It’s almost tempting at this point to sigh in resignation and say “just leave the poor baker alone.”
Lakewood cake decorator Jack Phillips had only just learned that the U.S. Supreme Court ruled in his favor in a case where he refused to make a custom wedding cake for a gay couple, when a transgender woman filed a complaint against him for again refusing services.
Regardless of her motivation or the timing, Autumn Scardina faced discrimination when she attempted to order a cake decorated to celebrate her gender transition and employees at Masterpiece Cakeshop refused service.
Scardina didn’t receive the cake she requested because it was intended to celebrate who she is, and that, Colorado lawmakers have said in passing an anti-discrimination law that includes both sex and sexual orientation, is so wrong as to be deemed illegal under Colorado statute.
So instead, we find ourselves resolutely saying, again, “just bake the cake.”
There’s a long, proud tradition of advocates for the most pressing issues of our time, including civil rights, abortion, state’s rights, voting rights, and even college admissions, using “test cases” to force America’s court system to solve legitimate grievances.
Phillips is entitled to his religious beliefs; in fact, his religious beliefs are protected by the highest law in this country for good reason. As such, he has the right to voice his opposition to transgender individuals who make public their gender identity. If he were a member of the clergy he could refuse to allow a transgender member into his congregation, or refuse to hold a religious ceremony or refuse, if he were so inclined, to even speak with the individual.
But after weighing the compelling competing interests in the original Masterpiece Cakeshop case over the years — the first complaint against Phillips for violating Colorado’s anti-discrimination laws came in 2012 — this board has held firmly that Phillips’ right to practice his religious beliefs ends at the point he opens his store to the general public for business and he turns away customers based on their sex or sexual orientation.
Ultimately, there are only seven people to blame for the fact that Phillips is back before the Colorado Civil Rights Commission: U.S. Supreme Court justices Stephen G. Breyer, Samuel A. Alito, Elena Kagan, Neil M. Gorsuch, Clarence Thomas, Chief Justice John G. Roberts and the now retired Justice Anthony M. Kennedy.
In the majority opinion written by Kennedy, the justices failed to address what they called a “difficult question.”
Instead Kennedy wrote: “When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.”
The court ruled as narrowly as possible in this case, leaving the door wide open for continued conflict and a lack of legal clarity. We cannot defend some of the remarks made by members of the Colorado Civil Rights Commission that the court construed as evidence Phillips didn’t get a fair hearing, but nor did we find those remarks so clearly unfair to Phillips as to warrant the original complaint and years of legal wrangling to be tossed out.
We are not surprised Phillips is back in the court system, nor do we consider it harassment or bullying for the Colorado Civil Rights Division to again find Phillips at odds with the state law.
We can only hope at this point, although we are skeptical, that this might be the “perfect” test case as to generate a court precedent that finally puts the issue to rest, for both the sake of the poor baker and those facing his continued discrimination.
