Last week, a federal judge gave a green light to a second lawsuit brought against Colorado by Jack Phillips, the owner of
The shop’s website now says “If you can think it up, Jack can make it into a cake!” The rest of the story is a little farther down: “Like many cake artists, Jack cannot create all custom cakes. He cannot create custom cakes that express messages or celebrate events that conflict with his religious beliefs.”
It doesn’t state what his religious beliefs are but Phillips is a Christian. He refused to make a cake for the wedding of two men in 2012. In 2014, the Colorado Civil Rights Commission ordered Phillips to make cakes for same-sex couples, Colorado courts upheld the ruling and the Colorado Supreme Court refused to hear Phillips’ appeal.
Last summer, the U.S. Supreme Court ruled in favor of Phillips, saying the state civil rights commission did not act as a neutral ruling body and was hostile to religious beliefs.
As the first case was heading for the U.S. Supreme Court, a Denver transgender attorney, who said she was unaware of the it despite widespread media coverage, filed another complaint with the commission, saying Phillips had refused to make a transition cake for her.
Phillips sued the state in federal court, saying it was harassing him by investigating the charge following the Supreme Court ruling.
Now Colorado is closer to having to defend its civil rights statutes before the Supreme Court again. As we noted in August, that could be a debacle.
At least four justices plus Chief Justice John Roberts are likely to wonder, with some irritation, why Colorado cannot stop pestering one Christian about his right to free speech.
Georgia State University law professor Eric Segall just published a provocative piece about the cases on the website Slate. He believes that the state must act – presumably, the legislature – to redefine discrimination by stating that Colorado vendors cannot be compelled “to create expressive items and that custom wedding and birthday cakes are such items.”
Alternately, if the case proceeds, it could founder for Colorado.
Finding that Phillips is expressing his creativity under the First Amendment would be “substantially stronger than many First Amendment arguments the court has accepted in the recent past,” Segall writes.
“Phillips’ decision not to make the cakes in question is reprehensible. Discrimination based on faith is still discrimination. It is decidedly unchristian for Phillips to turn away these customers. Nevertheless, he is destined to win this lawsuit eventually.
“Colorado should cut its losses and try to reach a settlement with Phillips where each side goes its separate ways. The battle between freedom of speech and the rights of minority groups should be fought on a different day and on a different battlefield.”
For some supporters of LGBT rights, and of civil rights, broadly applied, this is a hard pill to swallow. They have reinforcement, at least for now.
We asked Colorado’s new attorney general, Phil Weiser, where his office stood, the day after he was sworn in.
He emailed this statement: “As the case proceeds, we are confident that our state’s commitment to civil rights and equality under the law will prevail.”
