Case 1:18-cv-02074 Document 1 Filed 08/14/18 USDC Colorado Page 1 of 52

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. ______________________
MASTERPIECE CAKESHOP INCORPORATED, a Colorado
corporation; and
JACK PHILLIPS,
Plaintiffs,
v.
AUBREY ELENIS, Director of the Colorado Civil Rights Division, in her
official and individual capacities;
ANTHONY ARAGON, as member of the Colorado Civil Rights
Commission, in his official capacity;
MIGUEL “MICHAEL” RENE ELIAS, as member of the Colorado Civil
Rights Commission, in his official capacity;
CAROL FABRIZIO, as member of the Colorado Civil Rights
Commission, in her official capacity;
CHARLES GARCIA, as member of the Colorado Civil Rights
Commission, in his official capacity;
RITA LEWIS, as member of the Colorado Civil Rights Commission, in
her official capacity;
JESSICA POCOCK, as member of the Colorado Civil Rights
Commission, in her official capacity;
CYNTHIA H. COFFMAN, Colorado Attorney General, in her official
capacity; and
JOHN HICKENLOOPER, Colorado Governor, in his official capacity,
Defendants.

VERIFIED COMPLAINT

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Introduction
1.

The U.S. Constitution stands as a bulwark against state officials who target

people—and seek to ruin their lives—because of the government’s anti-religious animus. For over
six years now, Colorado has been on a crusade to crush Plaintiff Jack Phillips (“Phillips”) because
its officials despise what he believes and how he practices his faith. 1 After Phillips defended
himself all the way to the U.S. Supreme Court and won, he thought Colorado’s hostility toward
his faith was over. He was wrong. 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.
This lawsuit is necessary to stop Colorado’s continuing persecution of Phillips.
2.

Phillips is a Christian and expert cake artist who owns and operates a small family

business, Plaintiff Masterpiece Cakeshop Incorporated (“Masterpiece Cakeshop”). Both Phillips
and Masterpiece Cakeshop serve everyone. All people—no matter who they are, what they believe,
or what protected characteristics they have—are welcome in Phillips’s shop and may purchase
anything available for sale. But as a devout man of faith, Phillips cannot create custom cakes that
express messages or celebrate events in conflict with his religious beliefs. 2 When a customer asks
him to create such a cake, he cannot do it, no matter who requests it. Conversely, when someone
asks Phillips to design a cake expressing a message or celebrating an event that is not contrary to
his faith, he will create it, no matter who requests it. For exercising his faith this way, Colorado
has doggedly pursued Phillips, turning his life upside down.

1

Whenever possible, references to “Colorado” should be read to include all Defendants.
Whenever possible, references to “Phillips” should be read to include both Phillips and
Masterpiece Cakeshop.
2

2

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3.

It started when Phillips declined to create a custom wedding cake celebrating a view

of marriage that conflicts with his faith’s teachings. Colorado punished Phillips for that, while
allowing other cake artists—those whose views the state likes—to refuse to create cakes with
messages they deem objectionable. Making matters worse, state officials publicly compared
Phillips’s religious exercise to defenses of slavery and the Holocaust, a deeply offensive accusation
against a man whose father helped liberate a concentration camp during World War II.
4.

To punish Phillips, Colorado mandated that he implement comprehensive staff

reeducation to teach him and his employees—most of whom are his family members—that it is
wrong for him to operate his business according to his faith. The state also ordered him to either
violate his religious beliefs or shut down his wedding-cake business. Because Phillips could not
turn his back on his faith, he was forced to give up that part of his work, which cost him and his
family 40% of their income and caused more than half of his employees to lose their jobs. Phillips
also endured death threats and countless hateful phone calls and emails—venomous treatment that
escalated with each new wave of media attention. It got so bad that Phillips’s wife was afraid to
set foot in their family’s own shop.
5.

After six grueling years, the Supreme Court vindicated Phillips in a 7-to-2 decision.

It declared that Colorado acted with “clear and impermissible hostility toward [his] sincere
religious beliefs.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719,
1729 (2018) (“Masterpiece”). The Supreme Court held that the state manifested its anti-religious
hostility by “disparag[ing]” Phillips’s religion, “describing it as despicable,” and enforcing a
double standard that harshly punishes Phillips while exonerating other cake artists who similarly
decline requests for cakes with messages they deem objectionable. Id. at 1729-31.

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6.

In the meantime, some Colorado citizens, emboldened by the state’s prosecution of

Phillips, have targeted him. On the same day that the Supreme Court announced it would hear
Phillips’s case, a Colorado lawyer called his shop and requested a cake designed with a blue
exterior and pink interior, which the caller said would visually depict and celebrate a gender
transition. Throughout the next year, Phillips received other requests for cakes celebrating Satan,
featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use.
Phillips believes that some of those requests came from the same Colorado lawyer.
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. A mere 24 days after Phillips prevailed in the Supreme Court,
Colorado told him that he violated Colorado law by declining to create that cake. In so doing, the
state went back on what it told the Supreme Court in its Masterpiece briefing—that its publicaccommodation law allows Phillips to decline to create cakes with pro-LGBT designs or themes.
Br. for Resp’t Colo. Civil Rights Comm’n at 35, Masterpiece, 138 S. Ct. 1719 (2018) (No. 16111) (U.S. Oct. 23, 2017). And by citing the Masterpiece decision as support for the state’s
renewed efforts to harass Phillips, Colorado ignored the Supreme Court’s numerous references to
the state’s anti-religious bias and hostility.
8.

It is now clear that Colorado 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.

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Jurisdiction and Venue
9.

This civil-rights action raises federal questions under the First and Fourteenth

Amendments to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983.
10.

This Court has original jurisdiction under 28 U.S.C. §§ 1331 and 1343.

11.

This Court has authority to award the requested declaratory relief under 28 U.S.C.

§§ 2201-02 and Federal Rule of Civil Procedure 57, the requested injunctive relief under 28 U.S.C.
§ 1343 and Federal Rule of Civil Procedure 65, the requested damages under 28 U.S.C.
§ 1343(a)(3), and costs and attorneys’ fees under 42 U.S.C. § 1988.
12.

Plaintiffs demand a jury trial on the claims raised in this Complaint.

13.

Venue is proper in this Court under 28 U.S.C. § 1391(b) because all events

underlying the claims in this Complaint occurred within the District of Colorado and all
Defendants reside in the District of Colorado.
Plaintiffs
14.

Plaintiff Jack Phillips is a Christian who bases his beliefs on the Bible.

15.

He resides in Colorado and is a citizen of the United States of America.

16.

Together with his wife, he owns and operates Masterpiece Cakeshop Incorporated.

17.

Masterpiece Cakeshop is a for-profit corporation formed under Colorado law.

18.

Masterpiece Cakeshop’s principal place of business is located in Colorado.
Defendants

19.

Aubrey Elenis is the Director of the Colorado Civil Rights Division and has

authority to enforce Colo. Rev. Stat. § 24-34-601(2)(a). See Colo. Rev. Stat §§ 24-34-302, -306.
20.

Elenis is named as a defendant in her official and individual capacities.

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21.

Commissioners Anthony Aragon, Miguel “Michael” Rene Elias, Carol Fabrizio,

Charles Garcia, Rita Lewis, and Jessica Pocock, as members of the Colorado Civil Rights
Commission, have authority to enforce Colo. Rev. Stat. § 24-34-601(2)(a). See Colo. Rev. Stat.
§§ 24-34-305, -306, -605.
22.

These commissioners are named as defendants in their official capacities.

23.

Colorado Attorney General Cynthia H. Coffman has authority to enforce Colo. Rev.

Stat. § 24-34-601(2)(a). See Colo. Rev. Stat. § 24-34-306.
24.

Attorney General Coffman is named as a defendant in her official capacity.

25.

Colorado Governor John Hickenlooper has authority to appoint Commission

members under Colo. Rev. Stat. § 24-34-303.
26.

Governor Hickenlooper is named as a defendant in his official capacity.

27.

All Defendants reside in the District of Colorado.
Statement of Facts

Defendants enforce Colorado’s public-accommodation law.
28.

Colorado’s Anti-Discrimination Act (“CADA”) 3 makes it “unlawful for a person,

“directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of …
creed … , sex, [or] sexual orientation,” “the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of a place of public accommodation.” Colo.
Rev. Stat. § 24-34-601(2)(a).

3

Unless otherwise indicated, “CADA,” “the public-accommodation law,” and “the law” refer to
Colo. Rev. Stat § 24-34-601(2)(a) and its related provisions.
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29.

That law defines “[p]erson” as “one or more individuals, limited liability

companies, partnerships, associations, corporations, [or] legal representatives.” Colo. Rev. Stat.
§ 24-34-301(5)(a).
30.

That law defines “place of public accommodation” as “any place of business

engaged in any sales to the public and any place offering services, facilities, privileges, advantages,
or accommodations to the public, including but not limited to any business offering wholesale or
retail sales to the public.” Colo. Rev. Stat. § 24-34-601(1).
31.

Colorado considers Masterpiece Cakeshop a place of public accommodation under

Colo. Rev. Stat. § 24-34-601(1).
32.

The public-accommodation law defines “[s]exual orientation” as “an individual’s

orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another
individual’s perception thereof.” Colo. Rev. Stat. § 24-34-301(7).
33.

That law exempts some organizations from its requirements. For example, it does

not apply to “a church, synagogue, mosque, or other place that is principally used for religious
purposes.” Colo. Rev. Stat. § 24-34-601(1). The law does not define “place that is principally used
for religious purposes.”
34.

The public-accommodation law allows a person to make some distinctions based

on protected characteristics. For instance, it allows a person to “restrict admission to a place of
public accommodation to individuals of one sex if such restriction has a bona fide relationship to
the goods, services, facilities, privileges, advantages, or accommodations of a place of public
accommodation.” Colo. Rev. Stat. § 24-34-601(2)(a).

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35.

That law created the Colorado Civil Rights Division (“Division”) to help

implement its requirements. Colo. Rev. Stat. § 24-34-302(1).
36.

The executive director of the Colorado Department of Regulatory Agencies has the

power and duty to appoint a director of the Colorado Civil Rights Division (“Director”).
37.

