How a Colorado Cake Baker was Stripped of His Individual Rights, “Soviet Style”

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It took all of 30 seconds for a couple to enter the Masterpiece Cakeshop in Colorado and request creation of a same-sex wedding cake.  When  owner Jack Phillips informed the couple that he does not create same-sex wedding cakes, the couple left his cakeshop.  That afternoon began 6 years of harassment, legal battles, and business difficulties for Phillips, enabled by “a process which became oppressive against his fundamental rights, eerily reminiscent of Soviet style law,” says one lawyer and Constitutional expert familiar with Phillips’ lengthy ordeal.    

Here’s what happened:

  • The couple filed discrimination complaints against Masterpiece Cakeshop with the Colorado Civil Rights Division (CCRD) on 9/4/2012 and 9/14/2012.
  • The CCRD did one 6-month investigation, after which the Director of the CCRD unilaterally issued a Letter of Determination on 3/5/2013, with a finding of Probable Cause for discrimination.
  • The Colorado Civil Rights Commission (CCRC) and the Administrative Law Judge (ALJ) then began their involvement in the case.
  • The CCRC made its 7-0 vote against Mr. Phillips on 5/30/2014, ruling that Phillips was discriminating against the couple according to the Colorado Anti-Discrimination Act (CADA) by denying them “full and equal service because of their sexual orientation,” and that it was “Phillips’ standard practice” not to provide cakes for same-sex weddings.
  • See the CCRC order against Philips here:  2014_0530_Masterpiece_FinalAgencyOrder
  • None of the agency investigation against Phillips, to include any evidence against him, has ever or will ever be made public.
  • Phillips was ordered to either make same-sex wedding cakes or make no wedding cakes at all, comprehensively re-educate his staff and family on the Public Accommodations section of CADA, and prepare quarterly compliance reports logging the number of patrons denied service and why.
  • Phillips took his case to the Colorado Court of Appeals, which upheld the Commission’s decision.
  • Phillips finally reached the Supreme Court of the United States in December 2017, and his case was heard.
  • In June 2018 SCOTUS issued a 7-2 opinion reversing the Colorado Court of Appeals decision and invalidating the Civil Rights Commission’s order against Jack Phillips, stating that “the Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

How is it possible that a state agency had the power to strip a business man of his Constitutionally protected individual rights, and specifically his freedom of conscience, here in America?  

I was joined in studio by two special guests to answer this question.  My guests have closely followed this case, have attended several of the proceedings, have spoken with Phillips numerous times over the years, and have worked with legislators on introducing due process amendments to CADA.  One of my guests is a lawyer and Constitutional expert who has lived in the former Soviet Union, and he shares explicitly about how the process against Phillips was a Soviet-style shake down of one man’s fundamental individual rights.

Listen to this special edition of The Michelle Morin Show 6/10/2018 as my guests tell Jack Phillips’ story, and how it all happened:

Why is this “Soviet-style” law?  

In my guest’s own words, comparing Constitutional law to the Soviet way of doing things:

In the absence of Constitutional law, you have rule by man, rule by by fiat.  It’s administrative power that is abusive and unpredictable.  The bureaucracy controls people’s lives.  Dueling Soviet bureaucracies would each say contradictory things.  There is no standard.  There is an arbitrary and abusive process which avoids Constitutional due process.  Due process means that you’re given notice, dealt with fairly, and judged by an impartial jury of your peers.  America’s Founding Fathers saw a trial of a jury by peers as a bedrock of due process to protect against bureaucratic power and out-of-control judges.  The elite always lean in toward bureaucratic process in which the elite have undue influence.  The Soviet system was “rule by administrative power,” and it can be very vindictive.

What did our founders say about it?

Representative government and trial by jury are the heart and lungs of liberty.  Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds. – John Adams, 1774 (not a slave owner)

Can something like this happen again in Colorado?

Yes.  The administrative process that dragged Jack Phillips through this battle is still in place here in Colorado.  Phillips was denied Constitutionally protected due process and legal remedies in the existing Colorado administrative legal system.  The Supreme Court addressed the “hostilities” and “lack of neutrality” which was applied by the CCRC against Phillips.  It did not address issues within CADA which might have enabled the hostilities, and it did not remedy the particularly unaccountable and closed-door administrative process which convicted Phillips of discrimination.

How can Constitutionally protected rights be restored here in Colorado?  

It is crucial that we maintain and strengthen the majority in the Colorado Senate. To learn more, join the conversation on the Restore Colorado Now Facebook page.

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