Remember Jack Phillips of Masterpiece Cakeshop? Of course you do. It’s been less than three months since the Supreme Court ruled 7–2 that the Colorado Civil Rights Commission unconstitutionally applied the law against Phillips in a biased and hostile manner.
Well, once again the Commission has accused Masterpiece Cakeshop of violating Colorado’s anti-discrimination law after the shop declined to make what the official complaint describes as “a cake with pink interior and blue exterior, which I [i.e., Autumn Scardina] disclosed was intended for the celebration of my transition from male to female.”
First, I will continue to say as long as it needs to be said that declining to communicate a message one disagrees with is not the same thing as denying a person services because of who they are (see here, here, and here for more on this). This needs to be understood before anything else.
Second, the decision of the Colorado Civil Rights Commission is even more difficult to understand in light of what appears to be Scardina’s harassment of Phillips since the incident, described here by David French (who is summing up the info found here):
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 [since the original request]. 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 [see the original article if you would like to read the obscene request—I’m not willing to post it here]....
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.
If the Supreme Court ruled 7–2 (7–2!) in the last case that the charges against Phillips were a result of the government’s hostility towards his religious beliefs, it’s hard to imagine this case wouldn’t lead to the same result (especially considering what follows below).
The state did this even though it allows others — like the three bakers who were asked for cakes criticizing same-sex marriage — to decline requests for cakes expressing messages that they don’t communicate for anyone. The government is clearly treating me worse than others.
Perhaps worse yet, the state is contradicting what it told the Supreme Court in my prior case. The government said that I can decline to create custom cakes with pro-LGBT designs or themes, announcing in no uncertain terms that I am free “to decline to sell cakes with ‘pro-gay’ designs or inscriptions.”
Yet the cake requested in the new case obviously had a pro-LGBT design. The person who requested it even recognized that the design was intended to represent and celebrate a gender transition. The inconsistency between what the state told the Supreme Court and what it is doing to me now shows the government’s real policy: No matter the circumstances, I must be punished.