In prior columns, academic articles, and my book, “The Indispensable Right, I discuss the never-ending litigation targeting Jack Phillips, the Christian baker who declined to make cakes that violated his religious beliefs. Phillips continues to be the subject of continuing lawsuits despite the Supreme Court upholding his right to decline to make expressive products for ceremonies or celebrations that he finds immoral. Now the Colorado Supreme Court has dismissed an action brought by a transgender lawyer against the cake shop and its owner.
Phillips has been the target of an unrelenting litigation campaign for over a decade.
In 2012, Charlie Craig and David Mullins asked Phillips to make a cake for their same-sex marriage. As a devout Christian, Phillips declined. He would sell any pre-made cakes to customers, but said that he could not morally make a cake for same-sex marriages.
That refusal turned Phillips’ tiny bakery into ground zero for the long-standing battle between religious rights and anti-discrimination laws. The Colorado Civil Rights Commission found that Phillips must make the cakes under the Colorado Anti-Discrimination Act (CADA).
The case went all the way to the Supreme Court in what many of us hoped would be a final resolution of this conflict. I had long criticized the framing of the case (and other cases) under the religious clauses as opposed to taking this as a matter of free speech. In the end, the Supreme Court punted in a maddening 2018 decision that technically ruled in favor of Phillips based on a finding that the Commission showed anti-religious bias against Phillips.
As a result, Phillips was thrown back into an endless grind of litigation as activists targeted his bakery for additional challenges by demanding cakes with other messages that Phillips found offensive.
In 2023, the Supreme Court delivered a major victory for free speech in 303 Creative v. Elenis when it ruled that Lorie Smith, a Christian website designer, could refuse service to a same-sex marriage. Justice Neil Gorsuch wrote “the framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’ … They did so because they saw the freedom of speech ‘both as an end and as a means.’”
The decision was not just a vindication for Smith but Phillips. However, Phillips continued to languish in the Colorado system, spending over a decade in non-stop challenges and lawsuits. Because the Supreme Court could not reach a clear resolution, it left Phillips to the continued pursuit of activists targeting his bakery.
The latest dispute began when Autumn Scardina spoke to the wife of Phillips and requested a pink cake with blue frosting to celebrate her gender transition. When the shop declined, Scardina filed an anti-discrimination claim with the Colorado Civil Rights Division (“the Division”) under section 24-34-306, C.R.S. (2024).
In her complaint, Scardina suggested that this was not a targeting of the famous cake shop but merely an effort to get a birthday cake.
In the complaint, Scardina wrote: “Ms. Scardina repeatedly heard Defendants’ advertisements that they were “happy” to sell birthday cakes to LGBT individuals. Hopeful that these claims were true, on June 26, 2017, Ms. Scardina called Masterpiece Cakeshop from Denver to order a birthday cake for her upcoming birthday.”
The shop said that they could make such a cake. However, “Ms. Scardina then informed Masterpiece Cakeshop that the requested design had personal significance for her because it reflects her status as a transgender female.” When the shop noted that it did not make cakes for gender transitions, Scardina insisted that it was for her birthday.
Having established the basis for the lawsuit, she then filed an administrative action. Eventually, however, she jumped from the administrative process into the courts. That would prove the procedural problem for the Colorado Supreme Court.
Scardina prevailed in the lower courts but the case was dismissed by the Colorado Supreme Court on technical grounds.
Justice Melissa Hart wrote in the Colorado Supreme Court’s majority opinion that
“The underlying constitutional question this case raises has become the focus of intense public debate: How should governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market? We cannot answer that question.”
The most notable aspect of this opinion is that, after a decade, Phillips is still being dragged through the courts despite the fact that the Supreme Court has recognized his free speech right to decline such contracts.
Alliance Defending Freedom (ADF) has defended Phillips and Jake Warner, ADF senior counsel, stated “Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone.”
It is doubtful that activists will heed that request.
