DENVER (CN) – A federal judge on Tuesday denied Colorado’s bid to keep a baker from using public records law in a lawsuit in which he claims he’s being unfairly targeted by the state for refusing business from LGBT customers.
After Masterpiece Cakeshop owner Jack Phillips convinced the U.S. Supreme Court this past June that Colorado unfairly targeted him for declining to make pastries for LGBT customers, he sued that state in August claiming he’s still being persecuted for his beliefs.
In the Alfred A. Arraj Federal Courthouse in Denver on Tuesday, assistant state attorney general LeAnn Morrill told U.S. Magistrate Judge Scott Varholak that 275 Colorado Open Records Act (CORA) requests filed by Phillips burdened the state as it prepared to respond to discovery requests.
The state responded to Phillips’ records requests and gave him a $50,000 bill, about $182 per record. Phillips’ attorney James Campbell, with the Alliance Defending Freedom, said they will have to pick and choose which requests they pursue.
“If you take that CORA away you are penalizing us for being in federal court. You’re taking away a right that every other citizen has,” Campbell told Varholak.
Morrill told Varholak the number of records requests Phillips had made could be used as a distracting tactic. But Varholak said it is up to state courts to fix a loophole made by the Legislature and not a job for a federal judge.
“The argument made by the state is that letting the plaintiffs use CORA will lead to a run-around, but I’m not certain that’s accurate because they’re requesting documents that are by definition ‘open record.’ They have to be requested, but they are open records,” Varholak said before denying the state’s motion.
He did, however, grant the state’s request to stay discovery until its motion to dismiss has been decided.
In October, the Colorado Civil Rights Commission moved to dismiss Phillips’ lawsuit. The agency says the Supreme Court’s decision specifically addressed the commission’s 2014 action against Phillips and not all future dealings with the baker. Senior U.S. District Judge Wiley Daniel will likely hold a hearing on the state’s motion before the year ends.
Another legal issue that must be resolved before discovery can begin is whether the members of the commission should receive qualified immunity, the principle by which they are protected from being sued for doing their jobs.
The 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 has continued 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 to commemorate a person’s 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.
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 recreational 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 Commissioner Aubrey Elenis and $1 in nominal damages from each of the other members of the commission.
Masterpiece Cakeshop’s request for preliminary injunction also remains on the table although it is unclear when that hearing will be held.
At the earliest Varholak expects the case to move forward in April, after rulings have resolved these issues.
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