Nee Law Firm
Jack Phillips Goes Back to Court by Kevin Diehl
A while back I wrote about the United States Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case involved Jack Phillips, a baker in Denver, Colorado, who refused to design a custom-made cake for a same-sex wedding because doing so would violate his sincerely held religious belief that marriage is between one man and one woman.
After six years of legal tribulations Jack prevailed when the Supreme Court issued its 7-2 ruling in his favor. The Court’s decision, while narrowly tailored, nevertheless upheld his religious liberty and, more pointedly, castigated the Colorado Civil Rights Commission for its hostility towards Jack’s religious convictions.
But now, that same Civil Rights Commission is back at it, targeting Jack once more as if it has a vendetta against him. Here’s what’s happening:
On June 26, 2017 – the same day that the Supreme Court decided to hear Jack’s case – his cake shop received a call from a Denver-area attorney named Autumn Scardina asking for a custom cake. Scardina wanted the cake to be blue on the outside and pink on the inside to mark a special occasion. What was the occasion? It was to celebrate Scardina’s transition from male to female.
Once again, Jack declined to create a custom cake that expressed a message that conflicted with his religious conviction that a person’s sex is immutable. He did, however, offer to sell Scardina other pre-made cakes. That, of course, was unacceptable to Scardina.
This was just the latest of a long line of bad-faith requests made by Scardina of Jack’s bakery over the course of several months. In September 2017, Jack’s shop received a call asking to make a birthday cake for Satan, featuring an image of Satan smoking marijuana. The name “Scardina” appeared on the caller identification. A few days before that, a person Jack believed was Scardina had emailed asking for a cake featuring “an upside-down cross, under the head of Lucifer.”
And then, on the day that Jack won his case at the Supreme Court, a person emailed with a particularly offensive cake request. The email asked for “a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan” in a lewd act with a phallic symbol.
From all of this, it’s pretty apparent that Scardina was trolling Jack, trying to trip him up and find a reason – any reason – to file a complaint. Simply put, Jack – and his cake shop – was a target. And, with the help of the Colorado Civil Rights Commission, the trolling worked.
After Jack refused to make the pink and blue cake, Scardina filed a complaint with the commission alleging discrimination on the basis of gender identity. The commission held the complaint in abeyance until the Supreme Court ruled on Jack’s first case. Then, on June 28, 2018 – before the ink was dry on Jack’s Supreme Court victory – the commission found “probable cause” to believe that Jack had violated Scardina’s civil rights when he refused to design a cake celebrating Scardina’s “transition.” Jack was headed back to court.
But this time, he went on the offensive. With the help of his attorneys at the Alliance Defending Freedom (ADF), Jack filed a lawsuit in federal court suing the Colorado Civil Rights Commission.
The suit says that the commission has revived its campaign against Jack following the Supreme Court’s decision, singling out his shop for disparate treatment on the basis of Jack’s religious beliefs. The suit accuses the commission of violating Jack’s constitutional free exercise, free speech, due process, and equal protection rights.
The lawsuit alleges “Colorado has renewed its war against [Jack] 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.”
The suit requests an injunction barring further prosecutions of Phillips for violations of Colorado’s anti-discrimination law and a declaration that the commission violated his constitutional rights.
The Colorado Civil Rights Commission is an ostensibly bipartisan, seven-member panel. The board currently consists of three Democrats, one Republican, and two members who are not affiliated with a party. Its director is Aubrey Elenis, whose party affiliation I was unable to determine.
Jack’s lawsuit names Director Elenis in both her professional and personal capacity, meaning that she would be personally liable for any financial judgment the court might award Jack if he prevails.
He is seeking damages from Elenis for lost work time, lost profits, emotional distress, and reputational harm. He is also requesting an additional $100,000 punitive judgment against her.
In addition, Jack’s complaint challenges the criteria by which commissioners are selected to serve on the panel. According to the commission’s website, at least four of the commissioners must be “members of groups who have been or might be discriminated against because of disability, race, creed, color, sex, national origin, sexual orientation, marital status, religion, or age.”
Jack’s lawsuit argues that these criteria are not neutral, and embed hostility to his religious beliefs into “the very structure that Colorado uses to enforce its public-accommodation law.”
Jack Phillips never asked for any of this. He is an artisan who is merely trying to operate his bakery while following the tenets of his religious convictions. But a vindictive government body seems intent on destroying him and his business. This is shameful.
It’s no wonder that judicial confirmation hearings have become hyperbolic cage matches – our political battles are now being waged in the courts rather than in the legislatures. It was never meant to be this way.
Let’s hope, for the sake of religious freedom, that Jack Phillips prevails once again.
by Kevin Diehl