By Kevin Daley
Jack Phillips, the Christian baker who prevailed at the U.S. Supreme Court after declining to create a custom wedding cake for a gay couple, filed a lawsuit in federal court late Tuesday suing the Colorado Civil Rights Commission.
Phillips and his attorneys at the Alliance Defending Freedom (ADF) say the Commission has revived its campaign against him following June’s high court decision, singling Masterpiece Cakeshop out for disparate treatment on the basis of their religious beliefs.
“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,” said Kristen Waggoner, an Alliance Defending Freedom attorney who represents Phillips. “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.”
On the same day the high court agreed to review the Masterpiece case, an attorney named Autumn Scardina called Phillips’s shop and asked him to create a cake celebrating a sex transition. The caller asked that the cake include a blue exterior and a pink interior, a reflection of Scardina’s transgender identity. Phillips declined to create the cake, given his religious conviction that sex is immutable, while offering to sell the caller other pre-made baked goods. (RELATED: Christian Baker Prevails At Supreme Court In Same-Sex Wedding Cake Dispute)
In the months that followed, the bakery received requests for cakes featuring marijuana use, sexually explicit messages, and Satanic symbols. One solicitation submitted by email asked the cake shop to create a three-tiered white cake depicting Satan licking a functional 9-inch dildo. Phillips believes Scardina made all these requests.
Scardina filed a complaint with the civil rights commission, alleging discrimination on the basis of gender identity. The matter was held in abeyance while the Supreme Court adjudicated the Masterpiece case.
Three weeks after Phillips won at the high court, the commission issued a probable cause determination, finding there was sufficient evidence to support Scardina’s claim of discrimination. In a somewhat strange development, the probable cause finding reads that Phillips violated state law, even though the proceedings are still in a preliminary stage.
In turn, the ADF filed a lawsuit against the Commission on Phillips’s behalf, accusing the panel of violating his constitutional free exercise, free speech, due process, and equal protection rights.
“Colorado has renewed its war against him by embarking on another attempt to prosecute him, in direct conflict with the Supreme Court’s ruling in his favor,” Phillips’s lawsuit reads. “This lawsuit is necessary to stop Colorado’s continuing persecution of Phillips.”
The suit requests an injunction barring further prosecutions of Phillips for violations of Colorado’s anti-discrimination law, a declaration that the Commission violated his constitutional rights, and damages from the director of the commission. The complaint names the director, Aubrey Elenis, in her professional and personal capacity, meaning she is personally liable for any financial judgment the court might award.
Phillips is seeking damages from Elenis for lost work time, lost profits, emotional distress, and reputational harm. He is also requesting an additional $100,000 punitive judgment against her.
The complaint also challenges the criteria by which commissioners are selected to serve on the civil rights panel. According to the filing, the seven-member commission must always include four “members of groups of people who have been or who might be discriminated against because of disability, race, creed, color, sex, sexual orientation, national origin, ancestry, marital status, religion, or age.” Two seats must be filled by representatives of the business community, while another two seats are reserved for government entities.
ADF argues these criteria are not neutral, and embed hostility to Phillips’s religious beliefs into “the very structure that Colorado uses to enforce its public-accommodation law.” (RELATED: Liberal Group Behind Kavanaugh Resistance Is Hiding Its Funding)
Finally, the suit challenges a provision of Colorado law that prohibits Phillips from conveying his religious objections to prospective customers. A state statute makes it illegal for companies to indicate that protected persons will not be served at their place of business.
ADF lawyers say these restrictions prevent Phillips from communicating his refusal to create custom goods conveying messages. They also alleged a particular clause of the law is unconstitutionally vague. The clause at issue forbids advertisements indicating “that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of … sexual orientation.”
The complaint was filed in the U.S. District Court for the District of Colorado. A legal rule called Younger abstention generally forbids federal courts from handling civil rights claims while they are being heard in state courts. Phillips’s lawyers plan to argue that Colorado is acting in bad faith, warranting the case’s removal to federal court.
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