Here is the opinion: Masterpiece Cakeshop v. Scardina
Typical Democrat elitists… “It’s their money, spend it when you want.”
https://www.thegatewaypundit.com/2024/10/tim-walz-doug-emhoff-walk-cafe-without-paying/
The plaintiffs are doing for First Amendment law what blue states do for Second Amendment law: setting into motion a chain of events that leads to an eventual Supreme Court decision in favor of freedom.
They know this but do it anyway for short-term gain. The blue state politicians win political brownie points with their constituents while the Supreme Court decision is years away. The plaintiffs who sue the cake shop win brownie points with their social group because they have struck a blow against a Christian who is devout and principled. Good food, status at cocktail parties, and who cares about a Supreme Court decision at some indeterminate point in the future?
Transgender spectrum tyranny.
Perhaps this man needed to refuse business in a capitalist society in order to have more time for his delusions to destroy the understanding of his religion?
Party on!!
Chef Gordon Ramsey inspects food that might be consumed by homosexuals, lesbians &
transgender people suffering from low immune disorder. They could get sick & die.
The LGBT community asks the community at large for tolerance towards their life style. I have no problem with that, but it seems reasonable to demand reciprocity. Buy your cake somewhere else. Of course, it is quite clear that Phillips is sought out to make these cakes so he can be attacked and perpetually harassed in the courts. See the facts of this case. The order was not simple for a pink cake with blue frosting, but that request was accompanied by an explanation: to celebrate gender transition. Without the explanation, the request would have been neutral. And it is obvious that the explanation served to trigger the baker’s refusal so he could be sued. It is a really disgusting tactic and I agree with others suggesting that the baker should counter sue for tortuous harassment.
Didn’t our last Republican president violate the 10 Commandments (all 3 versions) when he cheated on his pregnant wife?
Surely any real Christian would refuse to make a cake for that guy!
Gottdamn right.
Didn’t Kamala Harris violate the Ten Commandments when she slept with a married man who was thirty years older than she was. Your sanctimony is showing.
I don’t recall ever seeing that allegation being anything more than a shakedown by an aging porn star. Everyone knows Trump likes the ladies, but he’s also reportedly a germaphobe. If you wete s multi billionaire married to Melania, would you risk it to lay down with a washed up porn star?
If “Stormy Daniels” truly was a ‘porn star’ – how come nobody recognized her name until her attempts to extort money from Trump failed (with no resultant prosecution, surprise!) and the shakedown continued with the publication of the non-disclosure agreement like?
You don’t have to be a porn fan to recognize the names of John Holmes, Ron Jeremy, Linda Lovelace, etc. They’ve been part of jokes and other social culture for decades.
Nobody heard of “Stormy Daniels” until Democrats used her as a weapon to try and take out Trump.
While ignoring that Obama who Trump replaced had made his White House home home base for Harvey Weinstein, despite the fact their Secret Service close protection detail warned them that their besty Harv was a serial pedophile and rapist.
Democrats suddenly have a sense of sexual morality? GMAFB…
Stormy Daniels is a pornographer both as an actress and as a director. Her hardcore “films” were made soft porn and shown on various networks like Stars, HBO and Cinemax. Insomnia makes for clicking through the late night shows, amazing the political ads and debauchery on there!
And if it was old enough it voted for Obama who had a White House open door guest policy for serial rapist and pedophile Harvey Weinstein to hang with the girls.
And it voted for President Daddy-Daughter Inappropriate Incest Showers.
The intersectionality of The Alphabet Sex Pride Tribe Warriors and atheist Marxist commies: anything that stands between Marxist government like loyalty to family, religion, etc must be destroyed.
Didn’t our last Republican president violate the 10 Commandments (all 3 versions) when he cheated on his pregnant wife?
Didn’t you vote for the current Democrat president despite knowing he liked him his Daddy-Daughter Inappropriate Incest Showers? Same current Democrat president who was balling the kiddy’s babysitter before his just killed wife and child’s bodies were cold in the ground?
History for you only involves the four years of the Trump presidency? That’s when your inferred morality and religious values kick in? Only then?
