New Masterpiece Lawsuit: Cakes, Religion & Speech, Round 2–this time, a transgender birthday cake

[Daniel2]

Masterpiece is again asserting their religious liberty is being threatened. This time, there are some key differences... Buzzfeed reports:

Quote

A Christian baker — whose Supreme Court case gained national attention after he refused to sell a custom wedding cake to a gay couple — is back in federal court this week. But this time it’s because his shop refused to create a blue-and-pink cake for a transgender woman’s birthday.

Lawyers for the owner of Masterpiece Cakeshop in Lakewood, Colorado, said in a complaint in US District Court on Tuesday the cake’s design “would have celebrated messages contrary to his religious belief that sex — the status of being male or female — is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed.”

Masterpiece owner Jack Phillips contends the Constitution’s guarantees of free speech and religious exercise give business owners like him an exemption to state nondiscrimination laws — and he argues LGBT people have become “emboldened” by the previous lawsuit against him and waged a campaign of harassment.

The case began June 26, 2017 — the same day the Supreme Court agreed to hear the wedding cake case — when Autumn Scardina, a lawyer in Denver, called Masterpiece Cakeshop with her own cake order. (It’s unclear from the complaint whether Scardina was aware of the high-profile case when she called Masterpiece Cakeshop for her own order. She did not immediately respond to a request for comment.)

“They asked what I wanted the cake to look like, and I explained I was celebrating my birthday on July 6, 2017, and that it would also be the 7th year of my transition from male to female,” says a complaintScardina filed last summer with the Colorado Civil Rights Commission. “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.”

“The woman on the phone told me they do not make cakes celebrating gender changes,” her complaint continued. “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.”

“I was stunned,” Scardina added in her complaint, saying the woman at the bakery hung up the phone.

The Colorado Anti-Discrimination Act, known as CADA, bans places of public accommodation — such as shops and restaurants — from discriminating against customers based on their sexual orientation or gender identity. As such, the commission found probable cause on June 28, 2018, that Phillips broke the law when he declined to make a cake for the transgender woman.

“A claim of discriminatory denial of full and equal enjoyment of a place of public accommodation has been established,” the commission found, noting that the Supreme Court’s ruling in the Masterpiece wedding cake case found Colorado can indeed protect gay people from discrimination.

 

 

Hannah McKay / AFP / Getty Images

 

 

In that case, Phillips had won a narrowly tailored victory at the Supreme Court, which ruled the Colorado Civil Rights Commission exhibited “hostility” toward Phillips’s religious beliefs. (A commissioner had compared Phillips’s defense to defenses of slavery and the Holocaust.) In that case, the state sued Phillips.

Although the high court didn’t rule on his central arguments — that Phillips has a constitutional right to sidestep nondiscrimination laws because of his religious objections — Phillips and his lawyers have been emboldened to go on the offensive. This time around, Phillips and the Alliance Defending Freedom filed the lawsuit first, arguing the state’s protections for transgender people show the state is “blatantly and brazenly hostile toward religion.”

But while Phillips contends the Supreme Court’s previous ruling vindicates him now, the latest case differs from the dispute over the wedding cake. Chiefly, the lawsuit does not show specific examples of the Colorado Civil Rights Commission exhibiting “hostility” toward Phillips’s religion in the way it handled the transgender woman’s case — which was central to the Supreme Court’s decisions in the wedding cake case.

Second, the transgender woman’s cake, although designed to reflect her transition, was not to be used in any ceremony celebrating her gender change — removing Phillips’s previous argument that the message he created was part of a ceremony that violated his religious beliefs.

Phillips had also said previously his recusals were limited to same-sex weddings.

“I’ll make you birthday cakes, shower cakes, cookies, brownies,” Phillips recalled saying in an interview with the New York Times last September about the first lawsuit. “I just can’t make a cake for a same-sex wedding.”

Phillips is asking the court to block Colorado from enforcing its nondiscrimination law in this case, foremost because its application violates his First Amendment right to religious exercise. He argues that the nondiscrimination law’s enforcement, which lacks an exemption for religious shopkeepers, fails a legal standard of being generally applicable and neutral — instead, he alleges, the state “targets, shows hostility toward, and discriminates” against people of faith.

