Litigation Update: Jack Phillips and Masterpiece Cakeshop

[Music]

 

Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I'm Dean Reuter, Vice President General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, April 1st, we discuss a litigation update on Jack Phillips of Masterpiece Cakeshop and his current stand in court. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we're fortunate to have with us, Mr. Mark Trammell, the General Counsel at Center for American Liberty. After our speaker gives his opening remarks, we will turn to you, the audience, for questions. So be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today, Mark, the floor is yours.

 

Mark Trammell:  All right. Thank you, Evelyn. I appreciate the introduction. Good afternoon to everyone on the call. Evelyn mentioned my name is Mark Trammell, General Counsel for The Center for American Liberty, which is a 501(c)(3) public interest law firm whose mission is to defend free speech rights and civil liberties for Americans left behind by the civil rights legacy organizations.

 

      It is my privilege and pleasure to be with you today, leading a discussion on a topic that we are all passionate about, The First Amendment. The First Amendment importantly guarantees Americans the right to speak and of equal importance, the right not to speak. Now this latter protection is the focus of our discussion today. I think we're all familiar, at least somewhat familiar, with Jack Phillips and the Masterpiece Cakeshop litigation. It's really been more of a saga consisting of multiple lawsuits, a Supreme Court decision, and really unparalleled media attention over almost a decade. Jack Phillips has been fighting for his right not to speak. Jack Phillips is an artist whose canvas is a little bit less traditional. His canvas is cake. And since 1993, Jack has run the Masterpiece Cakeshop in Lakewood, Colorado. His cakes are known throughout the community for their unique design as Jack literally uses brushes to paint icing and frosting onto his cake canvas.

 

      In fact, when Jack founded his cake shop, naming it Masterpiece was intentional. A clear reference to art. His logo even depicts an artist palette coupled with a whisk. To be clear, Jack serves everyone. He does not discriminate on the basis of anyone's identity. All identities are welcome at Masterpiece Cakeshop. However, as his website notes, "Masterpiece Cakeshop will happily create custom cakes for anyone." But like many cake artists, Jack cannot create all custom cakes. He cannot create custom cakes that express messages or celebrate events that conflict with his religious. As an artist and as a practicing Christian, Jack cannot express messages through his art that violate his conscience and nor should he. We wouldn't require a practicing Muslim artists to paint a picture of Muhammad, and African-American to use his or her art to express support for the Klan, or a Jewish artist through his or her artistic medium to deny the Holocaust. Such would be shocking to the conscience.

 

      And while these may sound like extreme examples, the underlying principle is the same. Our Constitution respects the dignity of all persons, such that it would be unlawful to compel anyone to communicate a message or a viewpoint that violates their conscience. Or in Jack's case, would violate his sincerely held religious beliefs. But an application of the law is not always so clean. Since 2012, Jack Phillips has been at the intersection of The First Amendment and public accommodation laws, which prohibit businesses and institutions that provide services to the community from discriminating against, mainly denying service to individuals on the basis of a protect classification that the enumerated in the state's public accommodation statute. Recognizing that our time together is very limited, and this is about a decade’s worth of litigation, I want to walk through just a survey of the litigation surrounding Jack Phillips and the Masterpiece Cakeshop.

 

      I will undoubtedly leave out many details as necessary for today's call. But I do hope that this exercise will be thought provoking and generate a rich discussion on a topic that is certainly worthy of such contemplation. So without further filibustering on my part, let's get started.

 

      Jack's story really starts on September 5th, 2012, when plaintiff David Mullins filed a complaint with the Colorado Civil Rights Division, alleging that on July 19th, 2012, the Masterpiece Cakeshop denied him service on the basis of his sexual orientation. On the compliant, Mullen stated—and this is a quote from the complaint—"My significant other, my mother, and I visited the respondent's establishment for the purpose of ordering a wedding cake. We were attended to by the store owner. While looking at the pictures of the different cakes available, I informed the owner that the cake was for my and my significant other's wedding. The owner replied that his policy is to deny service to individuals of our sexual orientation based on his religious beliefs. Based on his response and refusal to provide us service we exited the store."

