Jack Phillips’s long valley of legal travail may finally be nearing its conclusion. After 12 years of legal persecution, the Supreme Court of the State of Colorado on Tuesday dismissed the latest judgment against him on procedural grounds. This ruling seems to end the final lawsuit against him, but it also appeared that way six years ago when Phillips triumphed at the Supreme Court.

“Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone,” declared Jake Warner, senior counsel for Alliance Defending Freedom (ADF), the law firm that has represented him since 2012. “Phillips never aspired to be a political lightning rod,” agreed the National Review editors. “He didn’t volunteer for this. He just wanted to bake cakes. It was Colorado’s legal system that came for him, and a zealous transgender lawyer who kept the cases going.”

The owner and operator of Masterpiece Cakeshop, Phillips refused to bake a same-sex wedding cake all the way back in 2012, when same-sex marriage was not even legal in Colorado, yet a same-sex couple filed a complaint alleging that Phillips had violated an anti-discrimination law covering “public accommodations,” a category broad enough to cover any retail business.

In its 2018 decision (Masterpiece Cakeshop vs. Colorado Civil Rights Commission), the Supreme Court ruled 7-2 that the Colorado Civil Rights Commission betrayed “clear and impermissible hostility toward the sincere religious beliefs that motivated his [Phillips’s] objection” to baking a cake for a same-sex wedding. By deciding the case on the commission’s evident hostility — and that hostility alone — the court in Masterpiece Cakeshop side-stepped the larger question: whether creative professionals can be forced to create celebrations of LGBT identities and lifestyles that conflict with their sincerely held religious beliefs.

Phillips’s Supreme Court victory did not end his legal troubles, however. LGBT activists approved of Colorado’s religious hostility and were furious at the justices’ decision. Some of them even continued harassing him with requests for obscene or offensive cakes. Finally, a trans-identifying lawyer going by the name Autumn Scardina asked Phillips to create “a pink cake with blue frosting that was to be used to celebrate a gender transition.” When Phillips declined to make this cake, Scardina filed another complaint with the Colorado Civil Rights Division, accusing Phillips of anti-trans discrimination. The Colorado Civil Rights Division investigated Phillips a second time, and the Colorado Civil Rights Commission organized administrative proceedings to adjudicate the complaint.

On Phillips’s behalf, ADF sued both the division and commission in federal court, arguing that the ongoing proceedings constituted harassment. After all, this was the same Colorado Civil Rights Commission that had displayed such blatant hostility towards Phillips’s beliefs in the previous case. The Civil Rights Division and Civil Rights Commission eventually reached a confidential settlement with Phillips, and as part of that settlement, they dismissed the complaint against them.

Scardina was undeterred by the dismissal and filed a lawsuit against Phillips in Colorado district court. The district court held a bench trial and ruled against Phillips, levying a fine. Phillips appealed, but the appellate court upheld the lower court’s ruling. Phillips appealed again to the Colorado Supreme Court, which narrowly (4-3) dismissed the case on procedural grounds.

The Colorado Supreme Court first found fault with the Civil Rights Commission for failing to “issue the required order explaining its reasons for the dismissal” of the complaint against Phillips. “The Commission was required, absent a settlement among all the parties, to issue an order stating its conclusions and the reasons why its findings of fact supported those conclusions,” it wrote, and Scardina was not a party to the settlement.

As a result of this breach of procedure, Scardina “should have challenged the Commission’s conduct in the court of appeals,” instead of filing a separate lawsuit. “When the Commission denied [his] the hearing to which [he] was entitled by statute, [he] did not appeal that denial. That choice did not entitle [him] to pursue the alternate path of filing a district court action.” Thus, the court concluded, the district court should never have decided the lawsuit in the first place.

The court explicitly noted that it was sidestepping the main issue:

“The underlying constitutional question this case raises has become the focus of intense public debate: How should governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market? We cannot answer that question, however, because of a threshold issue of administrative law and statutory interpretation: Could the district court properly consider the claims of discrimination presented here? In light of this dispute’s procedural journey, it could not.”

Thus, while this decision frees Phillips of impending legal jeopardy, its failure to address the key issue provides little protection for other creative professionals. On the one hand, it’s always good to see courts exercising judicial restraint and inserting themselves into public debates only as much as necessary. But it seems hardly credible that the same court who 10 months ago disqualified a former president from their state’s ballot is that concerned with judicial restraint.

On the other hand, it’s possible that the decision was strategic. Phillips is a sympathetic client who has already won at the U.S. Supreme Court, and the state of Colorado has an embarrassing history of explicit hostility towards his religious beliefs. A ruling against Phillips would likely face rebuke by the U.S. Supreme Court, while a ruling for Phillips on the merits would create — from their perspective — an unfortunate precedent.

But the precedent that protects the conscience rights of creative professionals already exists. In 2023, the U.S. Supreme Court decided another case out of Colorado (303 Creative v. Elenis), which held that Colorado’s anti-discrimination statute could not force a graphic designer to design websites for same-sex weddings in violation of her religious beliefs. The Colorado Supreme Court’s opinion never acknowledged that ruling.

“Free speech is for everyone. As the U.S. Supreme Court held in 303 Creative, the government cannot force artists to express messages they don’t believe,” declared Warner. “In this case, an attorney demanded that Jack create a custom cake that … admittedly expresses a message, and because Jack cannot express that message for anyone, the government cannot punish Jack for declining to express it. The First Amendment protects that decision.”