Just two months after his narrow victory at the Supreme Court, Jack Phillips, the owner of Masterpiece Cakeshop, is back in the news for once again discriminating against an LGBTQ customer. This time, he refused to sell a birthday cake to a transgender person.
Phillips, still represented by the anti-LGBTQ hate group Alliance Defending Freedom (ADF), has come out swinging. He filed a federal lawsuit Tuesday night against officials in the Colorado Civil Rights Commission (CCRC) and other state officials, arguing that the department “harbors hostility” against him and the discrimination complaint should be dismissed. Essentially, ADF believes the Supreme Court’s decision this summer immunizes Phillips from any future charges of discrimination.
The facts of the case are simple. Autumn Scardina, a transgender attorney, called Masterpiece Cakeshop asking for a birthday cake. She mentioned that her birthday coincides with the anniversary of coming out as transgender, so she was hoping for a design that was pink on the inside and blue on the outside to commemorate that. Masterpiece Cakeshop refused to make the cake on the grounds that it doesn’t make cakes celebrating gender transitions.
Scardina filed a complaint with the CCRC, alleging that she had suffered discrimination on account of her sex and gender identity. “The woman on the phone,” she wrote, “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 that other people who request birthday cakes get to select the color and theme of the cake.”
Phillips challenged the complaint, responding that he will not support a message that “promote[s] the idea that a person’s sex is anything other than an immutable God-given biological reality.” In late June, however, the CCRC issued a probable cause determination that Phillips had discriminated against Scardina in violation of state laws, which prohibit discrimination on account of transgender status. In its determination, the CCRC even cited the Supreme Court’s Masterpiece Cakeshop opinion, noting that it upheld the right of states to protect LGBTQ people from discrimination in public accommodations.
It’s easy to see how discriminatory Phillips’ actions are. On his website, he advertises birthday cakes, and even showcases a variety of color options and custom designs available for them. This includes, as an example, a cake shaped like Eeyore the donkey, which is blue with pink ears. While the site’s photo gallery never shows the interior of any cake, food coloring is an easy and common addition, and he also advertises a variety of cake flavors, including cherry, and fillings, including raspberry — both of which would naturally be pink.
It’s not unrealistic to think that a customer might request a cake that includes the colors pink and blue in the same fashion as Scardina requested. Indeed, if she had not revealed that the design was related to her identity — or if she had given a different reason, like that pink and blue were her favorite colors — there’s no reason to believe Masterpiece Cakeshop wouldn’t have filled the order. If a customer can buy a product, but only if they hide their identity, then the business is clearly discriminating on the basis of that identity.
It’s the same reason that Phillips’ original sin of refusing to sell a wedding cake to a same-sex couple was also clear discrimination on the basis of sexual orientation. Charlie Craig and David Mullins had been perusing Phillips’ catalogue of wedding cakes in his shop when he first started talking to them. They didn’t even have the opportunity to discuss the design of any possible cake, because Phillips refused to sell them a wedding cake outright — regardless of the design. Phillips sold wedding cakes, just not to same-sex couples, so he was clearly discriminating on the basis of sexual orientation.
But in ADF’s new countersuit, they still insist that Phillips “serves all people — individuals of all races, faiths, sexual orientations, and gender identities — and will design and create custom cakes for anyone,” so long as they don’t “express messages or celebrate events contrary to his religious beliefs.” Though birthdays clearly do not violate his religious beliefs, ADF nevertheless asserts that Phillips’ decisions are based on what the cake will celebrate, not who the customer is.
Even less convincingly, the suit claims, “Phillips has never created a cake like that before.” This requires believing that in the 25 years he has operated his shop, he has never made a cake that is pink on the inside and blue on the outside. The Masterpiece Cakeshop website shows many cake designs with blue exteriors, but it’s unknown if any of them were cherry, contained raspberry filling, or were otherwise artificially colored.
The contention, of course, is that because Scardina wanted a cake that celebrated her transition, it was somehow a different kind of cake than someone else’s birthday cake shaped like a Barbie, a racecar, or a coffin mourning the end of someone’s thirties. As Phillips told the Heritage Foundation, “A gender-transition cake is not something I’ve ever made, and it’s not an event I could celebrate.”
The lawsuit likewise explains that Phillips cannot in good conscience produce a cake that communicates the ideas “that sex can be changed, that sex can be chosen, and that sex is determined by perceptions or feelings” — none of which accurately describes transgender people. ADF had similarly argued that a cake for a same-sex couple’s wedding was somehow different than a wedding cake for a different-sex couple, even if the cake had exactly the same design or no design at all.
ADF also contends that Scardina is an LGBTQ advocate and may have been trolling Phillips, suggesting that she had called at other times with frivolous requests. This, however, is irrelevant in determining the legality of his actions. Indeed, many government agencies use testing to assess whether nondiscrimination laws are being followed.
The crux of the argument, however, is that ADF believes that “Colorado rigs the system against people of faith like Phillips.” In fact, the suit alleges that Phillips is entitled to financial damages “for the humiliation, emotional distress, inconvenience, and reputational damage” he has experienced because of the CCRC’s rulings against him.
In reality, Colorado’s nondiscrimination law is not “rigged” against Phillips — at least not any more than a law against stealing is “rigged” against thieves. He just doesn’t seem to want to follow it.