And didn’t you vote – twice – for the previous Democrat president, Obama, and still revere him despite the fact he had Harvey Weinstein on the White House open door policy guest list for eight years? He and the missus doing so despite their Secret Service close protection detail warning them their bestie Harv was a serial rapist and pedophile they were allowing to be near their daughters? While his then VP Biden smiled and looked the other way while his fellow kiddy fondler and pedophile wandered the White House he was part of? Weinstein shielded from DoJ prosecution by the DoJ’s boss, Obama?
Or are you only worried about presidents who cheat OUTSIDE of politics – not presidents raping and cheating on their wives while in the White House?
You were old enough to give Bill Clinton your vote twice? While – aside from the rape and cheating on his wife inside and outside the White House – he too had Harvey Weinstein as his bestie welcome at any time in the White House.
That’s how Commie Zombies cosplay as actually caring about either religions other than atheism, or about sexual morality of Abrahamic Religions. While they desperately pander for the activist warriors of the Alphabet Sex Pride Tribe avoiding targeting Muslim businesses to swarm observant Christians instead.
We must also remember Fulton v. City of Philadelphia, challenging the nonrenewal of Catholic Charities’ contract with the City, after 50+ years, to place youth in foster care. CC made clear it would not certify gay couples as fosters. It also made clear: it would refer same-sex couples to other agencies; it would not certify unmarried opposite-sex couples; it would certify single LGBTQ+ people; and, most importantly, it would accept LGBTQ+ youth for placement. (Are they not the most important part of the equation?) But the City announced it would not renew CC’s contract; the process included snarky comments by a City official similar to those made by a Commission member against Mr. Phillips. The Supreme Court found for CC on free exercise grounds. https://www..gov/opinions/20pdf/19-123_g3bi.pdf.
As it appears Mr. Phillips is being targeted with cake requests solely or mainly for purposes of administrative complaints then litigation, he should consider abuse of process actions against the targeters.
The left is AOK with Catholic Charities as long as they keep aiding and abetting illegal aliens
Amazon is more than happy to sell LGBT cake toppers and national hotel chains are happy to offer LGBT wedding packages, putting bigoted small businesses out of business.
Small businesses can’t survive longterm by being bigots turning away customers.
As far as claiming Christianity as a justification, does the small business owner also turn away supporters of the death penalty and supporters of the Iraq War (optional war)? Or those that practice divorce like Trump and Newt Gingrich. Also part of the Christian faith, equal or worse than LGBT relationships.
Anon, that are not the facts. The baker does not refuse to sell cakes to LGBT people. He refuses to make cakes with messages to which he objects on religious grounds. That is not the same as refusing to bake a neutral cake for someone that is known to be a divorcee, because in that case the baker would object to the person not the message.
The libtard likes to attack people for their beliefs or stances, of course anyone maga or conservative should be refused all services, banned, excommunicated, demonetized, their businesses shut down, etc. , just for what is said to be in their head, first and foremost the false accusation of racism is sufficient.
They don’t understand the idea of FORCING the person in question to speak the words they demand be spoken, because of course, that is all they do all day long – demand this or that maga or conservative denounce this or that, publicly declared, etc.
So when someone wants a service, their brain defaults to their one sided moron view – they control everyone and judge everyone else’s belief system when it does not conform to their rigid party dogma or purportedly does to their false accusations. So the anon is just declaring their own prejudice and stupidity – he knows Christians should refuse service to anyone who doesn’t comport to anon’s idea of what Christiantiy supports ! What a genius ! A mind reader, and a super moralist.
I am so sick of these fools.
Example: “Hi, I’d like to order a chocolate cake.”
anon: ” OMG !!!! IT’S A NAZI WHITE RACIST SUPREMACIST !!! A HETERO WHITE MALE !!! YOU MUST REFUSE TO BAKE A CHOCOLATE CAKE !!! THEY MIGHT JUST SMASH IT OR BURN IT AND POST A VIDEO ON LINE SPREADING THEIR HATRED !!! NO WAY NO WAY !!! ”
That is the level we are dealing with.
