The State of Colorado and Masterpiece Cakeshop owner Jack Phillips have agreed to end litigation.
The announcement came Tuesday via a press release from the Attorney General’s Office, which was representing the Colorado Civil Rights Commission in lawsuits between the parties. According to the announcement, the sides have agreed to end all litigation in state and federal courts, and they will each pay their own attorney’s fees and costs. The legal retreat doesn’t mean the constitutional issues underlying the disputes are resolved, though.
Under the terms of the agreement, the Colorado Civil Rights Commission will dismiss charges filed against the bakery and Phillips, and Phillips will dismiss his case against the state.
The commission had filed charges against Phillips for allegedly discriminating against Autumn Scardina, another would-be customer who, on the same day the U.S. Supreme Court granted certiorari in the original case, requested a custom cake celebrating a gender transition. Phillips denied the cake, citing his religious beliefs. The commission found probable cause that Phillips discriminated against Scardina, and Phillips in-turn filed a lawsuit against the state claiming the commission was harassing him.
“After careful consideration of the facts, both sides agreed it was not in anyone’s best interest to move forward with these cases,” Colorado Attorney General Phil Weiser said in a press release. “The larger constitutional issues might well be decided down the road, but these cases will not be the vehicle for resolving them. Equal justice for all will continue to be a core value that we will uphold as we enforce our state’s and nation’s civil rights laws.”
The agreement does not affect Scardina’s ability to pursue a claim on her own.
In a statement from the Alliance for Defending Freedom, the conservative activist organization that represented Phillips, attorney Kristin Waggoner described the outcome as a win for diversity of opinions.
“This is the second time the state has launched a failed effort to prosecute him,” Waggoner said. “While it finally appears to be getting the message that its anti-religious hostility has no place in our country, the state’s decision to target Jack has cost him more than six-and-a-half years of his life, forcing him to spend that time tied up in legal proceedings.”
Despite the agreement to drop all litigation, it’s not a simple matter of finding a common ground and walking away. Phillips’ lawsuit was rooted only in getting the state to back off of its claims, which it did.
“For him, this is a victory,” said Holland & Hart partner Steven Collis, who chairs the firm’s religious institutions and First Amendment practice groups. Phillips’ case was filed in response to the commission’s complaint against him. Despite Phillips prevailing, not much changes in the legal landscape regarding Colorado’s discrimination laws in the aftermath of the U.S. Supreme Court’s decision in Colorado Civil Rights Commission v. Masterpiece Cakeshop.
In that case, the U.S. Supreme Court found that the commission showed that it did not approach a discrimination claim against Phillips in a neutral light. The court, however, didn’t resolve the constitutional question underlying the case, and Colorado’s anti-discrimination laws did not change as a result of the case.
“Businesses may decide what products or services they offer, but they do not get to pick and choose who they offer those products or services to,” said One Colorado executive director Daniel Ramos. “The very narrow ruling by the Supreme Court in Masterpiece vs. Colorado Civil Rights Commission does not change our country’s long-standing principle that businesses open to the public must be open to all.”
And as referenced in Weiser’s statement, the larger constitutional issues pitting the First Amendment freedom of religion against anti-discrimination laws might be decided with a different case from a different part of the country.
Cases in Oregon, Washington and Arizona pit anti-discrimination laws against religious beliefs and compelled expression of a baker, florist and wedding card designer respectively. And recently, an Indiana case spun outside of the realm of compelled creative expression when an Indiana tax preparer refused services to a same-sex couple.
Although there are several cases around the country that could bring the issue to the Supreme Court, Collis said Colorado’s decision might be an indication of states’ wariness of testing the issue and coming away with a ruling that could be less desirable than the status quo. The state’s position might also be indicative of how states are currently looking at the issue as a U.S. Supreme Court fight. In California, the state opted not to appeal a trial court’s decision in a case siimlar to Masterpiece Cakeshop that found a baker’s freedom of religion trumped a gay customer’s discrimination claim.
Collis referenced a February statement from Justice Samuel Alito that indicated he might join other conservative justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh in cases that question the scope of the free exercise of religion clause of the First Amendment.
Alito penned a dissent that included the three other justices in a cert refusal of a case involving a high school football coach’s on-field prayers.
“The ruling in Masterpiece is affecting more rulings than we think it is,” Collis said. “It will be interesting to see how other cases play out in light of this and see whether other states back off. … One of these cases somewhere is going to get teed up for the Supreme Court, and obviously, the State of Colorado felt like this particular case wasn’t the vehicle to do it.”
— Tony Flesor