It’s another day and we have yet another chapter closing in the First Amendment drama of Jack Phillips and his Masterpiece Cakeshop.
Is this the last chapter?
That’s hard to tell. It’s especially hard to tell in the bland Associated Press report that is being published by many mainstream newsrooms. While the story does mention that Phillips has won another partial victory, it misses several crucial details that point to the anger and animus that has been driving this case all along and could keep it going.
“Animus” against Phillips and his traditional Christian faith was, of course, at the heart of the U.S. Supreme Court’s sort-of decision on this matter, but, well, never mind. Why cover that part of the story?
So here is the latest from AP:
DENVER (AP) — A Colorado baker who refused to make a wedding cake for a gay couple on religious grounds — a stance partially upheld by the U.S. Supreme Court — and state officials said Tuesday that they would end a separate legal fight over his refusal to bake a cake celebrating a gender transition.
Colorado Attorney General Phil Weiser and attorneys representing Jack Phillips said they mutually agreed to end two legal actions, including a federal lawsuit Phillips filed accusing the state of waging a “crusade to crush” him by pursuing a civil rights complaint over the gender transition cake.
Phillips’ attorneys dubbed the agreement a victory for the baker. Weiser, a Democrat, said both sides “agreed it was not in anyone’s best interest to move forward with these cases.”
So what about the future? Here is what readers are told:
The agreement resolves every ongoing legal dispute between the owner of Masterpiece Cakeshop in suburban Denver and the state. Weiser’s statement said it has no effect on the ability of the Denver attorney who filed a complaint with the Colorado Civil Rights Commission to pursue her own legal action.
The attorney, Autumn Scardina, told the commission that Phillips refused last year to make a cake that was blue on the outside and pink on the inside for a celebration of her transition from male to female. She asked for the cake on the same day the U.S. Supreme Court announced it would consider Phillips’ appeal of a previous commission ruling against him.
The lede for this story, as is the mainstream news norm, fails to note the key facts that were at the heart of the original case.
As testimony revealed, Phillips offered to sell the gay couple any of the cakes in his shop and to provide whatever they needed for their reception. What the evangelical Protestant refused to do was to craft one of his one-of-a-kind wedding cakes, including artistic content that would celebrate this same-sex couple’s wedding rite. Does “refused to make a wedding cake” cover those facts in the story?
But back to the new chapter in this drama. Here is another crucial summary passage from AP:
The U.S. Supreme Court ruled in June that the commission showed anti-religious bias when it sanctioned Phillips. The justices did not rule on the larger issue of whether businesses can invoke religious objections to refuse service to gays or lesbians.
Weeks later, the commission found probable cause that Phillips had discriminated against Scardina because she is transgender and ordered them to find a solution through mediation. Phillips then filed a federal lawsuit against the commission, citing his belief that gender “is given by God … and cannot be chosen or changed.”
So what happened here? Why did state officials back down on this case?
Such great news! https://t.co/1II4yYEtwQ
— Denny Burk (@DennyBurk) March 7, 2019
There are two key pieces of information missing in the AP report that would help readers understand what may have happened this time around. Readers seeking reporting on those pieces of the case will need to turn — as is often the case, these days — to alternative sources of information.
As always, religious-liberty pro David French is on the case at National Review. The Harvard Law grad noted that — in the documents for this latest case — Colorado officials continued to stand their ground, in terms of attacking the faith claims of Phillips.
For example, what about the rhetoric used by former Commissioner Diann Rice that was cited in the SCOTUS decision?
As ADF outlines in its statement, two commissioners actually endorsed Rice’s unlawful comments (.pdf here) after the Supreme Court issued its ruling:
“At the June 22, 2018, public meeting, members of the commission discussed the U.S. Supreme Court’s ruling. During that discussion, Commissioner Rita Lewis said, “I support Commissioner Diann Rice and her comments. I don’t think she said anything wrong.” Later, Commissioner Carol Fabrizio added, “I also very much stand behind Commissioner Rice’s statements…. I was actually proud of what she said, and I agree with her…. I’m almost glad that something the Commissioner said ended up public and used, because I think it was the right thing.”
One other point: In an earlier post, I noted that the symbolism of a pink-and-blue trans cake is not as strong — in terms of religious content — as the wedding-cake details of the first case. What if the customer had simply ordered a pink-and-blue case, period?
However, there are other facts in this case linked to the crucial words “Autumn” and “Scardina.”
French had these NSFW details in an earlier piece. I am not sure how AP could have included some of these details in its reporting about the latest developments in Colorado, but I am sure that they are important — in terms of whether the lawsuits continue as private actions by the customer accusing Phillips of illegal bias.
The bottom line: The simple pink-and-blue cake is not the whole story, in terms of this campaign to close Masterpiece Cakeshop. French noted:
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:
“I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9″ black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake. I can provide it for you if you don’t have the means to procure one yourself.”
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.”
Is this story over? If all readers have is the thin AP report the answer is probably “yes.” But if readers are given the “animus” details reported by French, from public documents, the answer is probably “no.”
So stay tuned.
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