Remember Jack Phillips, the conservative Christian baker in Colorado who was the subject of the Supreme Court’s recent evasive ruling on the nexus of “religious liberty” and anti-discrimination laws? He’s back in federal court. In the earlier case, which led to the Masterpiece Cakeshop v. Colorado Civil Rights Commission decision, he had refused to bake a custom cake for a same-sex marriage celebration, citing religious objections. This time he refused to bake a cake for a gender-transition commemoration, although the only thing he had to do was to serve up a cake that with a blue exterior and a pink interior, again citing religious objections.
The rejected customer filed a complaint with the State of Colorado’s Civil Rights Division, which made a preliminary determination that Phillips did indeed discriminate against a protected minority class (gender identity), and referring the case after a mediation effort to the self-same Colorado Civil Rights Commission (CCRC) that was his antagonist in the earlier case. That’s as far as the dispute has gotten. But Phillips isn’t waiting around; he’s in federal court now alleging that he is being harassed by LGBTQ activists (the complainant is an attorney who allegedly asked for a Satanist cake on an earlier occasion) and the state of Colorado for his constitutionally protected religious beliefs.
The thing to understand here is that although Phillips “won” in the Supreme Court insofar as it overturned the CCRC’s actions against his shop, it was a hollow victory, based on some overtly anti-religious comments by two members of the commission during hearings on the case. The swing vote, Justice Kennedy, went out of his way to avoid any broad ruling on the “religious liberty” exception to anti-discrimination laws that Phillips and his allies wanted, and instead just rapped Colorado’s knuckles. That’s why liberal Justices Kagan and Breyer were able to join in the decision. If he expects to win his suit this time around, he should logically wait until the complaint against him is dealt with by the CCRC, which will happen soon enough, and see if they again make the sort of hostile-to-religion comments that were the sole basis of the SCOTUS decision. And actually, of course, he and his attorneys probably know the CCRC will wise up and avoid such utterances.
What’s probably going on here is an effort by Team Phillips to start back down the road that leads to SCOTUS in hopes that a Court with Brett Kavanaugh instead of Anthony Kennedy holding the swing vote will do what the Christian Right hoped for the first time around: a clearly carved-out “religious liberty” exception to public-accommodation laws like Colorado’s. It’s possible as well that Phillips’s opponents would like to see a more definitive decision as well.
If the district court in Colorado acts strictly on the basis of SCOTUS’s guidance in the earlier case, it will probably tell Phillips his complaint isn’t “ripe” — or as a baker might put it, fully baked — and instruct him to wait until the CCRC has reviewed this latest complaint. Protestations of being persecuted aside, he and his supporters are clearly spoiling for a fight, and counting on a little help from Brett Kavanaugh.
