Following a U.S. Supreme Court ruling in June that sided with a Christian baker over a never-baked wedding cake for a gay couple in Colorado, lawyers for that baker are now suing Democratic Colorado Gov. John Hickenlooper, Republican Attorney General Cynthia Coffman and members of the state’s Civil Rights Commission.
The Supreme Court’s decision rested largely on process, avoiding the deeper Constitutional issues around free speech, freedom of religion and civil rights, but lawyers for the Alliance Defending Freedom, which supported Masterpiece Cakeshop owner Jack Phillips of Lakewood, say in their complaint that a lawsuit is necessary to “stop Colorado’s continuing persecution of Phillips.”
From the lawsuit:
…[S]ome Colorado citizens, emboldened by the state’s prosecution of Phillips, have targeted him. On the same day that the Supreme Court announced it would hear Phillips’s case, a Colorado lawyer called his shop and requested a cake designed with a blue exterior and pink interior, which the caller said would visually depict and celebrate a gender transition. Throughout the next year, Phillips received other requests for cakes celebrating Satan, featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use. Phillips believes that some of those requests came from the same Colorado lawyer. …
Phillips declined to create the cake with the blue and pink design because it 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.
A mere 24 days after Phillips prevailed in the Supreme Court, Colorado told him that he violated Colorado law by declining to create that cake.
The lawyers want a judge to stop anyone from enforcing a state public accommodations law against Phillips for declining to create cakes with messages that conflict with the religious beliefs he holds. They also want a judge to declare that Colorado’s enforcement of its law violates the cake maker’s free speech rights.
This is a developing story and will be updated.
From our previous coverage …
In June, the U.S. Supreme Court, in a 7-2 decision, said Colorado’s Civil Rights Commission failed to act with neutrality and had displayed “clear and impermissible hostility” toward Phillips’ religious beliefs. But the ruling was narrow in scope, turning largely on how a state agency handled — or mishandled — the initial case, and both Hickenlooper and Coffman were quick to point out that the larger Constitutional question — whether religious liberty or freedom of speech trumps civil rights — went unaddressed.
“It is against Colorado law to deny goods and services to any individual because of sexual orientation,” Hickenlooper said, responding to the June ruling. “Nothing in the narrow opinion released today by the United States Supreme Court changes that, or prevents the state from protecting LGBTQ persons from discrimination.”
Coffman echoed that message, saying, ”The general rule was, and remains, that the First Amendment does not allow business owners to deny members of the community equal access to goods and services. As the Court said, the right of gay people and couples to ‘exercise … their freedom on terms equal to others must be given great weight and respect.’”
In 2012, Phillips refused to make a cake for Charlie Craig and David Mullins, a gay couple who were getting married in Massachusetts but celebrating in their home state of Colorado. The baker contended that creating the cake was at odds with his religious beliefs, and that he had a First Amendment right of artistic, religious and free speech expression to say no. The couple took the case before Colorado’s civil rights agency, and it wound its way up through appeals to the nation’s highest court.
In reaction to the ruling, Mullins, speaking for both himself and his partner, said their fight against discrimination and unfair treatment isn’t over.
“We have always believed that in America you should not be turned away from a business open to the public because of who you are,” Mullins said. “We brought this case because no one should have to face the shame, embarrassment and humiliation and of being told ‘we don’t serve your kind here’ that we faced, and we will continue fighting until no one does.”
In Lakewood, Phillips’ supporters trickled into the bakery after the ruling to offer congratulations, including Ann Sewall who drove from Littleton to leave balloons at the front door.
“People of faith, really of all kinds of faith, are protected now from the imposition and really overwhelming authority of the government to squelch your right to express your conviction,” she said. “This was a long, hard battle. It was a victory for me. It was a victory for all people of faith in the whole United States.”
Phillips, who could be seen greeting supporters but who wouldn’t allow reporters into his shop, said he wasn’t giving interviews until his lawyer gave the green light. But in a first-person piece for USA Today, he wrote: “The Supreme Court affirmed that the government must respect my religious beliefs about marriage. It welcomed me back from the outskirts where the state had pushed me.”
Colorado prohibits public businesses like Masterpiece from refusing to provide services based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” A state agency and a state appeals court upheld the couple’s side in the dispute.
But Justice Anthony Kennedy, writing for the majority, said that the Colorado Civil Rights Commission violated Phillips’ constitutional rights to religious freedom on free exercise grounds, and he hammered the agency for a lack of neutral, fair consideration for Phillips’ religious beliefs.
As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
The opinion also said:”The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
James Esseks, director of the American Civil Liberties Union’s LGBT and HIV Project, said that the ruling is a reminder that government agencies, including the Colorado Civil Rights Commission, should be careful about how they address the issue of religion so that everyone feels respected.
“The bakery got a get-out-of-jail-free card because of what the court thought of as misbehavior by the Colorado Civil Rights Commission,” Esseks said. “But that does not mean they get to discriminate in the future.”
