Federal Judge allows Jack Phillips lawsuit against state to move forward

Baker Jack Phillips, owner of Masterpiece Cakeshop, at his shop June 4, 2018, in Lakewood, after the U.S. Supreme Court ruled in his favor in a discrimination case.

Jack Phillips, whose refusal to make a custom wedding cake for a gay couple went all the way to the U.S. Supreme Court, is back in the news again, with another discrimination complaint filed against the Lakewood baker.

And Phillips and his attorneys from Alliance Defending Freedom have returned fire with a lawsuit in federal court that claims the state of Colorado is engaged in “unconstitutional bullying.”

The latest claim against Phillips stems from his refusal in June 2017 to make a cake for a transgender woman, Autumn Scardina.

Scardina, a family law attorney, asked for a birthday cake last year that was pink on the inside and blue on the outside, which she said would celebrate her birthday as well as seven years since she transitioned from male to female.

According to a complaint filed July 20, 2017, with the Colorado Civil Rights Division, a woman employee at Phillips’ Masterpiece Cakeshop said they would not make the cake as they did not believe in celebrating gender changes based on religious beliefs and hung up on Scardina. She called back and allegedly was hung up on again.

Scardina said the employee did not object to making the birthday cake until Scardina told her the cake was intended to celebrate both her birthday and the gender transition.

In a June 28, 2018, decision, the Division of Civil Rights found that the cakeshop had discriminated against Scardina, based on the state’s public accommodation law, which says that a retailer must serve everyone, regardless of sexual orientation, religion, race and a host of other protected characteristics.

That was a few weeks after the Supreme Court on June 4 ruled in Phillips’ favor after he refused in 2012 to make a custom wedding cake for two gay men, Charlie Craig and David Mullins. That case also went through state civil rights officials.

> RELATED: Supreme Court sides with Colorado baker on same-sex wedding cake

In that case, the state Civil Rights Commission that Phillips’ refusal violated the law. The Colorado Court of Appeals upheld the determination; the state Supreme Court declined to hear the case.

But the U.S. Supreme Court issued a 7-2 ruling that said the “Civil Rights Commission’s consideration of this case was inconsistent with the state’s obligation of religious neutrality.” The justices stopped short of a sweeping declaration about whether there’s a right to discriminate based on religious beliefs.

The Alliance Defending Freedom, which represented Phillips in the Supreme Court case for the previous complaint, is now suing the Hickenlooper administration, the Division of Civil Rights and the Colorado Civil Rights Commission in federal court over the Scardina matter.

The lawsuit claims “Colorado has been on a crusade to crush Plaintiff Jack Phillips because its officials despise what he believes and how he practices his faith.”

> RELATED: What June’s Masterpiece ruling means for the Colorado Civil Rights Commission

The lawsuit also claims that Phillips “serves everyone” — despite his refusal to create custom cakes for LGBT individuals. The Alliance claimed the state admitted that cake artists —including Phillips — are free to decline to create custom cakes with a “specific design” that they will not make for anyone.

“All people — no matter who they are, what they believe, or what protected characteristics they have—are welcome in Phillips’s shop and may purchase anything available for sale,” the lawsuit continued. “But as a devout man of faith, Phillips cannot create custom cakes that express messages or celebrate events in conflict with his religious beliefs.”

The lawsuit also claimed the U.S. Supreme Court 7-2 June 4 decision on the 2012 matter “vindicated” Phillips, stating that the court found the Civil Rights Commission failed to exercise “religious neutrality” in its decision, which the court said was required by the Colorado Constitution.

Phillips claimed in the lawsuit that during the past year, he has fielded calls asking for cakes that celebrate “Satan, featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use. Phillips believes that some of those requests came from the same Colorado lawyer,” an apparent reference to Scardina, the lawsuit stated.

Daniel Ramos of One Colorado, the state’s leading advocacy organization for LGBTQ individuals, said Wednesday that the state’s nondiscrimination laws “are still in place, and, in fact, they were upheld by the Supreme Court in the Masterpiece ruling this past June. They reflect our country’s long-standing principle that businesses open to the public must be open to all. All people – including LGBTQ people – deserve to be served equally in public spaces, and no religious belief gives anyone the right to pick and choose whom they serve and what laws they want to follow.”

“What the ADF was looking for in the Masterpiece case was a license to discriminate, and they did not get that when the Supreme Court upheld Colorado’s nondiscrimination laws. This is another attempt by the ADF to undermine laws that protect Coloradans in the areas of public accommodations, employment, and housing.”

Attorney Christopher Jackson tweeted Wednesday that his read on the lawsuit is that the ADF is attempting to overturn Colorado’s public accommodation law.


Jackson added later that he believes the new lawsuit “is almost certainly a considered strategy to tee up the issue so that a newly minted Justice Kavanaugh can provide the 5th vote” that would overturn the law.

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