Something here for everyone to hate. If you’re on Jack Phillips’s side you’re outraged that the campaign of harassing him with lawsuits is now in its seventh year, undeterred by a Supreme Court decision that sided with him over Colorado’s antidiscrimination tribunal on grounds that the panel showed anti-religious bias in evaluating the claim against him.
If you’re in the gay-rights camp, you should be pissed that SCOTUS may get a second crack at Phillips’s case with new facts that make him appear even more sympathetic than he did before. The Court’s conservatives will not only have to decide next time whether free speech and free exercise require exemptions to public accommodations laws in the case of gay weddings, they’ll need to do so knowing that ruling against Phillips would effectively reward the decision to hound him with new bouts of litigation for the better part of a decade. The process has been the punishment; SCOTUS would be asked to validate that by requiring Phillips, after everything that’s happened, to bake the cake after all.
Even John Roberts might balk at that.
Transgender woman Autumn Scardina filed a second lawsuit against Phillips last Wednesday in District Court for the city and county of Denver, Colorado.
In the new lawsuit, Scardina claimed that Phillips violated Colorado’s Anti-Discrimination Act and Consumer Protection Act by refusing to bake what the plaintiff labeled a “birthday cake.”
The “birthday cake” as described in the lawsuit, which was to be blue on the outside and pink on the inside, was supposed to symbolize Scardina’s transition from male to female…
“Masterpiece Cakeshop said before the Supreme Court they would serve any baked good to members of the LGBTQ community. It was just the religious significance of it being a wedding cake,” claimed [Paula] Greisen. “We don’t believe they’ve been honest with the public.”
It’s not true that Phillips has limited his religious objections to wedding cakes. Last year he countersued Colorado’s antidiscrimination commission when they came after him a second time for refusing to fill certain custom orders on religious grounds. See if any names here look familiar:
In the past year alone, Phillips has declined several requests to create custom cakes because of the messages that they would have communicated or the events that they would have celebrated. Phillips believes that many of these requests are not genuine; rather, they are setups designed to get him to decline the desired message. Phillips believes that the originator of a number of these requests is attorney Autumn Scardina. In late September 2017, someone emailed Phillips asking for a custom cake “to celebrate” Satan’s “birthday.” The customer requested that the cake have “red and black icing” and include “an upside down cross, under the head of Lucifer.” The customer described the cake as “religious in theme” and reminded Phillips that “religion is a protected class.” Phillips declined to create that cake because it included designs that would have expressed messages in violation of his religious beliefs. A few days later, someone called Phillips asking for a similar custom cake. Phillips noticed that “Scardina” appeared on the caller-identification screen. Phillips believes that the caller was Autumn Scardina. The caller asked Phillips to create a “birthday” cake for Satan. The caller requested that the cake feature a red and black theme and an image of Satan smoking marijuana. Phillips declined to create that cake because it included designs that would have expressed messages in violation of his religious beliefs. On June 4, 2018, the day that the Supreme Court issued its Masterpiece decision, someone emailed Phillips claiming to be “a member of the Church of Satan.” That person asked for the following custom cake:
“I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake. I can provide it for you if you don’t have the means to procure one yourself.”
This is what this guy has had to put up with, off and on, for years. He’s been trolled repeatedly in increasingly crass ways in the interest of creating a test case that might vindicate the principle that religious liberty is no answer to public accommodations laws, even though the worse the trolling gets, the less likely the Court’s five right-wing justices will want to implicitly condone it by siding with the plaintiff. No wonder Colorado’s antidiscrimination commission dropped its second lawsuit and decided not to press its luck with another battle with facts like these in front of them. But their decision doesn’t prevent Scardina from filing her own complaint against Phillips, which brings us to today’s news.
Needless to say, Phillips’s religious objections aren’t limited to gay weddings but neither are they so broad that they extend to all gay customers. He’ll serve anyone, he insists; what he won’t do is create custom cakes for certain types of events that contradict his Christian faith. That’s the “free speech” part of this, notes David French. If Scardina wants to buy a regular ol’ birthday cake off the shelf from the shop and then dildo it up on her own time in honor of Satan or whatever, presumably Phillips will fill that order. Asking him to enlist his own creative talents in transforming the cake into a celebration of something un-Christian is where he draws the line.
The good news for members of the “bake the cake” camp that are worried about how a court will view Scardina’s tactics is that there are not one but two similar cases more likely to reach SCOTUS before this latest attack on Phillips makes it there. Right now, in fact, the Court is weighing whether to grant cert in the Oregon case of Sweet Cakes by Melissa, a bakery in suburban Portland that closed after the state hit it with a $135,000 judgment for refusing to make gay wedding cakes. If the justices decline to hear that appeal, they might take a crack this fall at the Washington Supreme Court’s recent decision against florist Baronnelle Stutzman. Stutzman had already been found to have violated the state’s antidiscrimination laws because she refused to make a floral arrangement for a gay wedding; the Washington court looked at SCOTUS’s decision in the Masterpiece Cakeshop ruling and found that that judgment against Stutzman could stand because, unlike in Jack Phillips’s case, there was no overt religious discrimination by those who adjudicated it.
If the Supreme Court had simply addressed the core issue of religious liberty when they took up Phillips’s appeal the first time, both the Sweet Cakes and Stutzman cases would likely already be resolved at the state level one way or another. Instead, because they punted, they’ve forced these people to endure several more years of enervating litigation knowing full well that they’d have to take up the core issue soon enough anyway in order to ensure that First Amendment law is being applied uniformly coast to coast. I wonder how many Christian business owners will be driven to bankruptcy by fines and litigation expenses before the Court finally settles the matter.