(Attorney General’s Office Press Release, May 3, 2023)
Boise, ID –Attorney General Raúl Labrador joined Arkansas Attorney General Tim Griffin and attorneys general from 20 other states today in filing an amicus brief with the Colorado Supreme Court arguing that the First Amendment protects Jack Phillips and Masterpiece Cakeshop, Inc. from being required to create a cake expressing a message contrary to his beliefs.
“Once again, liberal activists have unjustly targeted Mr. Phillips. After years of fighting and decisive defeats in federal courts, activists are now challenging Mr. Phillip’s first amendment rights in state court. In a desperate attempt to bully Mr. Phillips into submission, these activists are threatening everyone’s first amendment rights. The Colorado Supreme Court must follow the ruling of the U.S. Supreme Court and protect Mr. Phillip’s first amendment rights,” Attorney General Labrador said.
In 2012, Jack Phillips, owner of Masterpiece Cakeshop, Inc., declined to create a custom wedding cake for a same-sex couple. When the couple complained, the Colorado Civil Rights Commission censured Phillips for discrimination. Later, the state court of appeals sided with the commission, concluding that Phillips’ custom cakes weren’t expressive and that the First Amendment did not apply to him.
The Supreme Court of the United States disagreed and reversed the Colorado Court of Appeals. Though it did not decide whether applying Colorado anti-discrimination law to Phillips restricted his free expression, it concluded that the Commission had acted with “hostility” to his “religious viewpoint.”
Unfortunately, Phillips’ victory in the Supreme Court of the United States did not end Colorado’s assault on his beliefs. The very day the Supreme Court agreed to hear Phillips’ case, transgender activist and attorney Autumn Scardina contacted Philips and asked him to create “a birthday cake with a pink interior and a blue exterior” that would reflect Scardina’s “transition from male-to-female.” As Scardina later explained, the request was designed to “correct” the “errors of…Philips’ thinking.”
When Phillips refused the request, Scardina complained to the Colorado Civil Rights Commission. But before the Commission could again censure Phillips, he sued in federal court. After the federal district court concluded that Phillips had plausibly pled that the Commission was once again targeting him in bad faith, the Commission closed its investigation.
Scardina then chose to sue Phillips in state court. Characterizing Phillips’ refusal to accept Scardina’s view of gender as intolerable, the trial court and court of appeals concluded that his cakes were not expressive and found him liable for discrimination.
The amicus brief filed today asks the Supreme Court of Colorado to take up Phillips’ challenge and conclude that he cannot be compelled to create custom cakes expressing a message contrary to his beliefs. The Supreme Court of the United States is currently considering a similar challenge to Colorado’s antidiscrimination laws brought by a website designer who does not want to create websites for same-sex weddings.
The brief can be accessed here. Other states joining the brief include Arkansas, Alabama, Alaska, Georgia, Indiana, Iowa, Louisiana, Kentucky, Kansas, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.