Written by Don Byrd
Last week, a federal district court in Colorado refused to dismiss a new lawsuit brought by Masterpiece Cakeshop owner Jack Phillips against state officials accusing them of “unconstitutional bullying” just weeks after the U.S. Supreme Court ruled in the cakemaker’s favor in a case involving his refusal on religious grounds to provide a custom cake for a same-sex wedding celebration. The same agencies that the Supreme Court found to have exhibited unlawful religious hostility in enforcing nondiscrimination laws against Phillips in that case once again determined that he violated those laws by refusing to provide a custom cake for a transgender customer celebrating her transition.
In his ruling (you can read the opinion here), the judge rejected the state’s argument that Phillips failed to provide sufficient evidence that they acted in bad faith:
Consistent with Masterpiece I, Phillips alleges Director Elenis and the Defendant Commissioners acted in bad faith and with “animus toward Phillips’ religious beliefs” because they “disregarded Colorado’s practice of allowing other cake artists to decline requests to create custom cakes that express messages they deem objectionable and would not express for anyone.” This allegation is supported by other allegations in Phillips’ Complaint. Specifically, Phillips alleges that the Division and the Commission excused the three other bakeries from baking cakes with messages the bakers deemed offensive, while, in this case, Phillips was not provided with that same excuse even though the Division and the Commission recognized Phillips declined to create the blue and pink cake because of his religious objection to the cake’s message. As explained in Masterpiece I, this disparate treatment reveals Director Elenis’ and the Defendant Commissioners’ hostility towards Phillips, which is sufficient to establish they are pursuing the discrimination charges against Phillips in bad faith, motivated by Phillips’ suspect class (his religion).
In an interesting column for Slate Magazine following this decision, law professor Eric Segall argues that the state should attempt to settle the case with Phillips because they are unlikely to prevail on Phillips’ free speech claims in front of the new Supreme Court.