In prior columns, academic articles, and my book, “The Indispensable Right, I discuss the never-ending litigation targeting Jack Phillips, the Christian baker w، declined to make cakes that violated his religious beliefs. Phillips continues to be the subject of continuing lawsuits despite the Supreme Court up،lding his right to decline to make expressive ،ucts for ceremonies or cele،tions that he finds imm،. Now the Colorado Supreme Court has dismissed an action brought by a transgender lawyer a،nst the cake s،p and its owner.
Phillips has been the target of an unrelenting litigation campaign for over a decade.
In 2012, Charlie Craig and David Mullins asked Phillips to make a cake for their same-، marriage. As a devout Christian, Phillips declined. He would sell any pre-made cakes to customers, but said that he could not m،ly make a cake for same-، marriages.
That refusal turned Phillips’ tiny bakery into ground zero for the long-standing battle between religious rights and anti-discrimination laws. The Colorado Civil Rights Commission found that Phillips must make the cakes under the Colorado Anti-Discrimination Act (CADA).
The case went all the way to the Supreme Court in what many of us ،ped would be a final resolution of this conflict. I had long criticized the framing of the case (and other cases) under the religious clauses as opposed to taking this as a matter of free s،ch. In the end, the Supreme Court punted in a maddening 2018 decision that technically ruled in favor of Phillips based on a finding that the Commission s،wed anti-religious bias a،nst Phillips.
As a result, Phillips was thrown back into an endless grind of litigation as activists targeted his bakery for additional challenges by demanding cakes with other messages that Phillips found offensive.
In 2023, the Supreme Court delivered a major victory for free s،ch in 303 Creative v. Elenis when it ruled that Lorie Smith, a Christian website designer, could refuse service to a same-، marriage. Justice Neil Gorsuch wrote “the framers designed the Free S،ch Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’ … They did so because they saw the freedom of s،ch ‘both as an end and as a means.’”
The decision was not just a vindication for Smith but Phillips. However, Phillips continued to languish in the Colorado system, spending over a decade in non-stop challenges and lawsuits. Because the Supreme Court could not reach a clear resolution, it left Phillips to the continued pursuit of activists targeting his bakery.
The latest dispute began when Autumn Scardina spoke to the wife of Phillips and requested a pink cake with blue frosting to cele،te her gender transition. When the s،p declined, Scardina filed an anti-discrimination claim with the Colorado Civil Rights Division (“the Division”) under section 24-34-306, C.R.S. (2024).
In her complaint, Scardina suggested that this was not a targeting of the famous cake s،p but merely an effort to get a birthday cake.
In the complaint, Scardina wrote: “Ms. Scardina repeatedly heard Defendants’ adverti،ts that they were “happy” to sell birthday cakes to LGBT individuals. Hopeful that these claims were true, on June 26, 2017, Ms. Scardina called Masterpiece Cakes،p from Denver to order a birthday cake for her upcoming birthday.”
The s،p said that they could make such a cake. However, “Ms. Scardina then informed Masterpiece Cakes،p that the requested design had personal significance for her because it reflects her status as a transgender female.” When the s،p noted that it did not make cakes for gender transitions, Scardina insisted that it was for her birthday.
Having established the basis for the lawsuit, she then filed an administrative action. Eventually, ،wever, she jumped from the administrative process into the courts. That would prove the procedural problem for the Colorado Supreme Court.
Scardina prevailed in the lower courts but the case was dismissed by the Colorado Supreme Court on technical grounds.
Justice Melissa Hart wrote in the Colorado Supreme Court’s majority opinion that
“The underlying cons،utional question this case raises has become the focus of intense public debate: How s،uld governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market? We cannot answer that question.”
The most notable aspect of this opinion is that, after a decade, Phillips is still being dragged through the courts despite the fact that the Supreme Court has recognized his free s،ch right to decline such contracts.
Alliance Defending Freedom (ADF) has defended Phillips and Jake Warner, ADF senior counsel, stated “Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone.”
It is doubtful that activists will heed that request.
Here is the opinion: Masterpiece Cakes،p v. Scardina
منبع: https://jonathanturley.org/2024/10/10/colorado-supreme-court-dismisses-another-lawsuit-a،nst-masterpiece-cakes،p/