Small businesses can’t survive longterm by being bigots turning away customers.
Reality: many of these small businesses survive specifically because they have more than enough normal Americans for customers. Vicious Alphabet Sex Pride Tribe Warriors as potential customers doesn’t even begin to come close to representing a significant amount of their business.
Normal homosexual couples don’t wear it on their sleeves while running around looking for devout Christians to target for assault – they’re pretty much the same as normal heterosexual couples who run around avoiding businesses owned by homosexuals.
Let’s try this instead: few small businesses can survive vicious bigoted Alphabet Sex Pride Tribe Warriors who by sheer chance only demand that devout Christians make their cakes and cater their religious services. Particularly when that vicious lawfare is paid for not by the Alphabet Sex warriors, but by government and their national Marxist/Democrat (but I repeat myself) support groups?
Just chance that they NEVER target bakeries and caterers owned by observant devout Muslims?
These vicious bigoted Alphabet Sex Pride Tribe Warriors have no other bakeries to select from – the business owned by the devout Christian is the only one in town that make them that cake or cater their event?
The idea that Commie Zombie apparatchiks for the Alphabet Sex Pride Tribe and Democrats have the slightest expertise on Abrahamic religions while they follow atheist/Marxist theology is laughable.
As is the idea that as Commie Zombies they can speak with any expertise on how capitalism and small businesses work.
Small businesses aren’t as effectual working the bigotry angle as democrat NGOs, that is fo sho.
If they wish to, you still don’t get it
Deranged leftists. They think they are fighting for a good cause. Thing is, clearly they not only failed in the courts but failed to “cancel” him as well. Clearly despite all the lawfare against him, he has a customer base that supports him to stay in business. Good for him, good for them. Dont give into the fanatical mob!
As usual I agree with Jonathan’s view on this. However, by stating “As a devout Christian, Phillips declined.”, he is suggesting or implying that in order to be a “devout Christian” you must consider homosexuality a sin. While the Bible, especially the Old Testament” states explicitly that homosexuality is a sin, to the best of my knowledge, Jesus in all his orations where his words are recorded in the New Testament never says that homosexuality is a sin.
carpslaw: Jesus in all his orations where his words are recorded in the New Testament never says that homosexuality is a sin.
You didn’t mention that Jack Smith has always been willing to serve homosexuals and gender blenders with ordinary business i.e. buying bread, deserts, etc. What he refuses to do is use his artistic talents to celebrate things that his religious beliefs do not agree with. And that isn’t just cakes that celebrate homosexuality.
However you see the issue of homosexuality from a Christian (or Muslim or Jewish) perspective, to the best of your knowledge do you believe that Jack Smith is merely an outlier where his beliefs of helping to celebrate homosexuality are concerned? Clearly he is not an outlier.
There’s more than a few Christians/Jews/Muslims that share his views in actively helping to promote homosexuality.
To me it doesn’t matter whether an opinion is an outlier or not. What I do firmly believe is that everyone is entitled to their own opinion and the right to adhere to it, especially in maters where the “right” answer is not clear and certain and when there are other very viable options for the person claiming to be a victim. I have no doubt there are other bakers who would bake excellent wedding cakes for gay couples. Why force someone to abandon their strongly held beliefs and force them to think like you? I expect most gay people wouldn’t want to be forced to adopt and adhere to the beliefs of Muslims or other anti-gay ideologies. Nor do I believe that should ever be the case. Both sides should respect the right of others to have a different view and adhere to their view as long as that view doesn’t cause irreparable harm and/or hardship.
What Philips needs to do is counter sue the plaintiffs for their abusive litigation tactics and thereby put an end to this harassment.
We have been following the case since we live in Colorado. Good for him.
Freedom of speech also means freedom not to speak. This is not different that freedom of religion means freedom not to believe in God or anything labeled as religion. The bakery agreed to sell them a cake but not one symbolic of the purchasers views which was speech. The bakery was exercising its freedom not to speak and symbols are speech.
