Another day in court for Jack Phillips

Masterpiece Cakeshop owner Jack Phillips went one-for-two in court on Thursday. A Colorado court dismissed one claim brought by a transgender customer who sued Phillips after he declined to design a cake that celebrated the customer’s gender identity. But the court also refused to dismiss another of the customer’s claims.

Autumn Scardina, a biological man who identifies as a woman, contended in a June 2019 complaint that Phillips falsely advertised that he designed and sold birthday cakes. Scardina requested a pink cake with blue frosting, telling a cakeshop employee that it reflected Scardina’s “status as a transgender female.” Telling Scardina that Masterpiece did not make cakes for sex changes, the cakeshop employee declined.

In a ruling late Thursday, a Colorado state judge nixed the false advertising argument, finding that Scardina’s claim—which was based primarily on news clippings and op-eds about Phillips’ legal proceedings—were not advertisements and so could not be unfair and deceptive under state law.

Yet District Judge A. Bruce Jones declined to summarily reject Scardina’s other claim that Phillips violated Colorado’s Anti-Discrimination Act by declining to bake the cake. Phillips argued that forcing him to design and bake the cake would violate his free speech rights by forcing him to express a message celebrating gender transitions.

Jones questioned that argument: “The Court cannot conclude, based on the current record, that the act of making a pink cake with blue frosting, at Plaintiff’s request, would convey a celebratory message about gender transitions likely to be understood by reasonable observers.”

It’s the third lawsuit involving Phillips in a nearly decade-long ordeal. In 2012, the state’s Civil Rights Commission cited him for declining to make a custom wedding cake for a same-sex couple in a case that eventually resulted in a Supreme Court ruling in Phillips’ favor in 2018. Then the commission, even though chastised by the justices for hostility toward Phillips, pursued him again over the Scardina matter before dropping the case in March 2020. That’s when Scardina decided to pursue the case individually.

“Jack has been threatened with financial ruin simply because he makes decisions about which messages to create and celebrate—decisions that every other artist in Colorado is free to make,” said Alliance Defending Freedom counsel Kristen Waggoner, who represents Phillips, adding, “Tolerance for different opinions is essential.”

The remaining claim in the case will go to trial on March 22.