The executive director of the Colorado Department of Regulatory Agencies “shall

give good faith consideration to the recommendations of the commission” before appointing the
Director. Colo. Rev. Stat. § 24-34-302(1).
38.

The Director has the power and duty to appoint “investigators and other personnel

… to carry out the functions and duties” of the Division. Colo. Rev. Stat. § 24-34-302(2).
39.

The Director also has the power and duty to “receive, investigate, and make

determinations on charges alleging unfair or discriminatory practices” in violation of the publicaccommodation law. Colo. Rev. Stat. § 24-34-302(2).
40.

The public-accommodation law also created the Colorado Civil Rights

Commission (“Commission”) within the Division. Colo. Rev. Stat. § 24-34-303(1)(a).
41.

The Commission includes “seven members appointed by the governor, with the

consent of the senate … for terms of four years.” Colo. Rev. Stat. § 24-34-303(1)(b)(I).
42.

The Commission has the power and duty “to adopt, publish, amend, and rescind

rules” to help implement the public-accommodation law. Colo. Rev. Stat. § 24-34-305(1)(a).
43.

The Commission has the power and duty “[t]o investigate and study the existence,

character, causes, and extent of unfair or discriminatory practices … and to formulate plans for the
elimination of those practices by educational or other means.” Colo. Rev. Stat. § 24-34305(1)(c)(I).

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44.

The Commission has the power and duty “[t]o hold hearings upon any complaint

issued against a respondent … ; to subpoena witnesses and compel their attendance; to administer
oaths and take … testimony … ; and to compel [a] respondent to produce for examination any
books and papers” about matters in the complaint. Colo. Rev. Stat. § 24-34-305(1)(d)(I).
45.

The Commission, a commissioner, the attorney general, or any person “claiming to

be aggrieved by a discriminatory or unfair practice” may file a charge alleging a discriminatory or
unfair practice with the Division. Colo. Rev. Stat. § 24-34-306(1)(a)-(b).
46.

When the Division receives a charge, it must first “notify the respondent of the

charges filed against him or her.” Colo. Rev. Stat. § 24-34-306(1)(c).
47.

The Director must then “make a prompt investigation of the charge.” Colo. Rev.

Stat. § 24-34-306(2)(a).
48.

To support the Director’s investigations, she “may subpoena witnesses,” compel

testimony, and order “the production of books, papers, and records” about matters in the charge.
Colo. Rev. Stat. § 24-34-306(2)(a).
49.

After completing the Director’s investigations, she must “determine as promptly as

possible whether probable cause exists for crediting the allegations of the charge.” Colo. Rev. Stat.
§ 24-34-306(2)(b).
50.

At all times, the Division and Director must “presume that the conduct of any

respondent is not unfair or discriminatory until proven otherwise.” Colo. Rev. Stat. § 24-34-305(3).
51.

If the Director finds probable cause, she must “serve the respondent with written

notice stating with specificity the legal authority and jurisdiction of the commission and the matters
of fact and law asserted.” Colo. Rev. Stat. § 24-34-306(2)(b)(II).

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52.

The Director must also “order the charging party and the respondent to participate

in compulsory mediation.” Colo. Rev. Stat. § 24-34-306(2)(b)(II).
53.

At that point, the Director must “endeavor to eliminate the discriminatory or unfair

practice by conference, conciliation, and persuasion and by means of the compulsory mediation.”
Colo. Rev. Stat. § 24-34-306(2)(b)(II).
54.

If the Director fails to “settle the matter,” she must report this to the Commission.

Colo. Rev. Stat. § 24-34-306(4).
55.

The Commission then reviews the matter. And if the Commission “determines that

the circumstances warrant, it shall issue … a written notice and complaint requiring the respondent
to answer the charges at a formal hearing before the commission, a commissioner, or an
administrative law judge.” Colo. Rev. Stat. § 24-34-306(4).
56.

At all times, the Commission must “presume that the conduct of any respondent is

not unfair or discriminatory until proven otherwise.” Colo. Rev. Stat. § 24-34-305(3).
57.

At the hearing, the Commission’s attorney or agent must present the case “in

support of the complaint.” Colo. Rev. Stat. § 24-34-306(8).
58.

If the Commission or its assigned decisionmaker concludes “that a respondent has

engaged in or is engaging in any discriminatory or unfair practice,” the Commission must order
respondent “to cease and desist from” this activity and “to take such action as it may order”
consistent with the public-accommodation law. Colo. Rev. Stat. § 24-34-306(9).
59.

The Commission has used its power to order business owners—including

Phillips—to change their policies, to implement comprehensive reeducation programs, and to
report to the Commission every declined order.

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60.

Any party who disagrees with the Commission’s final order “may obtain judicial

review” by filing an action in the Colorado Court of Appeals. Colo. Rev. Stat. § 24-34-307(1)-(3).
61.

The Commission’s fact-finding “shall be conclusive if supported by substantial

evidence.” Colo. Rev. Stat. § 24-34-307(6).

Colorado generally allows expressive business owners to decline requests to communicate
messages that they will not express for anyone.
62.

The Division and Commission interpret and apply Colorado’s public-

accommodation law.
63.

Colorado claims the power to use its public-accommodation law to compel the

speech of people who earn a living creating and selling expression. It believes that the U.S.
Constitution, including the First Amendment, provides no protection against the state’s use of its
public-accommodation law to compel the speech of expressive business owners like Phillips. Br.
for Resp’t Colo. Civil Rights Comm’n at 19-35, Masterpiece, 138 S. Ct. 1719 (2018) (No. 16-111)
(U.S. Oct. 23, 2017).
64.

To make that extreme view seem more acceptable, Colorado has announced the

general rule that expressive business owners, including cake artists, do not violate the publicaccommodation law if they decline to create a custom item expressing a message that they would
not communicate for anyone.
65.

In the Masterpiece case, Colorado told the Supreme Court how this general rule

applies to cake artists.
66.

Colorado said that it allows cake artists to decline to create custom cakes featuring

pro-LGBT themes or symbols: “[I]f [a cake artist] would not sell a … cake with a particular artistic
theme,” such as a “cake featuring a symbol of gay pride,” “to any customer, regardless of that

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customer’s protected characteristics, he need not sell one to [anyone].” Br. for Resp’t Colo. Civil
Rights Comm’n at 25, Masterpiece, 138 S. Ct. 1719 (2018) (No. 16-111) (U.S. Oct. 23, 2017).
67.

Colorado further explained that it allows cake artists to decline to create custom

cakes with pro-LGBT designs and messages: “Under the Act, [a cake artist] is free … to decline
to sell cakes with ‘pro-gay’ designs or inscriptions.” Br. for Resp’t Colo. Civil Rights Comm’n at
35, Masterpiece, 138 S. Ct. 1719 (2018) (No. 16-111) (U.S. Oct. 23, 2017).
68.

And Colorado announced that it allows cake artists to decline to create custom

cakes that they consider offensive: “Businesses are entitled to reject orders … because they deem
a particular product requested by a customer to be ‘offensive.’” Br. for Resp’t Colo. Civil Rights
Comm’n at 52, Masterpiece, 138 S. Ct. 1719 (2018) (No. 16-111) (U.S. Oct. 23, 2017).
69.

Colorado applied these principles when William Jack, a man who identifies as

Christian, filed discrimination charges against three Colorado cake shops: Azucar Bakery, Le
Bakery Sensual Inc., and Gateaux, Ltd.
70.

All three of those complaints arose out of similar facts.

71.

William Jack asked each cake shop to provide quotes for two cakes expressing his

religious beliefs against same-sex marriage.
72.

William Jack asked the cake shops to make cakes that looked like Bibles, that bore

an image depicting two groomsmen covered with a red “X,” and that included Bible verses
conveying the religious basis for his opposition to same-sex marriage.
73.

The cake shops refused to make those cakes because their owners objected to those

cakes’ messages and would not create them for anyone.

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74.

William Jack then filed with the Division a discrimination charge against each of

those three cake shops alleging that they discriminated against him based on his “creed” in
violation of Colo. Rev. Stat. § 24-34-601(2)(a).
75.

The Commission defines “creed” as “all aspects of religious beliefs, observances

or practices, as well as sincerely-held moral and ethical beliefs as to what is right and wrong, …
ultimate ideas or questions regarding the meaning of existence,” and “the beliefs or teachings of a
particular religion, church, denomination or sect.” 3 Colo. Code Regs. 708-1:10.2(H).
76.

After completing its investigation, the Division issued determinations finding no

probable cause for each of these complaints, even though the cake shops refused a religious
person’s request to create cakes that expressed a religious belief.
77.

The Division made these determinations because the requested cakes included

“wording and images [that the cake shop] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No.
P20140071X, at 4 (Colo. Civil Rights Div. Mar. 24, 2015), featured “language and images [that
the cake shop] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4
(Colo. Civil Rights Div. Mar. 24, 2015), and displayed a message that the cake shop “deemed as
discriminatory,” Jack v. Azucar Bakery, Charge No. P20140069X, at 4 (Colo. Civil Rights Div.
Mar. 24, 2015).
78.

The Division also made these determinations because the cake shops would not

create cakes expressing the same message for any other customer.
79.

The Division’s determinations in these cases noted that the cake shops would create

other cakes expressing different messages for people of faith.
80.

The Commission later affirmed these determinations.

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Phillips is a cake artist who operates Masterpiece Cakeshop based on his religious beliefs.
81.

Phillips is a cake artist.

82.

In 1993, Phillips started Masterpiece Cakeshop.

83.

Phillips and his wife are the sole owners of Masterpiece Cakeshop.

84.

Through Masterpiece Cakeshop, Phillips designs and creates custom cakes. These

pictures show some custom cakes that Phillips has created:

85.

Masterpiece Cakeshop is not just a bakery; it is an art gallery of cakes.

86.

Phillips approaches cake design as an art form.

87.

Phillips blends his skills as a pastry chef, sculptor, and painter to design beautiful,

expressive, and artistic custom cakes.
88.

After Phillips and his customer agree on a project, Phillips begins the design and

creation process.
89.

Phillips starts by sketching the custom cake design on paper.

