2017-9: Similar case refused by
U.S. Supreme Court. The same
Colorado Baker won't make a
custom cake for transgender
customer. Some evangelical
groups seek compromise.
Lawsuit was later dropped.
Part 6 of six parts.

marriage 1

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This topic is continued here from the previous essay

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2018-JUN-25: A similar case was appealed to the U.S. Supreme Court. The court refuses to accept it:

A case involving Baronelle Stutzman who owns Arlene’s Flowers store in Richland, WA was appealed to the High Court from the Washington Supreme Court. It was very similar to the earlier case that involved cake baker Jack Phillips, in Colorado. B

Ms. Stutzman is a florist who refused to accept a gay engaged couple as customers. Washington State, like Colorado, has a human rights law that prohibits store owners from such discrimination. If the High Court had accepted the appeal, it would have been an excellent case to clear up the current confusing situation: Some conservative Christian store owners believe that U.S. Constitutional guarantees of religious freedom allow store owners to discriminate against customers on the basis of the owner's sincere religious beliefs. That is, "religious freedom to discriminate" is guaranteed to store owners who hold sincere, anti-LGBT, anti-transgender, anti-divorce, and other similar religiously-based beliefs.

Unfortunately, the U.S. Supreme Court refused to accept the appeal. They referred the case back to the Washington Supreme Court and asked them to take another look at the conflict. 2

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2018-AUG-15: History repeats: Same store, same baker, different cake, different customer, different reason for the discrimination:

During 2017-JUN, Autumn Scardina -- a lawyer in Colorado -- phoned the Masterpiece Cakeshop in Lakewood, CO to request a custom birthday cake for herself. The cake interior was to be pink, symbolizing femininity; the icing was to be blue, symbolizing masculinity. The colors reflect the fact that she is transgender. Her inner feelings are female; her external appearance was male. She had been identified as male at birth, and started to identify as female on her birthday in 2001-JUN. After Scardina explained the reason for the pink and blue colors, baker Jack Phillips refused to accept the order becaise of his sincere religious beliefs . She filed a "Charge of Discrimination" complaint with the Colorado Civil Rights Commission.3

The Alliance Defending Freedom (ADF) is a conservative Christian legal defense group that promotes the principle that retail outlets have the religious freedom to discriminate against customers on the grounds of the owner(s) sincerely held religious beliefs. In the past, religious freedom has typically referred to freedom of religious belief, writing, speech, assembly, proselytizing, etc. Recently, many religious conservatives feel that it also includes the religious freedom to discriminate against others, including customers of retail stores, because of the latter's gender identity, sexual orientation, etc.

The ADF defended the Cakeshop in its original case in which Phillips had refused to bake a custom wedding cake to celebrate the out-of-state marriage of a same-sex couple. That case went all the way to the U.S. Supreme Court, where Phillips won. They are also defending Phillips in the new case involving a transgender woman. They issued a statement in this new lawsuit saying that the Colorado Civil Rights Commission was:

"... doubling down on their anti-religious hostility." 4

The ADF filed a federal lawsuit with the Colorado District Court, over the Civil Rights Commission's actions towards the baker in the transgender case. It stated in part:

"7. Phillips declined to create the cake with the blue-and-pink design because it would have celebrated messages contrary to his 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. ..."

"8. It is now clear that Colorado [Civil Rights Commission] will not rest until Phillips either closes Masterpiece Cakeshop or agrees to violate his religious beliefs. The state’s continuing efforts to target Phillips do not just violate the Constitution; they cross the line into bad faith. This Court should put a stop to Colorado’s unconstitutional bullying." 5

It is important to realize that the Civil Rights Commission is reacting to a complaint filed by Ms Scardina. Without that complaint they would not have taken any action.

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Late 2018: Two national evangelical Christian groups promote a compromise federal law:

The Council for Christian Colleges and Universities (CCCU) and the National Association of Evangelicals (NAE) each passed a separate compromise proposal that would:

  • Protect members the LGBT community by adding sexual orientation and gender identity to federal non-discrimination law.

  • Protect retail outlets who -- because of their sincere religious beliefs -- want to discriminate against the LGBT community.

The NAE motion is called "Fairness for All." On 2018-OCT-02, the NAE executive passed a motion:

  • "That the National Association of Evangelicals support principles calling on Congress to consider federal legislation:
    • We believe that God created human beings in his image as male or female and that sexual relations be reserved for the marriage of one man and one woman.

    • We support long-standing civil rights laws and First Amendment guarantees that protect free religious exercise.

    • No one should face violence, harassment, or unjust discrimination on the basis of sex, sexual orientation, or gender identity.

Webmaster's comment:

At first glance, the motion makes no sense. It seems impossible to allow some people to freely discriminate against members of the LGBT community on religious grounds, while at the same time, guaranteeing freedom from discrimination to the LGBT community. But the motion makes sense when the word "unjust" in the last line is present. This implies that retail outlets etc. can have the freedom to engage in some forms of religiously-based discrimination, but not others.

Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, called Fairness for All counterproductive: He said that:

"Placing sexual orientation and gender identity as protected classes in this kind of legislation would have harmful unintended consequences, and make the situation worse in this country, both in terms of religious freedom and in terms of finding ways for Americans who disagree to work together for the common good." 8

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A brief note on gender identity:

Male and female humans have three primary bodily differences:

  1. Their visible sexual organ(s). This is typically used to identify the biological sex of newborns by attending physician(s).

