Not even a full month after the U.S. Supreme Court held in favor of Colorado baker Jack Phillips in Masterpiece v. Colorado Civil Rights Commission, that same commission came after Phillips and his religious beliefs again. The issue is over another cake, but this time the claim of discrimination appears to be a targeted attack against Phillip.
A local Colorado attorney requested a custom pink and blue cake design from Masterpiece Cakeshop that the attorney claimed “was intended for the celebration of my transition from male to female.” According to a statement Wednesday from Phillips’ attorneys at the Alliance Defending Freedom, “Phillips declined the request because the custom cake would have expressed messages about sex and gender identity that conflict with his religious beliefs.”
The timing of the request from the transgender attorney just so happens to be the very same day the Supreme Court agreed to hear the Masterpiece case—June 26, 2017. Coincidence? No way. Yet, the Colorado Civil Rights Commission is still allowing this obviously targeted claim of discrimination to move forward, finding probable cause when clearly it’s a sham claim. Alex Griswold of the Washington Free Beacon summed it up best:
I’ve previously written extensively about the overt bias and unconstitutionality of the commission, and this move shows again just how overtly hostile the commission is against religious freedom, especially with this decision coming mere months after the Supreme Court’s decision. The court specifically told Colorado that its “hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion” and that litigants are entitled to a neutral decision-maker.
Clearly the Colorado Civil Rights Commission is no such neutral decision-maker, nor are they even pretending to follow the Supreme Court’s holding. Michael Farris, CEO and general counsel of Alliance Defending Freedom said, “There is no way to get neutral judges from such a system and this panel is clearly not neutral here.” He also said that the LGBT activist lawyer is “clearly seeking to set Jack up for attack,” which the commission is now patently enabling.
Princeton professor and constitutional law attorney Robert George posted on Facebook, “This is a strategically stupid move on the part of Jack Phillips’ persecutors. The last thing they should want to do is to create a case that could go up through the system to the Supreme Court where the justices will have an opportunity to ditch the rather weak Kennedy opinion in Masterpiece Cakeshop and install in its place an opinion for the Court that reflects the substance of the concurrences by Justices Gorsuch and Thomas.”
Getting a more broad opinion protecting religious freedom is much more likely if Judge Brett Kavanaugh is confirmed to replace Kennedy. Kavanaugh’s commitment to originalism and faithful application of the Constitution requires preserving and protecting freedom of speech and free exercise of religion as enumerated in the First Amendment, and Kavanaugh has a strong record upholding religious freedom. Masterpiece round two and religious liberty generally may become part of the line of questioning from the Senate as Kavanaugh’s confirmation hearings begin on September 4.
Importantly, both constitutional guarantees of religious freedom and free speech are at issue in the lawsuit filed this week by Phillips’ attorneys at ADF. While the nonprofit organization typically represents defendants in lawsuits, such as Phillips, ADF has now filed suit to prevent Colorado from continuing its relentless attack on religious freedom.
The complaint filed by ADF explains, “Colorado has renewed its war against [Phillips] by embarking on another attempt to prosecute him, in direct conflict with the Supreme Court’s ruling in his favor. This lawsuit is necessary to stop Colorado’s continuing persecution of Phillips.”
The Colorado legislature would be wise to reconsider its move reauthorizing the commission and instead afford meaningful due process to all Coloradoans, including people of faith. Instead, the legislature is allowing the commission to defy the Supreme Court and continue obvious and open hostility against religious freedom and First Amendment guarantees.
This kind of animus and persecution from the government must stop and the commissioners should be held liable for their actions. The ADF lawsuit states, “It is now clear that Colorado will not rest until Phillips either closes Masterpiece Cakeshop or agrees to violate his religious beliefs. The state’s continuing efforts to target Phillips do not just violate the Constitution; they cross the line into bad faith. This Court should put a stop to Colorado’s unconstitutional bullying.”
This column first appeared in the Washington Examiner
Posted In: Family Institute, Jenna Ellis, Policy