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90.

Phillips then bakes the cake and sculpts it into the desired form.

91.

Phillips then decorates the cake, using painting and sculpting techniques and

inscribing words, numbers, or designs.
92.

When Phillips creates a custom cake that expresses a message, he is engaged in

93.

In addition to being a cake artist, Phillips is a follower of Jesus Christ who bases

speech.

his religious beliefs on the Bible.
94.

Phillips’s religious beliefs are central to his life, his identity, and his understanding

of goodness, truth, beauty, morality, and existence.
95.

Phillips believes that everything he does, including how he operates his business,

should be done to glorify God. See 1 Corinthians 10:31; 2 Corinthians 5:15; Colossians 3:17;
1 Peter 4:11.
96.

Phillips runs Masterpiece Cakeshop based on his religious beliefs.

97.

Phillips’s operation of Masterpiece Cakeshop is an exercise of his religion.

98.

Because of his faith, Phillips hosts Bible studies at Masterpiece Cakeshop.

99.

Because of his faith, Phillips welcomes homeless men and women into his store,

offers them cookies and brownies free of charge, and befriends them.
100.

Because of his faith, Phillips closes Masterpiece Cakeshop on Sundays, which

honors God and allows him and his employees to attend religious worship services.

Phillips serves all people but will not create cakes that express messages or celebrate events
contrary to his religious beliefs.
101.

Phillips serves all people—individuals of all races, faiths, sexual orientations, and

gender identities—and will design and create custom cakes for anyone.

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102.

What Phillips cannot do is create cakes that express messages or celebrate events

contrary to his religious beliefs.
103.

Phillips’s decisions on whether to create a custom cake do not focus on who the

customer is, but instead depend on what the custom cake will express or celebrate.
104.

Neither Phillips nor any staff member at Masterpiece Cakeshop asks customers

about their protected characteristics, such as their race, faith, sexual orientation, or gender identity,
because those characteristics do not matter to Phillips in deciding whether to accept a custom-cake
order.
105.

Phillips believes that he would violate God’s commands if he were to create custom

cakes that express messages or celebrate events in conflict with his religious beliefs. See Ephesians
4:29; Ephesians 5:1-14; 1 Timothy 5:22; 1 Corinthians 10:1-22; 2 Corinthians 6:14-18.
106.

It is standard industry practice for cake artists to decline to create custom cakes that

express messages or celebrate events that they do not want to support or that violate their beliefs.
For example, numerous bakeries turned down a request to create a “Donald Trump cake” for a
nine-year-old boy who wanted that cake for his birthday. Bradford Richardson, Bakers refused to
make pro-Trump birthday cake for 9-year-old boy, The Washington Times, Aug. 7, 2017,
https://www.washingtontimes.com/news/2017/aug/7/bakers-refused-make-pro-trump-birthdaycake-9-year/.
107.

Phillips has declined to create many custom cakes because of the messages that

they would have expressed or the events that they would have celebrated.
108.

Because Phillips holds the religious belief that all people are of equal dignity and

worth, he has declined—and will continue to decline—to create custom cakes that demean people.

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109.

Phillips has declined requests to create custom cakes that demean LGBT people.

110.

Phillips has declined to create custom cakes that express racist views, including

white-supremacy ideology.
111.

Phillips has declined to create custom cakes that express hateful, vulgar, or profane

messages.
112.

Because of Phillips’s religious beliefs, he will not design or create custom cakes

celebrating Halloween.
113.

Phillips declines to design or create custom cakes celebrating Halloween even

though Halloween cakes are a significant source of income for many cake artists.
114.

Because of Phillips’s religious beliefs, he will not design or create custom cakes

promoting the use of illegal drugs or other controlled substances like marijuana and alcohol.
115.

Phillips has declined to create custom cakes promoting the use of illegal drugs or

other controlled substances like marijuana and alcohol.
116.

Because Phillips’s faith teaches him that human life is precious and valuable from

conception to natural death, he will not design or create custom cakes that express support for
abortion, euthanasia, or assisted suicide.
117.

Because Phillips’s faith teaches him that Satan is the cause of great evil and

suffering in the world, he will not design or create custom cakes that celebrate or otherwise express
support for Satan.
118.

Phillips has declined to create custom cakes that celebrate or otherwise express

support for Satan.

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119.

Phillips’s religion teaches him that marriage is a lifelong union between one man

and one woman.
120.

Phillips will not design or create custom cakes that express or celebrate contrary

messages about marriage.
121.

Phillips has declined requests to create custom cakes celebrating divorce and cakes

celebrating same-sex marriage.
122.

Phillips will not create such cakes no matter who requests them.

123.

Phillips will create countless other custom cakes for same-sex couples and gay and

lesbian individuals.
124.

Phillips also believes as a matter of religious conviction 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.
125.

Phillips will not create custom cakes that express messages in conflict with these

religious beliefs about sex.
126.

Phillips will not create such cakes no matter who requests them.

127.

Phillips will create countless other custom cakes for people who identify as

transgender.
128.

To ensure that Phillips does not design or create custom cakes that express

messages or celebrate events in violation of his religious beliefs, he reviews every custom-cake
request at Masterpiece Cakeshop.

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129.

When customers request a custom cake, Phillips or his staff asks them about the

kind of cake they want, the desired content, colors, themes, words, and styles, and what event, if
any, the cake will celebrate.
130.

While most of Phillips’s work involves the creation of custom cakes, he also sells

pre-made items like brownies, cookies, coffee, and generic cakes.
131.

Phillips sells those items to anyone who wants them.

132.

Phillips has never declined to sell those items to anyone.

Phillips associates with and endorses his custom cakes.
133.

After Phillips creates a custom cake, he typically places it in a box bearing the

Masterpiece Cakeshop logo.
134.

This is Masterpiece Cakeshop’s logo:

135.

By placing his custom cakes in boxes bearing this logo, Phillips associates with and

expresses approval of the cake and any messages it conveys.
136.

Phillips gives the box with the cake to the customer who commissioned it.

137.

When people see Masterpiece Cakeshop’s name and logo on a cake box or

otherwise learn that Masterpiece Cakeshop created a custom cake, they believe that Phillips does
not object to the created cake, to any message that the cake conveys, or to the event that the cake
celebrates.

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Colorado begins its practice of treating Phillips worse than other cake artists because it
despises his religious beliefs and how he practices his faith.
138.

Colorado refuses to treat Phillips the same as it treats other cake artists under Colo.

Rev. Stat. § 24-34-601(2)(a).
139.

In 2013, the Division found probable cause to believe that Phillips violated this law

when he declined to create a custom cake celebrating same-sex marriage.
140.

The Commission then filed a formal complaint against Phillips alleging that he had

violated Colo. Rev. Stat. § 24-34-601(2)(a) by declining to create that cake, and it assigned an
administrative law judge (“ALJ”) to adjudicate the complaint.
141.

After the parties filed cross-motions for summary judgment, the ALJ ruled against

Phillips, finding that his decision not to create that cake violated Colo. Rev. Stat. § 24-34601(2)(a).
142.

The ALJ explained that under Colorado’s public-accommodation law “a black

baker could … refuse to make a cake bearing a white-supremacist message for a member of the
Aryan Nation” and “an Islamic baker could … refuse to make a cake denigrating the Koran for the
Westboro Baptist Church” because “[i]n both [of those] cases, it is the explicit, unmistakable,
offensive message that the bakers are asked to put on the cake that gives rise to the[ir] … right to
refuse.”
143.

The Commission affirmed the ALJ’s decision.

144.

When ruling in that case, the members of the Commission made comments

“endors[ing] the view that religious beliefs cannot legitimately be carried into the public sphere or
commercial domain, implying that religious beliefs and persons are less than fully welcome in
Colorado’s business community.” Masterpiece, 138 S. Ct. at 1729.

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145.

Religious hostility and bias surfaced at one meeting when a Commission member

publicly “suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his
religious beliefs ‘if he decides to do business in the state.’” Masterpiece, 138 S. Ct. at 1729.
146.

Moments later, that Commission member went further and stated: “[I]f a

businessman wants to do business in the state and he’s got an issue with the—the law’s impacting
his personal belief system, he needs to look at being able to compromise.” Masterpiece, 138 S. Ct.
at 1729.
147.

About a month later, the Commission met again to discuss Phillips’s case, and a

different Commission member had this to say:
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. And to me
it is one of the most despicable pieces of rhetoric that people can use to—to
use their religion to hurt others.
Masterpiece, 138 S. Ct. at 1729.
148.

The other Commission members did not object to those comments, nor did the state

disavow those comments in the briefs that it subsequently filed.
149.

The Commission’s specific references to the Holocaust were particularly offensive

to Phillips because his father was a soldier in World War II who was part of military efforts that
liberated a concentration camp.
150.

Despite the Commission member’s offensive reference to the Holocaust, Governor

Hickenlooper found “no reason not to appoint her” when her term expired, so he sought to keep
her on the Commission. Jesse Paul & John Frank, Hickenlooper-appointed LGBT advocate still

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on civil rights commission despite Colorado GOP lawmakers’ vote to block her, The Denver Post,
May 25, 2017, https://dpo.st/2vGyoXw. And when the Colorado Senate refused to confirm that
Commission member, Governor Hickenlooper declined to appoint anyone else, thereby allowing
that member to remain on the Commission under a holdover provision.
151.

Once the Commission concluded that Phillips had violated the public-

accommodation law, it ordered him (1) to stop creating wedding cakes altogether unless he agreed
to violate his faith by designing custom cakes celebrating same-sex marriage, (2) to implement
comprehensive staff reeducation to teach that Phillips was wrong to operate his business according
to his faith, and (3) to provide quarterly compliance reports to the Division identifying the customcake requests that Phillips declines and detailing the reasons why.
152.

Because Phillips chose not to violate his religious beliefs, the Commission’s order

forced him to stop creating wedding cakes altogether, which caused him to lose approximately
40% of his income and most of his employees.
153.

Phillips appealed the Commission’s order to the Colorado Court of Appeals.

154.

Around that same time, the Division and Commission issued their determinations

in the three cases involving William Jack and his requests for custom cakes with messages
criticizing same-sex marriage. Those determinations exonerated the cake artists who declined to
create those cakes.
155.

