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Again: Colo. says cake artist Jack Phillips broke law

DENVER (BP) — Christian cake artist Jack Phillips is in court again, defending the same religious freedom right the U.S. Supreme Court affirmed on his behalf in a previous case in June.

This time, transgender attorney Autumn Scardina filed a discrimination complaint against Phillips for refusing to bake a birthday cake celebrating Scardina’s transition from a male to female identity. Pink cake on the inside and blue frosting on the outside describes the cake Scardina requested.

The Alliance Defending Freedom (ADF) has sued the Colorado Civil Rights Commission (CCRC) in this latest case against Phillips, ADF said in a press release today (Aug. 15).

“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,” Kristen Waggoner, senior vice president of ADF’s U.S. Legal Division, said in the press release. “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.

“Neither Jack nor any other creative professionals should be targeted by the government for living consistently with their religious beliefs,” said Waggoner, a member of Phillips’ longtime defense team.

Scardina’s case is not unexpected. The Supreme Court, in its 2018 summer session, declined to rule on several of the broader questions of Phillips’ case, leaving legal doors open that will likely be entered by lower courts, religious liberty experts have told Baptist Press.

The Supreme Court left “several important questions unanswered,” Southern Baptist religious freedom specialist Travis Wussow said in July, “and it will be up to the lower courts to answer them before the Supreme Court takes up another of these cases.”

Among other questions, the high court declined to rule on “whether or not the creation of a wedding cake constitutes speech under the First Amendment and whether the state can therefore compel that speech,” Wussow told BP.

Scardina asked Phillips to bake the blue and pink cake June 26, according to a complaint filed with the Colorado Civil Rights Division against Phillips on July 20, 2017. Scardina filed the complaint about a month after the Supreme Court agreed to hear a case stemming from Phillip’s refusal in 2012 to bake a wedding cake for a same-sex male couple.

In the older case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ruled June 4 that the CCRC demonstrated “religious hostility” and violated the religious free exercise clause of the First Amendment by penalizing Phillips for declining to bake the cake for the same-sex wedding. Weeks after the June 4 ruling, the Colorado Civil Rights Division found probable cause to pursue a new case against Phillips, based on Scardina’s complaint.

“The Respondent (Phillips) asserts that it will not provide the service of creating cakes that ‘promote the idea that a person’s sex is anything other than an immutable God-given biological reality,'” Colorado said in response to Scardina’s complaint. “The evidence thus demonstrates that the refusal to provide service to the Complainant was based on the Complainant’s transgender status. A claim of discriminatory denial of full and equal enjoyment of a place of public accommodation has been established.”

Colorado is specifically targeting Phillips for attack, the ADF asserts. In other cases where cake artists have refused to create custom cakes, the ADF said, the state has repeatedly found no probable cause in discrimination complaints. The state treated Phillips differently, his attorneys said, when the cake artist declined to create a cake celebrating transgenderism.

“The arbitrary basis on which the state is applying its law makes clear that its officials are targeting Jack because they despise his religious beliefs and practices,” ADF senior counsel Jim Campbell said in the ADF press release. “Jack shouldn’t have to fear government hostility when he opens his shop for business each day. We’re asking the court to put a stop to that.”

Phillips agreed.

“Colorado just seems to be looking for opportunities to punish me for my faith,” Phillips said at adflegal.org after the latest case.

ADF filed its latest lawsuit on behalf of Phillips, Masterpiece Cakeshop v. Elenis, in the U.S. District Court for the District of Colorado.

Similar cases regarding Christians remain active in other states, including Oregon cake bakers Aaron and Melissa Klein, Kentucky T-shirt designer Blaine Adamson, Arizona painters and calligraphers Joanna Duke and Breanna Koski, and Minnesota filmmakers Carl and Angel Larsen. Read their stories here.