Court rules against cakeshop owner who refused to bake gender-transition cake

(Image by Steffen Zimmermann from Pixabay)

By Kate Anderson
Daily Caller News Foundation

A Colorado Court of Appeals judge ruled against Christian baker Jack Phillips Thursday after he appealed an earlier court decision requiring him to bake a cake for an individual’s gender transition.

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Phillips won a previous case at the Supreme Court in 2018 after he declined to make a wedding cake for a gay couple, but was sued again in March 2021, after a transgender individual wanted Phillips, who owns Masterpiece Cakeshop, to make a cake that was blue on the outside and pink on the inside. Alliance for Defending Freedom (ADF) announced in a press release Thursday that the Colorado Court of Appeals had ruled against Phillips, but said that a plan was already in motion to appeal the ruling.

The court determined that Phillips’ right to religious freedom did not fall under First Amendment protection.

“Turning to the constitutional issues presented, the division concludes that the act of baking a pink cake with blue frosting does not constitute protected speech under the First Amendment,” the court wrote. “Additionally, the division concludes that CADA’s prohibition against discrimination based on a person’s transgender status does not violate a proprietor’s right to freely exercise or express their religion.”

Autumn Scardina, a transgender woman and attorney, attempted to order a cake for a gender transition party on the same day the Supreme Court announced it would hear Phillips’ case regarding his refusal to bake a cake celebrating a gay wedding, according to ADF’s press release. Phillips said he could not make the cake because it would force him to violate his religious beliefs.

The Colorado court further argued that there is “no inherent meaning or expressed message” from Scardina’s cake request, the opinion read. Additionally, the court ruled that Phillips’ right to an accommodation due to his religious beliefs failed to supersede Scardina’s “protected status” since the requested cake did not have an explicit message, “whether secular or religious.”

Scardina’s attorney, John McHugh, told the Daily Caller News Foundation that the ruling was a “victory” for his client and the “greater LGBTQ community.”

“The court held that Masterpiece Cakeshop broke the law when it refused to sell a birthday cake to Ms. Scardina because she is a transgender woman,” McHugh said. “In doing so, the court rejected the defendants’ free speech argument because, as defendants admitted at trial, a pink cake with blue frosting does not have any inherent meaning and the act of selling a cake is not speech. Similarly, the Court held, consistent with U.S. Supreme Court precedent, that Mr. Phillips’ religious beliefs do not exempt him from anti-discrimination laws.”

Jake Warner, ADF senior counsel, told the DCNF that the court’s arguments ignore Supreme Court precedent, and that despite the cake having no written message, protection of “symbolic speech” is within the rights granted by the First Amendment.

“What we have here is a cake that symbolically expresses the message and the Supreme Court in many cases throughout history has recognized that symbolic speech is protected speech,” Warner said. “Just because speech is symbolic does not mean it’s not protected, quite the opposite, the First Amendment says the government can’t force you to promote even symbolic speech that you disagree with.”

Warner also said that this court’s latest ruling had not deterred their team from defending Phillips’ right to religious freedom, noting that they planned to start the appeal process soon.

“Jack serves everyone regardless of their background,” Warner said. “He just can’t promote every message through his custom cakes and he’s being punished for that.”