The Colorado Court of Appeals affirmed the Commission’s order in Phillips’s case.

156.

The Colorado Court of Appeals distinguished Colorado’s decision to punish

Phillips from its decision not to punish the three cake shops that declined William Jack’s requests.
Here is what the Court of Appeals said about that:

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The Division found that the bakeries did not refuse [William Jack’s] request
because of his creed, but rather because of the offensive nature of the requested
message. Importantly, there was no evidence that the bakeries based their decisions
on the patron’s religion, and evidence had established that all three regularly created
cakes with Christian themes. Conversely, Masterpiece [Cakeshop] admits that its
decision to refuse [a] requested [same-sex] wedding cake was because of its
opposition to same-sex marriage which, based on Supreme Court precedent, we
conclude is tantamount to discrimination on the basis of sexual orientation.
Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 282 n.8 (Colo. Ct. App. 2015).
157.

Phillips then asked the Colorado Supreme Court to weigh in, but it declined.

158.

The U.S. Supreme Court granted review on June 26, 2017.

159.

Throughout the nearly six years that this case was litigated, Phillips endured

multiple death threats, repeated harassment, and countless hateful phone calls and emails as a result
of Colorado’s intolerance toward him.
160.

The death threats, harassment, and hateful communications escalated with each

new wave of media attention focusing on the case.
161.

The death threats, harassment, and hateful communications got so bad that

Phillips’s wife was afraid to set foot in Masterpiece Cakeshop.
162.

Phillips also had rocks thrown through the window of Masterpiece Cakeshop.

163.

Because of the threats, harassment, and vandalism, Phillips was forced to install

security cameras at Masterpiece Cakeshop to protect himself, his family, his employees, and his
customers.

The Supreme Court rebukes Colorado for its anti-religious hostility toward Phillips.
164.

On June 4, 2018, the Supreme Court released its decision in Masterpiece, which

reversed the Colorado Court of Appeals’ decision and cemented victory for Phillips by declining
to remand the case for further proceedings.

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165.

The Court rebuked Colorado for violating Phillips’s free-exercise rights by

manifesting hostility toward his religious beliefs and failing to act with the religious neutrality that
the First Amendment requires.
166.

Colorado showed its anti-religious bias in at least two ways.

167.

First, Colorado discriminated against Phillips’s religious beliefs by treating his

“religious objection” to creating a custom cake celebrating same-sex marriage worse than the three
other cake artists’ non-religious “objections” to creating a custom cake criticizing same-sex
marriage. Masterpiece, 138 S. Ct. at 1730.
168.

The Supreme Court rejected the Colorado Court of Appeals’ basis for

distinguishing Phillips’s case from the cases involving the three other cake artists. It said that “[a]
principled rationale for the difference in treatment of these two instances cannot be based on the
government’s own assessment of offensiveness,” and that “[t]he Colorado court’s attempt to
account for the difference in treatment elevates one view of what is offensive over another and
itself sends a signal of official disapproval of Phillips’ religious beliefs.” Masterpiece, 138 S. Ct.
at 1731.
169.

Second, Commission members showed anti-religious hostility when they

“disparaged [Phillips’s] religion … by describing it as despicable, … by characterizing it as merely
rhetorical—something insubstantial and even insincere”—and by comparing Phillips’s “religious
beliefs to defenses of slavery and the Holocaust.” Masterpiece, 138 S. Ct. at 1729.
170.

Commission members showed further anti-religious hostility when they made

comments “endors[ing] the view that religious beliefs cannot legitimately be carried into the public

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sphere or commercial domain, implying that religious beliefs and persons are less than fully
welcome in Colorado’s business community.” Masterpiece, 138 S. Ct. at 1729.
171.

Every Justice in Masterpiece who opined on the proper interpretation of Colorado’s

public-accommodation law—including the two dissenting Justices—indicated that cake artists do
not violate that law by declining to create cakes that express messages they will not communicate
for anyone. Justices Kagan and Breyer expressed that view in their concurrence. 138 S. Ct. at 1733
(Kagan, J., concurring) (it is not unlawful for cake artists to decline a request for an expressive
cake that “they would not have made for any customer” because doing that treats the requester
“the same way they would have treated anyone else—just as [Colorado’s public-accommodation
law] requires”); id. at 1733 n.* (cake artists do “not engage in unlawful discrimination” when they
decline to “sell [a] requested cake[] to anyone”). So did Justices Ginsburg and Sotomayor in their
dissent. Id. at 1750 (Ginsburg, J., dissenting) (cake artists do not violate the public-accommodation
law by “refus[ing] to make a cake with [a] requested message for any customer” because an
individual who requests that message is “treated as any other customer would have been treated—
no better, no worse”). As did Justices Gorsuch and Alito in their concurrence. Id. at 1735 (Gorsuch,
J., concurring) (business owners do not “intend[] to refuse service because of a customer’s
protected characteristic” if “they would not sell [a] requested cake[] to anyone”).
172.

Despite Phillips’s victory at the Supreme Court, he still lost his wedding business

as a result of the state’s unconstitutional actions, and he is unsure whether he will ever restore it to
the prior success he achieved before Colorado launched its unconstitutional crusade against him.

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173.

Neither Phillips nor his family has recovered from the distress of Colorado’s

unconstitutional actions toward them—the death threats, the state’s open hostility toward their
faith, and the loss of 40% of their family income.

Colorado continues its practice of treating Phillips worse than other cake artists because it
despises his religious beliefs and how he practices his faith.
174.

Colorado responded to the Supreme Court’s stinging rebuke of its anti-religious

practices by doubling down on its efforts to punish Phillips.
175.

A mere 24 days after the Supreme Court released its decision in Masterpiece, the

Division once again issued a probable-cause determination against Phillips for allegedly violating
Colo. Rev. Stat. § 24-34-601(2)(a).
176.

The events that gave rise to that probable-cause determination started in June 2017.

177.

On June 26, 2017, the same day that the Supreme Court announced that it would

hear the Masterpiece case, a Colorado lawyer named Autumn Scardina called Masterpiece
Cakeshop on the phone.
178.

That lawyer “take[s] great pride” in suing businesses that allegedly “discriminate

against lesbian, gay, bisexual, and transgender people and serving them their just desserts.”
Scardina

Law,

Standing

up

for

employees

in

employment

disputes,

https://www.scardinalaw.com/Employment-Disputes.shtml (last visited Aug. 14, 2018).
179.

During this phone call, the lawyer asked Masterpiece Cakeshop to create a custom

cake with “a blue exterior and a pink interior”—a cake “design” that, according to the lawyer,
“reflect[ed] … the fact that [the lawyer] transitioned from male-to-female and that [the lawyer]
had come out as transgender.” Scardina v. Masterpiece Cakeshop Inc., Charge No.
CP2018011310, at 2 (Colo. Civil Rights Div. June 28, 2018) (attached as Exhibit A).

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180.

That custom cake would have expressed messages.

181.

That custom cake would have celebrated an event.

182.

Both the message that the cake would have expressed and the event that it would

have celebrated conflict with Phillips’s religious beliefs.
183.

Phillips has never created a cake like that one before.

184.

After the lawyer disclosed the design and message of the desired cake, Masterpiece

Cakeshop politely declined the request because Phillips cannot in good conscience express the
messages that the cake would have communicated (i.e., that sex can be changed, that sex can be
chosen, and that sex is determined by perceptions or feelings) or celebrate the event that the cake
would have commemorated (i.e., the announcement of a change from one sex to the other based
on perceptions and feelings).
185.

Phillips would not create a custom cake that expresses those messages for any

customer, no matter the customer’s protected characteristics.
186.

Masterpiece Cakeshop did not decline this request because of the customer’s

transgender status or other protected characteristic. Rather, it declined the request because of the
messages that the cake would have expressed.
187.

When Masterpiece Cakeshop told the lawyer that it could not create the requested

cake, the lawyer asked the shop’s representative to repeat that statement so that someone listening
over the speaker phone could hear it.
188.

Masterpiece Cakeshop offered to create a different custom cake for the lawyer or

to sell the lawyer any of the pre-made items available for purchase in the shop.

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189.

The lawyer did not request that Phillips create a different custom cake; nor did the

lawyer attempt to buy any of the pre-made items available for purchase in the shop.
190.

When discussing this cake request, Masterpiece Cakeshop communicated with this

lawyer only via telephone.
191.

Phillips believes that this lawyer, on other occasions, has requested that he create

other custom cakes with messages that violate his faith—one was a cake celebrating Satan, and
another was a cake featuring Satanic symbols.
192.

About a month later, Phillips received a notice from the Division informing him

that the lawyer filed a discrimination charge against him for his decision not to create the cake
with the blue and pink design.
193.

The charge alleged that Masterpiece Cakeshop violated Colo. Rev. Stat. § 24-34-

601(2)(a)’s prohibition against discrimination “because of” sex and transgender status by declining
to create the requested cake.
194.

Phillips responded to this charge by denying the allegations of discrimination and

by raising statutory and constitutional defenses.
195.

On June 28, 2018, a mere 24 days after the Supreme Court released its decision in

Masterpiece, the Division issued its probable-cause determination against Phillips.
196.

The Division found that the lawyer telephoned Masterpiece Cakeshop and

“requested a custom cake,” not a pre-made one. Scardina v. Masterpiece Cakeshop Inc., Charge
No. CP2018011310, at 2 (Colo. Civil Rights Div. June 28, 2018) (Ex. A).
197.

The Division found that the lawyer requested a custom cake with “a blue exterior

and a pink interior” and “explained that the design was a reflection of the fact that [the lawyer]

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transitioned from male-to-female and that [the lawyer] had come out as transgender.” Scardina v.
Masterpiece Cakeshop Inc., Charge No. CP2018011310, at 2 (Colo. Civil Rights Div. June 28,
2018) (Ex. A).
198.

The Division found that only after Masterpiece Cakeshop learned of the requested

design and message did it decline to create the cake. Scardina v. Masterpiece Cakeshop Inc.,
Charge No. CP2018011310, at 3 (Colo. Civil Rights Div. June 28, 2018) (Ex. A).
199.

