Jack Phillips barely had time to catch his breath. Less than a month after the Supreme Court overturned his conviction for violating the Colorado Anti-Discrimination Act in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the director of said Commission informed him that he had yet again violated Colorado law in an act of discrimination. The Supreme Court case centered on Phillips’s refusal in 2012 to bake a custom cake for a same-sex wedding. This latest case centers on Phillips’s refusal in 2017 to bake a custom cake to celebrate a sex transition. As several wags on Twitter have observed, it seems like Colorado could use a second bakery.
Jack Phillips first came to national attention in August 2012 when a same-sex couple filed a complaint against him with the Colorado Civil Rights Division. The complaint claimed that Phillips had violated the Colorado Anti-Discrimination Act by refusing to design and bake a custom cake to celebrate the couple's planned wedding in another state. Over the course of nearly four years, the director of the Colorado Civil Rights Division, a state administrative law judge, the Colorado Civil Rights Commission, the Colorado Court of Appeals (in a unanimous decision), and the Supreme Court of Colorado all ruled against Phillips. Yet in the narrowly construed Masterpiece Cakeshop opinion, a 7-2 majority of the United States Supreme Court reversed Phillips’s earlier conviction on the grounds that the State of Colorado had failed to provide Phillips “neutral and respectful consideration” of his argument through a judicial process defined by “fairness and impartiality.” While failing to resolve any substantive constitutional argument at issue, the Court at least brought this long legal odyssey to a close. Peace, however, was not to last.
Just three and a half weeks after the Masterpiece Cakeshop ruling was issued, the director of the Colorado Civil Rights Division informed Phillips that he had very likely yet again violated the Colorado Anti-Discrimination Act, this time by refusing to design and bake a custom cake to celebrate the anniversary of a local lawyer’s “transition from male to female.” Rather than await the case wending its way through the layers of state civil rights procedures, judges, and courts, Phillips’s lawyers at the Alliance Defending Freedom took this new case directly to the federal level. Going on the offensive, they brought suit in U.S. District Court on August 14 against the director of the Colorado Civil Rights Division, all the members of the Colorado Civil Rights Commission, the Colorado Attorney General, and the governor. Phillips’s complaint is that through these persons and agencies, the State of Colorado is seeking to compel his speech and thus violate his rights to the free exercise of religion, the free exercise of speech, due process, and equal protection.
Both Jack Phillips and the entire country seem to be back where we all were before Masterpiece Cakeshop was ever decided. Of course, this was completely expected. As I noted here at First Things in June, the Supreme Court never contradicted the State of Colorado’s judgment. It only ruled against the process by which the state reached that judgment. Since Colorado has no state-level religious liberty legislation, Phillips was certain to wind up back before the Colorado Civil Rights Division in time. Colorado law plus contemporary American politics guaranteed it.
The case that returned Jack Phillips to national prominence began on June 26, 2017, not coincidentally (as we shall see) the very day the U.S. Supreme Court announced it would hear Phillips’s appeal. Autumn Scardina, a Denver-area lawyer who “take[s] great pride in taking on employers who discriminate against lesbian, gay, bisexual and transgender people and serving them their just desserts,” called Masterpiece Cakeshop by phone to request a custom cake. Scardina asked for a cake having a “pink interior and blue exterior” so as to celebrate both Scardina’s birthday and the anniversary of Scardina’s “transition from male to female.” Phillips declined the commission. Despite the infamy Phillips had incurred in the Colorado LGBT legal community, Scardina claimed to be “stunned” by this refusal. So began a new legal odyssey for Phillips as well as a year of harassment from Scardina.
Tim Gill, the Denver-based philanthropist and America’s top LGBT rights megadonor, practices what he calls a “punish the wicked” strategy against conservative Christians. Scardina took this political game plan to heart. According to Phillips, Scardina requested custom cakes from Masterpiece Cakeshop on four other occasions following the transgender celebration cake refusal. Each of the four requests centered on Satanic themes and imagery. One of these occurred on June 4, 2018, the very day the Supreme Court handed down its Masterpiece Cakeshop decision. On that day a person claiming to be “a member of the Church of Satan” sent Phillips an email requesting a custom cake featuring a topper of “a large figure of Satan, licking a 9” black Dildo.” The customer continued, “I would like the dildo to be an actual working model, that can be turned on before we unveil the cake” and then helpfully added, “I can provide it for you if you don’t have the means to procure one yourself.” The question of whether this refusal violates Colorado law is unfortunately not before the courts.
Phillips’s lawyers claim in their suit that the State of Colorado has “doggedly pursued” their client and is prosecuting a “war against him.” This is not exactly true. Colorado civil rights enforcement primarily works from a civil law model in which private citizens bring suit against each other rather than a criminal law model in which the state itself files charges. That said, the state does actively supply weapons to any guerrilla fighter wishing to take up arms and punish the wicked. Until the Supreme Court settles the matter, commando attacks like Scardina’s will continue.
Conservative observers are hopeful that the concurring Masterpiece Cakeshop opinion of Justice Gorsuch on religious liberty or the concurring Masterpiece Cakeshop opinion of Justice Thomas on freedom of speech will carry the day in federal court. But several state courts have considered precisely these arguments and remained unconvinced. One of the most recent was the Arizona Court of Appeals. Just three days after Masterpiece Cakeshop was issued, the Arizona court ruled in Nib & Brush v. Phoenix that a small Phoenix calligraphy studio which refused its services to same-sex weddings would be in violation of the city’s anti-discrimination public accommodation code. This ruling was reached despite explicit consideration of the religious liberty guarantees in both the Arizona Constitution and the Arizona Free Exercise of Religion Act. The Arizona justices not only failed to find any “substantial burden” on the religious beliefs of the owners of Nib & Brush. They went further, arguing that the state’s “compelling interest in preventing discrimination” justifies imposing a substantial burden in any case. In their pièce de résistance, the Arizona court also cited the Masterpiece Cakeshop opinions of both Justices Kennedy and Kagan for support.
Rather than submit to a State of Colorado order to bake same-sex wedding cakes, Jack Phillips stopped baking wedding cakes altogether and lost 40% of his business. Rather than submit to a State of Colorado order to bake cakes celebrating trangenderism, Phillips is likely to stop baking custom cakes altogether—which would likely lead to the end of Masterpiece Cakeshop. If the State of Colorado drives Phillips out of business, progressives will celebrate a more equal America. They should instead celebrate a growing perfection of state power exercised through the market. The Colorado Anti-Discrimination Act originally included a possible prison term for violations of its public accommodations code, a punishment revoked in 2013. This was a smart political move for progressives. There is no need to discipline political dissent with prison when regulatory takings of property can do the trick. Moreover, prison sentences only create martyrs. Speaking in 2010, Cardinal Francis George looked at rapid and hostile anti-religious secularization in the United States and feared what he saw. To stir his audience, Cardinal George speculated, “I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square.” But short of facing a paramilitary movement, the liberal state does not require prisons—much less executions—to quell political dissent. “Toleration” can be imposed through unemployment and asset forfeiture.
Jack Phillips does not discriminate between persons, but he does discriminate between ideas. Unfortunately, when it comes to LGBT issues, far too many American judges have proven they are unable to understand the difference. If civil rights law is about protecting people, Jack Phillips will be exonerated. If instead it is about protecting certain state-sponsored ideas, many more than simply Jack Phillips will be condemned.
Darel E. Paul is professor of political science at Williams College and author of From Tolerance to Equality: How Elites Brought America to Same-Sex Marriage.
