Masterpiece Cakeshop Back In The News.

You may remember the case Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission which was decided by the US Supreme Court last year.

The case was about Masterpiece Cakeshop in Colorado and it’s owner, Jack Phillips. In 2012, a gay couple came into the shop and wanted a specialized cake made for their wedding. Parker, who is a Christian, declined to design and make the cake on religious grounds, mainly that he did not want to be creating something that would be used to promote an idea that was against his religious beliefs.

The two men filed a complaint with the Colorado Civil Rights Commission saying Parker had violated their civil rights. The Commission ruled against Phillips and demanded that he and his staff undergo training on the issue and for the next two years write reports that would be reviewed by the Commission on the cakes he sold.

Phillips appealed the decision and the case eventually made it to the Supreme Court which ruled against the Commission but did not endorse Parker’s assertion that he had the right to deny the artistic creation of a cake if it endorsed a message that was against his religious beliefs.

The Supreme Court noted that at the time, Colorado did not recognize gay marriages.

The second thing the Court noted was that someone named “William Jack” had gone to three different bakeries and asked the bakeries to make a cake with a message that demeaned gay marriages. In each case, the Commission upheld the rights of the bakers not to make the cakes which contained messages with which they disagreed.

The Court also took note of the animus of the members of the Commission towards religion itself. From the Supreme Court opinion:

One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the — the law’s impacting his personal belief system, he needs to look at being able to compromise.” Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioer stated:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distrnct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. (internal citations ommitted)

In the end, the Supreme Court ruled against the Commission saying its views on religion itself were a violation of the First Amendment. They did not address the issue of whether Phillips had the right to refuse to create cakes with messages he disagreed with (even though the Commission ruled that was acceptable for secular reasons.)

The same day that the Supreme Court agreed to hear the original case, Autumn Scardina, who is a transgendered female attorney contacted Masterpiece Cakeshop to have them design and make a cake celebrating the 7th year anniversary of Scadina’s transition. Phillips declined on the same religious grounds.

Phillips said that he:

“would not create a custom cake that expresses those messages for any customer, no matter the customer’s protected characteristics.” Masterpiece offered to create a different custom cake for Scardina or to sell her any of the pre-made items available for purchase. Scardina did not request a different custom cake and did not attempt to purchase any of the pre-made items.

(The attorney who requested the gender-transition cake later asked Phillips to design a cake with satanic themes and images—a request that Phillips also declined because of what the cake would communicate.)

Scardina filed a complaint with the Colorado Civil Rights Commission which later decided that there was enough cause to hold a hearing on February 1, 2019 on this complaint which basically stated that Phillips had denied Scardina a cake based upon Scardina’s sexual orientation.

Phillips wasn’t going to wait.

He turned the tables on the Commission and sued them.

The Alliance Defending Freedom is representing Phillips.

After an attorney who targeted Phillips complained to the state about Phillips’ decision not to create a cake designed pink on the inside and blue on the outside to celebrate and reflect a gender transition, the Colorado Civil Rights Commission—the same state agency that lost its case against Phillips at the Supreme Court in June—filed a formal complaint against him. The attorney who requested the gender-transition cake later asked Phillips to design a cake with satanic themes and images—a request that Phillips also declined because of what the cake would communicate.

“Jack serves all customers, and he is even happy to serve the attorney who lodged the complaint against him,” Campbell explained. “But Jack doesn’t create custom cakes that express messages or celebrate events in conflict with his deeply held beliefs. He can’t get a fair shake before the state commission. A commissioner set to decide the state’s new case against Jack has publicly referred to him as a ‘hater’ on Twitter, one of several indications of the commission’s ongoing bad faith toward him and his beliefs.”

ADF argues that the state is violating Phillips’ First Amendment free exercise of religion rights by continuing to treat him differently than other cake artists and by acting with hostility toward him and his faith. ADF is also arguing that the state is infringing Phillips’s free speech and due process rights, and that the commission’s adjudicative process is flawed because the same commissioners act as both accusers and adjudicators in the same case, an arrangement that the Supreme Court condemned in a 2016 decision.

Over his years as a cake artist, Phillips has declined to create cakes with various messages that violate his faith, including messages that demean LGBT people, express racism, celebrate Halloween, promote marijuana use, and celebrate or support Satan.

The Commission sought to have the case dismissed on various grounds.

Judge Wiley Y, Daniel denied the dismissal which means that the case can go forward. (Daniel did dismiss claims against the head of the Commission, the individual Commission members, and the governor who had appointed the members to the Commission.)

The district court’s Jan. 4 ruling by Judge Wiley Y. Daniel said that there is evidence of unequal treatment against Phillip, given that the state of Colorado commission allows other cake artists to decline requests to create cakes that “express messages they deem objectionable and would not express for anyone.”

The commission’s “disparate treatment” for Phillips shows “hostility towards Phillips, which is sufficient to establish they are pursuing the discrimination charges against Phillips in bad faith,” motivated by his religion, the ruling said.

It added that Phillips “has adequately alleged his speech is being chilled by the credible threat of prosecution.”

It is interesting to note that the Court agrees with those of us that say that there is a difference between selling something pre-made or on a menu, and creating something (i.e. a work of art.) In fact, the Daniel even calls Phillips a “cake artist.”

This is certainly the first step in a push-back against those who would demand that people act against their religious and moral beliefs and create works against those beliefs.

Time will tell the outcome of this, and given the history of the first case, would not be surprised if it went to the Supreme Court as well.

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