The Division acknowledged Masterpiece Cakeshop’s position that it declined to

create that custom cake because Phillips did not want to express through his cake art “the idea that
a person’s sex is anything other than an immutable God-given biological reality.” Scardina v.
Masterpiece Cakeshop Inc., Charge No. CP2018011310, at 3 (Colo. Civil Rights Div. June 28,
2018) (Ex. A).
200.

But the Division ignored Masterpiece Cakeshop’s message-based reason for

declining to create the cake; instead, the Division concluded that Masterpiece Cakeshop declined
to create the cake “based on [the lawyer’s] transgender status.” Scardina v. Masterpiece Cakeshop
Inc., Charge No. CP2018011310, at 4 (Colo. Civil Rights Div. June 28, 2018) (Ex. A).
201.

The Division determined that Masterpiece Cakeshop violated Colo. Rev. Stat. § 24-

34-601(2)(a) and ordered Phillips to participate in mandatory mediation. Scardina v. Masterpiece
Cakeshop Inc., Charge No. CP2018011310, at 4 (Colo. Civil Rights Div. June 28, 2018) (Ex. A).
202.

Director Elenis left no doubt about her position against Phillips when she stated: “I

[Director Elenis] determine that [Phillips and Masterpiece Cakeshop] have violated” the publicaccommodation law. Scardina v. Masterpiece Cakeshop Inc., Charge No. CP2018011310, at 4
(Colo. Civil Rights Div. June 28, 2018) (Ex. A).

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203.

Director Elenis cited the Supreme Court’s decision in Masterpiece in her

determination, indicating that she had read and interpreted that decision before she issued her
determination.
204.

Director Elenis acted in bad faith when she made this determination.

205.

Director Elenis ignored the Supreme Court’s holding that Colorado is motivated by

“clear and impermissible hostility toward [Phillips’s] sincere religious beliefs.” Masterpiece, 138
S. Ct. at 1729.
206.

Director Elenis ignored that every Justice in Masterpiece who opined on the proper

interpretation of Colorado’s public-accommodation law indicated that cake artists do not violate
that law by declining to create cakes that express messages they will not communicate for anyone.
207.

Director Elenis ignored Colorado’s past practice of allowing other cake artists to

decline requests to create custom cakes that express messages they deem objectionable and would
not create for anyone.
208.

Director Elenis ignored what Colorado represented to the Supreme Court—that

cake artists may decline to create cakes with pro-LGBT designs, themes, and messages.
209.

Director Elenis’s decision to ignore the Supreme Court’s holding in Masterpiece,

the Supreme Court’s view of Colorado’s public-accommodation law, Colorado’s past practice
when enforcing its public-accommodation law, and Colorado’s representations to the Supreme
Court is explainable only by bad faith and animus toward Phillips’s religious beliefs.
210.

Phillips has lost and continues to lose work time and profits—he also has incurred

and continues incurring expenses—as a result of Director Elenis’s determination and the rest of
Colorado’s unconstitutional conduct toward him.

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211.

Phillips has suffered and continues to suffer humiliation, emotional distress,

inconvenience, and reputational damage as a result of Director Elenis’s determination and the rest
of Colorado’s unconstitutional conduct toward him.

Colorado’s current practice is to treat Phillips worse than others because it despises his
religious beliefs and how he practices his faith.
212.

As a general matter, if a discrimination complaint is filed against a Colorado cake

artist for declining to create a custom cake expressing a message he or she opposes, Colorado
defers to the cake-shop owner’s message-based objection and, consistent with what state law
requires, does not “presume” that the owner discriminated against the customer based on his or
her protected status. Colo. Rev. Stat. § 24-34-305(3).
213.

But if a discrimination complaint is filed against Phillips for declining to create a

custom cake expressing a message that conflicts with his faith, Colorado rejects his message-based
objection and presumes that he discriminated against the customer based on his or her protected
status.
214.

Colorado does this even though state law requires its enforcement officials to

“presume that the conduct of any [person accused of violating the public-accommodation law] is
not unfair or discriminatory.” Colo. Rev. Stat. § 24-34-305(3) (emphasis added).
215.

This unequal treatment confirms Colorado’s continuing hostility toward Phillips

and his religious beliefs.
216.

Colorado has not disavowed its unequal enforcement policy or its hostile comments

toward Phillips’s faith, even after the Supreme Court condemned them.
217.

In fact, the Division has released a statement that acknowledges the Masterpiece

decision but does not disavow either the state’s unequal enforcement policy or its hostile

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comments. Statement from the Colorado Civil Rights Division, Colorado Dep’t of Regulatory
Agencies (June 4, 2018), https://www.colorado.gov/pacific/dora/CCRD-statement-SCOTUSdecision-June-4-2018-Masterpiece-CCRC.
218.

And Defendant Coffman, as the Colorado Attorney General, released a similar

statement that acknowledged the Masterpiece decision but did not disavow the state’s unequal
enforcement policy or its hostile comments. Statement from Attorney General Cynthia H. Coffman,
Attorney General Cynthia H. Coffman (June 4, 2018), https://coag.gov/press-room/pressreleases/06-04-18.
219.

In other cases, Colorado continues to manifest the sort of anti-religious hostility

that the Supreme Court condemned in Masterpiece.
220.

In one case, for example, Colorado similarly labeled a website designer’s

conservative Christian beliefs “offensive” and “discriminat[ory].” Appellees’ Br. at 42, 45-46, 303
Creative LLC v. Elenis, No. 17-1344 (10th Cir. Feb. 1, 2018).
221.

Colorado still harbors hostility toward Phillips and his religious beliefs.

Colorado prohibits Phillips from telling others the messages that he cannot express because
of his religious beliefs and from explaining the religious beliefs that compel him to decline
those messages.
222.

Phillips seeks to inform people about Colorado’s continuing hostility toward his

religious beliefs.
223.

Phillips and his legal representatives will publish written, electronic, and printed

communications that discuss Colorado’s recent probable-cause determination against him.
224.

In those communications, Phillips and his legal representatives will disclose some

of the messages that he cannot express through his cake art because of his religious beliefs. For

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example, they will explain that while Phillips will gladly create custom cakes for all people,
including those who identify as transgender, he will not create custom cakes expressing that sex
can be changed, that sex can be chosen, or that sex is determined by perceptions or feelings.
225.

In those communications, Phillips and his legal representatives will also discuss the

religious beliefs that compel Phillips not to express those messages.
226.

But Colo. Rev. Stat. § 24-34-601(2)(a) forbids those sorts of communications.

227.

Colo. Rev. Stat. § 24-34-601(2)(a) makes it unlawful for a person, “directly or

indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed
communication, notice, or advertisement that indicates that the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of a place of public
accommodation will be refused, withheld from, or denied an individual … because of … sexual
orientation,” which includes transgender status. Colo. Rev. Stat. § 24-34-601(2)(a).
228.

This law also makes it illegal for a person, “directly or indirectly, to publish,

circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or
advertisement that indicates … that an individual’s patronage or presence at a place of public
accommodation is unwelcome, objectionable, unacceptable, or undesirable because of … sexual
orientation,” which includes transgender status. Colo. Rev. Stat. § 24-34-601(2)(a).
229.

This law nowhere defines “unwelcome,” “objectionable,” “unacceptable,” or

“undesirable.”
230.

Colorado forbids Phillips and his legal representatives from publishing any written,

electronic, or printed communication indicating that Phillips will not create custom cakes

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communicating that sex can be changed, that sex can be chosen, or that sex is determined by
perceptions or feelings.
231.

Colorado also forbids Phillips and his legal representatives from publishing any

written, electronic, or printed communication discussing the religious beliefs that compel Phillips
not to express those messages.
232.

Colorado’s enforcement of these provisions under these circumstances restricts

Phillips’s freedom to publicize his desired messages and to express his religious beliefs.
233.

Colorado discriminates based on content and viewpoint because businesses do not

violate Colorado law if they publicize their beliefs that sex can be changed, that sex can be chosen,
or that sex is determined by perceptions or feelings, or if they publicize their desire to express
those beliefs through the custom items they create.

Colorado rigs the system against people of faith like Phillips.
234.

Colo. Rev. Stat. § 24-34-303(1)(b)(I)-(III) prescribes non-neutral criteria for

selecting Commission members and assigns them non-neutral interests to represent.
235.

Two Commission members must represent different parts of the business

community. Colo. Rev. Stat. § 24-34-303(1)(b)(I)(A).
236.

Two other Commission members must represent government entities. But when

vacancies in those positions occur, those members must be replaced by one person who represents
a statewide business organization and one person who represents an employee association that
advocates for Colorado workers. Colo. Rev. Stat. § 24-34-303(1)(b)(I)(B).
237.

The three remaining Commission members must represent the community at large.

But when two vacancies in those positions occur, those members must be replaced by two people

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who represent employee associations that advocate for Colorado workers. Colo. Rev. Stat. § 2434-303(1)(b)(I)(C).
238.

At all times, the Commission must include at least four Commission members who

are “members of groups of people who have been or who might be discriminated against because
of disability, race, creed, color, sex, sexual orientation, national origin, ancestry, marital status,
religion, or age.” Colo. Rev. Stat. § 24-34-303(1)(b)(II)(A).
239.

Governor Hickenlooper administers and enforces Colo. Rev. Stat. § 24-34-303 by

appointing Commission members.
240.

Upon information and belief, during the last six years, the Commission has not had

a Christian member who shares Phillips’s religious beliefs about marriage and sex.
241.

Upon information and belief, during the last six years, the Commission has not had

any religious member who believes that marriage is the union of one man and one woman and that
sex is given by God and cannot be chosen or changed.
242.

The Commission’s non-neutral selection criteria, its assignment of non-neutral

interests for each Commission member to represent, and the absence of members who share
Phillips’s religious beliefs played a role in creating—and has served to entrench—the
Commission’s hostility toward Phillips’s religious beliefs.
243.

The Commission’s non-neutral selection criteria and its assignment of non-neutral

interests for each Commission member to represent embed bias into the very structure that
Colorado uses to enforce its public-accommodation law.
244.

