This week's podcast: Colorado fine-tunes legal campaign against Masterpiece Cakeshop owner

No doubt about it, there was a big, big religious-liberty story back on June 28 out in the often-overlooked Rocky Mountain Time Zone.

This was a story that had been cooking for some time and, yes, it involved Jack Phillips of Colorado, the owner of Masterpiece Cakeshop. 

To understand the significance of this news story -- the goal of this week's "Crossroads" podcast (click here to tune that in) --  it helps to look at the following timeline:

* On June, 26, 2017 -- the day the U.S. Supreme Court announced that it would hear Masterpiece Cakeshop v. Colorado Civil Rights Commission -- a Colorado lawyer named Autumn Scardina called the bakery and made a rather simple request. Scardina requested a cake with blue icing that was baked with pink batter. The lawyer told a Cake Shop employee that the goal was to celebrate Scardina's birthday, as well as the seventh anniversary of the day he came out as transgender she.

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* On June 4, 2018, the U.S. Supreme Court ruled, by a 7-2 margin, that the Colorado Civil Rights Commission had shown anti-religious animus during proceedings leading to its actions punishing Phillips for refusing to create one of his one-of-a-kind wedding cakes to celebrate a same-sex couple's marriage. Phillips offered to sell the couple any of the other cakes or goods in his shop, but -- because of his faith -- refused to create a special cake to celebrate that rite.

* On June 28, the Colorado Civil Rights Commission ruled that there was evidence that Phillips had discriminated against Scardina because of anti-trans bias, as opposed to this action being another act of conscience by the Christian baker, protected by the First Amendment.

You can assemble those dates in your mind with a bit of editing as you read the Washington Post (or New York Times) coverage of this new chapter in the Masterpiece Cakeshop drama.

So why is the story breaking this week? You can see that in the overture to the Post story:

Add another layer to the legal drama surrounding the Colorado baker who refused to make a wedding cake for a same-sex couple -- and took his case all the way to the Supreme Court.
Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., on Tuesday filed another federal lawsuit against the state alleging religious discrimination.

The story, you see, was not the actual decision earlier this summer by Colorado officials to go after Phillips, once again. The newsworthy action was his decision to fight back. Thus, the headline: "Baker claims religious persecution again -- this time after denying cake for transgender woman."

So what is going on here and where might this story go next? 

First of all, let's flash back to a crucial chunk of the On Religion column I wrote immediately after the SCOTUS decision. I was describing why so many people thought that Justice Anthony Kennedy had "punted" in his narrow opinion backing Phillips. The key: Kennedy did not rule on the First Amendment issues in the case, but pointed to anti-religious bias. Thus:

Kennedy noted that the "Constitution can, and in some instances must, protect" gay couples in the "exercise of their civil rights." However, he added that religious "objections to gay marriage are protected views and in some instances protected forms of expression."
What's the sum total of these "some" references? He added: "The outcome of cases like this in other circumstances must await further elaboration in the courts."

So here we go again.

But here is a key point to ponder, for the one or two reporters in American newsrooms who are interested in the logic of the Clinton-Gore era Religious Freedom Restoration Act of 1993, which had wide support on the left as well as the right.

The first Masterpiece Cakeshop case centered on a cake specifically crafted -- with artistic, expressive content -- to celebrate a same-sex wedding rite. Thus, for traditional religious believers, there was no way around the religious content of this puzzle.

As always, flip this around. Could a gay Episcopalian refuse to bake a unique, artistic cake (or make a film) celebrating an ex-gay conference at a local Pentecostal church? What about a gay member of the Presbyterian Church (U.S.A.) declining to make special t-shirts for the organizers of a church rally in opposition to Pride Day? So far, "liberal" artists have been winning those fights.

At some point, SCOTUS (and mainstream journalists) will have to decide why religious liberals and/or secularists have conscience rights in this very specific, complicated, kind of First Amendment clash, but not religious traditionalists.

In conclusion, let's note two other details in the new Masterpiece Cakeshop case.

What is the intellectual, artistic content of a pink cake with blue icing created to make an event that is not "religious," in the same sense that a wedding rite is religious? In other words, a "doctrinal" symbolism was assigned to the cake by the customer, but the actual cake request was not all that unique.

As I asked in the podcast, what if a set of twins -- one female, one male -- had requested the same blue-and-pink, male-and-female cake for use at their birthday celebration? Would the Masterpiece Cakeshop team have made that cake?

Second, note these crucial details from a Masterpiece Cakeshop 2.0 commentary by David French at National Review.

Yes, this is strong stuff, but should this content have been included, somehow, in the Post and Times articles on the new case?

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.”

Bad cases make for bad law? It's possible that a court will ask whether Scardina's behavior represented harassment of a business. What are the First Amendment rights of a troll? That's an interesting question, too.

Hang on. And enjoy the podcast.

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