A U.S. District Court judge in Denver is allowing a lawsuit filed against the state of Colorado by Masterpiece Cakeshop owner Jack Phillips to move forward, and hinted that an injunction against the state could be in the works.
In a ruling Friday, U.S. District Court Senior Judge Wiley Y. Daniel wrote that the lawsuit, filed against the state by attorneys representing Masterpiece Cakeshop owner Jack Phillips, can go forward because the Lakewood baker was able to demonstrate that the actions by the state are causing injury.
Daniel also ordered that outgoing state Attorney General Cynthia Coffman should remain a defendant in the suit. He dismissed as defendants the executive director of the state's Division of Civil Rights and the commissioners on the state's Civil Rights Commission, but only on the basis of monetary damages.
Last June, the U.S. Supreme Court overturned a ruling by the Colorado Civil Rights Commission that found that Phillips had discriminated against a same-sex couple when he refused to make a custom wedding cake, citing his religious beliefs.
“The Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality,” then-Justice Anthony Kennedy wrote in his majority opinion.
However, the court's ruling was narrowly tailored and applied to how the state handled the Masterpiece case, avoiding setting a national precedent on religious beliefs as a defense for discrimination based on sexual orientation, which is barred in Colorado law.
In a separate incident, on the same day in 2017 that the court accepted the Phllips case, a transgender woman attempted to get the baker to make a cake that would celebrate her male-to-female transition. The shop refused, again citing religious beliefs. The woman, attorney Autumn Scardina, filed a complaint with the civil rights division.
On June 28, 2018, the civil rights division issued a finding that there was probable cause that the cakeshop had discriminated against Scardina. In October, the commission issued a formal complaint against Phillips. A formal hearing is scheduled for Feb. 4.
The Alliance Defending Freedom, a nonprofit legal organization that defends people based on their religious beliefs, filed a lawsuit against the division, the commission, the governor and the attorney general in August, complaining that the state is "on a crusade to crush Plaintiff Jack Phillips because its officials despise what he believes and how he practices his faith.”
The lawsuit sought $100,000 in damages from Civil Rights Division Executive Director Aubrey Elenis.
Daniel heard the ADF lawsuit in December and indicated at the time he was inclined to allow the lawsuit move forward.
On Friday, Daniel issued a 53-page ruling, removing Elenis and the commissioners as defendants from the lawsuit on the monetary issue. Gov. Hickenlooper was also dismissed as a defendant on all claims.
For Elenis, Daniel pointed out that she has "absolute immunity" since by law she was acting in the capacity of a judge. The commissioners are acting in a prosecutorial role, and hence also provided with "absolute immunity."
The claim against Hickenlooper is that because he appointed the commissioners, he discriminated against Phillips, an argument Daniel rejected.
Attorney Christopher Jackson of Denver law firm Sherman & Howard, a former assistant attorney general who is not not involved in the case, said he believes the ADF lawsuit is an attempt to overturn Colorado’s public accommodation law, and to push the case to the U.S. Supreme Court so that Justice Brett Kavanaugh would be the fifth vote to overturn the law.
Jackson told Colorado Politics Monday that he believes Elenis and the commissioners are still considered defendants for purposes of an injunction that would prohibit the commission from acting on the latest complaint against Phillips. Coffman, as attorney general, is still included in the lawsuit since she had a role to play in enforcing Colorado's civil rights laws, Jackson said.
The state, in its request to have the lawsuit dismissed, pointed to a 1971 ruling that prohibits a federal court from acting on a lawsuit that is also pending in a state court. However, in an unusual move, Daniel denied that request, noting that an "extraordinary" exception to the 1971 ruling allows a federal court to act when "when an administrative civil proceeding begins in bad faith or is meant to harass."
Daniel cited the Supreme Court's views of how the civil rights commission acted in the first complaint, as well as complaints the commission dismissed against three bakeries that refused to make cakes with messages the owners felt were “derogatory,” “hateful” and “discriminatory."
Jackson said his reading of the ruling suggests Daniel has some empathy toward Phillips. "That struck me as very unusual," Jackson said.
The other point Daniel made that caught Jackson's eye: Phillips had already filed a motion for a preliminary injunction against the commission, which was denied without prejudice, meaning it could be filed again.
Daniel wrote that Phillips "may be filing another, narrower, motion for preliminary injunction. ... If Phillips’ federal case proceeds, the state case might be stayed, which has the potential to avoid piecemeal litigation."
Daniel added in a footnote that the suggestion "should not be construed as a comment on the merits of any future motion for preliminary injunction. I simply note that it is possible that piecemeal litigation may be avoided in this case."
However, Jackson said it sounded to him like Daniel is hinting that the state case would be stayed if a federal injunction was issued, and that Daniel might be open to an injunction that would do just that.
In a statement issued Monday, ADF Senior Counsel Jim Campbell said "the same agency that the Supreme Court rebuked as hostile to Jack Phillips has remained committed to treating him unequally and forcing him to express messages that violate his religious beliefs. Colorado is acting in bad faith and with bias toward Jack. We look forward to moving forward with this lawsuit to ensure that Jack isn’t forced to create custom cakes that express messages in conflict with his faith.”