Masterpiece Cakeshop Revisited

By MIKE MANNO

How many bites at the apple — or wedding cake — does Colorado get?
We all remember Jack Phillips and his Masterpiece Cakeshop, the baker and his shop that refused to bake a cake for a same-sex wedding, and who was ordered to stop making wedding cakes by the Colorado Civil Rights Commission. Then, after six years of litigation, he won his case before the U.S. Supreme Court this June.
Well, Jack and his business are back in the state’s cross-hairs again. Shortly after their Supreme Court victory the civil rights commission filed another complaint, this time for refusing to bake a custom birthday cake with a blue exterior and pink interior to reflect the customer’s transition from male-to-female. Since the cake was to celebrate a sex change, something Phillips opposed on religious grounds, he declined to bake the cake.
The timing on the complaint is interesting. It was made June 26, 2017. That was the day the U.S. Supreme Court agreed to hear his earlier case, but was held by the commission through the appeals process. Then, shortly after Phillips’ victory, the long knives, apparently seeking to continue to punish him for his Christian views, came out in force.
Twenty-four days after his Supreme Court victory, and a year after the complaint was filed, the director of the civil rights commission, Aubrey Elenis, signed a document finding that Phillips and Masterpiece had denied the birthday girl “her equal enjoyment of a place of public accommodation,” and that the “claim of discriminatory denial of full and equal enjoyment of a place of public accommodation has been established.”
Elenis then ordered the parties into compulsory mediation, which is the first step in the process that again would entangle Phillips in the state’s web of religious bigotry.
But the baker is fighting back. With the help of the Alliance Defending Freedom, the same folks who had taken Phillips’ case through the system earlier, Phillips and his business have filed suit in federal district court for injunctive relief and damages, including $100,000 in punitive damages from Elenis who, the lawsuit says, is “continuing to act intentionally either with malice or reckless indifference to Phillips’ and Masterpiece Cakeshop’s constitutional rights [and] is continuing to act in bad faith and with hostility and animus toward Phillips and Masterpiece Cakeshop.”
There seem to me to be several problems with the commission’s new claims that support the validity of Phillips’ lawsuit. First, in the recent Supreme Court case, the state of Colorado, in its brief to the court, claimed that an “expressive” business did have the right to decline to create a message it found objectionable if it was a message that it would decline for anyone. Thus the status of the individual was not the issue, but the message was. For example, if a father wanted a cake for his daughter’s lesbian wedding, the baker could refuse because it was not based on the status of the father, but the message. The same would be true if the baker was asked and refused to bake a pro-Nazi cake — it would be the message that was being rejected not necessarily the individual customer.
The state, however, failed in its argument to the court that the refusal was not message but status driven; that is, conduct against an individual on the grounds of their gender identity. The Supreme Court, to its credit, made clear that there was a distinction between the rejection of the message and the rejection of the individual, and, interestingly, all nine justices — including the two dissenters — agreed with that proposition. Apparently the civil rights commission didn’t quite get the message.
In fact, in three similar cases, cited by the Supreme Court, the commission dismissed complaints for refusal to bake pro-traditional and/or anti-same-sex marriage cakes for a self-identified Christian. It did so by relying on the bakers’ claims that they objected to the messages, and not that they had any discriminatory intent against the complainant. Not quite equal application of the law.
The second problem is that the commission apparently is simply not accepting the Supreme Court decision exonerating Phillips and in doing so is now trying to find other reasons to continue to harass him, including the timing of the new complaint and what appears to be a series of coordinated attacks against Phillips.
During and after the pendency of the original case, Phillips has repeatedly received requests — apparently from the same attorney known to the commission, according to his lawsuit — for all sorts of weird cakes, including one for Satan’s birthday. Additionally, he has received death threats and his shop has been vandalized — my guess is that it wasn’t done by Christian vandals.
There is an intimidation factor here in an effort to nullify the Supreme Court’s decision by dragging Phillips before the same commission, which the High Court had found belittled his religious beliefs, over and over to force him out of business. As mentioned above, under the commission’s original findings against Phillips, he was ordered to stop making wedding cakes and thus lost over 40 percent of his business and had to lay off some employees. Will he now be ordered not to bake birthday cakes?
A similar lawsuit against Colorado was filed by Lorie Smith and her company 303 Creative, which specializes in designing graphics and websites for weddings. Smith, also represented by the Alliance Defending Freedom, wants to design custom websites in accordance with her Christian belief about God’s design for marriage, and wants to explain on her website that her faith prevents her from celebrating a contrary position.
However, the state’s Anti-Discrimination Act prevents her from publishing her beliefs and to indicate “directly or indirectly” that she will not create wedding sites for same-sex weddings. That claim, that the law prevents the businesses from publicizing what they will not do, is also part of Phillips’ argument.
The Smith case is now on appeal to the Tenth Circuit after a district court refused to allow her to challenge the law when she had only a request for wedding assistance from a “Stewart and Mike.”
“[Colorado’s law] compels speech by forcing Lorie to create undesired pure speech. . . . It also accepts that Lorie objects to creating expression celebrating same-sex marriage. Yet it asserts the right to force Lorie to do so anyway. . . . Colorado makes the bold claim that laws regulating ‘commercial conduct’ can never compel speech,” says the brief, but “Colorado cannot transform what it concedes to be speech — Lorie’s websites and graphics — into conduct by merely applying a law.”
This argument about compelled and prohibited speech, and speech which is claimed to be conduct that is being played out in Colorado, will continue, even though the Supreme Court struck down a California statute that required emergency pregnancy centers to provide abortion information. The attacks will continue to come from the progressive left which largely rejects Christian moral principles and demands that everyone submit to its worldview.
If you really want to know why Mr. Trump won the presidency, it is because people know that courts matter. They also know that what matters most is who is appointing the judges. That and a little thing called prayer.
(You can contact Mike at DeaconMike@q.com)