Jack Phillips of Masterpiece Cakeshop is back in federal court this week, facing down additional charges of discrimination.
But this time, it’s not about a gay wedding. The latest legal threats against Phillips have to do with his refusal to bake a “gender transition” cake, in what a report in the Daily Wireis calling an “obvious set up” by a “bully and a harasser.”
According to NBC, on the very same day that the US Supreme Court agreed to hear Phillips’ appeal to the case previously brought against him by the commission, Denver attorney Autumn Scardina called the bakery and requested a “gender transition” cake. The lawyer asked that the cake be blue on the outside and pink on the inside, in order to celebrate the anniversary of his transition from male to female.
Phillips, a Christian who reportedly sees sex as rooted in biology, respectfully declined.
And so the Colorado Civil Rights Commission--the organization responsible for going after Phillips in the 2012 gay wedding case that eventually made it to the US Supreme Court--is now claiming that the baker discriminated against Scardina, because Scardina identifies as transgender.
On Thursday the Wire reported that: “The whole thing was an utterly transparent set up. Scardina, who had previously harassed the bakery with requests for cakes with satanic themes and sex toys, called on that particular day for the express purpose of being denied a cake.”
Phillips’ lawyers have stated that the baker’s belief in “the biological nature of sex”, not unlike his view on marriage, is a protected “religious conviction.”
"At this point, he's just a guy who is trying to get back to life. The problem is the state of Colorado won't let him," said Alliance Defending Freedom (ADF) attorney Jim Campbell, who is representing Phillips, according to The Associated Press.
Phillips’ attorneys are arguing that the Denver cake artist "believes as a matter of religious conviction that sex — the status of being male or female — is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed.”
The latest legal threats come as Phillips’ lawyers are seeking $100,000 in punitive damages from Aubrey Elenis, director of the Colorado Civil Rights Division, for allegedly continuing to violate Phillips’ First Amendment right to practice his faith, and 14th Amendment right to equal protection.
But Colorado Attorney General Cynthia Coffman has requested that Phillips’ lawsuit be dismissed, claiming that Phillips continues to discriminate, and is failing to comply with the state.
Still, there may be hope for Phillips.
Senior U.S. District Court Judge Wiley Y. Daniel, during the hearing on Tuesday, cited the Supreme Court justices' opinions from the 7-2 June ruling in favor of Phillips. The judge also referred to now-retired Justice Anthony Kennedy's conclusion that the commission had shown "hostility" toward religion.
“I’m inclined to deny the motion to dismiss,” Daniel said.
It remains clear that regardless how things play out in Colorado, Phillips’ attorneys are not giving up. Referring to the fact that the "same state agencies decided to go after him a second time" after losing at the Supreme Court, Phillips’ lawyers at ADF are asking, "If that isn’t government hostility towards people of faith, what is?"
The not-for-profit legal organization went on to add, "After spending six years on his first legal battle, Jack faces the discouraging reality that his business is once again on the line. All because some state officials disagree with his desire to live out his faith."
"Jack had no choice but to file a federal lawsuit to defend himself from this targeting. He should not have to fear government punishment for his faith when he opens his cake shop for business every day. But it appears that Colorado will not stop harassing him until he closes down or agrees to violate his faith."
Another hearing for Phillips is reportedly scheduled for February.
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