Baker’s High Court Win Not a License to Discriminate, Colorado Says

Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store in Lakewood, Colo., on March 10, 2014. (AP Photo/Brennan Linsley, File)

DENVER (CN) – The U.S. Supreme Court did not give a Christian baker lifetime immunity from anti-discrimination enforcement, the Colorado Civil Rights Division said Thursday in a motion to dismiss the bakery’s lawsuit.

Masterpiece Cakeshop owner Jack Phillips convinced the Supreme Court that Colorado unfairly targeted him for declining business from gay customers, and sued that state in August claiming he’s still being persecuted for his beliefs.

But the civil rights agency responded in a motion to dismiss filed Thursday that the Supreme Court’s decision specifically addressed the commission’s 2012 ruling and not all future dealings with Phillips.

“The Supreme Court expressly foreshadowed that ‘later cases raising these or similar concerns are [to be] resolved in the future,’” the agency said in its 26-page motion. “On June 28, 2018, the division director found probable cause for a new charge of discrimination filed against the bakery and Mr. Phillips by a different member of the public.”

The Colorado Civil Rights Division, directed by Aubrey Elenis, also noted its current members are not the same members involved in the previous litigation.

“The claims in the verified complaint are based solely on a misapprehension of the U.S. Supreme Court’s ruling,” the agency said. “Indeed, the claims here attempt to impute as-applied factual findings from the judicial review of the previous civil enforcement action in an effort to discredit a new civil enforcement action based on a new discrimination charge filed against plaintiffs by a member of the public.”

The Civil Rights Commission first sued Phillips in 2014 after he refused to make a same-sex couple’s wedding cake. In a 7-2 decision, the U.S. Supreme Court overturned the commission’s finding – which had been upheld by an administrative law judge and the Colorado Court of Appeals – albeit narrowly: the justices found the commission hadn’t treated Phillips with “neutral and respectful consideration,” and had made “official expressions of hostility to religion” in the handling of Phillips’ case.

Phillips claims the commission continues its vendetta against him.

In June 2017, on the same day the Supreme Court agreed to hear his case, Phillips received a call requesting a pink cake with blue frosting representing the transition from one gender to another. He refused.

The customer, Denver-based attorney Autumn Scardina, filed a discrimination complaint with the commission, which made a “probable-cause determination against Phillips” in short order.

“The state of Colorado is ignoring the message of the U.S. Supreme Court by continuing to single out Jack for punishment and to exhibit hostility toward his religious beliefs,” Phillips’ attorney Kristen Waggoner, the senior vice president of the Alliance Defending Freedom based in Scottsdale, Arizona, said in a statement when Phillips filed his lawsuit.

“Even though Jack serves all customers and simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held beliefs, the government is intent on destroying him – something the Supreme Court has already told it not to do,” Waggoner said.

Alliance Defending Freedom senior counsel Jim Campbell said of the state’s motion to dismiss, “We’re reviewing the state’s filing and evaluating our response moving forward. Jack serves all customers, but he simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held beliefs. Neither Jack nor any other creative professional should be targeted by the government for living consistently with their religious beliefs.”

Since his refusal to make the same-sex wedding cake in 2014, Phillips has refused a number of other requests for baked goods with sexually explicit images and items to promote marijuana use, which is legal in Colorado.

Phillips says he recently received and declined this request: “A three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” black dildo.” According to the lawsuit, the customer wanted the dildo to be a functioning item “that can be turned on before we unveil the cake.”

The baker wants a federal judge to bar the commission from ordering him to bake the gender-transition cake or any other item that would violate his beliefs. He also seeks $100,000 in damages from Elenis and $1 in nominal damages from each of the other members of the commission.

The commission declined to comment on the case.

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