DENVER — He won his six-year legal battle over his refusal to create a wedding cake for a same-sex couple, but Christian baker Jack Phillips is now facing what could be a lengthy courtroom sequel on the issue of a transgender birthday cake.
Any hope of a speedy resolution was dashed Tuesday when a federal judge indicated he plans to reject the effort to dismiss the Colorado Civil Rights Commission’s latest complaint against Masterpiece Cakeshop involving a birthday cake for a gender transition.
“I’m inclined to deny the motion to dismiss,” said senior U.S. District Court Judge Wiley Y. Daniel.
He also advised Mr. Phillips’ attorneys to narrow the scope of their request for a temporary injunction and prepare for an evidentiary hearing on the matter in February, which could last several days.
“I don’t think I have enough information to rule on this request for injunctive relief,” Mr. Daniel said.
Alliance Defending Freedom senior counsel Jim Campbell, who represented Mr. Phillips at the hearing, said it was possible the case known as “Masterpiece II” could reach the Supreme Court, which ruled against the state in June, citing the commission’s hostility toward the baker’s beliefs.
“What we have is the state of Colorado blatantly ignoring key portions of what the Supreme Court just said to them,” Mr. Campbell said. “The Supreme Court might not take very kindly to that, and so it very well might end up at the nation’s highest court again.”
He referred to the situation as an “obvious setup.” On June 26, 2017, the same day that the Supreme Court agreed to hear the same-sex wedding cake case, Autumn Scardina asked Masterpiece to create a birthday cake — pink on the inside, blue on the outside — to mark the seven-year anniversary of her gender transition.
After being turned down for religious reasons, Ms. Scardina filed a complaint with the commission, which found in June that there was “sufficient evidence” to support the allegation that Masterpiece had violated the Colorado Anti-Discrimination Act.
Assistant Attorney General LeeAnn Morrill argued Tuesday that the commissioners used a “bright-line test” to determine discrimination rather than “delving into the hearts and minds of bakers,” and referred to Justice Elena Kagan’s concurring opinion in the June decision.
Commissioners “are now hewing to the Kagan rule, which says that if you make a pink-and-blue cake for one customer, you must make a pink-and-blue cake for every customer,” she said.
She also insisted that the latest commission investigation was “not based on his religion or retaliation for Masterpiece I.”
Mr. Campbell faulted the state for focusing on the colors instead of the message, arguing that punishing Mr. Phillips for declining to participate in a gender transition celebration would violate his First Amendment rights.
“A blue cake with a pink interior means something different at a graduation party or a birthday party, but the state ignores that,” Mr. Campbell said.
He said that some commissioners have already shown bad faith toward Mr. Phillips. Jessica Pocock called him a “cake hater” in 2013 on social media, and Anthony Aragon posted a photo timed to the Supreme Court case that showed the White House in rainbow colors.
Both of those commissioners were formerly affiliated with One Colorado, an LGBT rights group that has opposed Mr. Phillips in both the wedding cake and transgender cake cases.
Meanwhile, Mr. Campbell noted that the commission took no action against other bakers who refused to create cakes with anti-LGBT imagery on the grounds that they were offensive.
“Mr. Phillips just wants to be treated the same as other cake artists,” he said.
Despite his Supreme Court victory, Mr. Phillips has yet to return to creating wedding cakes at his bakery in Lakewood.
“He has not yet gotten back into the wedding cake business,” said Mr. Campbell. “At this point, he’s just a guy who’s trying to get back to life. The problem is that the state of Colorado won’t let him. They keep harassing him, they keep bringing charges against him, they keep pursuing prosecutions.”