Civil Liberties, Constitutional Law, Mike Rosen

Mike Rosen: The icing on the Masterpiece cake

Jack Phillips owes Autumn Scardina and the Colorado Civil Rights Commission a thank you. If that surprises you, keep reading.

Phillips owns the Masterpiece Cakeshop in Lakewood where he employs his artistry in designing custom cakes. On June 4, 2018, the US Supreme Court ruled in his favor on a now famous case about his refusal, based on religious beliefs, to custom-design a cake celebrating the marriage of gay couple in 2012. At that time, Phillips offered, instead, to sell them any standard cake off the shelf.

Scardina is an activist, transsexual lawyer who has been pursuing a vendetta against Phillips and his beliefs. It’s clearly no coincidence that on June 26, 2017, the very day that SCOTUS agreed to hear Phillips’ case, Scardina called the cake shop requesting that Phillips design a custom cake with a blue exterior and a pink interior to symbolize Scardina’s transition from male to female (get it? ─ symbolizing Scardina as a man in appearance but really a woman on the inside). When Phillips refused to create that cake, Scardina preposterously claimed that he was “stunned.” Of course, this was a ruse and a setup. Scardina, by Phillips’ account, persisted in harassing him with a series of increasingly outrageous, tasteless and blasphemous requests.

Although SCOTUS found in Phillips’ favor, it was a narrow ruling confined to the process and motivations of the Colorado Civil Rights Commission, with court administering a verbal spanking to the commission for its overt anti-religious bias and disrespect for Phillips’ religious beliefs. Unfortunately, SCOTUS punted on the principal issues of the case: freedom of religion, freedom of artistic expression and freedom of disassociation; kicking the can down the road to be dealt with on another day.

Well, that day may be at hand. And that’s why I say Phillips and lovers of individual freedom should thank Scardina and the Civil Rights Commission for their inadvertently bad judgment. With flabbergasting hubris the commission took a second bite at this apple. Just 24 days after SCOTUS ruled in favor of Phillips in June, the commission flexed its biased muscles again, taking Scardina’s side and ordering Phillips to redress Scardina’s complaint over the contrived blue-and-pink-cake-stunt back in 2017.

Coming to Phillip’s defense, lawyers for the Alliance Defending Freedom are countersuing the Colorado governor, attorney general and members of the Civil Rights Commission for the “continuing persecution of Phillips.”

To justify its abuse of Phillips, the commission relies on a Colorado public accommodations law prohibiting discrimination on the basis of sex, sexual orientation, race, creed, color and other categories. “Places of public accommodation” include restaurants, hotels, theaters, sports stadiums, etc. Yes, the Masterpiece Cakeshop is a place of public accommodation but it’s somewhat different from a restaurant which serves almost anyone, wearing a shirt and shoes, who orders from the menu. Jack Phillips has never denied people their civil rights in his store. He’ll gladly sell an apple pie to a gay, a jelly donut to an atheist or a cheese cake to an African-American. But refusing to design a cake that violates his beliefs ─ religious or otherwise ─ is his prerogative and no one has any “civil right” to demand that he do so.

A chef in a vegan restaurant will serve you tofu, but he cannot and should not be compelled to grill you a hamburger. Suppose you’re an owner of a retail store, a place of public accommodation, that makes custom T-shirts. And your daughter was killed in a school shooting. Should you be forced to silk screen images of guns on T-shirts to outfit an NRA convention? How about a black man who owns a custom tailor shop and refuses to do alterations on the white sheets of a KKK grand wizard? And none of these examples even has the added protection of religious freedom. You get the point.

Scardina may have gotten some giggles out of his spiteful trolling of Phillips but wouldn’t it be delightful irony if, thanks to petulance of the commission, Phillips gets another SCOTUS hearing, this time getting to the heart of the matter. With Justice Brett Kavanaugh, a principled defender of individual freedom, on the bench, Phillips may yet get the last laugh.

Longtime KOA radio talk host and columnist for the Denver Post and Rocky Mountain News Mike Rosen now writes for CompleteColorado.com.

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