That bias has manifested itself in Colorado’s unconstitutional treatment of Phillips.

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Phillips’s future as a cake artist is threatened.
245.

The way in which Colorado enforces its public-accommodation law against Phillips

empowers anyone to harass and prosecute him by simply requesting a cake with a message that
conflicts with his faith on a topic that implicates one of the classifications protected under that law.
246.

Based on Colorado’s past conduct, Phillips reasonably fears that discrimination

charges will continue to be filed against him and that he will continue to face punishment from
biased state officials.
247.

In the past year alone, Phillips has declined several requests to create custom cakes

because of the messages that they would have communicated or the events that they would have
celebrated.
248.

Phillips believes that many of these requests are not genuine; rather, they are setups

designed to get him to decline the desired message.
249.

Phillips believes that the originator of a number of these requests is attorney

Autumn Scardina.
250.

In late September 2017, someone emailed Phillips asking for a custom cake “to

celebrate” Satan’s “birthday.”
251.

The customer requested that the cake have “red and black icing” and include “an

upside down cross, under the head of Lucifer.”
252.

The customer described the cake as “religious in theme” and reminded Phillips that

“religion is a protected class.”
253.

Phillips declined to create that cake because it included designs that would have

expressed messages in violation of his religious beliefs.

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254.

A few days later, someone called Phillips asking for a similar custom cake.

255.

Phillips noticed that “Scardina” appeared on the caller-identification screen.

256.

Phillips believes that the caller was Autumn Scardina.

257.

The caller asked Phillips to create a “birthday” cake for Satan.

258.

The caller requested that the cake feature a red and black theme and an image of

Satan smoking marijuana.
259.

Phillips declined to create that cake because it included designs that would have

expressed messages in violation of his religious beliefs.
260.

On June 4, 2018, the day that the Supreme Court issued its Masterpiece decision,

someone emailed Phillips claiming to be “a member of the Church of Satan.”
261.

That person asked for the following custom cake:

I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper
should be a large figure of Satan, licking a 9” black Dildo. I would like the
dildo to be an actual working model, that can be turned on before we unveil
the cake. I can provide it for you if you don’t have the means to procure one
yourself.
262.

Phillips declined to create that cake because it included designs that would have

expressed messages in violation of his religious beliefs.
263.

A few weeks later, two people visited Masterpiece Cakeshop and asked for a

custom cake with a pentagram, a symbol commonly linked to witchcraft.
264.

When Phillips asked for the customers’ names, one responded “Autumn Marie.”

265.

Phillips believes that customer was Autumn Scardina.

266.

Phillips declined to create that cake because it included designs that would have

expressed messages in violation of his religious beliefs.

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267.

Whether sincere inquiries or setups, Phillips will keep receiving and declining

requests for custom cakes expressing messages in conflict with his faith.
268.

Colorado’s actions in crediting and pursuing these claims is encouraging and

enabling people to continue to file these claims against Phillips.
269.

So long as Colorado remains hostile to Phillips because it despises his religious

beliefs and practices, Phillips’s future as a cake artist is in jeopardy.
270.

Phillips cannot remain a cake artist if Colorado continues to declare that he is in

violation of the public-accommodation law whenever someone wanting to harass him for his
religious beliefs files a discrimination charge after requesting a custom cake that expresses a
message in conflict with Phillips’s beliefs about a subject that relates to a protected classification.
Legal Allegations
271.

Phillips and Masterpiece Cakeshop are subject to and must comply with Colorado

laws, including the public-accommodation law.
272.

Defendants acted under color of a Colorado statute, ordinance, regulation, custom,

or policy when committing all of the acts alleged in this Complaint.
273.

Defendants’ treatment of Phillips and Masterpiece Cakeshop under Colorado’s

public-accommodation law violates their constitutional rights.
274.

Defendants’ treatment of Phillips and Masterpiece Cakeshop under Colorado’s

public-accommodation law prevents them from exercising their constitutional rights.
275.

Phillips and Masterpiece Cakeshop suffer ongoing irreparable harm as well as

economic and non-economic injury, including emotional distress and other compensable damages,
from Defendants’ conduct.

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276.

Unless Defendants’ conduct is enjoined, Phillips and Masterpiece Cakeshop will

continue suffering irreparable harm as well as economic and non-economic injury, including
emotional distress and other compensable damages.
277.

Defendant Elenis acted and is continuing to act intentionally either with malice or

reckless indifference to Phillips’s and Masterpiece Cakeshop’s constitutional rights.
278.

Defendant Elenis acted and is continuing to act in bad faith and with hostility and

animus toward Phillips and Masterpiece Cakeshop.
279.

Phillips and Masterpiece Cakeshop seek punitive damages against Defendant

Elenis in order to deter her and others similarly situated from engaging in similar conduct in the
future.
First Cause of Action: Free Exercise of Religion
280.

Plaintiffs restate each allegation contained in Paragraphs 1 through 279 of this

Complaint.
281.

The First Amendment to the U.S. Constitution protects Phillips’s and Masterpiece

Cakeshop’s rights to freely exercise their religion.
282.

The First Amendment protects Phillips and Masterpiece Cakeshop from

government hostility, targeting, and discrimination because of their religious beliefs and practices.
283.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)

targets, shows hostility toward, and discriminates against Phillips and Masterpiece Cakeshop
because of their religious beliefs and practices.
284.

The First Amendment requires Defendants to act in a neutral and generally

applicable manner toward Phillips and Masterpiece Cakeshop and their religious beliefs and

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practices. “The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of
religion,” and its protection applies “upon even slight suspicion that … state [actions] stem from
animosity to religion or distrust of its practices.” Masterpiece, 138 S. Ct. at 1731 (quoting Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 547 (1993)) (emphasis
added).
285.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)

is neither neutral nor generally applicable toward Phillips and Masterpiece Cakeshop and their
religious beliefs and practices. Defendants’ actions are not just subtle departures from neutrality;
they are blatantly and brazenly hostile toward religion.
286.

The First Amendment also protects Phillips’s and Masterpiece Cakeshop’s rights

to operate consistently with their religious beliefs, to decline to operate in violation of their
religious beliefs, to express messages that are consistent with their religious beliefs, and to decline
to express messages that conflict with their religious beliefs.
287.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)

prevents Phillips and Masterpiece Cakeshop from operating consistently with their religious
beliefs, from declining to operate in violation of their religious beliefs, from speaking their
religiously motivated messages, from declining to speak messages that would violate their
religious beliefs, and from adhering to key aspects of their faith.
288.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)

violates the hybrid-rights doctrine.

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289.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)

imposes severe coercive pressure on Phillips and Masterpiece Cakeshop to change or violate their
religious beliefs or exercise.
290.

Defendants do not further any compelling or even legitimate interest in a narrowly

tailored way by infringing on Phillips’s and Masterpiece Cakeshop’s free-exercise rights.
291.

Phillips and Masterpiece Cakeshop suffer ongoing harm because of Defendants’

interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a).
292.

Accordingly, as applied to Phillips and Masterpiece Cakeshop, Defendants’

interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a) violates Phillips’s and
Masterpiece Cakeshop’s First Amendment right to freely exercise their religion.
Second Cause of Action: Free Speech
293.

Plaintiffs restate each allegation contained in Paragraphs 1 through 279 of this

Complaint.
294.

The First Amendment to the U.S. Constitution protects Phillips’s and Masterpiece

Cakeshop’s rights to speak, to decline to speak, to create speech, to decline to create speech, to
distribute speech, to sell speech, to operate an expressive business, to associate with others for the
purpose of engaging in expression, to decline to associate with others for the purpose of engaging
in expression, to be free from content and viewpoint discrimination, to be free from
unconstitutional conditions, to be free from vague laws giving unbridled discretion to government
officials, and to be free from overbroad laws regulating speech.
295.

Phillips and Masterpiece Cakeshop engage in protected expression.

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296.

Phillips and Masterpiece Cakeshop are constitutionally protected speakers when

they create custom cakes that express messages.
297.

The first clause of Colo. Rev. Stat. § 24-34-601(2)(a) makes it “unlawful for a

person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because
of” a protected classification like transgender status, “the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of a place of public
accommodation.”
298.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)’s

first clause infringes Phillips’s and Masterpiece Cakeshop’s First Amendment free-speech rights.
299.

It does so by forcing Phillips and Masterpiece Cakeshop to speak and create custom

expressive cakes that communicate messages in violation of their religious beliefs.
300.

It also does so by pressuring Phillips and Masterpiece Cakeshop to stop speaking

and creating custom expressive cakes altogether in order to avoid violating their religious beliefs.
301.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)’s

first clause also infringes Phillips’s and Masterpiece Cakeshop’s First Amendment freedom of
expressive association.
302.

It does so by forcing Phillips and Masterpiece Cakeshop to collaborate and

associate with others in order to create and disseminate expression that violates their religious
beliefs.
303.

Forcing Phillips and Masterpiece Cakeshop to create and disseminate expression

that violates their religious beliefs significantly impairs their ability to express their desired
messages.

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304.

Phillips and Masterpiece Cakeshop suffer ongoing harm because of Defendants’

interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)’s first clause.
305.

The second clause of Colo. Rev. Stat. § 24-34-601(2)(a) makes it unlawful for a

person, “directly or indirectly, to publish, circulate, issue, display, post, or mail any written,
electronic, or printed communication, notice, or advertisement that indicates that the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place
of public accommodation will be refused, withheld from, or denied an individual … because of” a
protected classification like transgender status.
306.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)’s

second clause infringes Phillips’s and Masterpiece Cakeshop’s First Amendment free-speech
rights.
307.

It does so because Defendants interpret Colo. Rev. Stat. § 24-34-601(2)(a)’s second

clause to prohibit Phillips and Masterpiece Cakeshop from speaking about their religious beliefs
and the messages that they cannot express as a result of those religious beliefs. In particular,
Defendants interpret that provision to prohibit Phillips and Masterpiece Cakeshop from
announcing that they will not create custom cakes communicating that sex can be changed, that
sex can be chosen, or that sex is determined by perceptions or feelings. Nor may Phillips or
Masterpiece Cakeshop explain their religious reasons for declining to speak those messages.
308.

