After fighting for years in court for the right to turn away gay customers, a Christian baker in Colorado refused a trans customer — and is now suing the state to let him to do so. Masterpiece Cakeshop owner Jack Phillips, who made headlines for turning away a gay couple in 2012, filed a lawsuit Tuesday against Colorado's civil rights board, arguing that the state is violating his religious freedom by intervening after he refused to make a cake for a trans woman.
Denver lawyer Autumn Scardina says that in June, she asked Masterpiece Cakeshop to make her a cake in celebration of her birthday. Once she mentioned that the cake would also serve as a commemoration of her gender transition, however, the bakery said it wouldn't make the cake.
“When I explained I am a transexual and that I wanted my birthday cake to celebrate my transition by having a blue exterior and a pink interior, they told me they will not make the cake based on their religious beliefs," Scardina wrote in a complaint to the civil rights board in June. "The woman on the phone did not object to my request for a birthday cake until I told her I was celebrating my transition from male to female. I believe other people who request birthday cakes get to select the color and theme of the cake."
The Colorado Civil Rights Commission determined that Phillips, in refusing service to Scardina, violated the Colorado Anti-Discrimination Act, and ordered him and all parties involved to "attempt amicable resolution of these charges by compulsory mediation."
Notably, the commission did not order Phillips to make the cake. Nevertheless, Phillips is asking the court to issue Aubrey Elenis, director of the state's Civil Rights Division, a $100,000 fine as a punitive measure. In his lawsuit, Phillips claims that he suffered "humiliation, emotional distress, inconvenience, and reputational damage" due to the civil rights board ordering him to attend mediation, but is asking the court for only $1.00 "in nominal damages" for himself.
When Phillips was taken to court in 2012 over his refusal to bake a cake for a gay couple, he was ultimately victorious: After years of litigation, the Supreme Court ruled in his favor in June. However, it did so a narrow, context-specific manner that didn't address the broader Constitutional questions at play in the lawsuit.
In that case, the court's majority concluded that Colorado's civil rights commission exhibited "clear and impermissible hostility toward the sincere religious beliefs" of Phillips; in one instance, the court noted, a member of the commission had compared Phillips' argument to "defenses of slavery and the Holocaust." For this reason, the court ruled that the Colorado civil rights board had not acted neutrally in its determination against Phillips.
However, the court didn't rule one way or the other on the central legal question in the case: Whether Phillips has a First Amendment right to refuse services to a gay couple based on his religious beliefs.
As BuzzFeed notes, there are some key differences between Phillips' previous case and this one. It's not clear, for instance, that the Colorado civil rights board exhibited any "hostility" to Phillips' religious beliefs this time around, which was the underpinning of the Supreme Court's ruling in June. Moreover, Phillips is not being asked to make a cake that will be used in a celebration — namely, a same-sex wedding — that he opposes. Rather, it will be used at a birthday party.
This could put Phillips on shakier legal ground, given comments he made to the New York Times in 2017 regarding the earlier case.
“I’ll make you birthday cakes, shower cakes, cookies, brownies,” Phillips told the Times. “I just can’t make a cake for a same-sex wedding.”