BLOG3 Ways the State of Colorado Is Contradicting Itself by Continuing to Harass Jack

By Sarah Kramer Posted on: | August 16, 2018

You would think that the State of Colorado had learned its lesson. But apparently, a loss at the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission was not enough. The justices ruled 7-2 that the government had impermissible hostility toward cake artist Jack Phillips’ religious beliefs.

I guess that didn’t leave much of an impression on Colorado government officials.

The same day that the Supreme Court announced that it would hear Jack’s case in the summer of 2017, local attorney Autumn Scardina called Jack’s shop and requested a blue-and-pink cake celebrating a gender transition.

While Jack serves every person who walks through the door of Masterpiece Cakeshop, he cannot use his artistic talents to celebrate every event or express every message. That was true in the Masterpiece case, and it’s still true now.

But that has never been enough for the State of Colorado.

Recently, the Colorado Civil Rights Division issued a probable-cause determination in which it definitively declared that Jack violated the state’s anti-discrimination law by declining to design the requested cake celebrating a gender transition. But Jack wouldn’t make a cake expressing that message for anyone. So how is he discriminating against anyone? The message is loud and clear: Colorado is not seeking equal treatment of all customers, but special treatment for customers that request certain messages.

Enough is enough. We’re no longer simply going to defend Jack. It’s time to fight back.

That’s why Alliance Defending Freedom filed a lawsuit on Jack’s behalf Tuesday.

Colorado’s actions contradict not only the Supreme Court’s ruling in Masterpiece, but also some of the arguments the state has already made. Just take a look at these specific ways the State of Colorado is contradicting itself:

  1. In its briefing to the Supreme Court in Masterpiece, the state claimed that if Jack “would not sell a . . . cake with a particular artistic theme,” such as a “cake featuring a symbol of gay pride,” “to any customer, regardless of that customer’s protected characteristics, he need not sell one to [anyone].” But that is exactly the case here. Jack does not design cakes celebrating gender transitions. He has never done so and wouldn’t do it no matter who asked him to create such a cake – it is a category of cakes that he simply does not offer.

  2. The state also explained in its briefing that Jack “is free . . . to decline to sell cakes with ‘pro-gay’ designs or inscriptions.” But a cake design celebrating a gender transition sends a clear message—that the status of being male or female can be chosen or changed based on a person’s perceptions or feelings—a message that Jack deeply disagrees with. Based on the state’s own reasoning, if Jack is free to decline to express pro-gay messages, he should also be free to decline to express messages celebrating gender transitions.

  3. In addition, the state told the Supreme Court that “[b]usinesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be ‘offensive.’” As a Christian, Jack believes that God has created human beings in his image, as male or female – and that God does not make mistakes. Celebrating a gender transition with his God-given artistic talents directly contradicts that belief.

You would think that the state applies its laws consistently, but that’s not happening here. Colorado officials apply their laws selectively, using them to target viewpoints that they don’t like. As further evidence of this, you don’t need to look any further than the state’s ruling that Jack cannot decline to design a cake celebrating a same-sex wedding, while simultaneously finding that three other cake artists who declined to design cakes with messages opposing same-sex marriage had done nothing wrong.

It’s almost as if you can decline to create any expressive cake you want, as long as your name isn’t Jack Phillips.

By going after Jack a second time, the government is yet again confirming that it applies its laws in an arbitrary and unequal way – which the Supreme Court said it cannot do.

That’s bullying, plain and simple. But bullies must be held accountable. That is exactly what we’re asking the federal court in Colorado to do.

Sarah Kramer

Digital Content Specialist

Sarah worked as an investigative reporter before joining the Alliance Defending Freedom team.

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