This has nothing to do with getting a cake made. If it was about getting a cake made there are other cake shops that would be glad to have the business. This is about hate of Christians in particular. It is interesting that no businesses owned by muslims have been targeted in the same way. The harassment continues because Jack Phillips will not bow down and worship the god of the golden phallus.
TiT,
As you have pointed out many times before, us sane, normal people dont try to cancel anyone. We change the channel or in this case, would simply go to another bakery that would be glad to have their business. Anyone with any degree of common sense would say, meh, I will take my business elsewhere.
“It’s time to leave him alone.” A counter-suit or two with punitive awards, perhaps including lifetime personal security for Mr. Phillips and his bakery included, just might accomplish this.
I would suggest that the GOP make a commercial using video of a honey badger attacking its prey and label it a portrait of soros-backed DAs committing “lawfare” against their enemies.
Read the Bannon piece on CFP, alot of the peasants already know it. It was a good read! Puts alot of what’s going on in true perspective.
This is, as you pointed out professor, ground zero for activists to make an example of this small business, to send a message to anyone who dares to stand up for their principles.
Having said that, the business owner, any business owner, should have their policies in writing and reviewed, if possible, by an experienced business attorney. State the policies and display them.
We have reached a sad point in history for small business. The regulations are astounding. In his case, he was targeted.
I think I will find a bakery and have them make a Donald Trump cake with “Make America Great” written across it and do so in a shop with an ardent leftist baker. Maybe go to a Palestinian bake shop and make a cake with the Star of David and a political statement. Why not ask a Chinese baker to make a pro Taiwan cake?
It goes back to “the shoe on the other foot” test. If they would do it with a smile, perhaps he might reconsider. I won’t hold my breath.
And the republicans always think it is below them to get down and dirty with the dems but it has now become a matter of survival. We are like the 82 Airborne in WWII, dropped behind enemy lines, outnumbered and the only think stopping the Nazis. We had better become “Screaming Eagles” https://www.youtube.com/watch?v=eFO0Xo9TZ54&list=PLhtcf1xLeGZtTxdSJVOKGcnMBKWhk9SzY&index=1
Nice fantasy, but the lay out has been written already and failure mode has already occurred.
Most the republicans go along with it in hopes they are never targeted.
There are a couple R handfuls out of hundreds that are already screaming eagles and the main R party absolutely hates them.
So suck it up, because it’s going down and no R party is stopping jack diddle.
E.M.
It is a sad day when we have to resort to writing our policies written and displayed. The question I have is would this lead to a voluntary segregation of the general public to establishments according to a businesses “policies?” Of course as the good professor pointed out to the recent incident where a bar in DC tried to be all inclusive by displaying both political parties icons and was forced to remove the Republican one as it posed a so call “threat” to leftists.
It could be an interesting social experiment. See which businesses do well and which ones do not.
I think there are adequate grounds to argue this case under freedom of speech and freedom of religion. I also agree that this legal lawfare and harassment could be terminated quickly by damages being given to the baker for this perpetual state of legal purgatory.
Flexibility is the key, however: Just have the customer elect to go to another bake shop. This is obvious harassment using the law to achieve this somewhat dubious “right of the customer”. The Supreme Court had no trouble changing liable laws when the New York Times was troubled by liable lawsuits from racist organizations in Sullivan v NY Times.
There are many options to terminate this harassment if the Courts would simply choose one and shut this all down.
The world (and Colorado) need to move on.
Great points. The assumption of flexibility is predicated on having reasonable human beings who have busy lives, careers, etc.
If only.
GEB,
Well said.
Flexibility is not a trait known to leftists. They want conformity to their beliefs no matter how bizarre they might be. Like, we have to believe they are a cat or they are a woman when, clearly, they are man.
Sad that now 10’s of homosexuals may die of starvation since they cannot buy cakes from the shop.
Let them eat tube steak