In his advice to princes, Niccolò Machiavelli observed, “there are two kinds of fighting: the one with laws, the other with force.” The travails of long-suffering Colorado baker Jack Phillips prove Machiavelli’s maxim correct. In Colorado, public accommodations law has little to do with justice and a lot to do with fighting.
Last week a private legal suit was filed in Colorado District Court against Jack Phillips, proprietor of the Denver-area bakery Masterpiece Cakeshop. This is the third suit in seven years charging Phillips with discriminatory business practices. The first came in 2012 when Phillips refused a commission for a same-sex wedding cake on the basis of his religious beliefs. That case wound its way to the Supreme Court, where in a narrow 7-2 ruling, the Court found that the State of Colorado had expressed hostility toward Phillips’s religious beliefs and thus improperly ruled against him.
In 2017 Autumn Scardina—a transgender, Denver-area lawyer—filed a complaint against Phillips for refusing a commission for a birthday/“gender change” celebration cake. The Colorado Civil Rights Commission found probable cause that Phillips had violated Scardina’s civil rights. Rather than wait to be dragged again through the courtroom of an administrative law judge, the Colorado Court of Appeals, the Colorado Supreme Court, and perhaps again to the Supreme Court, Phillips and his lawyers filed their own suit in federal district court naming nine Colorado state officials as defendants—including all the members of the state civil rights commission. This seemed more effective: In March Phillips and the State of Colorado agreed to drop their mutual suits. In the words of the Colorado Attorney General, “both sides agreed it was not in anyone’s best interest to move forward with these cases.”
Scardina felt otherwise. After exhausting all administrative procedures with the State of Colorado, the lawyer sued Phillips and Masterpiece Cakeshop directly—not only under Colorado public accommodations law but, in a novel twist, under the state’s consumer protection law as well. At least five times in the eight-page complaint, Scardina’s lawyers triumphantly cite Phillips’s own public statement that he is “happy” to accept commissions from any person for customized birthday cakes. Because Scardina requested a combination birthday/“gender change” cake that Phillips ultimately refused, Scardina’s lawyers seem to believe Phillips is now caught in his own trap.
Scardina has a long history of harassment and duplicity that is relevant in this case. I point readers to my earlier First Things piece for the sordid details. The current suit rehashes the tired and demonstrably false claim that Phillips “refused to sell a birthday cake to Ms. Scardina because of her status as a transgender woman.” The truth is that Phillips does not discriminate between persons, although he does—like every human being—discriminate between ideas. Phillips makes birthday cakes. He does not make “gender change” cakes. We can be certain that Phillips would refuse to make a “gender change” cake regardless of a customer’s gender identity because of his behavior in the original Masterpiece Cakeshop case. On the day Phillips refused the same-sex couple’s wedding cake commission, the heterosexual mother of one of the men called Phillips to clarify his refusal. If Phillips actually discriminated against persons and not ideas, he would have then and there accepted the commission from the heterosexual mother. That he did not clearly indicates that Scardina’s current suit is baseless.
Of course, Scardina is not motivated by actual harms incurred but by political zeal and animus toward Phillips and other social conservatives. Recalling Machiavelli, the instruments of battle are Colorado’s public accommodations and consumer protection law. The goal is not justice but victory.
State public accommodations law has long been used to suppress unwoke speech and behavior. Targets are usually small businesses inclined to settle and accept silence rather than fight back, although even corporate giant Chick-fil-A has been the subject of suits charging a “hostile public accommodations environment” due to nothing more than the owners’ Christian values. As the number of protected classes grows ever larger, the definition of “public accommodation” balloons ever outward, and the civil rights commissions become ever more partisan, the more dangerous public accommodations law becomes. In 2016 the civil rights commission of the Commonwealth of Massachusetts even sought to subject churches to state public accommodations law, and was only beaten back by a lawsuit.
In its 2018 Masterpiece Cakeshop ruling, the Supreme Court refused to decide Phillips’s case on its merits. It now has the opportunity to do so should it choose to hear Klein v. Oregon Bureau of Labor and Industries (better known as the “Sweetcakes by Melissa” case). But any Supreme Court ruling is unlikely to address the unending opportunities for harassment and suppression of speech embodied in contemporary state public accommodations law and bureaucracy. As of April 2019, only five states had no state-level public accommodations legislation on the books for non-disabled individuals. Of the forty-five that do, twenty-four incorporate “sexual orientation” and twenty-one “gender identity” as protected categories. Regardless of original intent, such legislation today does not reduce “harm” but rather punishes dissent from the dictates of our culture’s permanent Sexual Revolution. Continually seeking religious exemptions from such laws is a legal strategy with a short shelf life. A necessary strategy for the long term is to pare back public accommodations legislation itself. If the latest suit against Jack Phillips goes forward—and especially if the Supreme Court refuses to hear the Klein appeal—such a task becomes all the more imperative.
Darel E. Paul is professor of political science at Williams College and author of From Tolerance to Equality: How Elites Brought America to Same-Sex Marriage.