Christian Baker Must Make a Cake ‘Celebrating’ Gender Transition, Court Rules
An appeals court has ruled that Masterpiece Cakeshop owner Jack Phillips cannot refuse to handcraft a cake “celebrating” an individual’s gender “transition from male to female,” even though the action violates his Christian beliefs. Judges denied Phillips had been “set up” by the customer, a personal injury attorney who also asked the evangelical Christian to bake a cake depicting Satan smoking marijuana. The court proceedings in this chapter of his legal saga singled out Phillips’s refusal to use someone’s preferred pronouns as proof of discrimination.
Phillips considers the specialty cakes, which he crafts one-at-a-time with techniques he learned in art classes, works of his personal expression. Yet the judges claimed it is impossible for Christians to refuse to endorse actions they consider sinful without discriminating against people who identify as LGBT — citing the Supreme Court case that legalized same-sex marriage in the ruling.
Phillips, who has been locked in a 12-year legal battle for the right to live out his faith at work, plans to appeal.
11 Years of Legal Persecution Continue
Phillips decade-long entanglement in the law began in 2012, when LGBT activists Charlie Craig and David Mullins sued Phillips for refusing to bake a cake for their same-sex wedding ceremony. Six years later, the U.S. Supreme Court ruled 7-2 that Colorado state officials had shown “clear and impermissible hostility toward the sincere religious beliefs that motivated” Phillips. But Justice Anthony Kennedy’s opinion did not comment on whether the First Amendment protected Phillips’s right to live out his faith at work.
On the same day the right-leaning Supreme Court agreed to hear his case — June 26, 2017 — a man who identifies as a woman called the shop to request a personalized pink “birthday cake” with blue icing. After Jack Phillips’s wife, Debra, agreed, the plaintiff revealed the cake would be “celebrating [his] transition from male to female.” Debra explained over the phone that the shop could not make the cake “because of the message,” which runs contrary to their biblical beliefs. Jack Phillips has consistently said he “won’t design a cake that promotes something that conflicts with the Bible’s teachings,” and that “he believes that God designed people male and female, that a person’s gender is biologically determined.” The “Master” in “Masterpiece Cakes” refers to Jesus, he told the court.
Plaintiff Autumn Charlie Scardina, whose birth name is Adam, filed a complaint with the Colorado Civil Rights Division (CCRD) the following month, claiming that Phillips refused to sell the cake based on Scardina’s “transgender status,” not the cake’s message. “Nothing about the design of the cake (a pink cake with blue frosting) or the event (a birthday) violates any religious belief held by Mr. Phillips,” Scardina’s website assered. After the state dropped the case in March 2019, Scardina — an attorney in a personal injury law firm — filed a lawsuit accusing Phillips of violating the Colorado Anti-Discrimination Act (CADA), which bars discrimination on the basis of “gender identity.”
“Over a decade ago, Colorado officials began targeting Jack, misusing state law to force him to say things he does not believe. Then an activist attorney continued that crusade,” said Phillips’s lawyer, Jake Warner, senior counsel at the Alliance Defending Freedom. “This cruelty must stop.”
Scardina Asked for a Cake of Satan Smoking Marijuana
Both the original ruling and Thursday’s appeals court ruling stated that Scardina’s phone call “was not a ‘set-up’ to initiate litigation.” But according to court filings, Scardina admitted during mediation that “Scardina promised Phillips that, were this suit dismissed, Scardina would call Phillips the next day, to request another cake and start another lawsuit.” (Emphases in original.)
In fact, Scardina had already made numerous other requests that would violate Phillips’s faith. In a deposition, Scardina admitted asking Phillips “to make me a cake with an image of Satan smoking a joint.” Legal briefs say Scardina asked Phillips to bake a cake with Beelzebub puffing cannabis atop red and black icing in order to “correct the errors of [Phillips’s] thinking.” Both calls came shortly after an individual named “Autumn Marie” came into the shop to ask for a cake decorated with a Satanic pentagram.
