It looks like the political correctness Furies who have been swarming around Jack Phillips, the Masterpiece Cakeshop owner whose refusal to bake, decorate and sell same-sex wedding cakes had him targeted for destruction have finally been foiled.The Colorado Supreme Court has dismissed the latest lawsuit against him, though not on the merits. Legal Insurrection has detailed coverage and a retrospective on this almost decade-long drama here.
Remember the old Mad Magazine series called “Spy vs. Spy”? This has been “Jerk vs. Jerk.” I sided with the baker in the original lawsuit over the same-sex wedding cake, though holding even then that the adversaries were being unreasonable. Ethics Alarms advised one, “Oh, bake the damn cake!” and the other, “So find another bakery!” That battle got all the way to the U.S. Supreme Court, where the baker won on what non-lawyers call “a technicality.” Then Phillips was targeted again, as LGTBQ activists apparently considered it a matter of honor to bend him to their will.
In 2017, Autumn Scardina, a lawyer, called the cake shop to request a “gender transition” cake that was blue on the outside and pink on the inside (Get it?). Phillips refused to sell her one, so Scardina filed a complaint with the Colorado Civil Rights Commission, claiming discrimination. Colorado, taking the hint from SCOTUS, declined to prosecute, so Scardina sued again , this time on her own behalf.
Yes, the case was, in my view, an abuse of process and a retaliatory suit, and I would have filed an ethics complaint against Scardina if I were in Colorado: this reminded me of the vindictive D.C. D.C. who sued a dry cleaner out of business because the judge claimed it lost his favorite pair of pants. But Ethics Alarms had lost sympathy for the baker, Jerk the Second, as well. I wrote,
The previous case was much better for Phillips on the facts. He didn’t design same-sex wedding cakes, period. In this case, however, his position is that he’ll sell a pink cake with blue frosting to anyone unless he or she is intending to become a she or he. “I’ll sell X to him, but not to Y, because I don’t like Y’s kind.” That’s bigotry. That’s unethical.
Agreeing to sell the cake and then refusing because of how it would be used and by whom is a step past religious freedom into meddling with the lives of strangers. If my 7-11 asked me, “Gee, what are these pretzels for?” and I said, “I’m having some people over to watch the Red Sox game!,” the store owner can’t ethically say, “Sorry, I worship the New York Yankees, and sacrifice a goat in pinstripes every summer to please the Great God Ruth. Get your pretzels someplace else.” And if my gathering was to celebrate Easter, Juneteenth or my first bra, the 7-11 reaction wouldn’t just be unethical, it would be arguably illegal.
It is obvious to me that Phillips isn’t just following his religion; he’s actively hostile to LGBTQ individuals, and a bigot. John McHugh, one of the lawyers representing Scardina, said that the baker and his shop “…just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people.” That’s harsh but fair.
But it is also obvious that Scardina set out to force him to sort-of, kind-of endorse her agenda, because the very existence of people not sympathetic to her cause enrages her, and they must be brought into line or destroyed. I’m not sorry her lawsuit failed. Nonetheless, ethical principles were stomped on by both litigants. In Jerk vs. Jerk, both parties ended up behaving like jerks.
Ethics Alarms 
Question- is there a heirarchy of “jerkiness?” I would assume that jerkiness is not monlithic in nature. Like in all things their is a continuum. So my question. It seems the lawyer was being positivley jerky, while the baker was passively jerky.
These types of jerk behaviors are intnetionally vindicitiive and cost the generalpublic a lot of money.
If a business doe snot wnat to honor my greenbacks, i merely thake them to another business, then do not enter business one again and if asked do not recommend their services. it is a simpe as that. the approach does not involve others, especially the courts.
There cerrtianly are more important itmes the Courts of htis nation need to be involved in.
Definitely hierarchies. Close call on the second suit, though. “I’ll sell a blue cake that’s pink inside to X but not Y because I don’t approve of Y’s life choices” is pretty hard to out-jerk.
Maybe. However, at what point does his response to these people become third niggardly territory?
As usual, the Bee is up to the task:
https://babylonbee.com/news/millions-of-gay-people-die-of-hunger-as-one-bakery-in-colorado-no-longer-forced-to-bake-them-wedding-cakes
As a Colorado resident under the jurisdiction of the state Supreme Court, my personal opinion is that the justices are the jerks in this story. Rather than apply what appears to be clear U.S. Supreme Court precedent to this matter, the Colorado justices decided to bail, grounding their decision on an argument that was not raised by either of the parties to the litigation.
The technicality in this case is truly that- a failure by the plaintiff to recognize that once the Colorado Civil Rights Division refused to proceed further with her charge of discrimination against the baker, her remedy was not to proceed into court to pursue her claim (a perfectly natural decision based on the way the statute is structured), but rather to go into court and sue the state agency for not giving her the final administrative determination in a specific form. The subtlety of this argument not only escaped the litigants and their counsel, but the lower courts as well.
To those of us who practice here, the reason for the Court’s action is obvious. A majority of the justices did not want to upset the Colorado trans rights and progressive communities by following a clear Supreme Court decision that would have resolved this case in the baker’s favor on the merits. That would have provided a conservative win, something COSCOTUS simply cannot abide. So the very political and progressive majority did the best they could to signal the plaintiff that this matter was a loser while at the same time denying Masterpiece Cake Shop vindication on a relatively clear constitutional principle.
Given the stubbornness of the plaintiff’s side in this matter, however, I’m not sure the case is resolved. It would not surprise me to see yet another charge filed against the cake shop as part of the misguided effort to use state law to illegally force a merchant to perform the proper act of contrition for refusing to bend the knee to the progressive worldview.
It seems to me that the problem from the cake shops perspective is that they have been deliberately targeted for political purposes from the jump. The litigants could have, as you pointed out, just gone to another cake shop. But that wouldn’t work for them. This wasn’t about getting a cake, it was about political manipulation.They NEEDED to put the victim in a lose-lose situation:
Don’t bake the damn cake and the litigants get endless publicity via, possibly endless, court cases.
Bake the cake and the litigants get endless publicity by claiming the cake shop owners are hypocrites who believe one thing but put money first. This plays into the: “See how hypocritical Christians are” trope. The latter approach may well be seen to blow over quickly, and far less expensively; but in reality the victim would loose the support of many customers, possibly end up bankrupt, and the result would keep being used in propaganda ad nauseum.
The litigants would then go on to their next victim and repeat the process, escalating as they go. True, the Domino Principle isn’t a law of nature; unless no one fights back.