Activist attorney sues Masterpiece Cakeshop ... over a transgender cake

How many times will Masterpiece Cakeshop owner Jack Phillips get sued over his right to choose what messages he will promote? Whatever number you guessed, add one to it. Phillips found himself back in court yesterday after refusing to make a transgender-themed cake, requested on the same day that the Supreme Court granted cert in his previous legal fight over cake-baking (via Citizen Free Press and the Daily Wire):


A Colorado baker who won a partial victory at the U.S. Supreme Court in 2018 for refusing to make a wedding cake for a same-sex couple went on trial Monday in yet another lawsuit, this one involving a birthday cake for a transgender woman. Autumn Scardina attempted to order the birthday cake on the same day in 2017 that the high court announced it would hear baker Jack Phillips’ appeal in the wedding cake case.

Scardina, an attorney, requested a cake that was blue on the outside and pink on the inside in honor of her gender transition.

Her lawsuit is the latest in a series of cases around the U.S. that pit the rights of LGBTQ people against merchants’ religious objections, an issue that remains unsettled by the nation’s top court.

Gee, what are the odds that this would happen again to Jack Phillips, of all people? Pretty large, actually:

[Scardina] said she called Phillips’ Masterpiece Cakeshop to place the order after hearing about the court’s announcement because she wanted to find out if he really meant it.

When her lawyer Paula Greisen asked whether the call was a “setup,” she said it was not.

“It was more of calling someone’s bluff,” she said.

In other words, Scardina specifically targeted Phillips — for his religious beliefs. She wasn’t just a random customer with a need to get a cake; she’s a trolling activist who called to provoke a denial in the hope of conducting lawfare against him. Phillips and David French suspect that Scardina actually made several outlandish cake requests in that same time period to provoke a new legal fight.


If this sounds familiar, it’s because this case has percolated for a few years now. Scardina initially filed a civil-rights claim as the result of this call, but Colorado dropped it after losing 7-2 in the Supreme Court’s Masterpiece Cakeshop decision in 2018. That left Scardina to sue in a private action, which is why Phillips finds himself defending the same prerogatives against forced messaging that he’d fought and won already.

Why is that, anyway? It’s because the Supreme Court largely punted on the core First Amendment issues in order to get to a 7-2 vote three years ago. The same session produced an archipelago of decisions including Janus and NIFLA that created a compelling precedent against forced speech, but Phillips and Baronelle Stutzman got left in legal limbo. Clarence Thomas scolded the court at the time for not being more forceful and decisive on these core issues:

There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free speech jurisprudence.

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick, 551 U. S. 393, 409 (2007) (“After all, much political and religious speech might be perceived as offensive to some”). As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Ante, at 16. “‘Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988); accord, Johnson, supra, at 408–409. If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.” …

In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.


Until the Supreme Court muscles up and addresses these core issues, trolls will continue to target business owners for refusing to be forced into messages with which they disagree. And Jack Phillips will have a long legal career that he never wanted.

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David Strom 5:20 PM | April 19, 2024