Phillips further argues the state violated his First Amendment right to free speech, which allows him to abstain from speech, such as refusing to make a pro-transgender expression in a cake. The state, he alleges, violated his rights “by forcing Phillips and Masterpiece Cakeshop to speak and create custom expressive cakes that communicate messages in violation of their religious beliefs.”

Finally, Phillips contends Colorado officials have infringed on his right to due process under the 14th Amendment for subjecting him to “an unfair and biased administrative enforcement, adjudication, and review process.”

The Alliance Defending Freedom, a Christian legal group representing Phillips, has waged war in the courts for business owners to deny services that communicate messages in conflict with their sincerely held religious beliefs. While their arguments have been anchored around refusing service to LGBT people or denying contraception coverage to women, their broader arguments raise concerns from critics they will rip loopholes into nondiscrimination policies across the board, potentially opening the door to racial discrimination in the name of religion, for example.

Edited August 15, 2018 by Daniel2

[Daniel2]

I realize Buzzfeed is a liberal-leaning news source, so if others find more conservative outlets that reflect a conservative defense of Phillip’s claimed religious liberty/free speech protections, feel free to share them.

Edited August 15, 2018 by Daniel2

[Scott Lloyd]

I clicked on the link and read through the court filing. It is quite interesting.

 

Quote

 

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

effort

s 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.

 

 

[carbon dioxide]

I would have just baked the dude a cake.  Some people just think its Halloween 365.25 days a year. 

[smac97]

1 hour ago, Daniel2 said:

The case began June 26, 2017 — the same day the Supreme Court agreed to hear the wedding cake case — when Autumn Scardina, a lawyer in Denver, called Masterpiece Cakeshop with her own cake order. (It’s unclear from the complaint whether Scardina was aware of the high-profile case when she called Masterpiece Cakeshop for her own order. She did not immediately respond to a request for comment.)

Right.  A transgender  activist lawyer living just happens to call the one bakery in the country at the center of a widely-publicized legal maelstrom pitting gay rights against First Amendment rights and is "stunned" to find out that the proprietor hasn't changed his viewpoint.

Just a coincidence.  Or not.  From the Washington Post:

Quote

Phillips sued in response, citing his belief that “the status of being male or female ... is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed,” according to his lawsuit.

Phillips alleges that Colorado violated his First Amendment right to practice his faith and the 14th Amendment right to equal protection, citing commission rulings upholding other bakers’ refusal to make cakes with messages that are offensive to them.

“For over six years now, Colorado has been on a crusade to crush Plaintiff Jack Phillips ... because its officials despise what he believes and how he practices his faith,” the lawsuit said. “This lawsuit is necessary to stop Colorado’s continuing persecution of Phillips.”

Phillips’ lawyers also suggested that Scardina may have targeted Phillips several times after he refused her original request. The lawsuit said he received several anonymous requests to make cakes depicting Satan and Satanic symbols and that he believed she made the requests.

Reached by telephone Wednesday, Scardina declined to comment, citing the pending litigation. 

...

The lawsuit said that Phillips has been harassed, received death threats, and that his small shop was vandalized while the wedding cake case wound its way through the judicial system.

Keep in classy, Scardina!

1 hour ago, Daniel2 said:

“They asked what I wanted the cake to look like, and I explained I was celebrating my birthday on July 6, 2017, and that it would also be the 7th year of my transition from male to female,” says a complaintScardina filed last summer with the Colorado Civil Rights Commission. “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.”

“The woman on the phone told me they do not make cakes celebrating gender changes,” her complaint continued. “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.”

“I was stunned,” Scardina added in her complaint, saying the woman at the bakery hung up the phone.

Right.  "Stunned."  

Scardina is doing a Captain Renault impersonation here:

"Shocked!  Shocked!"

I think the gay rights folks are going to come to regret these sorts of bullying tactics.  

Thanks,

-Smac

 

 

[Calm]

Quote

hey asked what I wanted the cake to look like, and I explained I was celebrating my birthday on July 6, 2017, and that it would also be the 7th year of my transition from male to female,” says a complaintScardina filed last summer with the Colorado Civil Rights Commission. “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.”

It is not just a birthday cake according to the customer, but intended to celebrate 7 years as as a transwoman as well.

I personally don't agree with him, though he has a right to believe making such a cake celebrates the transgenderism itself.