 

      In response to the complaint, the administrative hearing occurred on September 26, 2013 where Jack Phillips argued that he did not deny David Mullen service on the basis of sexual orientation, but rather based on his sincerely held religious belief that marriage is between one man and one woman. Phillip stated—and this is a direct quote—"I'll make you birthday cakes, shower cakes, sell you cookies and brownies. I just don't make cakes for same-sex weddings." Now, the administrative court reasoned that the only distinguishing factor between a same-sex wedding and a heterosexual wedding is the sexual orientation of its participants. The court went on to say, Therefore, it makes a little sense to argue that refusal to provide a cake to a same-sex couple for use of their wedding is not because of their sexual orientation."

 

      The administrative court then rejected Jack Phillips First Amendment Argument, including without much analysis that cake simply isn't speech. Phillips also made a Free Exercise argument that the administrative court rejected as well. The court reasoned that unlike Employment Division v. Smith, Braunfeld v. Brown, United States v. Lee, and others requiring Phillips to bake a cake was a "legitimate regulation." And as such, Judge Spencer concluded that Jack Phillips violated Colorado's anti-discrimination law and ordered him to cease and desist further discrimination, and to take corrective action as deemed appropriate by the Colorado Civil Rights Commission.

 

      Jack Phillips appealed this but to no avail. The State of Colorado Civil Rights Commission affirmed and ordered that Masterpiece Cakeshop take remedial measures, including undergoing comprehensive staff training on public accommodations and anti-discrimination requirements, and also providing quarterly compliance reports to the Colorado Civil Rights Division for two years. I think everyone knows where this is going next.

 

      Jack appealed. In July of 2014, Jack Phillips appealed his case to the Colorado Court of Appeals. However, the appellate court ruled that the act of same-sex marriage is so closely correlated to Craig's and Mullen sexual orientation that the administrative law judge did not err when he found that the Masterpiece's refusal to create a wedding cake for Craig and Mellon was because of their sexual orientation in violation of Colorado's Anti-discrimination Act. Simply the appellate court refused to distinguish discrimination on the basis of conduct from discrimination on the basis of status.

 

      Now, this is where it gets a little bit more interesting. After concluding that Masterpiece Cake violated Colorado's Anti-discrimination Act, the appellate court turned to Phillip's compelled speech argument under The First Amendment. The court dismissed the argument by stating that the creation of cake "is not sufficiently expressive to warrant First Amendment protections." The appellate court went on to explain that Jack Phillips conduct wasn't "inherently expressive" asking the question, "whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.

 

      Here, the appellate court gave the example of, and relied, on Jacobs v. Clark County School District, where in 20 -- I think it was in 2008, the Ninth Circuit held that wearing a non-descript school uniform did not convey a particularized message of uniformity. Now, applying this inherently expressive standard, the appellate court concluded that the act of designing and selling a wedding cake to all customers free of discrimination does not convey its celebratory message about same-sex wedding, likely to be understood by those who view it. "We further conclude that to the extent that the public infers from the Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece." And with respect to Jack Phillips free exercise defense, the appellate court reasoned that the state anti-discrimination law was generally applicable like in Smith and does not impede the free exercise of religion.

 

      So Jack appealed this to the Colorado Supreme Court, which denied cert. At that point, filed for cert at the United States Supreme Court, which granted it. In July 2016, Masterpiece filed its petition through writ of certiorari. Oral argument took place in December of 2017. And on June 4th, 2018, the Supreme Court handed down a 7-2 decision in favor of Masterpiece Cakeshop. The Court determined that Jack Phillips and Masterpiece Cakeshop really didn't get a fair hearing from the Civil Rights Commission, which the Court found exhibited hostility toward religion.

 

      Writing for the majority, Justice Kennedy reasoned, "That hostility surfaced at the Commission's formal public hearings, as shown by the record. On May 30th, 2014, the seven-member Commission convened publicly to consider Phillips' case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community."

