Colorado baker’s battle not over yet

Colorado baker Jack Phillips’ nearly decadelong struggle to follow his Christian convictions on marriage and sexuality is not over yet. A Colorado state court judge found Tuesday that the embattled cake artist discriminated against Autumn Scardina when he declined to design a cake celebrating Scardina’s gender transition. Phillips will appeal the ruling.

Denver District Judge A. Bruce Jones rejected the argument that designing a cake with an objectionable message would be unconstitutional compelled speech. In a 28-page opinion, Jones concluded the case was about a product, not a message, that Phillips declined to sell Scardina a pink and blue birthday cake because of the activist attorney identifies as transgender.

“The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as ‘others’,” Jones wrote.

In June 2017, Scardina called Phillips to request a birthday cake with a pink interior and blue exterior to reflect Scardina’s “transition from male-to-female.” Scardina, a man who identifies as a woman, filed a discrimination charge with the Colorado Civil Rights Division in July 2017 after Phillips declined to design the cake.

In June 2019, Scardina also filed a false advertising complaint against Phillips. Jones rejected that argument in March. But at the time, he expressed doubt that “the act of making a pink cake with blue frosting … would convey a celebratory message about gender transitions likely to be understood by reasonable observers.” Tuesday’s post-trial ruling confirmed that initial conclusion.

The setback is the latest chapter in the Masterpiece Cakeshop baker’s very public fight to follow his convictions. 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 2018 Supreme Court ruling in Phillips’ favor. The commission charged him again over the Scardina matter before dismissing its case in March 2020. But Scardina pressed on.

Alliance Defending Freedom counsel Ryan Bangert, who helped with Phillips’ defense, said the court improperly allowed Colorado’s Anti-Discrimination Act to effectively trump the First Amendment. “The court is basically saying, ‘Jack Phillips, you are required by law to allow your artistic skills and abilities to be commandeered by a customer to create a specific message,’” Bangert said. “That’s not right.”