Just wanted to point out he is not necessarily violating what he said before about only being willing to make a birthday cake.  It depends on if that last quote was an answer to a specfic question as in  "if I was gay, would you refuse to serve me?"...and since thatquestion did not include a transgender individual, it isn't inherently contradictory.  I suspect Phillips would have refused to make a coming out cake for a gay man, but just didn't think of it in his list.

Quote

Second, the transgender woman’s cake, although designed to reflect her transition, was not to be used in any ceremony celebrating her gender change — removing Phillips’s previous argument that the message he created was part of a ceremony that violated his religious beliefs.

Phillips had also said previously his recusals were limited to same-sex weddings.

“I’ll make you birthday cakes, shower cakes, cookies, brownies,” Phillips recalled saying in an interview with the New York Times last September about the first lawsuit. “I just can’t make a cake for a same-sex wedding.”

 

Edited August 16, 2018 by Calm

[Jeanne]

1 hour ago, carbon dioxide said:

I would have just baked the dude a cake.  Some people just think its Halloween 365.25 days a year. 

I would have baked this person a birthday cake because not to...is against my religion.  This is rediculous.

[Guest]

2 hours ago, Daniel2 said:

Masterpiece is again asserting their religious liberty is being threatened. This time, there are some key differences... Buzzfeed reports:

There is no way this bakery was chosen at random, only out of anger for the Supreme Court win. I doubt this bakery is the only one in town. The goal here is t bankrupt this business with crushing legal fees. Or, if he is be represented pro-Bono (I hope that is how it is spelled), to keep him tied up so he can run a profitable business. 

[The Nehor]

5 minutes ago, Bill "Papa" Lee said:

There is no way this bakery was chosen at random, only out of anger for the Supreme Court win. I doubt this bakery is the only one in town. The goal here is t bankrupt this business with crushing legal fees. Or, if he is be represented pro-Bono (I hope that is how it is spelled), to keep him tied up so he can run a profitable business. 

The financial angle is unlikely to shut them down. The volume of donations they received in the last lawsuit will make sure of that.

[The Nehor]

And yes, this was an obvious trap.

[The Nehor]

And these people should consider going into the pie business or some other field of baking that involve less celebrating of what they consider to be heinous violations of their faith.

[Guest]

53 minutes ago, smac97 said:

Right.  A transgender  activist lawyer living just happens to call the one bakery in the country at the center of a widely-publicized legal maelstrom pitting gay rights against First Amendment rights and is "stunned" to find out that the proprietor hasn't changed his viewpoint.

Before I read this post, I pointed out the same thing. This is nothing but a goal to bankrupt this individual, or keep him tied up in litigation  until he has to close down. They lost in the court, so it is "war by other means (yes I know the true quote is "politics by other means"' and "any means necessary". Sadly life in America and much of the world, "freedom of conscience" is dead or dying. 

[Guest]

5 minutes ago, The Nehor said:

The financial angle is unlikely to shut them down. The volume of donations they received in the last lawsuit will make sure of that.

I addressed that possibility in the thread you replied too. Or at least the "legal fee" aspect. 

[Daniel2]

1 hour ago, smac97 said:

Right.  A transgender  activist lawyer living just happens to call the one bakery in the country at the center of a widely-publicized legal maelstrom pitting gay rights against First Amendment rights and is "stunned" to find out that the proprietor hasn't changed his viewpoint.

Just a coincidence.  Or not.  From the Washington Post:

Keep in classy, Scardina!

Right.  "Stunned."  

Scardina is doing a Captain Renault impersonation here:

"Shocked!  Shocked!"

I think the gay rights folks are going to come to regret these sorts of bullying tactics.  

Thanks,

-Smac

 

 

I agree that it’s seems obvious that thia individual’s choice of Masterpiece was clearly intentional.

That being said, from what I’ve read about Phillips triumphant bragging about what he would win in court and subsequently what he allegedly did win in court certainly seems to distort the actual merits of what the court DID rule on (that a single comment by a member of the committee exhibited a religious bias against him) vs. what they didn’t rule on (he still doesn’t have a license to discriminate based on his religious beliefs, regardless of how sincere), it’s not surprising that someone decided to take him to task to test just what he actually thought he would, and ultimately did—and didn’t—win.

As a lawyer, I presume you’d understand testing the merits of all angles of a legal opponent’s arguments. Are you really surprised someone called the bluff of his earlier comments that he wasn’t biased against members of the LGBT community?

