HOME | Featured

The Anti-LGBTQ Cake Baker Is Back In Court Again

Colorado baker Jack Phillips won his Supreme Court case in June, but now he's on the hook for anti-LGBTQ discrimination once again.

Marilyn Drew Necci | August 17, 2018

Jack Phillips is in trouble again. On June 28, Colorado’s Civil Rights Division ordered Phillips into “compulsory mediation” due to his refusal to make a cake for a woman celebrating her gender transition. The Civil Rights Division found that there was “sufficient evidence” to validate the claim, made by Colorado lawyer Autumn Scardina that her rights as a member of a protected class (transgender people) had been violated.

Within the Colorado Civil Rights Division’s determination, they quoted Phillips as saying that he would not “promote the idea that a person’s sex is anything other than an immutable God-given biological reality.” Indeed, in Scardina’s complaint, she notes that “the woman on the phone did not object to my request for a birthday cake until I told her I was celebrating my transition from male to female.”

The cake Scardina had asked for was blue on the outside and pink on the inside. “I believe that other people who request birthday cakes get to select the color and theme of the cake,” she wrote in her complaint. It was solely the reason for the color scheme that led Phillips and his employees to balk. “The woman on the phone told me they do not make cakes celebrating gender changes,” Scardina wrote.

Phillips, the owner of Colorado’s Masterpiece Cakeshop, won a Supreme Court case based around a similar incident, in which he refused to prepare a cake for a same-sex marriage, only two months ago. Scardina originally made her complaint in July 2017, writing in the complaint that “The woman on the phone told me they do not make cakes celebrating gender changes.” However, the Colorado Civil Rights Division did not order Phillips into compulsory mediation until three weeks after the Supreme Court ruling had been handed down.

Does this mean that the Supreme Court ruling isn’t relevant here? It very well might — Justice Anthony Kennedy wrote in the majority opinion that Colorado can legally “protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public,” but that ”the law must be applied in a manner that is neutral toward religion.”

The court’s decision to side with Phillips ultimately came down to a procedural grievance: “The neutral and respectful consideration to which Phillips was entitled was compromised here,” Kennedy wrote. His opinion concluded that any future case dealing with similar issues “must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

So really, Colorado’s Civil Rights Division has a clean slate here, as long as they are careful to avoid any anti-religious commentary of the sort that was made at Phillips’ previous hearing. This would explain why the Supreme Court ruling didn’t stop them from ruling against Phillips again, despite the similarity in the cases.

Alliance Defending Freedom, the anti-LGBTQ hate group acting as Phillips’s legal representation in the Scardina case, has filed suit against the Colorado Civil Rights Division, claiming that they are “doubling down on their anti-religious hostility” in their ruling against Phillips. In a statement released by ADF, Phillips lamented, “It seems I’m the only person in the state of Colorado who can’t live out my beliefs.”

Responding to Phillips’ contention that the state was personally targeting him, Colorado governor John Hickenlooper told Colorado’s KDVR, “I can’t imagine we have a vendetta against anyone.” But he also defended Colorado’s anti-discrimination laws, which were the basis for the Civil Rights Division’s ruling. “It seems to me you shouldn’t be able to withhold your services or products from someone else based on their religion.”

By suing the Colorado Civil Rights Division, Phillips and ADF go beyond any individual case of discrimination to seek a ruling on whether Phillips does or does not have a right to discriminate against the LGBTQ community without fear of response from Colorado’s government. It’s clear that he thinks his previous Supreme Court victory gives him that right; what’s just as clear is that Colorado thinks otherwise.

But what will the Supreme Court think? We’re likely to find out; Hickenlooper told the Denver Post that he foresees this case making its way once again to the highest court in the land. We here at GayRVA will of course keep you posted on the case’s progress.

Photo via The New Civil Rights Movement