Wednesday, August 15, 2018

Masterpiece Cakeshop v. Colorado Part Deux

Popcorn futures are soaring as Masterpiece Cakeshop sues Colorado.
Autumn Charlie Scardina
Autumn Charlie Scardina, a Colorado Lawyer says that Masterpiece Cakeshop discriminated against her in late June because she is a trans woman.
Last June the Supreme Court ruled in favor of Masterpiece Cakeshop (Jack Phillips, proprietor) over the Colorado Civil Rights Commission. However, it is important to note that the Court did not touch Colorado's nondiscrimination law. It remains in full force and effect.

What the justices ruled is that, in hearing the case, the state demonstrated religious animus which is based on biased remarks by a member of the Colorado Civil Rights Commission. I likened this to a thief caught red-handed with the stolen merchandise in his living room. The conviction gets tossed on appeal because the cops did not have a proper search warrant. It has not effect on future prosecutions of the thief as long as the police follow required procedures.

On June 28, the state notified Phillips that it had probable cause to believe that Colorado law required Masterpiece Cakeshop to bake a cake for Autumn Scardina. Ms. Scardina, a trans woman, wanted a cake to celebrate the seventh anniversary of her transition. Scardina is an attorney; a graduate of top-tier University of Southern California (Gould) Law School. The shop refused to make the cake citing Religious Freedom™ The employee she spoke with hung up the phone on her. She called back and the employee hung up the phone again.

Probable cause is an extremely low threshold. It is not a presumption of guilt. Rather, it means that the state has reasonable grounds to pursue an investigation. Colorado is a one-party consent state meaning that recording a telephone conversation is permissible as long as one party to the call knows that the call is being recorded (what is prohibited is recording by a passive system or a third party without either person on the call being aware of the taping). I have a reasonable assumption that Ms. Scardina recorded one or both calls.

Was this a set-up? Perhaps and I expect Alliance Defending Freedom to make the accusation. However, it is irrelevant. It's just more “poor Jack” bullshit.

Tuesday, Alliance Defending Freedom, on behalf of Masterpiece Cakeshop and Jack Phillips, sued every member of the Colorado Civil Rights Commission, the state's attorney general and Governor Hickenlooper. Aubrey Elenis, director of the commission is being sued individually and and in his official capacity.

According to their suit:
Colorado has renewed its war against [Phillips] by embarking on another attempt to prosecute him, in direct conflict with the Supreme Court’s ruling in his favor. This lawsuit is necessary to stop Colorado’s continuing persecution of Phillips.
The rest of the 58 page complaint is a rehash of the suit that made its way to the Supreme Court. Poor Jack. The state says that he cannot discriminate.

It looks to me like ADF is trying to mis-characterize the Supreme Court's ruling. Months from now we will know what the federal district court judge thinks. I will set up a docket alert and keep you folks up to date.

My guess is that this is going to end up back at the Supreme Court in a year or two or three. Kavanaugh is probably going to get confirmed. I hope you all appreciate the importance of voting.

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