The third clause of Colo. Rev. Stat. § 24-34-601(2)(a) makes it unlawful for a

person, “directly or indirectly, to publish, circulate, issue, display, post, or mail any written,
electronic, or printed communication, notice, or advertisement that indicates … that an individual’s

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patronage or presence at a place of public accommodation is unwelcome, objectionable,
unacceptable, or undesirable because of” a protected characteristic like transgender status.
309.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)’s

third clause infringes Phillips’s and Masterpiece Cakeshop’s First Amendment free-speech rights.
310.

It does so because Colorado interprets Colo. Rev. Stat. § 24-34-601(2)(a)’s third

clause to prohibit Phillips and Masterpiece Cakeshop from speaking about their religious beliefs
and the messages that they cannot express as a result of those religious beliefs. In particular,
Defendants interpret that provision to prohibit Phillips and Masterpiece Cakeshop from
announcing that they will not create custom cakes communicating that sex can be changed, that
sex can be chosen, or that sex is determined by perceptions or feelings. Nor may Phillips or
Masterpiece Cakeshop explain their religious reasons for declining to speak those messages.
311.

Colo. Rev. Stat. § 24-34-601(2)(a)’s third clause is also unconstitutionally vague,

facially and as applied, because it is impossible for Phillips, Masterpiece Cakeshop, or anyone else
to know the kinds of communications that, in Defendants’ view, indicate that “an individual’s
patronage or presence … is unwelcome, objectionable, unacceptable, or undesirable because of”
their transgender status.
312.

Colo. Rev. Stat. § 24-34-601(2)(a)’s third clause is also facially overbroad because

it outlaws Phillips’s and Masterpiece Cakeshop’s communications about the messages that they
will not express due to their religious beliefs.
313.

Phillips and Masterpiece Cakeshop currently suffer ongoing harm because of

Defendants’ interpretation of Colo. Rev. Stat. § 24-34-601(2)(a)’s second and third clauses.

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314.

Defendants do not further any compelling or even legitimate interest in a narrowly

tailored way by infringing Phillips’s and Masterpiece Cakeshop’s free-speech rights.
315.

Accordingly, as applied to Phillips and Masterpiece Cakeshop, Defendants’

interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)’s first, second, and third
clauses violates their First Amendment free-speech rights.
316.

And both facially and as applied to Phillips and Masterpiece Cakeshop, Colo. Rev.

Stat. § 24-34-601(2)(a)’s third clause violates their First Amendment right to be free from vague
and overbroad speech regulations.
Third Cause of Action: Due Process
317.

Plaintiffs restate each allegation contained in Paragraphs 1 through 279 of this

Complaint.
318.

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution

guarantees the right to due process of law before infringing a citizen’s interest in life, liberty, or
property.
319.

The Due Process Clause guarantees Phillips’s and Masterpiece Cakeshop’s right to

a fair and unbiased administrative enforcement, adjudication, and review process.
320.

Defendants interpret and enforce Colo. Rev. Stat. § 24-34-601(2)(a) in an unfair

and biased way against Phillips and Masterpiece Cakeshop.
321.

Defendants’ actions subject Phillips and Masterpiece Cakeshop to an unfair and

biased administrative enforcement, adjudication, and review process.

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322.

Colorado deprives Phillips and Masterpiece Cakeshop of liberty and property by

subjecting them to an unfair and biased administrative enforcement, adjudication, and review
process.
323.

Colo. Rev. Stat. § 24-34-303(1)(b)(I)-(III) prescribes non-neutral selection criteria

and non-neutral interests for each Commission member to represent. That embeds bias into the
structure that Colorado uses to enforce its public-accommodation law, and it subjects Phillips and
Masterpiece Cakeshop to an unfair and biased administrative enforcement, adjudication, and
review process that deprives them of liberty and property.
324.

The Due Process Clause also guarantees Phillips’s and Masterpiece Cakeshop’s

right to be free from vague laws.
325.

Colo. Rev. Stat. § 24-34-601(2)(a)’s third clause makes it unlawful for any person

to indicate that “an individual’s … presence at a place of public accommodation is unwelcome,
objectionable, unacceptable, or undesirable because of” a protected characteristic like transgender
status. The vague language in this clause violates Phillips’s and Masterpiece Cakeshop’s dueprocess rights by granting unbridled discretion to enforcement officials and leaving Phillips and
Masterpiece Cakeshop to guess at which protected communications are prohibited.
326.

Defendants do not further any compelling or even legitimate interest in a narrowly

tailored way by infringing on the due-process rights of Phillips and Masterpiece Cakeshop.
327.

Accordingly, Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-

34-601(2)(a) against Phillips and Masterpiece Cakeshop violates their Fourteenth Amendment
due-process rights.

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328.

And both facially and as applied to Phillips and Masterpiece Cakeshop, Colo. Rev.

Stat. § 24-34-601(2)(a)’s third clause violates their Fourteenth Amendment due-process right to
be free from vague laws.
Fourth Cause of Action: Equal Protection
329.

Plaintiffs restate each allegation contained in Paragraphs 1 through 279 of this

Complaint.
330.

The Fourteenth Amendment to the U.S. Constitution guarantees equal protection of

the laws.
331.

Defendants’ interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a)

treats Phillips’s and Masterpiece Cakeshop’s decisions to create speech and their religious exercise
differently from those similarly situated to them.
332.

Defendants’ discriminatory interpretation and enforcement of Colo. Rev. Stat.

§ 24-34-601(2)(a) infringes on Phillips’s and Masterpiece Cakeshop’s fundamental rights,
including their free-exercise, free-speech, and due-process rights.
333.

Defendants’ discriminatory interpretation and enforcement of Colo. Rev. Stat.

§ 24-34-601(2)(a) singles out a suspect class of marginalized and disfavored people of faith for
adverse treatment.
334.

Defendants do not further any compelling or even legitimate interest in a narrowly

tailored way by infringing on Phillips’s and Masterpiece Cakeshop’s equal-protection rights.
335.

Accordingly, as applied to Phillips and Masterpiece Cakeshop, Defendants’

interpretation and enforcement of Colo. Rev. Stat. § 24-34-601(2)(a) violates Phillips’s and
Masterpiece Cakeshop’s equal-protection rights.

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Prayer for Relief
Plaintiffs ask this Court to enter judgment against Defendants and provide the following
relief:
1.

A preliminary and permanent injunction forbidding Defendants and any person

acting in concert with them from enforcing Colo. Rev. Stat. § 24-34-601(2)(a) against Phillips and
Masterpiece Cakeshop for declining to create custom cakes expressing messages that conflict with
their religious beliefs, such as a custom cake with a blue exterior and pink interior communicating
that sex can be changed, that sex can be chosen, and that sex is determined by perceptions or
feelings;
2.

A preliminary and permanent injunction forbidding Defendants and any person

acting in concert with them from enforcing Colo. Rev. Stat. § 24-34-601(2)(a) against Phillips and
Masterpiece Cakeshop for indicating the messages that they cannot express because of their
religious beliefs—such as the message that sex can be changed, that sex can be chosen, or that sex
is determined by perceptions or feelings—and for explaining the religious beliefs that cause them
not to speak those messages;
3.

A preliminary and permanent injunction forbidding Defendants and any person

acting in concert with them from enforcing Colo. Rev. Stat. § 24-34-601(2)(a)’s third clause,
which makes it unlawful for a person, “directly or indirectly, to publish, circulate, issue, display,
post, or mail any written, electronic, or printed communication, notice, or advertisement that
indicates … that an individual’s patronage or presence at a place of public accommodation is
unwelcome, objectionable, unacceptable, or undesirable because of” a protected status like
transgender status;

48

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4.

A preliminary and permanent injunction forbidding Defendants and any person

acting in concert with them from administering and enforcing the non-neutral selection criteria and
non-neutral representational interests prescribed in Colo. Rev. Stat. § 24-34-303(1)(b)(I)-(III);
5.

A declaration that Defendants violate Phillips’s and Masterpiece Cakeshop’s free-

exercise rights, free-speech rights, due-process rights, and equal-protection rights by enforcing
Colo. Rev. Stat. § 24-34-601(2)(a) against Phillips and Masterpiece Cakeshop for declining to
create custom cakes expressing messages that conflict with their religious beliefs, such as a custom
cake with a blue exterior and pink interior communicating that sex can be changed, that sex can
be chosen, and that sex is determined by perceptions or feelings;
6.

A declaration that Defendants violate Phillips’s and Masterpiece Cakeshop’s free-

exercise rights, free-speech rights, due-process rights, and equal-protection rights by enforcing
Colo. Rev. Stat. § 24-34-601(2)(a) against Phillips and Masterpiece Cakeshop for indicating the
messages that they cannot express because of their religious beliefs—such as the message that sex
can be changed, that sex can be chosen, and that sex is determined by perceptions or feelings—
and for explaining the religious beliefs that cause them not to speak those messages;
7.

A declaration that Colo. Rev. Stat. § 24-34-601(2)(a)’s third clause is

impermissibly vague on its face in violation of the Free Speech Clause of the First Amendment
and the Due Process Clause of the Fourteenth Amendment;
8.

A declaration that Colo. Rev. Stat. § 24-34-303(1)(b)(I)-(III) violates Phillips’s and

Masterpiece Cakeshop’s rights under the Due Process Clause of the Fourteenth Amendment by
prescribing non-neutral selection criteria and non-neutral interests for each Commission member
to represent;

49

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9.

An award of compensatory damages against Defendant Elenis, including but not

limited to damages for lost work time, lost profits, and expenses caused by her unconstitutional
actions, as well as damages for the humiliation, emotional distress, inconvenience, and reputational
damage caused by her unconstitutional actions;
10.

An award of punitive damages in the amount of $100,000 against Defendant Elenis

for her unconstitutional actions;
11.

An award of $1 in nominal damages to each Plaintiff against each Defendant;

12.

An award of the costs, expenses, and attorneys’ fees for this action;

13.

An award of pre-judgment and post-judgment interest;

14.

An order retaining jurisdiction over this matter for the purpose of enforcing the

Court’s orders;
15.

