Double Religious Jeopardy
Maybe it’s baked into the cake of modern American progressivism. What else could drive Colorado to go after the same Christian baker less than a month after losing a similar case against him at the Supreme Court?
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ruled 7-2 that the commission violated Jack Phillips’ free-exercise rights when it sought to punish him for refusing on religious grounds to bake a custom cake for a gay couple’s wedding. That decision was handed down June 4 after six years in which Mr. Phillips was dragged through the courts.
On June 28 the state found probable cause that Mr. Phillips had unlawfully discriminated in another case—by refusing to bake a custom cake (blue on the outside, pink on the inside) to celebrate the transgender transition of Autumn Scardina from a man to a woman. The Alliance Defending Freedom, which represented Mr. Phillips in his first case, is now suing Colorado’s Governor, attorney general, Civil Rights Division and Civil Rights Commission for what it says is Colorado’s “continuing persecution” of its client.
In finding for Mr. Phillips in June, the Supreme Court said the commission had exhibited “clear and impermissible hostility” toward the baker’s religious beliefs, which included unequal application of the law. But Justice Elena Kagan wrote a concurring opinion essentially saying that the state could win the next time if it disguised its anti-religious bias. Colorado appears to be taking her invitation.
But to pursue Mr. Phillips so quickly, and with a made-to-legal-order plaintiff, Colorado also seems to be showing its animus again. Nobody knows how a Supreme Court with Brett Kavanaugh seated in place of Anthony Kennedy would rule. But if Mr. Phillips ends up back before the Court, let’s hope the majority this time lays out clear guidelines protecting his religious and speech rights.
The alternative is what we are seeing in Colorado, where progressives appear bent on making a literal federal case out of every cake in America.
Appeared in the August 17, 2018, print edition.