In a world where the current administration has sought to undermine every civil right granted to LGBT citizens (including its most recent step to create a “Religious Liberty Task Force” to advance so-called religious liberty) did you really expect LGBT individuals not to seek redress through the court system as the check and balance it is to legislation gone awry of our constitution, just as Phillips did in his efforts? 

This new lawsuit ISN’T a case of legal double jeopardy— Mr. Phillips was NOT granted a right to discriminate, and I don’t see a problem with someone testing his willingness to obey the law even as upheld on the ruling granting him a narrow ruling in the previous case.  And as I understand it, honoring, sustaining, and obeying the law isn’t something Mormonism frowns upon... 

Edited August 16, 2018 by Daniel2

[The Nehor]

2 minutes ago, Bill "Papa" Lee said:

I addressed that possibility in the thread you replied too. Or at least the "legal fee" aspect. 

Yeah, I am pretty sure they were represented without cost and the donations continue to pour in. I am betting this will bring a fresh infusion too.

5 minutes ago, Bill "Papa" Lee said:

Before I read this post, I pointed out the same thing. This is nothing but a goal to bankrupt this individual, or keep him tied up in litigation  until he has to close down. They lost in the court, so it is "war by other means (yes I know the true quote is "politics by other means"' and "any means necessary". Sadly life in America and much of the world, "freedom of conscience" is dead or dying. 

Why do you need to run a business when you are raking in millions in donations? There is an argument to be made they have a pretty good racket going here.

An unscrupulous person would even try to set up more lawsuit fame like this. I am not sure if they are actually doing that but I admit to some suspicion.

[Daniel2]

18 minutes ago, Bill "Papa" Lee said:

There is no way this bakery was chosen at random, only out of anger for the Supreme Court win. I doubt this bakery is the only one in town. The goal here is t bankrupt this business with crushing legal fees. Or, if he is be represented pro-Bono (I hope that is how it is spelled), to keep him tied up so he can run a profitable business. 

Again, while I don’t doubt this individual deliberately chose Masterpiece, you may have missed his complaint was filed a year or so ago, we’ll before the subsequent SCOTUS ruling in Phillips favor, and not as a retaliation of the win itself. This individual was clearly testing Phillips even before the ruling, not as a reaction to it.

[kllindley]

2 minutes ago, Daniel2 said:

I agree that it’s seems obvious that thia individual’s choice of Masterpiece wasn’t unintentional. That being said, from what I’ve read about Phillips triumphant bragging about what he would win in court and subsequently what he allegedly did win in court certainly seems to distort the actual merits of what the court DID rule on (that a single comment by a member of the committee exhibited a religious bias against him) vs. what they didn’t rule on (he still doesn’t have a license to discriminate based on his religious beliefs, regardless of how sincere), it’s not surprising that someone decided to take him to task to test just what he actually did—and didn’t—win. Mr. Phillips was NOT granted a right to discriminate, and I don’t see a problem with someone testing his willingness to obey the law even as upheld on the ruling granting him a narrow ruling in the previous case. 

Except that the alleged offense occurred a year ago. Way before the Supreme Court had even heard the case, let alone ruled on the issue. 

[strappinglad]

This baker needs to get way more creative .This was around Independence day so make a red ,white, and blue cake with the red a bit pale. He could then justify it in his mind.

[kllindley]

1 minute ago, Daniel2 said:

Again, while I don’t doubt this individual deliberately chose Masterpiece, you may have missed his complaint was filed a year or so ago, we’ll before the subsequent SCOTUS ruling in Phillips favor, and not as a retaliation of the win itself. This individual was clearly testing Phillips even before the ruling, not as a reaction to it.

So, to me it's less a matter of complaint against the complainant. I can't help but feel that the Colorado Civil Rights Commission engaged in a carefully orchestrated retaliation against Phillips. At the same time, I can also see how the Supreme Court essentially invited them to take this approach as a way of re-asserting their power and authority. 

[Guest]

10 minutes ago, The Nehor said:

Why do you need to run a business when you are raking in millions in donations? There is an argument to be made they have a pretty good racket going here.

Some people just love to work. Countless Millionaires, and Billionaires still work. I cannot work due to a broken back, but even were it not for my back, I still wish I could. 

[Guest]

15 minutes ago, Daniel2 said:

Again, while I don’t doubt this individual deliberately chose Masterpiece, you may have missed his complaint was filed a year or so ago, we’ll before the subsequent SCOTUS ruling in Phillips favor, and not as a retaliation of the win itself. This individual was clearly testing Phillips even before the ruling, not as a reaction to it.

