The startling Colorado court ruling that a baker discriminated against homosexuals by refusing to make them a “wedding” cake must be overturned because an administrative law judge’s “undisputed findings” contradict the basis for the decision.

The argument is being raised in a friend-of-the-court brief filed by William J. Olson, P.C., in the case against Masterpiece Cakeshop and its owner, Jack Phillips.

Phillips was accused of discrimination for not providing the cake, and an administrative law judge found he had discriminated. A district court came to the same conclusion.

He was ordered to stop the discrimination and send all of his employees to an indoctrination course.

However, the new brief argues the state’s own records contradict the state Court of Appeals finding that “by refusing to sell a wedding cake ‘because of [a same sex couple’s] intent to engage in a same-sex ceremony,’ Masterpiece Cakeshop violated the Colorado Anti-Discrimination Act.”

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In fact, the administrative law judge who first heard the complaint was specific in his findings, which have been undisputed throughout the case, the brief explains. The judge found that Phillips had a consistent business policy based on his religious beliefs, which was the foundation for refusing to make the cake.

The judge found:

  • “Phillips has been a Christian for approximately 35 years, and believes in Jesus Christ as his Lord and savior. As a Christian, Phillips’ main goal in life is to be obedient to Jesus and His teachings in all aspects of his life.”
  • “Based on the teachings of the Bible, Phillips ‘believes … that God’s intention for marriage is the union of one man and one woman.'”
  • “Phillips ‘believes that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way.'”
  • “Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents.”
  • “Phillips ‘believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.'”
  • “Phillips ‘advised’ the mother of one of the persons in the same-sex couple ‘that he does not create wedding cakes for same-sex weddings because of his religious beliefs, and because Colorado does not recognize same-sex marriages.'”

But the brief says the administrative law judge then “inexplicably and erroneously concluded that Phillips and Masterpiece refused to bake and sell a wedding cake to a same-sex couple ‘because of [that couple’s] sexual orientation.'”

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In reality, the ALJ’s own findings “undisputedly establish a consistent and comprehensive business policy encompassing a biblical stand against a wide range of biblical sins,” the brief said.

Then, instead of correcting the ALJ’s mistake, the Court of Appeals “adopts and compounds it,” the brief said.

That decision “skewed the finding to read: ‘Masterpiece and Phillips admitted … that they refused to sell [the same-sex couple] a cake because of their intent to engage in a same-sex marriage ceremony.'”

But the original statement was, “Phillips informed complainants that he does not create wedding cakes for same-sex weddings.”

“Having misstated this undisputed fact, the court of appeals prejudicially narrowed the question to whether discriminating against someone on the basis of same-sex marriage was equivalent to discrimination against that someone ‘because’ of that person’s sexual orientation,” the brief says.

The lower judge discovered, “as a matter of fact, Phillips would make the same-sex couple ‘birthday cakes, shower cakes, [and] sell [them] cookies and brownies,’ but would not make ‘cakes for same-sex weddings.'”

The state, making fundamental mistakes about the “constitutional guarantee of free exercise of religion,” simply “failed to apply [a] threshold jurisdictional test to Phillips’ decision to abstain from baking a cake for a wedding ceremony which, by its very nature and purpose, is a proselytizing observance.”

The argument continues: “Masterpiece’s categorical distinction, on one hand, of a willingness to sell brownies and cupcakes to a same-sex couple, but on the other, not to make and sell a cake in celebration o f the union of that same-sex couple, is that the former involves a business transaction, while the letter is promoting a proselytizing ceremony.”

The brief explains the court of appeals knew of this distinction, because it ordered Phillips to retrain his staff and change his business policies “to conform to the state’s anti-discriminatory policies, including ‘requiring the creating of wedding cakes celebrating same-sex marriages.'”

The brief also points out, in a footnote, that the state commission’s impartiality “is in serious question.”

“In its public deliberations its members virtually ignored Phillips’ constitutional defense. … One committee member candidly revealed his intolerance of and prejudice against religion when he stated: ‘I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be – I mean we – we can list hundreds of situations where freedom of religion has been used to justify discrimination.”

The Alliance Defending Freedom, working on Phillips’ behalf, has pointed out that the Colorado Civil Rights Commission recently ruled three Colorado bakeries whose operators “declined to design a cake celebrating a customer’s religious beliefs about sex and marriage” were allowed to do so.

The commission “acquitted these bakeries because they were willing, like Phillips, to create any other cake for the customer and declined because the order offended their beliefs.”

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“Yet the commission ruled Phillips violated [the Colorado Anti-Discrimination Act], thereby compelling him to violate his conscience while allowing the other bakeries to exercise their right to decline to do so,” the brief says.

The filing argues the ruling amounts to the government forcing speech on Phillips, which is unconstitutional.

“The freedom to live and work consistently with one’s faith is at the heart of what it means to be an American,” said ADF Senior Legal Counsel Jeremy Tedesco. “Jack simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message with which he disagrees. We are asking the Colorado Supreme Court to ensure that government understands that its duty is to protect the people’s freedom to follow their beliefs personally and professionally, not force them to violate those beliefs as the price of earning a living.”


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