All along, Jack Phillips, the Christian baker at the heart of the Masterpiece Cakeshop Supreme Court case has claimed that he doesn’t deny service to specific people—just to individuals looking for cakes for specific events, like same-sex weddings.
“I don’t discriminate against anybody—I serve everybody that comes in my shop,” he told NBC in June, after the Supreme Court ruled that the state of Colorado had been hostile toward his religious beliefs. “I don’t create cakes for every message that people ask me to create.”
But in the latest legal drama involving Phillips and the anti-LGBT legal group Alliance Defending Freedom, that distinction between person and event is getting harder to maintain. It’s almost as if it was a spurious one to begin with.
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As the Denver Post reported, the ADF filed a lawsuit Tuesday night on Phillips’ behalf against Colorado Gov. John Hickenlooper and the Colorado Civil Rights Commission over the fact that the baker’s business was found to have violated non-discrimination law by refusing to make a birthday cake for a transgender lawyer named Autumn Scardina who also wanted the dessert to mark the anniversary of her gender transition.
According to the lawsuit, the cake—which Scardina specified in a phone call last June should have “a blue exterior and pink interior”—would have “celebrated messages contrary to [Phillips’] religious belief 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.”
The lawsuit maintains—as Phillips always has—that “[his] decisions on whether to create a custom cake do not focus on who the customer is, but instead depend on what the custom cake will express or celebrate.”
It also insists that he “will create countless other custom cakes for people who identify as transgender,” so long, presumably, as they are not tied to that person’s gender transition.
But that’s precisely where the distinction between the person and the event begins to break down.
What if a mother of a transgender girl ordered a cake that said “Happy Birthday, My Beautiful Daughter” or the wife of a transgender man requested a cake bearing the message “Happy Anniversary to My Husband”?
Would that not violate the baker’s religious belief that one’s birth-assigned sex can never be changed—even though the cakes themselves are not directly celebrating a transition?
And given the fact that not every parent, spouse, or friend of a transgender person goes around disclosing that relationship to cake makers, how can Phillips be sure that he is not unwittingly violating his religious beliefs about LGBT people all the time?
As Zack Ford at ThinkProgress observed, “If a customer can buy a product, but only if they hide their identity, then the business is clearly discriminating on the basis of that identity.”
Phillips’ lawsuit alleges that a woman whom he believes to be Scardina has been repeatedly testing the limits of his willingness to make cakes with requests for Satanic designs, or for cakes bearing symbols that are “commonly linked to witchcraft”—and that this cake was part of a pattern of harassment. (Scardina in her complaint makes no mention of these other alleged incidents, saying that she was denied service after revealing that “I am a transsexual and that I wanted my birthday cake to celebrate my transition by having a blue exterior and a pink interior.”)
Whatever other requests Scardina may have made, the birthday cake case requires Phillips to tread especially in order to prove that his business does not discriminate on the basis of gender identity, as prohibited by Colorado state law.
The event is a birthday and the person is a transgender woman but the birthday also carries the added significance of coinciding with another past event: a transition.
That means Phillips has to argue that his issue is not the fact that Scardina is transgender, but the fact that she once transitioned—and if that seems like an arbitrary distinction, that’s because it probably is. When a person’s identity is the product of an event, it becomes harder to meaningfully separate the two.
Of course, this arbitrariness doesn’t necessarily reveal anything new about the greater intentions of the Alliance Defending Freedom, the legal group behind this and several other recent challenges to LGBT rights. Securing a broad right to discriminate against LGBT people on the basis of religious belief has long been the group’s apparent goal.
The ADF’s blog post about the new Masterpiece case not only misgenders Scardina—referring to her with a male pronoun—it insists that Phillips primarily takes issue with being asked to “express a message that conflicts with his religious beliefs.”
The lawsuit itself, too, trots out the same arguments about religious freedom, free speech, and the First Amendment that the ADF used in the Supreme Court to argue that Phillips shouldn’t be required to bake a cake for a same-sex wedding. We’ve heard this before.
But we can discern from other cases ADF has taken on that the distinction between “person” and “event”—between individual and “message”— is more strategic than anything else.
The ADF, after all, recently represented a Hawaii bed and breakfast owner who argued that she should be able to turn away a same-sex couple because of her religion.
That incident didn’t have to do with a specific “event” or “message,” it was just straight-up discrimination on the basis of religion—and the ADF still represented her, even after losing at the Hawaii Supreme Court level.
By taking on a new Masterpiece case involving a transgender customer, the ADF is coming close to overplaying its hand.
Plenty of Americans bought the argument that wedding service providers like bakers should be able to deny business to same-sex couples, but arguing that a baker should be able to turn away a transgender customer for wanting a birthday cake with transition-related theme could be a harder sell.
