We fought a Revolutionary War over harassing laws(uits). This would be a civil rights issue but I can’t see “Colorado Buring” as a movie…yet. In an earlier era, this type of lawfare would be settled by the law firm of Colt, Winchester, Smith & Wesson.
My understanding is the case was dismissed on a procedural technicality.
Not dismissed on the merits.
While this suit is gone, it doesnt mean that similar future suits will be dismissed
The complainant could be construed as a vexatious litigant under Colorado RS. Here’s hoping the nitwit just lets go.
But, then again, I’m living in a fantasy world hoping that would happen.
Of course it won’t. Their battle cry is, “BAKE THE CAKE, BIGOT!”
Why no lawsuit for malicious prosecution and abuse of process?
Lawfare is needed to bleed those engaged in wrong.
Yes. Because the process is itself a punishment, a price must be extracted from those who initiate a ill-intended process.
Need to go through the Colorado Bar’s Code of Ethics to find something to stick to the attorney filing these lawsuits.
Plus there needs to be a judgement on the merits.
Admittedly, I don’t understand the intricacies about vexatious claims, what qualifies and what may not. But, it sure seems like progressives continuing to beat this dead horse after repeatedly losing at the highest courts available, should meet the ‘vexatious’ standard. Jack Phillips should be compensated for his grief and his legal fees reimbursed, minimally.
I would just bake the cake with the wrong colors and countersue for discrimination against a disabled person (colorblindness). I’m joking of course, but that is the level of circus we are seeing.
We seem to have become a nation with a legal system driven by busybodies and judges, in this case of the Colorado Supreme court fortunately a minority, that can’t think straight. Yes eventually right is accomplished but at an exorbitant cost.
The only legal remedy for the outrage committed against the formerly male petitioner is specific performance. Duncan Hines must be forcibly castrated, renamed Betty Crocker, and bake this newly minted woman a cake.
The committed Left will never stop being evil for its own sake. It is a Terminator. “It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear. And it absolutely will not stop.” Jack Phillips will never be free of leftist harassment until the Left ideology is entirely destroyed.
The process is the punishment
however the irs is now auditing them out of existence
A substantial step toward resolution of all this will be a rule change that provides for the loser to pay the winner’s legal costs. Lawyers will immediately become very interested in a case being a true winner, prior to filing.
A return of the right of freedom of contract and freedom of association would certainly be welcome.
That may turn out to be the only practical option to halt this sort of litigation intended as harassment.
One of the rules by which I live my life, is “Do not abuse, or annoy anyone who may prepare or handle or serve my food.” If they ever succeed in forcing the unwilling to “bend the knee”, I really hope that they get the cake that they “deserve”. My high school chemistry teacher told a hilarious story about using Phenolphthalein to discovery the identity of a person who was stealing sugar from the staff coffee supply.
There is a Wednesday Addams meme to that effect.
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