Jack Phillips, the Colorado cake designer who has faced nearly a decade of litigation over his refusal to express creative messages that conflict with his religious beliefs, was back in court Oct. 5 to appeal a state trial court’s decision against him in 2021.

The case, Scardina v. Masterpiece Cakeshop, stems from a request made to Phillips for a cake meant to symbolize the gender transition of an attorney named Autumn Scardina.

After Phillips refused Scardina’s request for a custom blue and pink cake symbolizing Scardina’s transition from a male to female identity, Scardina filed a complaint with the Colorado Civil Rights Division, though the division dropped the case after Phillips’ attorneys from Alliance Defending Freedom filed a federal lawsuit on his behalf.

In turn, Scardina filed a suit against Phillips in a state trial court, which ruled against Phillips in June 2021. In that decision, the state district judge fined Phillips $500 for refusing to fulfill Scardina’s request for the transgender-themed birthday cake.

ADF attorneys in August 2021 appealed to the Colorado Court of Appeals, which heard oral arguments on Oct. 5.

Scardina’s attorneys have argued that Phillips illegally discriminated against Scardina based on his gender identity and that his claim of religious free speech is invalid.

Jake Warner, ADF senior counsel, told the appeals court that Phillips and his wife clearly stated that they could not express the message Scardina had requested because it violated their Christian beliefs.

Additionally, Warner noted, legal precedent has made clear government entities cannot compel a person to express a particular message.

“Yesterday we argued in front of the Colorado Court of Appeals to uphold Jack’s First Amendment right not to create artistic messages that he disagrees with,” Warner said in a statement. “For over 10 years, Jack has been fighting to protect the right of all Americans to say what they believe without fear of government punishment. We hope that the court will affirm this fundamental freedom, because a win for Jack is a win for everyone. No one should be forced to express a message that violates their beliefs and conscience.”

Scardina, who admitted he was trying to “test” Phillips and “correct the errors of [his] thinking,” has a long history of targeting Phillips. In the 2013 case that ended up with the Supreme Court ruling against the state of Colorado for acting with hostility toward Phillips’ religious beliefs, Phillips had refused to create a custom cake for a gay wedding. Scardina had offered at that time to file a complaint against Phillips on behalf of the couple.

And on the same day in 2017 that the Supreme Court announced that it would be taking Phillips’ case, Scardina went to Phillips with his request for his transgender-themed birthday cake—blue on the outside, pink on the inside. On another occasion, he asked Phillips to design a cake portraying Lucifer smoking marijuana.

The ongoing litigation against Phillips has taken a toll on his business. He once had 10 employees, his attorneys say. He has lost revenue and is now down to four employees, not to mention the emotional toll over nine years.

“Jack serves all customers,” ADF said in a statement. “He simply declines to create custom cakes that express messages or celebrate events in violation of his deeply held beliefs.”

An ADF spokesperson said they hope to receive a ruling from the appeals court before the end of the year, but there is no definite timeline.

ADF attorneys are hopeful that another case they are arguing at the Supreme Court—303 Creative v. Elenis—will address the question the high court avoided in its ruling for Phillips in 2017: Whether or not a state law requiring business owners to create messages they disagree with is constitutional.

303 Creative v. Elenis involves another Coloradan, Lorie Smith, a graphic artist who, like Phillips, is a devout Christian. Smith is challenging the same state law used to target Phillips, which, among other things, prevents Smith from explaining on her website why she can’t create online content or graphics for events such as gay weddings.

Photo: Alliance Defending Freedom