Jack Phillips goes on defense and no one complains

I stumbled across this while doing research for my SB8 paper. I think it illustrates my point that the partisan valence of the rights and rights-holders at issue influence the complaints and hand-wringingabout SB8's procedural and jurisdictional rules.

In June 2017, the day SCOTUS granted cert in Masterpiece Cakeshop, a trans woman ordered a cake from Phillips to celebrate her birthday and her male-to-female transition--it would be pink on the inside and blue on the outside; Phillips refused and the woman filed a complaint with the Colorado Civil Rights Commission, which found probable cause. In August 2018, a few months after SCOTUS' decision in Masterpiece, Phillips filed a federal action challenging the P/C finding and enforcement of state law as violating the First Amendment. In January 2019, the district court declined to abstain under Younger, applying the bad-faith exception. The Commission dismissed the administrative enforcement action, mooting the federal action. So the woman sued Phillips in state court for violating the state public-accommodations law. In June, following a bench trial, the state trial court rejected Phillips' First Amendment defense and found that he had violated the ordinance, imposing damages of $ 500. Phillips plans to appeal to the state court of appeals (and to the Colorado Supreme Court and then to SCOTUS).

The case illustrates that it is not unheard-of for rights-holders to be forced to assert federal constitutional rights in a defensive posture and in state court. Phillips is similarly situated to abortion providers and advocates who are the likely targets of SB8 suits, forced to defend private statutory actions for damages rather than government-initiated enforcement proceedings. Colorado courts likely are as hostile to the First Amendment rights Phillips asserts in defense as Texas courts are to the reproductive-freedom that providers and advocates will assert in defense in SB8 actions. The difference is that Phillips faces one action by one denied customer, whereas abortion providers face a tidal wave of lawsuits by random Texans across the state. But imagine that dozens or hundreds of LGBTQIA people order cakes, knowing they will be refused, then sue for damages; the similarity sharpens (although the amounts of money are very different). And both cases show why the well-pleaded complaint rule is such a bad idea--Phillips and Whole Women's Health should be able to gain that federal forum for their federal defenses.

Once again, many people complaining about abortion providers having to defend in state court would be happy to see Phillips sued into oblivion. But the procedural and jurisdictional propriety cannot turn on the rights involved.