On Oct.3, the Colorado Supreme Court agreed to hear Masterpiece Cakeshop v. Scardina, the case targeting cake artist Jack Phillips and his cakeshop for refusing to make a custom gender transition cake in 2017. Phillips’ attorneys at Alliance Defending Freedom (ADF) appealed the Colorado Court of Appeals’ ruling against the Christian baker in January, sending the case to the state Supreme Court.
ADF argues that Phillips’ creative expression through his cakes can be considered speech, and thus his freedom to refuse to make cakes that promote messages that violate his beliefs is protected under the First Amendment.
Following the June 30 U.S. Supreme Court decision in 303 Creative v. Elenis that upheld free speech for all, ADF attorneys filed a notice to the Colorado Supreme Court asking for the 303 Creative ruling to be applied to Phillips’ case and uphold his right to free speech.
“Free speech is for everyone,” ADF Senior Counsel Jake Warner said. “As the U. S. Supreme Court held in 303 Creative, the government can’t force artists to express messages they don’t believe.” Warner claims that because the cake would “celebrate and symbolize a transition from male to female, the requested cake is speech under the First Amendment.”
The Colorado Court of Appeals ruled against Phillips on January 26, upholding a state district court’s verdict that Phillips violated the Colorado Anti-Discrimination Act (CADA) by refusing to make the gender transition cake. The court ruled that creating a cake with no verbal message does not constitute “speech,” and thus would not attribute any message to Phillips.
Back in 2017, on the same day the U. S. Supreme Court announced it would hear Phillips’ first case, a transgender activist attorney who goes by Autumn Scardina (a biological male) called Masterpiece Cakeshop and requested a custom gender transition cake. The cake would be blue on the outside and pink on the inside to celebrate his transition from identifying as male to female. Scardina then called again and requested a different cake, this one depicting Satan smoking marijuana “to correct the errors of [Phillips’] thinking.” Phillips respectfully declined both requests, prompting the attorney to file the current lawsuit. Scardina threatened to harass Phillips until he is punished.
Phillips has battled for his religious freedom for more than a decade. The first case against him came about after he refused to make a same-sex wedding cake in 2012. He prevailed in 2018 when the U. S. Supreme Court justices ruled that Colorado had demonstrated hostility toward Phillips’ Christian beliefs.
But when Scardina decided to sue Phillips in state court, ADF General Counsel Kristen Waggoner said, “His opponents are weaponizing the law to punish and destroy him because he won’t create an expression that violates his Christian faith. They want to make the law an arm of cancel culture.”
ADF Senior Counsel Jake Warner stated, “Jack works with all people and always decides whether to create a custom cake based on what message it will express, not who requests it.” In court, Scardina readily readily admitted that Phillips “indicated that I was welcome back in their shop and entitled to the same treatment as every other customer that telephones or comes through its doors.” Phillips declined the requests because of his strongly held Christian convictions, not because of Scardina’s sexual orientation, ADF attorneys said.
The hearing before Colorado’s high court has no date yet, but the case’s prosecution and defense will have to submit their legal arguments before then.
Photo courtesy ADF