  2. The type of sex chromosomes contained in one's DNA. Typically, females have XX chromosomes; males have XY chromosomes. These can only be detected by a medical analysis.

  3. Internal structures in the center of one's brain. They come in male and female forms, which differ in size and neuron density. 6 These structures inform the person what gender they are. Their existence was only discovered by researchers recently.

For more than 99% of adults, all three criteria agree; the person's biological sex and gender identity agree, and the person is referred to as "cisgender." However, the small minority of person who are transgender, who were identified as male at birth and who now identify their gender as female, have been found to have female brain structures -- and vice versa.

Transgender persons define their gender identity according to what these brain structures tell them.

Religious conservatives and many others generally define a person's gender by their biological sex only. This is determined by sexual organs and/or DNA. The Bible and other primary religious texts were mainly written millennia before the discovery of DNA in the mid 19th century, of the structure of DNA in the mid 20th century, and of internal brain structures during the 2000's. Thus we have today another conflict between science and religion. It will probably take decades before many religious conservatives accept brain structure as the determining factor for gender. Now, they often refer to transgender persons as being "gender confused" and recommend therapy for them to become "unconfused." Therapy has proven to be helpful for transgender persons to reduce their feelings of anxiety, but has proven to be useless for changing a person's gender identity.

The potential for conflicts is obvious, and will probably be with us for decades into the future.

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Autumn Scarina's birthday cake case proceeds:

During 2018-JUN, Aubrey Elenis, director of the Colorado Civil Rights Division of the Colorado Civil Rights Commission ruled that there was probable cause that the baker, Jack Phillips, had discriminated against Scarina on the basis of her gender identity by denying her denying her equal enjoyment of a place of public accommodation. 4 Such discrimination is forbidden by a state law.

A "public accommodation" is typically a business that supplies goods and services to the general public. Colorado has a law forbidding public accommodations like Masterpiece Cakeshop from discriminating on the basis of a customer's gender, sexual orientation, gender identity, etc.

In response, the Alliance Defending Freedom [ADF] filed a lawsuit against the Commission, accusing it of violating baker Phillip's "... constitutional free exercise, free speech, due process, and equal protection rights."

Kristen Waggoner, an attorney ADF who representsPhillips, said:

"The state of Colorado is ignoring the [earlier] message of the U.S. Supreme Court by continuing to single out Jack for punishment and to exhibit hostility toward his religious beliefs. Even though Jack serves all customers and simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held [religious] beliefs, the government is intent on destroying him — something the Supreme Court has already told it not to do." 

'Colorado has renewed its war against him by embarking on another attempt to prosecute him, in direct conflict with the Supreme Court’s ruling in his favor,' Phillips’ lawsuit reads. "This lawsuit is necessary to stop Colorado’s continuing persecution of Phillips." 7

According to the Daily Caller web site:

"Phillips is seeking damages from Elenis for [his] lost work time, lost profits, emotional distress, and reputational harm. He is also requesting an additional $100,000 punitive judgment against her." 7

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2019-MAR-05: Lawyer Autumn Scarina's birthday cake case comes to a sudden stop:

The lawsuit filed by Ms. Scarina was withdrawn. The Colorado Civil Rights Commission unimously voted to drop the case. The Commission stated:

"After careful consideration of the facts, both sides agreed it was not in anyone’s best interest to move forward with these cases."

The Alliance Defending Freedom (ADF), a group that promotes the belief that companies can discriminate aginst their own customers on religious grounds, represented Jack Phillips of Masterpiece Cakeshop. Kristen Waggoner, Senior Vice President of U.S. Legal Division of the ADF said:

"The state of Colorado is dismissing its case against Jack, stopping its six and a half years of hostility toward him for his beliefs. But the state’s demonstrated and ongoing hostility toward Jack because of his beliefs is undeniable.

ADF Senior Counsel, Jim Campbell, said:

"We hope that the state is done going along with obvious efforts to harass Jack. He shouldn’t be driven out of business just because some people disagree with his religious beliefs and his desire to live consistently with them." 9

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Image by Zipnon. CC0 Creative Commons, downloaded from Pixabay.com
  2. "Justices won’t hear case of anti-gay marriage florist," PBS News Hour, 2018-JUN-25, at: https://www.pbs.org
  3. Autumn Scardina, "Charge of Discrimination," Colorado Civil Rights Division, 2017-JUL-20, at: http://www.adfmedia.org/
  4. "Baker claims religious persecution again — this time after denying cake for transgender woman," The Washington Post, 2018-AUG-15, at: https://www.washingtonpost.com/
  5. "Alliance Defending Freedom," Verified Complaint, United States District Court for the District of Colorado, "Masterpiece Cakeshop v. Elenis." Alliance Defending Freedom, at: http://www.adfmedia.org/
  6. Frank P. M. Kruijver "Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus," Journal of Clinical Endocrinology & Metabolism, 2000-MAY-01, at: https://academic.oup.com/
  7. Kevin Daley, "Colorado is going after Jack Phillips of Masterpiece Cakeshop again," The Daily Caller, 2018-AUG-15, at: https://dailycaller.com/
  8. J.C. Derrick, "Boards back SOGI compromise," World Magazine, 2018-DEC-12, at: https://world.wng.org/
  9. Heidi Munson, "Colorado Drops Latest Lawsuit Targeting Christian Baker," The Resurgent, 2019-MAR-06, at: https://theresurgent.com/

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Copyright 2018 Ontario Consultants on Religious Tolerance
Author: B.A. Robinson
Original posting: 2018-AUG-25
Latest update: 2018-DEC-23

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