An order issuing the requested injunctive relief without requiring a bond or other

security from Plaintiffs;
16.

Any other relief that the Court deems equitable and just under the circumstances.

50

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Respectfully submitted this 14th day of August, 2018.

s/ James A. Campbell
Kristen K. Waggoner (Arizona Bar No. 032382)
James A. Campbell (Arizona Bar No. 026737)
Jonathan A. Scruggs (Arizona Bar No. 030505)
Jacob P. Warner (Arizona Bar No. 033894)
Katherine L. Anderson (Arizona Bar No. 033104)
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
(480) 444-0028 (facsimile)
kwaggoner@ADFlegal.org
jcampbell@ADFlegal.org
jscruggs@ADFlegal.org
jwarner@ADFlegal.org
kanderson@ADFlegal.org
David A. Cortman (Georgia Bar No. 188810)
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Road NE, Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
(770) 339-6744 (facsimile)
dcortman@ADFlegal.org
Nicolle H. Martin (Colorado Bar No. 28737)
7175 W. Jefferson Avenue, Suite 4000
Lakewood, CO 80235
(303) 332-4547
(303) 425-3201 (facsimile)
nicollem@comcast.net

51

 Case 1:18-cv-02074 Document 1 Filed 08/14/18 USDC Colorado Page 52 of 52

DECLARATION UNDER PENALTY 0F PERJURY
I, JACK PHILLIPS, a citizen of the United States and a resident of the State of Colorado,

hereby declare under penalty of perjury pursuant to 28 U. S.C. 1746 that the foregoi 1g is true and

correct to the best of my knowledge.

       

Executed this 14th day of August, 2018, in Lak ood, fColorado.

 

 

 

Masterpiece

 

 

52

 

Case Document 1-1 Filed 08/14/18 USDC Colorado Page 1 of 6

EXHIBIT A

Case 1:18-cv-02074 Document 1-1 Filed 08/14/18 USDC Colorado Page 2 of 6

COLORADO
Department of
Regulatory Agencies
Colorado Civil Rights Division

1560 Broadway Street, Suite 825
Denver, CO 80202

Charge No. CP2018011310

Autumn Scardina
7779 Everett Way
Arvada, CO 80095

Complainant

Masterpiece Cakeshop Incorporated
3355 S. Wadsworth Blvd
Lakewood, CO 80227

Respondent

DETERMINATION
Under the authority vested in me by C.R.S. 24-34-306 (2), I conclude from our
investigation that there is sufficient evidence to support the Complainant's claim of
discrimination. As such, a Probable Cause determination is hereby issued.
The Respondent is a place of public accommodation within the meaning of C.R.S. 2434-601 (1 ), as re-enacted, and the timeliness and all other jurisdictional requirements
pursuant to Title 24, Article 34, Parts 3 and 6 have been met.
The Complainant alleges that on or about June 26, 2017, she was denied full and
equal enjoyment of a place of public accommodation based on her sex (female)
and/or transgender status (gender identify).
The Respondent denies the allegation of discrimination and contends that it will not
design custom cakes that express ideas or celebrate events at odds with its owner and
staff's religious beliefs.
The legal framework under which civil rights matters are examined is as follows: The
Charging Party bears the burden of proving that discrimination has occurred. Each
key or essential element ("prima facie") of the particular claim must be proven,
through a majority ("preponderance") of the evidence. If the Charging Party meets
this initial burden of proof, then the Respondent has the burden of explaining, with

1560 Broadway Street, Suite 825, Denver, CO 80202
www .colorado.gov I pacific/ dora/civil-rights

P 303.894.2997 F 303.894.7830

 Case 1:18-cv-02074 Document 1-1 Filed 08/14/18 USDC Colorado Page 3 of 6
sufficient clarity, a non-discriminatory justification for the action taken. This is in
response to the specifically alleged action named in the charge. In addition, the
Respondent has the burden to produce documents and other information requested by
the administrative agency during the civil rights investigation. If the Respondent
offers a non-discriminatory reason, then the burden once again shifts back to the
Charging Party to prove that this proffered legitimate reason is merely a pretext for
discrimination. At this stage, the Charging Party must prove, again through sufficient
evidence, that the true and primary motive for the Respondent's actions is unlawful
discrimination.
"Unlawful discrimination" means treatment that is primarily based on the Charging
Party's asserted protected group or status. The Respondent's stated reasons for its
actions are presumed to be true, unless and until the Charging Party, again through a
preponderance of the evidence in the record, adequately shows that the
Respondent's reason is pretext (i.e., is not to be believed), and that the Charging
Party's protected status was the main reason for the adverse action taken. The
Charging Party does not need to submit additional evidence, in response to the
Respondent's position, but the available evidence must be legally sufficient so that a
reasonable person would find that the Respondent intended to discriminate against
the Charging Party because of his/her protected civil rights status. See Colorado Civil
Rights Commission v. Big O Tires, Inc. , 940 P.2d 397 (Colo. 1997); Ahmad Bodaghi and
State Board of Personnel , State of Colorado v. Department of Natural Resources, 995
P.2d 288 (Colo. 2000).
The Respondent is a bakery that provides cakes and baked goods to the public, and
operates within the state of Colorado.
On or about June 26, 2017, the Complainant contacted the Respondent to order a
cake and spoke with Debi Phillips ("D. Phillips") (female), Co-Owner.
The
Complainant contends that she requested a custom birthday cake.
D. Phillips
acknowledges that the Complainant called and requested a custom cake, but asserts
that based on their conversation, it was not clear that she was requesting a birthday
cake. D. Phillips states that she solicited details about the Complainant's wishes for
the cake, including the date it was needed, the size, and desired flavors. The
Complainant responded that she would need the cake by July 6, 2017, needed it to
serve 6-8 people, and wanted the cake to have a blue exterior and a pink interior.
The Complainant asserts that she "explained that the design was a reflection of the
fact that [she] transitioned from male-to-female and that [she] had come out as
transgender on [her] birthday." D. Phillips states that after the Complainant
informed her that the cake was "to celebrate a sex-change from male to female," she
instructed the Complainant that the Respondent would not make the requested cake.
At this point, the phone call ended.

2

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Shortly thereafter, the Complainant called the Respondent again and spoke with Lisa
Eldfrick ("Eldfrick") (female), Service Representative. The Complainant states that
she told the person who answered, Eldfrick, that she had just called and was
disconnected. She asserts that she told Eldfrick that she "was calling to order a
birthday cake and that [she] wanted it to be blue on the outside and pink on the
inside because [her] birthday was the same day as the day [she] came out as
transgender."
Eldfrick asserts that she informed the Complainant that the
Respondent would not fulfill this request.
The evidence indicates that the
Complainant questioned the Respondent's policies and that Eldfrick ended the phone
call without responding to the Complainant's inquiries.
Jack Phillips (male), Owner, who admittedly makes all final business decisions for the
Respondent, affirms this position, contending that the Respondent will not create
custom cakes that address the topic of sex-changes or gender transitions. He
contends that he will not support a message that "promote[s] the idea that a person's
sex is anything other than an immutable God-given biological reality."
The Respondent asserts that it declines to make more than two to five custom cakes
per week, due to time constraints. The Respondent also states that it refuses to
make custom cakes for other expressions that it deems to be objectionable.
Denial of Full and Equal Enjoyment of a Place of Public Accommodation/Sex/
Transgender Status:
To prevail on a claim of discriminatory denial of full and equal enjoyment of goods,
services, benefits or privileges of a place of public accommodation, the evidence
must show that: (1) the Charging Party is a member of a protected class; (2) the
Charging Party sought goods or services from the Respondent; (3) the Charging Party
was otherwise a qualified recipient of the services of the Respondent; 4) the
Respondent denied the Charging Party the full and equal enjoyment of its services;
and 5) the circumstances give rise to an inference of unlawful discrimination based
on a protected class.
The Complainant is a member of protected classed based on her sex (female) and
transgender status (gender identity). On or about June 26, 2017, the Complainant
sought goods and service from the Respondent by requesting a custom cake. The
Complainant was a qualified recipient of the services by the Respondent. An
employee of the Respondent initially indicated that she was willing to assist the
Complainant with this request, however, when the Complainant requested a blue
exterior and a pink interior, explaining that the design reflected the Complainant's
gender transition from male to female, the Respondent refused to provide the
requested service to the Complainant.
The Respondent asserts that it will not
provide the service of creating cakes that "promote the idea that a person's sex is
anything other than an immutable God-given biological reality." The evidence thus
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demonstrates that the refusal to provide service to the Complainant was based on the
Complainant's transgender status. A claim of discriminatory denial of full and equal
enjoyment of a place of public accommodation has been established. As asserted by
the Supreme Court, "It is unexceptional that Colorado law can protect gay persons,
just as it can protect other classes of individuals, in acquiring whatever products and
services they choose on the same terms and conditions are offered to other members
of the public." Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S.
_ (2018).
Based on the evidence contained above, I determine that the Respondents have
violated C.R.S. 24-34-602, as re-enacted, in respect to the Complainant's claim that
the Respondents denied her equal enjoyment of a place of public accommodation.
In accordance with C.R.S. 24-34-306(2)(b)(II), as re-enacted, the Parties hereby are
ordered by the Director to proceed to attempt amicable resolution of these charges
by compulsory mediation. The Parties will be contacted by the agency to schedule
this process.
On Behalf of the Colorado Civil Rights Division

Date

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Certificate of Mailing
This is to certify that on July 2, 2018 a true and exact copy of the Closing Action of the
above-referenced charge was deposited in the U.S. mail, postage prepaid, addressed to the
parties and or representatives listed below:

CCRD Case number CP2018011310

Autumn Scardina
7779 Everett Way
Arvada, CO 80005

Todd Scardina, Esq.
Scardina Law
1245 E. Colfax Ave., Suite 302
Denver, CO 80218

Masterpiece Cakeshop, Incorporated
3355 S. Wadsworth Blvd. H-117
Lakewood, CO 80227

Jacob Warner, Esq.
Alliance for Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260

Jon Wilso .
Color
Department of Regulatory Agencies
Col rado Civil Rights Division
1560 Broadway, Suite 825
Denver, CO 80202