By David French
Wednesday, August 15, 2018
Even after a 7–2 Supreme Court decision protecting
Colorado custom baker Jack Phillips from overt religious discrimination, the
state is doubling down. It’s participating in and empowering a grotesque
campaign of discrimination and harassment that should shock the conscience of
sensible Americans.
Phillips, you’ll recall, is the owner of Masterpiece
Cakeshop, the bakery at the epicenter of one of the most contentious cases of
the Supreme Court’s last term. Phillips had refused to design a custom cake to
celebrate a gay wedding, and a clear majority of SCOTUS ruled that the Colorado
Civil Rights Commission violated his right to free exercise of religion by
demonstrating overt religious animus against him. Commissioners not only
denigrated the sincerity of his religious-liberty argument, they applied overt
double standards (by allowing bakers to refuse to create anti-gay messages)
that were clearly discriminatory.
So Jack won. Colorado lost. But Jack’s ordeal, it turns
out, was far from over. By standing up for his First Amendment freedoms,
Phillips put a target on his back, and bad-faith, malicious actors aimed and
fired.
Here’s what happened. According to a verified complaint
filed today by my old colleagues at the Alliance Defending Freedom, on June 26,
2017 — the very day the Supreme Court granted Jack’s request to review his
wedding-cake case — a lawyer named Autumn Scardina called Masterpiece Cakeshop
and “asked Masterpiece Cakeshop to create a custom cake with ‘a blue exterior
and a pink interior’ — a cake ‘design’ that, according to the lawyer,”
reflected “the fact that [the lawyer] transitioned from male-to-female and that
[the lawyer] had come out as transgender.”
Lest anyone wonder whether this request was made in good
faith, consider that this same person apparently made a number of requests to
Masterpiece Cakeshop. In September 2017, a caller asked Phillips to design a
birthday cake for Satan that would feature an image of Satan smoking marijuana.
The name “Scardina” appeared on the caller identification. A few days earlier,
a person had emailed Jack asking for a cake with a similar theme — except
featuring “an upside-down cross, under the head of Lucifer.” This same emailer reminded
Phillips that “religion is a protected class.”
On the very day that Phillips won his case at the Supreme
Court, a person emailed with yet another deliberately offensive design request:
I’m thinking a three-tiered white
cake. Cheesecake frosting. And the topper should be a large figure of Satan,
licking a 9″ black Dildo. I would like the dildo to be an actual working model,
that can be turned on before we unveil the cake. I can provide it for you if
you don’t have the means to procure one yourself.
And finally, two days later, a person identifying as
“Autumn Marie” visited Phillips’s shop and requested a cake featuring a
pentagram. According to ADF, “Phillips believes that person was Autumn
Scardina.”
Rather than recognizing Scardina’s conduct as nothing
more than a bad-faith campaign of harassment, Aubrey Elenis, the director of
the Colorado Civil Rights Division, found on June 28 “probable cause” to
believe that Phillips violated Scardina’s civil rights when he refused
Scardina’s bad-faith request to design a cake celebrating Scardina’s
“transition.”
This decision is as foolish as it is malicious. The one
weakness of Jack’s Supreme Court case was that he denied the gay couple’s
request to custom-design their cake before
he knew the design they wanted. That left him open to the charge that he could
have designed a cake that contained no obvious expressive message. Phillips
countered that compelling him to use his artistic ability to help celebrate an
immoral act was a violation of his First Amendment rights no matter the
appearance of the cake.
Ultimately, the Supreme Court punted on that key
question, but it was clear that even the two dissenting justices would view the
case differently if it was about a specific message that Phillips would reject
for any customer. And clearly, a cake with a pink middle and blue exterior
communicates the message that Scardina is truly female on the inside. The
requested message was as painfully obvious as Scardina’s satanic requests.
With its probable-cause finding, the Colorado Civil
Rights Division demonstrates it’s as foolish as it is malicious. It has just
launched yet another legal campaign against Phillips based on nothing more than
a bad-faith complaint from an angry troll. It hasn’t cured its devotion to
double standards. And by seeking to punish Phillips when the expressive message
of the proposed cake is crystal clear, the Division has only strengthened his First Amendment claim.
In recent months, we’ve seen that trolling and shaming
work all too well when the relevant power is a private corporation. CEOs and
editors aren’t subject to the First Amendment, and they can censor at will —
even if they’re degrading the American culture of free speech with every
website wrongly blocked and every dissenter shamefully fired. But until the law
changes, government officials can’t empower the outrage mob. They can’t engage
in viewpoint discrimination, and if they act with actual animus, they can and
should be held personally liable for violating a citizen’s core constitutional
rights.
In other words, if plaintiffs have the will and the
resources, they can defeat government censors. While I don’t claim to know Jack
Phillips well, I know that he won’t back down. I also know that ADF has the
resources to fight the long battles. Trolls can’t harass Christians out of
their fundamental freedoms. The battle is joined. It may rage for years, but
expect Jack to prevail once again.
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