DENVER, Co. — A federal judge nominated to the bench by then-President Bill Clinton has rejected a motion by the Colorado Civil Rights Commission to dismiss a lawsuit filed against the entity by a Christian baker who is seeking to fight a second discrimination complaint against him.
Jack Phillips of the now-famed Masterpiece Cakeshop had asserted that he was the subject of continued hostility by the government as it had approved a new discrimination complaint over Phillips’ refusal to make a blue and pink cake for a celebration of a man’s “gender transition.” Phillips’ case surrounding a separate matter involving a same-sex celebration made it to the Supreme Court last year and was the subject of national headlines.
In the instant matter surrounding the “gender transition” cake, Judge Wiley Daniel noted in his decision on Friday that Phillips would have declined to make the cake for anyone—no matter who they are—and that the division failed to make this distinction when considering the new discrimination complaint.
“[N]either the division, in its probable cause determination, nor the commission, in its formal complaint, made the distinction urged now by Defendants. This omission is especially glaring because [the Supreme Court] denounced the division’s and the commission’s unequal treatment of Phillips just before the division and the commission began new proceedings against Phillips,” he wrote.
“The decision to pursue the discrimination charge occurred after [the Supreme Court ruling], and this decision by Director Elenis and the defendant commissioners supports the existence of bad faith,” Daniel concluded.
As previously reported, attorneys with Alliance Defending Freedom (ADF) filed a federal lawsuit in August on behalf of Phillips, contending that the division had “doubled down” its religious hostility toward the Christian baker.
It did so after the division approved a new discrimination claim—this time from an attorney who requested a cake for a “gender transition” celebration on the very day that it was announced that the Supreme Court would hear Phillip’s case surrounding his abstention of an order for a same-sex celebration.
According to the determination letter submitted to Phillips by the division, in 2017, a man who identifies as a woman called Masterpiece Cakeshop and stated that he wanted to place an order for a custom cake. Debi Phillips, the wife of Jack Phillips, took the call and asked the man about the desired size of the cake, the requested flavors, and the date by which it would be needed.
“The complainant responded that [he] would need the cake … to serve 6-8 people, and wanted the cake to have a blue exterior and a pink interior,” the letter read. “The complainant asserts that [he] ‘explained that the design was a reflection of the fact that [he] transitioned from male to female and that [he] had come out as transgender on [his] birthday.’”
Realizing that the order would entail the creation of a custom cake reflecting the celebration of a so-called gender transition, Phillips advised that the business could not be of assistance. Her husband affirmed that the request could not be fulfilled.
“[T]he respondent will not make cakes that address the topic of sex changes or gender transitions,” the determination letter outlined. “He contends that he will not support a message that ‘promotes the idea that a person’s sex is anything other than an immutable God-given biological reality.’”
The Colorado Civil Rights Division consequently concluded that the complainant had standing for a claim of unlawful discrimination.
“The evidence thus demonstrates that the refusal to provide service to the complainant was based on the complainant’s transgender status,” the letter read. “A claim of discriminatory denial of full and equal enjoyment of a place of public accommodation has been established.”
Read the correspondence in full here.
Phillips then filed suit, reiterating that he should not be forced to make cakes that violate his convictions, and that it is not the person ordering the cake, but the message it conveys and/or the event involved, that is the issue.
As previously reported, Phillips won’t make custom cakes for any customer if the message is problematic. He has turned down cake orders demeaning homosexuals, and similarly refused an order celebrating a divorce. He will also not make cakes that would be racist, use profanity, promote drugs or alcohol, support abortion or euthanasia, or celebrate Satanism or Halloween.
“Phillips’s decisions on whether to create a custom cake do not focus on who the customer is, but instead depend on what the custom cake will express or celebrate,” the lawsuit explained. “Neither Phillips nor any staff member at Masterpiece Cakeshop asks customers about their protected characteristics, such as their race, faith, sexual orientation, or gender identity, because those characteristics do not matter to Phillips in deciding whether to accept a custom-cake order.”
“Phillips will not create such cakes no matter who requests them,” it stated. “Phillips believes that he would violate God’s commands if he were to create custom cakes that express messages or celebrate events in conflict with his religious beliefs.”
The Colorado Civil Rights Commission and Civil Rights Division filed for dismissal of Phillips’ lawsuit against them, but on Friday, Daniel allowed the legal challenge to stand.
Read the motion to dismiss here.
Daniel noted that because the Colorado Civil Rights Division failed to delineate the difference between turning away transgender people and not making a “gender-transition” celebration cake for any person under any circumstances, the evidence supports Phillips’ claim that the government acted in bad faith against him.
“Scardina did not request just a blue and pink cake. … Scardina explicitly, and repeatedly, requested a blue and pink birthday cake to celebrate [his] transition, and Phillips would have declined to make such a cake for anyone, regardless of the ‘customer’s protected characteristics,'” he wrote.
While Daniel did dismiss Phillips’ claims seeking compensatory and punitive damages, as well as his claims against then-Gov. John Hickenlooper, the main thrust of his lawsuit was permitted to proceed.
ADF expressed satisfaction with the decision on Monday.
“Jack serves all customers, and he is even happy to serve the attorney who lodged the complaint against him,” Senior Counsel Jim Campbell said in a statement. “But Jack doesn’t create custom cakes that express messages or celebrate events in conflict with his deeply-held beliefs.”
“He can’t get a fair shake before the state commission. A commissioner set to decide the state’s new case against Jack has publicly referred to him as a ‘hater’ on Twitter, one of several indications of the commission’s ongoing bad faith toward him and his beliefs.”
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