 

      I think it's also worth noting that one of the commissioners even said, "And to me, it is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others."

 

      The Court also found fault in the appellate court's dismissal on the Commission's disparate treatment of Phillips. On three different occasions, the Commission ruled the baker's objection to creating cakes that conveyed disapproval for same-sex marriage, along with religious texts were lawful. The Commission found these cakes derogatory and hateful justifying conscience-based objection, yet the same Commission swiftly dismissed Phillips conscience-based objection.` As noted in Justice Gorsuch's concurrence, "As the Court also explains, the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips's religious beliefs 'offensive.' That kind of judgmental dismissal of sincerely held religious beliefs is, of course, antithetical to The First Amendment and cannot begin to satisfy strict scrutiny." As such, the Supreme Court reversed the Colorado Court of Appeals decision.

 

      Now, I have to admit when this decision was handed down in 2018, I thought that was the end of it. I'm not a betting man, but if I were I would have put money that that was the case. But boy, would I have been wrong. Now, Jack Phillips and the Masterpiece Cakeshop is back in court in the case of Scardina v. Masterpiece Cakeshop. In this case, the plaintiff is Autumn Scardina, who identifies as a transgender female. According to the complaint, on June 26, 2017, Ms. Scardina called Masterpiece Cakeshop to request a birthday cake that "reflects her status as a transgender female" requesting a cake that is pink with blue frosting. Scardina claims that Masterpiece Cakeshop responded "that they did not make cakes for "sex changes" and then refuse to bake the cake.”

 

      Now, on July 21st, 2017, Scardina filed a discrimination charge against Masterpiece Cakeshop and Jack Phillips with the Colorado Civil Rights Division. Now, on March 22nd, 2019, the charges were dismissed and the matter was closed. I think it's worth noting that Scardina did not appeal this administrative decision. But then on June 5th, 2019, Scardina filed a suit Scardina v. Masterpiece Cakeshop in state court in Denver.

 

      In the complaint, Scardina alleges that Masterpiece Cakeshop and Jack Phillips violated Colorado's Anti-discrimination Act by denying service on the basis of transgender status. Scardina also alleged deceptive and unfair trade practices claiming that Phillips repeatedly made statements that he was "happy to sell cake to anyone including LGBT individuals,” and that these statements were false.

 

      On July 22nd, 2019, Masterpiece filed a motion to dismiss penning a different picture of the events that gave rise to this litigation. Defendants claim that in 2012, shortly after the news broke about the first lawsuit against Masterpiece Cakeshop in which we know Jack Phillips eventually prevailed, Scardina emailed Phillip twice calling him a "bigot" and a "hypocrite". And as Phillips claims in his reply, Scardina made statements that were "mocking his religious beliefs."

 

      Then shortly after Phillips prevailed at the Supreme Court in 2018, Scardina called the Masterpiece Cakeshop requesting a custom pink and blue cake that Phillips claims was to "celebrate Scardina's gender transition."

 

      Now, to prevail under the Colorado Consumer Protection Act, one must prove first that the defendant engaged in an unfair and deceptive trade practice. Second, that the challenged practice occurred and the occurrence of the defendant's business vocation or occupation. Third, that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property. Fourth, that the plaintiff suffered injury in fact to illegally protected interest. And that the challenge practice caused the plaintiff's injury. Now, here the court reasoned that "because the most salient materials plaintiffs allegedly relied on are not advertisement," the plaintiff, in this case Scardina, cannot show an unfair or deceptive trade practice.

 

      Primarily, the plaintiff here pointed to newspaper articles and television interviews early surrounding the 2018 Supreme Court decision. And the court distinguishes from commercial speech that proposes commercial transactions. And as such, the district court didn't even analyze the remaining the elements. It didn't get past the first. And so in this case, Judge Jones ruled in Jack Phillips favor with respect to the Colorado Consumer Protection Act claim.

