Jack Phillips owns Masterpiece Cakeshop in Lakewood, Colo. Phillips sells generic cakes, but he also customizes them. When he was asked to design a cake to celebrate a same-sex wedding, Phillips refused because he believed that doing so would violate his Christian faith.
When the Colorado Civil Rights Division punished him for discrimination, he sued. The case went to the Supreme Court in 2018. Phillips won based on the free-exercise clause. But the victory was hardly a definitive victory for freedom of religion. Authored by Justice Anthony Kennedy — who also wrote the Obergefell decision that created a constitutional right to same-sex marriage — the decision was predicated on the commission’s clearly stated bias against Christians. As I wrote at the time:
This makes for a very narrow precedent that might not apply in other cases in which law enforcers aren’t foolish enough to express such open antagonism.
And sure enough — in a clear attempt to set him up — Phillips was dragged into court again for refusing to create a cake to celebrate a gender transition. This time, Phillips found himself in Colorado courts where he lost twice. But, now, the Colorado supreme court has dismissed the case.
That’s good, but the victory is not one based on religious liberty. The plaintiff in the case filed a direct lawsuit in the courts without first jumping through the proper administrative hoops. Specifically, when the Civil Rights Commission entered into a confidential settlement with Phillips and dismissed the administrative case, the plaintiff filed suit against Masterpiece directly when the proper course would have been to file an appeal against the commission’s dismissal. From Masterpiece Cakeshop v. Scardina:
Scardina had a statutorily established path to challenge the Commission’s actions: she could have turned to the court of appeals to contest the Commission’s dismissal of her case as part of a binding settlement in federal court, where she was not a party. We express no view on the merits of these claims; we only acknowledge that Scardina possessed an avenue for judicial review in the court of appeals.
Hence, the Colorado supreme court vacated the judgment and dismissed the case without ruling on the religious-freedom issue at all.
I am happy for Phillips, but don’t be surprised if he is again subjected to merciless lawfare — perhaps even by Scardina, as the Court ruled that “we express no opinion about the merits of Scardina’s claims, and nothing about today’s holding alters the protections afforded by CADA.”
Does that mean the case can be reopened? I don’t know.
But even if Scardina is barred from continuing the case, or chooses not to do so, Phillips could again find himself in hot legal water. Why? His cakes are quite beside the point. Phillips has become a symbol of religious resistance to LGBT cultural agendas. I worry that he will again be asked to design a cake for an event that his faith opposes, and this time the proper procedures will be followed so that his figurative scalp can be nailed to the wall. (Don’t forget, he lost on the merits in the trial court and in court of appeals.)
Alliance Defending Freedom, which represented Phillips, issued a statement celebrating the victory and opining that Phillips should be in the clear. The invaluable organization’s optimism is based on the recent SCOTUS case involving a website designer, who, the Court ruled, does not have to create websites for certain customers based on her moral objections.
But that was a free-speech case, not one involving freedom of religion. So, we will see.
What the country really needs is a strong Supreme Court decision unequivocally reinvigorating the free-exercise clause by overturning Employment Division v Smith. Far more portentous issues are at stake than the freedom not to design cakes that violate one’s religious convictions, as important as that is. As just one example, I believe that the continued freedom of Catholic hospitals to abide by the church’s moral teachings — say, by refusing to perform abortions, assisted suicide, and sex-transition surgeries — depends on it.