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  • Writer's pictureMario Nicolais

Jack and the Masterpiece Cakeshop, take two

Updated: Apr 26, 2020

Some lawsuits aren’t measured in years, but decades.

That seems to be the fate for the ongoing dispute among Jack Phillips, his Masterpiece Cakeshop, the Colorado Civil Rights Commission, and the state’s LGBT community.

After Phillips won a narrowly tailored decision from the U.S. Supreme Court in June over his refusal to bake a wedding cake for a gay couple, the Civil Rights Commission turned around and sanctioned him again over his refusal to bake a cake celebrating an Arvada woman’s birthday and gender transition anniversary.

I don’t blame the folks immediately rolling their eyes and saying, “why do we have to do this again?” Phillips’ supporters think it is simple enough to find another cake shop without objections to the purpose for the cake.

LGBT advocates say Phillips could either “just bake the cake” – after all, it isn’t his celebration – or stop selling cakes altogether. It seemed Phillips cupcake and cookie business flourished after his case garnered national attention.

The problem is that the simple solutions present mutually exclusive options. That is a typical outcome when constitutional rights collide. It becomes even more pronounced when it involves core rights as it does here: religious freedom for Phillips against the right to equal treatment free from discrimination for the LGBT community.

I wrote about this issue before both when the Supreme Court accepted the first case last year and again when Colorado Attorney General Cynthia Coffman filed a brief on behalf of the Civil Rights Commission. I come down on the side of equality. That is a core principle of a democracy. But my position is not without reservation; fleeing persecution for religious freedom pre-dates our Constitution and dates to the original European settlers in North America. However, Phillips seems one step removed because his case revolves around a commercial business he operates, not the house of prayer he worships within. That distinction tips the balance for me.

Of course, the U.S. Supreme Court ultimately did not determine whether I’m right or wrong. Instead they punted by finding fault with the Civil Rights Commission for failing to review the original complaint with religious neutrality. Several gratuitous remarks pulled from the transcript sealed the Court’s opinion. However, those justices practically invited a member of the LGBT community to march straight back into Phillips’ cake shop.

Every case is different, though. Even those that appear to be the same. Certainly the Civil Rights Commission held their tongues this time around, careful not to pave the same path to being overruled.

In contrast, the complaint doesn’t seem as factually clear cut to me. While the original lawsuit involved a wedding cake with no discussion of decoration design, this case revolves around a dual-purpose cake. I’m not sure Phillips’ would have refused to bake a simple birthday cake for the woman who ordered it. He has previously said he has no problem selling to gay men and women, he just objects to making cakes that celebrate events that violate his religious conscience. But if the woman ordered a cake solely to celebrate her transition, she may have inadvertently allowed Phillips to argue he doesn’t bake transition cakes for anyone.

Beyond the facts, this case will also proceed under a very different set of circumstances. The religious freedom legal defense fund Alliance Defending Freedom already helped Phillips go on the offensive in federal court to enjoin the Civil Rights Commission from enforcing its decision against Phillips. Colorado will soon have a new attorney general and the centrist author of the original Supreme Court decision will be replaced by a more conservative member of the court. Each of these factors will come into play as the case progresses.

While many Coloradans already find themselves finished with this fight, they better prepare for another four to five years of legal arguments and media reports. Let’s hope this time we get some clear answers.

Mario Nicolais is an attorney and Denver Post columnist who writes on law enforcement, the legal system, healthcare, and public policy. Follow him on Twitter: @MarioNicolaiEsq

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