A Christian baker in Colorado lost an appeal in late January in his legal fight in a case involving his rejection of a request for a birthday cake celebrating a gender transition.
What’s the background?
In June 2017 Autumn Scardina called Masterpiece Cakeshop to order a birthday cake, which would, according to court filings, also reflect and celebrate Scardina’s transgender identity.
Jack Phillips, owner of Masterpiece Cakeshop, refused to make the cake.
He is a devout Christian who has repeatedly said he seeks to operate his bakery consistent with his religious beliefs. Phillips even named the bakery Masterpiece based on Jesus’ words in the Sermon on the Mount, where He said no man can serve two masters.
Scardina filed a lawsuit against Phillips and Masterpiece Cakeshop in state court claiming illegal discrimination because of his transgender identity. Phillips countered that the decision was not because of the person who requested it, and that he would not create a cake celebrating gender transition no matter who asked for it.
What’s the problem?
The case exemplifies the way LGBTQ activists are willing to use the courts to harass Christians in an attempt to coerce them to violate their consciences.
Scardina, an attorney, contacted Masterpiece Cakeshop on the day the Supreme Court agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, a same-sex couple had sued Phillips because he refused to create a cake for a same-sex wedding. On June 4, 2018, the U.S. Supreme Court ruled in a 7–2 decision that the actions by the Colorado Civil Rights Commission violated Phillips’ rights under the Free Exercise Clause.
A few months later, Scardina also asked for a cake to feature Satan smoking a marijuana cigarette, which Phillips also declined to make. Scardina later admitted to making the requests to “test” Phillips and “correct the errors of [his] thinking.” The attorney also contacted Phillips multiple times, calling him a hypocrite and bigot, and saying that if the current case was dismissed for any reason Scardina would come back the next day with a new cake request and sue Phillips again.
As Alliance Defending Freedom, the nonprofit law firm representing Phillips and Masterpiece Cakeshop, notes, “The relentless harassment of Jack Phillips — nearly a decade of litigation — has had a significant impact on Jack Phillips’ business. He once had 10 employees and now it’s down to four. He has lost a big part of his business, in addition to the severe emotional toll.”
Why did Phillips lose the appeal?
In its ruling, the Colorado Court of Appeals said the form of the cake, which was to be pink with blue frosting, was not inherently a form of speech and did not convey any particular message. Since Phillips could not claim, according to the court, that his speech was protected, he was in violation of discrimination laws. Colorado law makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation.
The appeals court also noted Phillips’ shop initially agreed to make the cake and only refused after Scardina explained it was to celebrate his gender transition.
What happens now?
Attorneys for Alliance Defending Freedom said they will appeal the decision of the state court of appeals.
“The same law being used to punish Jack is also at issue now at the U.S. Supreme Court in 303 Creative LLC v. Elenis,” noted ADF Senior Counsel Jake Warner. “The Court there should reject Colorado’s attempt to mandate orthodoxy and drive views it disfavors from the public square and affirm that graphic artist Lorie Smith and all artists — writers, painters, photographers, filmmakers, calligraphers, cake artists and more — have the right to create freely without fear of government punishment.”
The Ethics & Religious Liberty Commission is urging the court to rule in favor of 303 Creative and will prepare Christians and churches to respond to this important decision later in the year.
EDITOR’S NOTE — This story was written by ERLC staff and originally published by the Ethics and Religious Liberty Commission.