A sharply divided Colorado Supreme Court, a body known for its left-leaning activism, has thrown out a transgender’s complaint against a Christian baker for refusing to use his artistry to endorse a transgender “coming-out” by a man who now represents himself as a woman.
The fight involves the Colorado Civil Rights Commission, which previously was scolded by the U.S. Supreme Court for its “intolerance” of Christianity, and Masterpiece Cakeshop baker Jack Phillips.
It’s also part of a nationwide agenda by leftists promoting the LGBT ideology to force Christian photographers, bakers, florists and others to violate their faith and promote the agenda under the canopy of “nondiscrimination.”
Phillips previously won a battle before the U.S. Supreme Court after two homosexuals sued him, before the state-run commission, for refusing to use his talents to promote a same-sex wedding.
At the time that case developed, a lawyer contacted Phillips to attack him as a “hypocrite and bigot,” according to the ADF, which has represented Phillips in multiple attacks on his faith over 12 years.
That lawyer, a man, then contacted Phillip’s business to demand a pink cake with blue frosting, and specifically bragged it was to celebrate transgenderism.
Phillips again declined to be forced to violate his faith and celebrate a perspective deviant to Christianity.
So the lawyer, now identifying as Autumn Scardino, filed a complaint with the commission, which ruled against Phillips.
However, Phillips, already with the experience of the charges from the homosexual duo, and the Supreme Court’s decision to affirm his religious rights over Colorado’s “intolerance” of Christianity, brought a First Amendment lawsuit against the commission and state.
Quickly, a confidential settlement was reached and the commission, at an emergency meeting, shut down Scardina’s case.
He then went to court to file the same charges, but the state court’s majority said the process for discrimination complaints in Colorado doesn’t allow that, and tossed the case entirely on the technicality.
“Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone,” said ADF lawyer Jake Warner. “Free speech is for everyone. As the U.S. Supreme Court held in 303 Creative, the government cannot force artists to express messages they don’t believe. In this case, an attorney demanded that Jack create a custom cake that would celebrate and symbolize a transition from male to female. Because that cake admittedly expresses a message, and because Jack cannot express that message for anyone, the government cannot punish Jack for declining to express it. The First Amendment protects that decision.”
The 303 Creative decision also came from the U.S. Supreme Court, and also was a loss for Colorado’s official position of discriminating against Christians. There, a web designer challenged the state’s demand that she promote same-sex weddings in her business, and won at the high court.
The ADF noted, “Phillips won his first case before the U.S. Supreme Court in 2018, when the court found that Colorado officials who punished Phillips acted with hostility toward his faith. That ruling did not address Phillips’s free-speech rights to decline to create custom cakes expressing messages that violate his faith. Now, the Colorado Supreme Court’s ruling has ended the most recent lawsuit against Phillips, dismissing the case because the attorney who filed it did not follow the right process. Like the prior win, this ruling does not address Phillips’ free-speech rights.”
But those speech rights were addressed in 303 Creative.
That decision “upheld free speech for creative professionals like Phillips.”
“We granted review to determine, among other issues, whether [the attorney] properly filed [this] case,” the Colorado Supreme Court wrote in its opinion in Masterpiece Cakeshop v. Scardina. “We conclude that [the attorney] did not.”
Scardina, in fact, not only had demanded a custom cake to celebrate transgenderism, but also demanded Phillips provide a custom cake, “one depicting Satan smoking marijuana, to ‘correct the errors of [Phillips] thinking.'”
Phillips repeatedly has made clear he will decline to provide cakes that express messages in violation of Christian beliefs, and the one making the request makes no difference.
Columnist Thomas Jipping at Real Clear Wire had described the attacks on Phillis.
“Phillips and his wife, Debra, are Christian co-owners of Masterpiece Cakeshop in Lakewood, Colorado. In business since 1993, Masterpiece sells pre-made goodies in the store, and custom cakes that Jack designs and creates. Phillips has said that he strives to be obedient to Jesus Christ ‘in all aspects of his life,’ including in his business and in exercising his personal skill in creating designer cakes. To that end, the Masterpiece website states that Phillips ‘cannot create custom cakes that express messages or celebrate events that conflict with his religious beliefs.'”
Colorado, meanwhile, created special protections for members of various “sexual orientation” classes and gives them the power of the state government to punish those it considers have committed offenses against its ideology.
He explained, “Here’s a recap of Phillips’ first round. In 2012, a same-sex couple asked him to create a cake for their wedding. When he declined, they filed a discrimination complaint with the Colorado Civil Rights Commission (CCRC). The U.S. Supreme Court eventually ruled in Phillips’ favor, but on factual grounds unique to that case. Statements and actions by CCRC members, the Court held, ‘cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.'”
He explained, “That’s a polite way of saying that the CCRC’s overt and ugly anti-religious bigotry fell far short of ‘the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.’ The Court stopped there, however, and did not address more generally how to handle these conflicts between civil rights statutes and the First Amendment right to freely exercise one’s religion.”
That was the situation when Scardina, “a biological male who identifies as a woman,” demanded a promotion of transgenderism.
“Scardina could have purchased a pink cake with blue frosting almost anywhere, but chose Masterpiece. Scardina specifically sought a custom cake that Phillips would personally create, asking for one without an explicit message and withholding the information certain to elicit a refusal. This gambit was so that Phillips’ religious exercise objection would be based on how the cake was used rather than its objective appearance. One way or another, Scardina was determined to deprive Phillips of any room for exercising his faith while staying in business,” Jipping explained.
He explained the lower courts simply were wrong.
“Phillips has no problem making a custom pink cake with blue frosting for a man who identifies as a woman and, had that been the request, would have done so for Scardina. The disclosure of ‘what the cake was for,’ however, turned that generic request into one that would require Phillips to knowingly contribute to celebrating something that violated his religious beliefs. That, no doubt, was exactly what Scardina had in mind.”
He continued, “In other words, Phillips made his decision about making this custom cake not based on anything related to Scardina, but on something very important to him: his exercise of religion. This is what courts, like the one in this case, don’t seem to grasp.”
Ironically, the state commission put its anti-Christian bias on the record. During the original dispute with Phillips, a publication contacted a number of Denver bakeries run by homosexuals, and asked for a cake quoting the Bible’s condemnation of homosexuality.
All refused, and the commission exonerated them on the basis that such a message violated their beliefs.
The Colorado court decision, in fact, specifically said it was not ruling on any free speech rights, or nondiscrimination issues. It said that the case had to be dismissed because none of the paths allowed in Colorado law included Scardina filing the complaint in district court.
The only option open for him, would have been to appeal the dismissal that happened after Phillips sued the state for First Amendment violations, but he did not do that.
Three dissenting justices in the 4-3 ruling, still advocating for state control of religious beliefs, complained that the majority wouldn’t “reach the merits of this case”
The dissenters complained, “Substantively, the majority’s ruling throws Scardina completely out of court and deprives her (sic) of the opportunity to seek a remedy for alleged discriminatory conduct based on a novel interpretation of law that no party asserted and, to my knowledge, no court has adopted. Moreover, although the majority rules solely on procedural grounds, I am concerned that Masterpiece and Phillips will construe today’s ruling as a vindication of their refusal to sell non-expressive products with no intrinsic meaning to customers who are members of a protected class (here, the LGBTQ+ community) if Phillips opposes the purpose for which the customers will use the products.”
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