Retaliation? Masterpiece Cakeshop comes under fire from Colorado officials - again; Update: Did Colorado fall for a troll?

Looks like Colorado state officials have decided that the Masterpiece Cakeshop case doesn’t apply to, er … Masterpiece Cakeshop. Despite a ruling at the Supreme Court which established that the state of Colorado had unfairly targeted Jack Phillips for his religious beliefs, the state’s Civil Rights Commission has cited him for another violation. This time, the Christian baker refused to make a custom cake celebrating a gender transition, which the CCRC determined as a violation of the customer’s rights.


Alliance Defending Freedom has signed up once again for the sequel, Masterpiece Cakeshop II: Eclectic Boogaloo. Expect it to premier for Brett Kavanaugh sometime in 2020:

On June 26, 2017, the same day that the Supreme Court agreed to take up Masterpiece Cakeshop v. Colorado Civil Rights Commission, an attorney asked Phillips to create a cake designed pink on the inside and blue on the outside, which the attorney said was to celebrate a gender transition from male to female. Phillips declined the request because the custom cake would have expressed messages about sex and gender identity that conflict with his religious beliefs. Less than a month after the Supreme Court ruled for Phillips in his first case, the state surprised him by finding probable cause to believe that Colorado law requires him to create the requested gender-transition cake.

“The state of Colorado is ignoring the message of the U.S. Supreme Court by continuing to single out Jack for punishment and to exhibit hostility toward his religious beliefs,” said ADF Senior Vice President of U.S. Legal Division Kristen Waggoner. “Even though Jack serves all customers and simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held beliefs, the government is intent on destroying him—something the Supreme Court has already told it not to do. Neither Jack nor any other creative professionals should be targeted by the government for living consistently with their religious beliefs.”


You know what Colorado desperately needs? Another baker. Is Jack Phillips the only person in the entire state making custom cakes? Is there no other person who can deliver the blue-on-pink experience in culinary art?

Apparently the CCRC doesn’t know of any other bakers for referrals, or they’re really desperate for some regulatory revenge. The complaint started in 2017 as Phillips’ earlier case wended through the appellate circuit, but the final determination was signed on June 28, 2018. That’s just 24 days after the Supreme Court let the CCRC have it with both barrels in its decision to overturn their previous ruling against Phillips. The 7-2 decision held that the CCRC was so obviously and offensively hostile to Phillips that its decision reeked of anti-religious bias and intended to act punitively on that basis:

That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here.


That track record will be highly relevant in this case too, especially considering the timing. It certainly looks vengeful to slap a new complaint on Phillips less than a month after having the CCRC’s first one slapped down in such harsh language. Given the CCRC’s lack of remorse in the first case, it’s going to be very easy for ADF to argue that the new complaint has the same defect in motivation — especially given the overlap in time.

Even if this had been another baker entirely — assuming the hypothetical that Colorado has two bakers in the state, of course — this complaint still wouldn’t pass muster under Masterpiece Cakeshop, combined with Janus and especially NIFLA. Those decisions, published in the two days preceding the new complaint against Phillips, demolish the compelled-speech archipelago that Colorado and other states attempted to construct to allow the state to dictate public expressions. Anthony Kennedy’s brief concurrence in NIFLA makes that clear, emphasis mine:

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.


That goes directly to the core of the CCRC’s mission here. Clearly, the transgender-celebration request was a provocation designed to give CCRC a second bite at imposing compelled speech in the marketplace. It’s a malicious ruling with malign intent to infringe on both freedom of speech and free expression of religious belief. It’s abusive and retaliatory, and deserves a much harsher sanction this time around.

Coloradans should demand an end to the CCRC’s writ in matters such as these, and the termination of all involved in this repetitive attempt at infringing the First Amendment. After that, they can work on their next-most-pressing issue … finding another baker besides Phillips.

Update: David French fills in a couple of gaps at National Review. ADF believes that the complainant is a trolling activist with a long record of harassing Phillips:

Lest anyone wonder whether this request was made in good faith, consider that this same person apparently made a number of requests to Masterpiece Cakeshop. In September 2017, a caller asked Phillips to design a birthday cake for Satan that would feature an image of Satan smoking marijuana. The name “Scardina” appeared on the caller identification. A few days earlier, a person had emailed Jack asking for a cake with a similar theme — except featuring “an upside-down cross, under the head of Lucifer.” This same emailer reminded Phillips that “religion is a protected class.”

On the very day that Phillips won his case at the Supreme Court, a person emailed with yet another deliberately offensive design request:

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.

And finally, two days later, a person identifying as “Autumn Marie” visited Phillips’s shop and requested a cake featuring a pentagram. According to ADF, “Phillips believes that person was Autumn Scardina.”


If true, the CCRC might want to hit reverse ASAP and withdraw the judgment … before having judgment rendered on them. The federal courts will not look with favor on their ruling with that as the context.

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