Jack Phillips went all the way to the United States Supreme Court to avoid making a cake for a same-sex wedding, and now he’s in court once again wanting to avoid decorating a cake for a gender transition celebration.
Phillips, of Denver, was the plaintiff behind Masterpiece Cake Shop v. Colorado Civil Rights Commission — a case conservatives hoped would advance their view that evangelical Christians shouldn’t have to provide public services to people living in ways they deem sinful. The 2018 Supreme Court ruling favored Phillips but in such a narrow way that the larger issue of religious beliefs versus public businesses was left unresolved.
Since then, the composition of the Supreme Court has shifted significantly to the right and others keep trying to tee up cases that would pick up where Masterpiece left off. There are currently similar cases pending before the high court involving a wedding photographer and a would-be wedding website designer.
Colorado lawyer Autumn Scardina poses for photos outside the Ralph Carr Colorado Judicial Center in Denver, Wednesday, Oct. 5, 2022. Scardina, who is transgender, sued Colorado baker Jack Phillips after he refused to make her a cake intended to celebrate her gender transition. (AP Photo/Colleen Slevin, File)
As before, Phillips is losing his case in lower courts. This week, the Colorado Court of Appeals said the request for a gender transition cake ordered by Autumn Scardina cannot be denied because cakes are not a form of speech. Phillips and other conservative evangelicals have argued they should not be forced to produce products against their religious beliefs because things like cakes and photographs and websites are forms of speech. And speech is protected by the First Amendment.
Yet Colorado law prohibits discrimination on the basis of sexual orientation or gender. Public businesses are not allowed to deny services to gay or transgender persons any more than they could deny service to Black customers.
Evangelicals believe the comparison between race and sexuality/gender is not fair. In their view, race is something beyond a person’s control but sexuality and gender transition are choices freely made and are inherently sinful.
Colorado law doesn’t see it that way, which is why the state has become the apex of court challenges to anti-discrimination laws.
In the latest case, Scardina wanted a pink cake with blue frosting. Phillips initially agreed to make the cake but later refused after Scardina explained she would use it to celebrate her transition from male to female.
Both sides in this debate appear to intentionally provoke one another in order to get legal traction.
Both sides in this debate appear to intentionally provoke one another in order to get legal traction. Phillips is represented by one of two conservative legal advocacy firms behind most all the similar religious liberty claims filed in recent years. And Scardina said she planned her order carefully to send a statement.
Scardina is an attorney, and she ordered her cake on the same day the Supreme Court said it would hear Phillips’ appeal in the wedding cake case. She testified at trial that she wanted to “challenge the veracity” of Phillips’ statements that he would, in fact, serve LGBTQ customers.
Phillips’ law firm, Alliance Defending Freedom, put out a news release saying the cake designer has been “targeted” by liberals “for years.”
ADF says of its client: “He serves everyone who walks into his shop. But he cannot custom-design cakes that express messages that violate his deeply held religious beliefs. This includes Halloween cakes, cakes advocating drug use, and cakes disparaging people, including those who identify as LGBT.”
Yet none of the various legal actions against Phillips have been about those things. Instead they specifically have highlighted his refusal of service related to same-sex marriage and transgender identity.
“They just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people,” said John McHugh, one of the lawyers representing Scardina.
Phillips’ defense that his views opposing same-sex marriage and transgender identity are rooted in free-speech claims has not found favor with lower courts.
In the current case, a Colorado court ruled against Phillips, then Phillips appealed, and that resulted in the latest ruling from a state appeals court that Scardina’s cake order did not constitute a form of speech and Phillips is not protected in his refusal of service.
“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” the appeals court said.
The Colorado Court of Appeals further said the state law that makes it illegal to refuse to provide services to people based on race, religion or sexual orientation does not violate business owners’ right to practice their religion.
Alliance Defending Freedom said Phillips once again will appeal the judgment against him.
“We live in a country where freedom of speech and religious freedom are protected,” a news release said. “While we may disagree on certain issues, we should all be free to live and work according to our beliefs. Jack Phillips, just like every creative professional, has the right to decline to use his artistic abilities to express messages or celebrate events he disagrees with.
“They want Jack, an average American business owner, to pay a hefty price — all because he wants to live according to his faith.”
“But over the course of Jack’s legal battle, one thing has become abundantly clear: For some, it will never be enough to politely agree to disagree about important issues like the meaning of marriage or whether to celebrate a gender transition. It wasn’t enough for Jack to lose a big part of his business after Colorado pursued him the first time. It wasn’t enough for Jack to have to defend his freedoms all the way to the U.S. Supreme Court. And it wasn’t enough for Jack and his family to endure years of harassment and even death threats.
“For some, it won’t be enough until Masterpiece Cakeshop closes its doors. They want Jack, an average American business owner, to pay a hefty price — all because he wants to live according to his faith.”
On the other side, John McHugh, a lawyer for Scardina at Fennemore Craig, said the latest ruling is “a victory not just for Ms. Scardina and the greater LGBT community, but for all Coloradans, who can take comfort that our laws apply equally to everyone.”
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