Phillips attempted to settle the matter peacefully, agreeing to sell Scardina a premade pink-and-blue cake — provided Phillips did not personally have to create the cake specifically for Scardina’s gender-transition celebration. Phillips also offered to pay Scardina more than the maximum fine the state could impose to settle the issue, a move Scardina rebuffed.
Yet Denver District Judge A. Bruce Jones implied that Phillips harbored an animus against Scardina, because he refused to refer to the male by female pronouns in court. The Phillips family’s refusal to use Scardina’s preferred pronouns “makes a difference,” Jones said, because it shows an individual’s status influences Phillips’s “decision-making.” The baker’s attorneys say the family’s word choice proves they live out their deep-seated beliefs.
Phillips’s attorneys hold that the First Amendment protects his religious liberty and simultaneously forbids the government from forcing Phillips to engage in compelled speech: baking a cake to participate in a transition he believes is a sin. “Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” said Warner. “All Americans should be free to say what they believe, even if the government disagrees with those beliefs.”
But a three-judge panel of the Colorado Court of Appeals ruled against Phillips on Thursday. Although the court acknowledges Scardina said the cake would celebrate a gender transition, the opinion states “the cake requested by Scardina expressed no message” and contained “no verse or imagery.” Further, forcing Phillips to handcraft a cake to extol the glories of Scardina’s gender transition would not amount to compelled speech; instead, Phillips simply refused to sell a birthday cake based on Scardina’s “protected status” of identifying as transgender. That seemingly ignores the Supreme Court ruling the previous Masterpiece Cake case, when justices wrote: “If a baker refused to design a special cake with words or images celebrating” an event that violates his religious views, “that might be different from a refusal to sell any cake at all.”
The opinion obliterated this distinction, claiming the Supreme Court attempted to “differentiate between discrimination based on a person’s status and discrimination based on conduct that is inextricably intertwined with such status.” It cited Obergefell v. Hodges, the 2015 case that invented the “constitutional right” to same-sex marriage.
Both Judges Tied to a Law Firm Involved in the Proceedings
The author of the opinion, Judge Timothy Schutz, was appointed to the appeals court by Governor Jared Polis (D) — the first governor to openly identify as gay — in November 2021, two months after Polis and another man had a Jewish wedding ceremony.
Both judges who ruled against Phillips in his latest round of legal woes had ties to a prosperous law firm that took Scardina’s side of the case. Holland & Hart filed two amicus curiae briefs on behalf of the Colorado Lesbian, Gay, Bisexual and Transgender Bar Association and the Colorado Hispanic Bar Association against Phillips. Judge Jones joined Holland & Hart in 1982 and served as a partner from 1988 until 2011, when Governor Bill Ritter (D) named Jones to the bench. Judge Schutz was also an associate at Holland & Hart for four years.
‘The Right to Create Freely without Fear of Government Punishment’
Whether people of faith have to check their morality at the door Monday through Friday is also at the heart of multiple other cases, including one in Colorado, 303 Creative v. Elenis. Christian website developer Lorie Smith got sued after refusing to make a website for a same-sex wedding. “Other small business owners have faced similar religious liberty predicaments, such as Kentucky-based photographer Chelsey Nelson, who refused to photograph same-sex weddings due to her religious convictions. Another Christian Kentucky artist, Blaine Adams, refused a t-shirt printing project for the local pride festival,” reported Marjorie Jackson at The Washington Stand.
Future judges should “reject Colorado’s attempt to mandate orthodoxy and drive views it disfavors from the public square and affirm that … writers, painters, photographers, filmmakers, calligraphers, cake artists, and more have the right to create freely without fear of government punishment,” said Warner. “Cultural winds may shift, but freedom of speech is foundational to our self-government and to the free and fearless pursuit of truth.”
Ben Johnson is senior reporter and editor at The Washington Stand.