Denver lawyer Chris Jackson, who closely follows the appeals process at the firm Sherman & Howard, said the ruling likely will not fundamentally change American public life or business. Instead of making any kind of a large pronouncement, he says, the justices handed down a pretty narrow opinion that said the way that the Colorado Civil Rights Commission handled the case against the cake maker was not appropriate.
The justices, he says, “didn’t even reach the question about whether Jack Phillips’ conduct is actually protected by the First Amendment.”
In the conclusion of his opinion, Justice Kennedy wrote that “the outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
Jackson says if the High Court wants to take up the larger conflict, it will likely have the opportunity with another case. But the 7-2 split could be an indication that this particular court might not be inclined to do so, he says.
A supporter of the U.S. Supreme Court’s ruling in the wedding cake case left balloons outside the Masterpiece Cake Shop in Lakewood on June 4. Photo by Alex Burness.
‘Infected by religious hostility’
Three years ago, the U.S. Supreme Court legalized same-sex marriage nationwide. The Masterpiece case was its latest big LGBTQ case and the first of the Trump era. Trump’s first pick for the Supreme Court, Justice Neil Gorsuch, from Colorado, was among the seven votes in favor of the baker.
The Colorado-based case landed before the nation’s highest court following a 2014 decision in the couple’s favor by the Colorado Civil Rights Commission, a regulatory body that enforces the state’s anti-discrimination laws. The commission also ordered the bakery to change its policy of not providing services based on a customer’s sexual orientation.
A year later, Colorado’s Court of Appeals heard the case and ruled unanimously that the cake maker had violated the state’s anti-discrimination law. The judges ruled that creating the cake for the gay couple does not mean the cake maker is expressing support for gay marriage.
The Colorado Supreme Court declined to hear the case, and Phillips, who belongs to a Baptist-rooted church, appealed to the nation’s highest court. The U.S Supreme Court took up the case last June and it appeared certain to throw down battle lines of a major culture war with Colorado at its center.
Much of the majority ruling in the Supreme Court decision in the case and concurring opinions by conservative Justices Gorsuch and Clarence Thomas revolves around how Colorado’s Civil Rights Division handled a different anti-discrimination case from 2014. In that case, a man named William Jack visited three Colorado bakeries and asked for cakes that included imagery of an open Bible along with Old Testament verses that condemn homosexuality. The bakers refused. Jack filed a complaint with the Colorado Civil Right Division, saying he had been discriminated against on the basis of his religion. The Division found no merit to that claim, noting, among other things, that the bakers each regularly sold baked goods to Christians and others.
Justice Gorsuch writes in his ruling that the “facts show that the two cases share all legally salient features.” In both, the effect on the customer was the same, he said— the bakers refused service to a person on the basis of religious faith or sexual orientation. “But in both cases the bakers refused service intending only to honor a personal conviction,” Gorsuch writes.
Wrong, Justice Ruth Bader Ginsburg wrote in her dissent, which was joined by Justice Sonia Sotomayor: The three bakers in the Jack case would have refused to make a cake with those kinds of messages for anyone, no matter their religion. And they would have sold Jack all the cakes and cookies he wanted without that message. Their refusal, Ginsburg wrote, “scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others.”
Striking a note between Gorsuch and Ginsburg was Justice Elena Kagan who agreed with Ginsburg that Phillips clearly violated the state’s anti-discrimination laws, where the bakers in the Jack case did not. But, she wrote, the Colorado Civil Rights Commission’s decision against the baker was infected with religious hostility.
“Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground,” she wrote. “But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias.”
David Mullins and Charlie Craig, the couple at the center of the legal fight, testified against a bill to change the state’s anti-discrimination law on March 27, 2018. Photo by John Herrick
The day of the unbaked cake
Last summer, Craig and Mullins recalled how the story went down in 2012 after their wedding planner recommended Masterpiece Cakeshop. When Craig called to set up an appointment he didn’t mention it would be a same-sex ceremony. “I didn’t think that it would matter,” he said, recalling the phone call.
It was during the sit-down appointment when Phillips asked if the wedding was for the two men, they said.
“We said ‘yes, this will be our wedding cake,’ and he stopped us immediately and said, ‘I do not make cakes for same-sex couples,’” Craig said. A long pause followed. One of their mothers was there. They were mortified, Craig said, so they left.
After returning home, the couple wrote about their experience on Facebook, and the post went viral.
“Over the next couple of days we ended up experiencing an outpouring of support,” Mullins said. “Eventually we came to the conclusion that we wanted to pursue this not for ourselves but because all those people who were supporting us, they weren’t just [supporting] us as individuals. They were supporting the principles that LGBT people deserve to receive equal service in places of public accommodation. And that’s why we decided to go forward with this case.”
Phillips in 2015 offered his version of events from that day to The Daily Signal, a publication of the conservative Heritage Foundation. He characterized the conversation as lasting no longer than 30 seconds in which he wasn’t able to explain his Christian views.
