Colorado and Jack Phillips Square Off Again in “Masterpiece Cakeshop II”

Jack Phillips

On June 4, 2018, the U.S. Supreme Court declared that the Colorado Civil Rights Commission violated Jack Phillips' First Amendment right to freedom of religion by showing hostility to his claim that his religious beliefs prevented him from creating a one-of-a-kind cake for a same-sex wedding. A mere twenty-four days later, the Commission informed Jack that it would now be investigating (and potentially punishing) him for failing to make a "gender transition" cake for a Denver transgender-identified lawyer. Autumn Scardina had allegedly made several requests of Jack for various objectionably-themed cakes; Jack's refusal to make these could leave him open to more government-sanctioned punitive actions.

Outrageous? Certainly. Jack and his lawyers at Alliance Defending Freedom (ADF) filed a lawsuit to stop the Commission from carrying on another thinly-disguised attempt to drive Jack out of business. The state of Colorado, apparently with no self-awareness that it had been singled out by the U.S. Supreme Court for criticism of its anti-religious bias and differential treatment it accorded Jack in Masterpiece I, promptly filed a motion to dismiss Jack's lawsuit.

The parties were in federal district court this week for two purposes: to hear Jack's request for a preliminary injunction blocking the Commission from taking any action on the new case until the court can decide whether the Commission should be permanently blocked from doing so; and to hear the state's motion to dismiss Jack's suit. The federal judge presiding over this case, Judge Wiley Daniel, was "fair to both sides" at the hearing, according to ADF Senior Counsel, Jim Campbell. "He seemed to understand the concerns that Jack raised about the fairness of the Commission's practices."

The judge noted that he was not inclined to grant the state's motion to dismiss Jack's case against it, observing that "the state did not give the Supreme Court's Masterpiece decision all the credit that it deserves," according to Campbell.

Unfortunately, the judge also stated that he was not ready to grant Jack's request for a preliminary injunction blocking the state from going after Jack a second time. It's been reported that there will be a future hearing at which more evidence will be presented on the Commission's continuing hostility and differential treatment being accorded to Jack.

Two of the current Commission members have reportedly been affiliated with Colorado LGBT activist organizations. One of them allegedly tweeted in 2013 that Jack was the "cake-hater," referring to the factual circumstances in the Masterpiece I case. Campbell reports that the judge mentioned the "cake-hater" comment among many possible indicators of the state's bad faith in prosecuting Jack a second time.

What happens next? "The judge said that he would likely make a decision within a week. He indicated that he was leaning towards denying the state's motion to dismiss and moving forward with the case in federal court," Campbell told me.

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