Masterpiece Cakeshop Owner Sued Again For Discrimination

Almost exactly one year ago, Anthony Kennedy ruled that it was okay to discriminate against gay people if the commission trying to stop discrimination seemed really angry about discriminating against gay people. The central holding in Masterpiece Cakeshop — a case where an asshole refused to bake a cake for gay people — was that the Colorado Civil Rights Commission was hostile to the religion of cakeshop owner Jack Phillips. That hostility, Kennedy determined, overrode Phillips’s hostility to the LGBTQ community.

It was a cowardly decision that carefully avoided settling any matter of import. The Supreme Court trumped up “facts” to make their case that the Colorado commission acted with religious animus, neither addressing Phillips’s animus, nor even setting any rules as to what would count as religious animus in the future.

After the ruling, two things seemed likely: the courts would have to deal with other cases of discrimination against love, and somebody would take another run at Phillips and his stupid cakeshop. The first thing is already happening. Last week, the Washington State Supreme Court ruled against a florist who refused to make a floral arrangement for a same-sex couple. That’s a case that was remanded back down to Washington after the useless ruling in Masterpiece Cakeshop, and now it will be appealed up to the Supreme Court again.

The second thing is happening now: Autumn Scardina, a transgender woman and an attorney, went into Phillips’s bigoted store and asked him to make a cake that was pink on the inside and blue on the outside, to celebrate her transition (neat idea, by the way). Phillips refused (again, he’s an asshole). On Wednesday, Scardina sued Phillips for violating the Colorado anti-discrimination statute. You can read the full lawsuit here.

Arguably, this time the Colorado Civil Rights Commission will not do… whatever it is the Supreme Court invented that they did wrong the first time. Between the Washington State case and this one, we should soon find out if Brett Kavanaugh wants to add gay-basher to his already impressive record hating the rights of people who are not beer.

I hope Jack Phillips loses in front of the Civil Rights Commission and the Supreme Court, but here’s the thing: I don’t really think he should be there. As I said, there were two ways to move forward after Masterpiece Cakeshop, and I happen to believe that the Washington State way was the cleaner and more fair way to do it.

Look, the “test case” is how civil rights movements go forward. Hell, many Supreme Court cases of any description are made through “tests” where the perfect plaintiff provokes an unsympathetic defendant into violating a law or principle, so that the Supreme Court can eventually weigh in on whether the law or principle applies. Rosa Parks wasn’t just too “tired” one day. Martin Luther King was not desperately in need of lunch that one time. When activists make a literal federal case out of a systemic injustice, it is planned. I am 100 percent here for that planning. Planning is how we win.

I like my test cases to come with more of an air of systemic injustice, and less of an air of “lookit at this one stupid asshole.” There are, without a doubt, systemic injustices faced by people who are denied public services based on their sexual orientation or gender. That is real, and it happens all across the country. There are a bunch of these petty cake makers and florists and sandwich “artists” who think they have the right to discriminate against the LGBTQ community. They should be stopped, legally, from discriminating. “Just go to another service provider” is not an acceptable legal solution. That’s not how American law is supposed to work.

But, we’ve had our go at Jack Phillips. He feels, to me — and I say this from the privilege of not ever needing a cake from his stupid store — like more of a social problem, at this point, than a legal one. I do not perceive that Phillips speaks for many or even a statistically significant minority of bakers in Denver, Colorado. Jack Phillips represents a systemic problem, but he is not the only one. There are others who deserve their time in the barrel on this issue.

Now, if the Supreme Court rules that Phillips’s style of discrimination is illegal in the Washington florist case and Phillips wants to hold out and ignore that ruling, then absolutely figuratively burn his ass to the ground with lawsuit after lawsuit after lawsuit. His day must come.

In the meantime, I prefer (goddamnit don’t make me say it) a “market-based” approach to this asshole. NOBODY Phillips wants to serve should be using this guy’s store. People who do use his store should be shamed. But I’m big into shaming and virtue signaling here. I haven’t had Chick-Fil-A in over a decade, and I remember it being cheap and delicious. He’s one bigoted store owner in liberal and chill Denver; we can run his ass out of business. Courts can move forward trying to make what Phillips represents illegal, without making Phillips-the-person some kind of martyr for bigotry.

All that said, Scardina cooked up a hell of a case to expose Phillips for the bigoted asshole he is. It’s really brilliant. You simply cannot argue that Phillips has a deeply held religious objection to making a cake that is two different colors. I’ve read that whole Bible, both versions, and nowhere does it say: “Thou shalt not leaven bread that beith of one coloring towards God and yet hideth a different coloring insideth.” Phillips’s objection to baking this cake is not grounded in the message on or even in the cake — it’s based entirely on who is buying the cake and what they intend to use it for. If you were a straight couple and wanted this exact cake for your baby reveal, Phillips would bake it no problem.

I have half a mind to fly out to Colorado with my wife and order just such a cake, to drive home the point of Scardina’s lawsuit. It’s just that the other half of my mind would feel it was less like a “sting” operation, and more like entrapment.

Autumn Scardina v. Masterpiece Cakeshop [Courthouse News]