Masterpiece Cakeshop baker Jack Phillips is back in court again, this time suing officials of Colorado’s Civil Rights agency and the state’s attorney general and governor to try to block the Commission from continuing a case against him for refusing to make a custom-designed cake to celebrate a transgender attorney’s celebration of the anniversary of her transition. On February 4, Senior U.S. District Judge Wiley Y. Daniel largely rejected a motion by defendants to dismiss the case, although he narrowed its scope somewhat.
For those coming in late to this ongoing drama: Phillips and Masterpiece Cakeshop were found by the Commission and the Colorado Court of Appeals to have violated the state’s public accommodations law when he refused to make a wedding cake for a gay couple in 2012 because of his religious objection to same-sex marriage. The U.S. Supreme Court reversed those decisions in a 7-2 ruling last June 4, based on the Court’s conclusion that the state had not afforded Phillips a “neutral” forum to consider his 1st Amendment defense.
Part of the Court’s conclusion that the Commission was “hostile” to Phillips on religious grounds rested on the Commission’s treatment of a provocateur named William Jack. While the discrimination claim by a gay couple was pending before the Commission, Jack approached three Colorado bakeries that custom-decorate cakes, asking them to make cakes for him that “conveyed disapproval of same-sex marriage, along with religious text,” quoting here from Justice Anthony M. Kennedy’s opinion for the Supreme Court. All the bakers turned him down, stating that they “objected to those cakes’ messages and would not create them for anyone.” Jack filed discrimination charges against the bakeries, but after investigating his charges, the Colorado Civil Rights Division found no “probable cause” that the statute was violated, and the Commission affirmed that determination.
The Supreme Court seized upon the Commission’s response to Jack’s provocation, saying that the Commission’s hostility was evident in “the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” The Civil Rights Division ruled in Phillips’ case that “any message the requested wedding cake would carry would be attributed to the customer, not the baker,” while “the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.” Justice Kennedy also critically noted that “the Division found no violation of the Act in the other cases in part because each bakery was willing to sell other products to the prospective customers” but the “Commission dismissed Phillips’ willingness to sell birthday cakes, shower cakes, cookies and brownies, to gay and lesbian customers as irrelevant.”
The Supreme Court had announced its decision to grant Jack Phillips’ petition for review on June 26, 2017 – an announcement that received widespread media coverage and apparently prompted Autumn Scardia, a transgender attorney, to take a leaf from William Jack’s book. She phoned Masterpiece and inquired about getting a cake with a blue exterior and a pink interior to “celebrate her transition from male to female.” Scardina said she wanted the cake for a birthday party she was planning. It was only when she described the color scheme and the reason for it that Phillips turned down the order, stating that he would not make a cake celebrating a gender transition for “any customer, no matter the customer’s protected characteristics.” In his current lawsuit, he alleges that he “offered to create a different custom cake for Scardina or to sell her any of the pre-make items available for purchase.” But she declined to order anything else.
Scardina filed a discrimination charge with the Division. Several weeks after the Supreme Court ruled on the first Masterpiece Cakeshop case, the Division issued a probable cause determination against Phillips for violating the public accommodations law by refusing Scardina’s cake order. While noting the religious reasons cited by Phillips for specifically not making a cake designed to celebrate a gender transition, due to his religious belief that a person’s sex is “an immutable God-given reality,” the Commission nonetheless concluded that “the refusal to provide service to Complainant was based on her transgender status.”
On October 2, 2018, the Commission filed a formal complaint against Phillips based on the Division’s finding, and set the case for a hearing. Anticipating this move, Phillips filed a complaint in federal court on August 14, 2018, which the defendants promptly moved to dismiss. Phillips charges that the state is out to get him, characterizing its actions as “unconstitutional bullying.” After the defendants’ dismissal motion and the Commission’s formal complaint were filed, Phillips filed an amended complaint to take account of these developments. The Commission’s hearing. The hearing has not yet taken place.
Phillips claims that the defendants’ interpretation of the public accommodations law violates his First Amendment rights to free exercise of religion and freedom of speech. He also makes a Due Process vagueness claim against the statute, attacking it on several grounds, including a structural charge against the statutory criteria for the appointment of Commission members by the governor, which require, among other things, that several members of the Commission be representative of minority communities protected by the anti-discrimination law. He also asserted an equal protection claim, focused again on the differential treatment cited by the Supreme Court in noting the Commission’s refusal to prosecute the bakers who had turned down William Jack’s order for “anti-same-sex marriage cakes.”
Phillips sought injunctions against the state officials forbidding them from interpreting and enforcing the statute against him. He also sought a judicial declaration about the violation of his constitutional rights, and compensatory, punitive and nominal damages against the Civil Rights Division’s Director, Aubrey Elenis, and the seven members of the Commission.
In ruling on the motion to dismiss, Judge Daniel found that none of the “abstention doctrines” that the federal courts have developed to determine whether to allow federal lawsuits to interfere with state administrative proceedings should apply in this case, and that Phillips had standing to bring this lawsuit, not only because of the proceedings ongoing against him, but also because he wanted to post a policy statement on his business’s website about the basis on which they would refuse to make custom-cakes, but was inhibited from doing so because a section of the public accommodations law states that businesses cannot publish discriminatory policies.
However, Daniel did find that Director Elenis and the individual Civil Rights Commissioners enjoy absolute immunity from personal liability for damages, accepting their argument that they are acting as prosecutors and adjudicators. He wrote that it is “well-established that prosecutors are absolutely immune for activities which are intimately associated with the judicial process such as initiating and pursuing” a prosecution. He found that the U.S. Court of Appeals for the 10th Circuit, whose rulings are binding on the district court in Colorado, has “extended absolute immunity to state administrative or executive officials serving in adjudicative, judicial, or prosecutorial capacities.”
Furthermore, the judge found that Governor John Hickenlooper should be dismissed as a defendant, since he played no direct role in enforcing the public accommodations law, so suit against him in his official capacity was barred by the 11th Amendment. Just in time, it seems, since Hickenlooper’s term ended a few days after the court issued it January 4 decision, with Governor Jared Polis taking office on January 8. This decision means that Polis, the state’s (and nation’s) first out gay man to be elected a governor, did not become a defendant in this lawsuit immediately on taking office!
However, the court refused to dismiss the Attorney General, Cynthia Coffman, from the case, finding that the attorney general’s role of representing the Commission in court did make that office potentially subject to injunctive relief. Once again, however, the timing was fortuitous, since Coffman’s term has also ended, as Phil Weiser took office as attorney general on January 8, and the defense of this case will be carried on by his office.
Of course, Phillips is represented by Alliance Defending Freedom, the right-wing Christian litigation group that represented him in appealing the wedding cake decision to the Supreme Court. Not coincidentally, ADF also represents Harris Funeral Homes, seeking Supreme Court review of the 6th Circuit’s decision that Harris violated Title VII of the Civil Rights Act when it fired a transgender funeral director, as well as anonymous plaintiffs who are asking the Supreme Court to overturn the 3rd Circuit’s decision rejecting a constitutional challenge to the Boyertown, Pennsylvania, school district’s transgender-affirmative facilities access policy. One of the best ways to keep up with some major cases in LGBT-related litigation is to periodically visit ADF’s website.