“I said, ‘You know, I’ll make you a birthday cake, shower cake, I’ll sell you cookies and brownies, I just don’t do cakes for same-sex weddings,’” Phillips said. “At which point they stomped out. One went out one door, the other went out the other door, swearing at me and flipping me off.”
He said he got at least one death threat.
“What’s important is that I’m being obedient to Christ,” Phillips told The Daily Signal about the stand he took. “He’s given me this business and if he were here, he wouldn’t make the cake. If he were my employee, I wouldn’t force him to make the cake and participate in it because it doesn’t honor God. The Bible calls it a sin.”
As the High Court decided, a Colorado commission came into the crosshairs
As the Supreme Court considered the case in Washington D.C., back in Colorado, some conservative lawmakers were taking aim at the state’s Civil Rights Commission.
The commission was set to begin shutting down on July 1 unless the legislature intervened because of a sunset provision in the law that created it. A debate to reauthorize the agency became one of the most partisan battles of the latest legislative session.
Republicans on the General Assembly’s budget-writing committee voted not to fund the commission past June 30, an explosive move that caused an uproar among Democrats and civil rights advocates. Rep. Leslie Herod, D-Denver, the first black lesbian elected to the state legislature, was among the Democrats who rallied a crowd on the west steps of the state Capitol following the vote. She said the Masterpiece case influenced the debate at the statehouse this year.
Some Republican lawmakers cited the Masterpiece case as the source of their frustration with the commission— one lawmaker, Rep. Stephen Humphrey, a Republican from Eaton, tried to amend the reauthorization bill to exempt people with “sincerely held” religious beliefs from Colorado’s discrimination laws.
Ultimately, lawmakers reauthorized the commission and funded it with some changes to its makeup and who gets to appoint its eight members.
Reacting the Supreme Court’s Monday ruling, Republican Sen. Bob Gardner of Colorado Springs, said, “The Court noted the unchallenged hostility toward religion by this group appointed by our Governor.” Gardner, who worked to change the makeup of the Civil Rights Commission last session, went on: “The Court found that the very body charged with protecting the rights of our citizens acted with hostility toward those rights in the Masterpiece Cakeshop case.”
Herod, who was the lead sponsor on a bill to reauthorize the commission, said she was disappointed by the court’s decision. “While I realize the court was balancing religious liberty with the rights of gay people to be free from discrimination in the public sphere, the court got this one wrong,” she said.
She added that the court left the door wide open on the issue. “I think we have to continue to fight to make sure that all Coloradans are treated fairly and with respect,” she said.
Gov. Hickenlooper on Monday acknowledged the battering the agency took from the justices.
“While we are disappointed with the decision, we take seriously the Court’s admonition that the state must apply its laws and regulations in a manner that is neutral toward religion,” he said. “We have no doubt that the Colorado Civil Rights Commission will meet that standard as they listen, respectfully, to all sides of the matters that come before it and issue decisions that uphold the protections afforded under Colorado law.”
Steve Chavez, who was director of the Civil Rights Division and advising the commission when it initially ruled in favor of Craig and Mullins, said he believes Phillips got a fair shake in the process and that he was not aware of any impartiality. He said he was disappointed the court focused so much on the Civil Rights Commission instead of the larger question of free speech, religious liberty, and civil rights.
“My concern is that some people might think it’s a green light to turn the clock back 50 years,” he said. “It’s a missed opportunity.”
As supporters and customers milled about the Masterpiece Cakeshop in Lakewood on Monday, Phillips was busy handling the phone, which rang nearly non-stop throughout the morning.
Marie Sautter said she was on her way to Breckenridge from Highlands Ranch when she decided to detour to Lakewood and mark the court’s decision with her husband once she heard the news. Sautter, who runs a small business herself, said she would “hate to think that someone would tell me who I can invite in,” and for her, the ruling carried broader implications about American life, despite its narrow nature.
“I am sick and tired of the government interfering in my life and our lives, and telling me how big a soda I can order in New York,” she said at the shop. “I have gay people in my family and I love them dearly. But that’s not it. This is about the man’s right to run his business as he wishes.”
As those who heard about the ruling set out to understand its ramifications, Colorado’s leading LGBTQ advocacy group said the High Court’s decision does not change the country’s long-standing principle that businesses open to the public must be open to everyone.
“While we are disappointed the Court ruled in favor of Masterpiece Cakeshop and their discrimination against Dave Mullins and Charlie Craig, the fact remains that Colorado has a civil rights division and anti-discrimination laws that equally protect the fundamental rights of all Coloradans,” said Daniel Ramos, director of One Colorado. “We strongly believe that the freedom of religion must be defended as one of our most fundamental values as Americans, but that freedom cannot be used to harm others or discriminate against others.”
Reporters Alex Burness and John Herrick contributed to this story along with managing editor Tina Griego.