Will the Supreme Court tackle transgenderism in Masterpiece Cakeshop Part 2?

In the first Masterpiece Cakeshop case, the Supreme Court ruled in favor of Jack Phillips, a Christian baker, who refused to create a wedding cake for a same-sex couple based on his religious beliefs.  At the time, the Courts ruling was quite narrow and focused more on the actions of the Colorado Civil Rights Commission, which were deemed hostile towards Phillips's religious beliefs.  The decision did not answer the more pressing question, which was whether a business-owner's religious objections to the redefinition of marriage (or other practices) should be exempted from non-discrimination laws, thereby permitting the owner to refuse service.  While the Supreme Court failed to address this question in the first Masterpiece case, it might have another chance in the most recent one, currently pending in federal court.

On the same day that the Supreme Court agreed to hear Masterpiece 1, Autumn Scardina asked Masterpiece to create a birthday cake to mark the seven-year anniversary of his "gender transition."  Scardina, who calls himself a woman, requested a cake that was pink on the inside and blue on the outside.  Masterpiece refused to create the cake based on religious grounds, and Scardina filed a complaint with the Colorado Civil Rights Commission, which found that Masterpiece had violated the state's Anti-Discrimination Act.

In an effort to stop the state of Colorado from taking additional action against him in the Scardina matter, Phillips, who owns Masterpiece Cakeshop, sought legal redress in a Denver federal court.  According to the AP, Phillips's lawsuit alleged that the Commission treated him with hostility because of his Christian faith and that "Colorado violated his First Amendment right to practice his faith and his 14th Amendment right to equal protection."  Per the AP, the lawsuit further alleged that Phillips "believes as a matter of religious conviction that sex – the status of being male or female – is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed."

Lawyers for the state argued that their decision was not based on religious grounds.  Moreover, as set forth in the Washington Times, lawyers for the state referred to the "Kagan rule" (from the first Masterpiece case) and argued that "if you make a pink-and-blue cake for one customer, you must make a pink-and-blue cake for every customer."  While this argument appeared sensical generally, Phillips's lawyer reminded the court that the message is important, not the colors, and that forcing Phillips to participate in a "gender transition" celebration would violate his First Amendment rights.  Per Phillips's lawyer, "[a] blue cake with a pink interior means something different at a graduation party or a birthday party."

According to the AP, the presiding judge recently indicated that he needed to hear "evidence" before ruling on whether to temporarily block state proceedings.

The implications of this case are far-reaching.  Regardless of how the federal court ultimately rules, the Supreme Court could be asked to weigh in on a larger, more pressing question that it failed to address in the first Masterpiece case: should religious beliefs allow a person to refuse service to certain customers?  The answer to this question will not be easy, given the many competing interests and rights at stake, including but not limited to the Free Exercise Clause and the First Amendment.  Justice Kennedy spoke to this when he wrote the majority opinion in the original Masterpiece case. There, he stated:

One of the difficulties in this case is that the parties disagree as to the extent of the baker's refusal to provide service.  If a baker refused to design a special cake with words or images celebrating the marriage [sic] – for instance, a cake showing words with religious meaning – that might be different from a refusal to sell any cake at all.  In defining whether a baker's creation can be protected, these details might make a difference.

The same difficulties arise in determining whether a baker has a valid free exercise claim.  A baker's refusal to attend the wedding [sic] to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.

Justice Kennedy's points are legitimate and should be considered in any future Supreme Court decision.  Given the potential far-reaching impacts and the endless number of possible scenarios, the Supreme Court will have a difficult decision to make.

Mr. Hakim is a writer, commentator, and practicing attorney.  His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Western Journal, American Thinker, and other online publications.   


Twitter: @ThoughtfulGOP

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