 

      However, Judge Jones did not grant Jack's motion for summary judgment with respect to the Colorado Anti-discrimination Act. Judge Jones, reasoned, "Plaintiff need not establish that her transgender status was the sole cause of denial of service. Rather, she need only show that the discriminatory action was based in whole or in part on her protected status." And with respect to Phil's First Amendment Defense, Judge Jones said, "Making a pink cake with blue frosting, the design Plaintiff requested, would at most be symbolic speech. As such, the relevant inquiry is whether making Plaintiff's cake would have been inherently expressive conduct."

 

      The judge went on to say, "Whether making plaintiff's requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to the Defendant." Now here, Judge Jones concluded that a reasonable observer would not attribute this pink cake with blue icing to Jack Phillips own speech or expression. Judge Jones questioned whether the public would infer any message into the cake at all because of its simple design. Therefore, Judge Jones denied Masterpiece’s summary judgment motion with respect to the Anti-discrimination Act claim.

 

      So where does that lead us? For Jack Phillips, he's still fighting for his right to not speak and that's been going on for nearly a decade. And although the Supreme Court already ruled in Jack's favor once, it did so on the grounds of fairness of process, not really so much on the merits of his First Amendment arguments, although there are certainly statements that could be pulled from that decision, mainly from the concurring opinions, notably Thomas'  concurrence. But as such, there are still significant questions as to the balance between anti-discrimination statutes and The First Amendment. And also questions of fact as to what expressive activity rises to the level of First Amendment protection.

 

      The Supreme Court had a chance to make precedent as to this point, but it really didn't. Instead, it focused almost exclusively on procedure and fairness. There are also significant questions as to the treatment of discrimination on the basis of identity versus discrimination on the basis of conduct. But I think one thing we know for sure is that hostility toward religion is antithetical to the First Amendment. And with that, Evelyn, I'm happy to take questions. I think that's a brief summary of 10 years of litigation, but I'm sure questions -- we'll dive into some of the details a little bit further.

 

Evelyn Hildebrand:  Wonderful. Thank you. And while we're waiting for audience members to join the queue to ask a question, I did want to ask, do you have thoughts or parts of reaction to how has Bostock and the decision in Bostock affected state discrimination laws? Is that something that's in play here or not?

 

Mark Trammell:  You know, it could be. I'd have to give that just a little bit more thought. I mean, I think Bostock is really looking more at an employment context perhaps. I think the NIFLA case is probably a little bit more closely related in this idea of compelled speech. And so I'd really point to NIFLA as a recent decision that should be pretty significant in the analysis moving forward for Jack Phillips.

 

Evelyn Hildebrand:  True. Do you have a prediction for how you think this case will come out?

 

Mark Trammell:  Oh, goodness. No. Who knows? I think it depends on the way the question is presented to the Court. I think the Court now would probably be a little bit more friendly to a broader interpretation of The First Amendment. I think it's worth noting that the first time this case went up to the Supreme Court, it was a 7-2 decision. One of the defending justices was Ruth Bader Ginsburg, who is no longer on the Court. And so we do have a different Court now, but predicting the Court, smarter much more articulate lawyers than myself have been wrong in the past. So I would be foolish, I think, to makes such a prediction today.

 

Evelyn Hildebrand:  That's probably a wise decision. I did want to ask another question if you don't mind. The Sixth Circuit just came out with the Meriwether decision. And I was struck when I read that the comparison to the process piece that you addressed a little bit in your presentation just now that the hostility of the process that was afforded in both cases was important to the judge's decision. So I just wanted to get your reaction to that. I'm just curious if you had thoughts.

 

Mark Trammell:  I'm not super familiar with the Meriwether decision. If I'm not mistaken, isn't that a college professor making statements?

 

Evelyn Hildebrand:  Yes.

 

Mark Trammell:  Yeah, I mean, all of these are in some way going to create precedent that's going to be persuasive to some extent. I think this decision is good in the sense that leaning toward broader First Amendment protection was a good thing. And so without being more intimately familiar with this decision, I probably shouldn't comment further. But I do think we are seeing perhaps a bit of a trend recognizing that rights of conscience are important, and that compelled speech is certainly I think antithetical to The First Amendment. So with that, I'll defer to others.

