Jack Phillips, owner of Masterpiece Cake Shop has won the right to pursue his claim against the Colorado Civil Right Commission in Federal Court. Last summer, the Commission filed suit against Phillips alleging he had discriminated against Autumn Scardina. Ms. Scardina is a Denver lawyer who requested a cake celebrating her gender transition the day the Supreme Court agreed to hear Mr. Phillips’ previous case.

Following notification of the second claim of unlawful discrimination, Mr. Phillips and his lawyers from the Alliance Defending Freedom (ADF) filed a federal lawsuit. The lawsuit is seeking a permanent injunction against the Commission for enforcing their anti-discrimination statute when Phillips declines to create a cake that conflicts with his deeply held religious beliefs. It also seeks to allow Phillips to post disclaimers in written form that convey his intent to decline to create cakes that violate the same.

The text of the lawsuit is absolutely glorious in pointing out the Commission’s blatant hypocrisy on the issue of who may decline an order and for what reasons.

What is clear in these examples is that cake artists can decline cakes with “offensive” images. However, this right seems to be confined to those images that may be offensive to a minority religion or identity group. It even discusses the case of a baker who refused to create a cake with President Trump’s image for a 9-year-old boy.

In addition to naming the Commission in the suit, specific Colorado officials were also named including Governor Hickenlooper. The defendants filed a motion to dismiss based on Phillips’ standing to file a federal lawsuit before exhausting options at the state level.

Senior District Court Judge Wiley Y. Daniel denied the defendant’s motion to dismiss the federal suit. While the order did provide relief to the individual members of the Commission and the Governor, it is allowing the case to proceed.

Perhaps at some point in this case, a court will develop the intestinal fortitude to declare that no artist or content creator can be compelled to create something that violates their sincerely held religious beliefs. This is what the Supreme Court failed to do in the original decision it handed down.

The filing by Phillips and the ADF is clear. Artistic expression should not be compelled in violation of the artist’s 1st Amendment rights. Nor does the state have the right to force Mr. Phillips to shutter his business because of his deeply held beliefs. May the decision in this case be just as clear on both issues.