Judge Keeps Gay Cake Squabble Alive in Colorado

DENVER (CN) – A federal judge on Tuesday denied Colorado’s request to dismiss a lawsuit filed by a baker who believes he is being unfairly targeted by the state’s Civil Rights Commission for refusing business from LGBT customers.

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

Phillips asked the court to grant preliminary injunction barring the state from enforcing the Colorado Anti-Discrimination Act against him for declining to make cakes with messages that conflict with his religious beliefs.

On the tenth floor of the Alfred A. Arraj Federal Courthouse in Denver, Senior U.S. District Judge Wiley Daniel declined Phillips’ request as too broad, and urged his attorneys file something more tailored.

“I don’t think I have enough information to make a ruling, but that does not mean a more tailored request couldn’t be filed,” Daniel said. “I’m not telling you what to request, but it has to be very narrow.”

The commission first sued Phillips in 2014 after he refused to make a gay 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” while handling Phillips’ case.

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 state Civil Rights Commission, which made a “probable-cause determination against Phillips” in short order.

On Tuesday, Colorado Assistant Attorney General LeeAnn Morrill said the state applied a fair and neutral bright-line test when it pursued the 2017 discrimination case against Phillips.

“If you would make product one for customer one, then you would make product one for customer two. Miss Scardina was well on her way to getting a cake until she disclosed what it meant to her,” Morrill said.

Furthermore, Morrill argued, the state should be free to interpret the Colorado Anti-Discriminatory Act without federal intervention.

But Phillips’ attorney James Campbell with the Alliance Defending Freedom countered the state’s law begs federal review because it is unconstitutional. State law requires 4 of the 10-12 members of the commission must come from protected classes.

“That makes the panel biased,” Campbell said. “It violated due process and equal protection.”

Judge Daniel said he would dismiss Phillips’ case against outgoing Governor John Hickenlooper, while outgoing state Attorney General Cynthia Coffman will be replaced by her successor Phil Weiser as a defendant.

Although Daniel seemed to have made up his mind as to the parties’ requests, he said his final decisions will be made in writing.

“I’m not going to make a final ruling today because something tells me that whatever I rule, it will be appealed. So I will put my rationale in writing,” Daniel said.

If Phillips files a new request for preliminary injunction after the holidays, Daniel anticipates a two-day hearing on the matter in mid-February. The state Office of Administrative Courts is also expected to hold a hearing on the discrimination action filed against Phillips in early February.

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