 

Evelyn Hildebrand:  Great. I think you must have answered all of the questions that people had because there's no one in the queue at the moment. We do have a question. You have the floor.

 

Caller 1:  Thank you. My question actually is twofold. One is, it would seem that the Court's decision denying the motion for summary judgment on the basis that the coloring requested in the cake are reasonably innocuous, and non-offensive, and probably don't mean anything to anyone other than the purchaser may have traction. And then I just was curious about your reaction to that. Then the other question is that I read somewhere that the Plaintiff in this latest case requested a second cake or a third, perhaps, that had some sort of more explicit devil worship related theme. I was just curious if that was accurate, and if you know, if you could elaborate on that. And again, thanks very much for your time today.

 

Mark Trammell:  Absolutely. Well, thank you for your question. I'm not familiar with the second -- the devil cake and so I can't really speak to the devil cake. I do think you make a good point. There could be more traction on this cake as opposed to the first cake. However, I think here we have a – whereas the first Masterpiece Cakeshop case was litigated, there really wasn't a genuine dispute over the facts and that's why they were dealing in summary judgment motions. Here, I think there actually is a little bit more dispute as to the facts. And it's really more of a timing. So in this most recent case, the plaintiff claims that she first described the cake she was requesting and Philip on phone agreed to bake such a cake. And then after agreeing to bake such a cake, informed him that this was really to reflect on her identity as an identifying transgender female.

 

      And so according to the plaintiff, it is at that point that the defendant in this case refused to bake the cake. Whereas, when you read the response from Philips, what he's filed with the court, it's a little bit different perspective. It's really one where there isn't this timing distinction or the request is contemporaneous, or he's saying that he's been asked to create this cake to reflect sex change in his words and to reflect the transgender status. And so while Colorado seems to be making the point that this is a very plain cake that Phillips would make for anybody, and that the sole distinguishing factor is identity, I think Phillip's arguments, as he makes I think clearly in the papers, are that it's not on identity, it's he will not sell it – make a cake to celebrate a sex change.

 

      And so in that regard, it's really no different than refusing to bake a cake for a same-sex wedding ceremony if the conduct in which you are refusing to participate in is contrary to your sincerely held religious beliefs. And so here really this case I think, is resolved based on how a court interprets the activity, whether this is discrimination on the basis of conduct or discrimination on the basis of identity and whether the court can separate the two. I think the first time we saw this litigated, the court refused to separate conduct from identity and really made statements to that extent.

 

Caller 1:  I agree with you. It's going to be interesting. I was just curious what's your take on the one ruling. But I'm pulling for Masterpiece and hopefully we'll see the result that we should see it. Thanks again for your time today.

 

Mark Trammell:  Thank you.

 

Evelyn Hildebrand:  Great. If anyone else would like to do join in the queue to ask a question, please press star, and then pound sign on your telephone keypad. And at this point, I turn the floor back over to you, Mark, for any closing remarks that you would like to make before we end.

 

Mark Trammell:  I want to thank The Federalist Society for the very generous invitation to speak today. The First Amendment is something we are all passionate about, and I think sacrosanct to The First Amendment is also the right not to speak. And so I will just conclude in that sentiment. Jack has been fighting for nearly a decade now to protect his right not to speak. And I think if the litigation doesn't resolve in his favor, I think the ramifications of such would be widespread where the government can then compel you to say in message really that it desires to carry. And so that regardless of your religious beliefs, however diverse they may be, would have a drastic impact on individual Liberty and be of significant concern. So with that, I'll conclude. And again, thank you to The Federalist Society for this invitation, and it was a blast to be with you today.

 

Evelyn Hildebrand:  Thank you very much. And on behalf of The Federalist society, I want to thank you for the benefit of your valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email, at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuters:  Thank you for listening to this episode Teleforum, a podcast of the Federalist society's Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org