So it was before, but you admit that he was choosing this bakery as a means of protest, which means the taking him to court to sue and make some money, or even worse, have the owner jailed. A sad state of affairs, and a great why to anger those who are not gay, and set back friendly feelings and relations for decades to come. 

[Daniel2]

Would those who supports Masterpiece in all these proceedings answer me this question?:

Does “religious freedom”/“freedom of speech” mean that any business owner can deny services to members of any given religion, to members of all religions, or to those without a religious affiliation based on said business owners’ sincerely held religious beliefs that don’t align with those of their customers.....?

In other words, if I don’t agree with your religion/lack thereof and I don’t want to condone it, should the law hold that I can withhold services from you because you’re Mormon? Or Jewish? Or Catholic? Or Atheist? Is THAT what our Constitution means/should mean by “religious freedom”, or encompassed therein?

[Daniel2]

28 minutes ago, kllindley said:

So, to me it's less a matter of complaint against the complainant. I can't help but feel that the Colorado Civil Rights Commission engaged in a carefully orchestrated retaliation against Phillips. At the same time, I can also see how the Supreme Court essentially invited them to take this approach as a way of re-asserting their power and authority. 

I think it’s clear SCOTUS was trying to give Phillips an out and punted on the central question, which clearly invited another case at some point ultimately TO resolve the case.

While most in this thread are decrying the trans activist (and I do agree that’s what she’s clearly doing), I think it’s equally likely Phillips and his staff challenged—even INVITED—further litigation. 

Perhaps he, under the influence of Liberty Counsel, intentionally continued to flout the findings against him, even knowing that would bring further legal action against him, as a means of standing for something. Standing on religious principle and hoping to be to “Loving” that created a legacy in what he believes will be a victory for what he views as religious liberty. 

After all, in the wake of the first findings by the Colorado Commission, he could have found ways of being more sensitive in how he turned down LGBT individuals. His staff even underwent “sensitivity training” and yet this is how the trans activitist was met and treated. It isn’t as if he and his staff weren’t aware the way she responded wasn’t throwing gas on an already lit fire. 

I think it’s entirely possible and plausible that Phillips and Liberty Counsel want Masterpiece to be their lasting legacy—after all they’re being proactive this time—in defense of what they view as THE defining case for “religious liberty”—even if I think they’re tilting at windmills, I don’t blame nor gnash my teeth at Masterpiece as much as members here who decry a member of the LGBT community for trying to stand for what she believes is right. 

Is it possible to at least admit that both parties here believe their goals are noble, even if we don’t agree with them? Or must we vilify and horriblize the actions of the other side in order to feel better about our own position?

[kllindley]

8 minutes ago, Daniel2 said:

Would those who supports Masterpiece in all these proceedings answer me this question?:

Does “religious freedom”/“freedom of speech” mean that any business owner can deny services to members of any given religion, to members of all religions, or to those without a religious affiliation based on said business owners’ sincerely held religious beliefs that don’t align with those of their customers.....?

In other words, if I don’t agree with your religion/lack thereof and I don’t want to condone it, should the law hold that I can withhold services from you because you’re Mormon? Or Jewish? Or Catholic? Or Atheist? Is THAT what our Constitution means/should mean by “religious freedom”, or encompassed therein?

It seems confusing to me that you would ask this particular question again.  It appears completely unrelated to either of the situations that actually occurred.  I don't imagine anyone would answer yes to your question, and I can see plenty of reasons to support Masterpiece. 

So, what is the purpose of this question? 

[3DOP]

1 hour ago, Daniel2 said:

Would those who supports Masterpiece in all these proceedings answer me this question?:

Does “religious freedom”/“freedom of speech” mean that any business owner can deny services to members of any given religion, to members of all religions, or to those without a religious affiliation based on said business owners’ sincerely held religious beliefs that don’t align with those of their customers.....?

In other words, if I don’t agree with your religion/lack thereof and I don’t want to condone it, should the law hold that I can withhold services from you because you’re Mormon? Or Jewish? Or Catholic? Or Atheist? Is THAT what our Constitution means/should mean by “religious freedom”, or encompassed therein?

 

Edited August 16, 2018 by 3DOP
unnecessary contribution