Masterpiece Cakeshop baker in for the long haul

After over a decade of litigation, Colorado baker Jack Phillips shows no sign of giving up in a contentious battle with LGBT activists. He did not pick the fight but seems bound to see it out.

“If they can come after me, they can come after anybody,” Phillips told me. “If we lose these freedoms, it’s not just me. These freedoms are for everybody.”

On Thursday, a Colorado state appeals court upheld a trial court’s June 2021 ruling that the Denver-area baker violated nondiscrimination provisions in the state’s public accommodations law. After a four-day trial, a Denver judge sided with Autumn Scardina, a biological man who identifies as a woman. Scardina claimed Phillips declined to bake a cake intended to celebrate a gender transition.

In Thursday’s unanimous ruling, a three-judge panel of the Colorado Court of Appeals agreed with the trial court. Writing for the court, Judge Timothy Schutz rejected Phillips’ argument that designing the cake would compel him to speak a message that violated his Biblical conviction that gender is established at birth and cannot be changed.

“We conclude that creating a pink cake with blue frosting is not inherently expressive, and any message or symbolism it provides to an observer would not be attributed to the baker,” Schutz wrote.

Scardina claimed that Phillips’ refusal to create the cake—one which bore no words or symbols—was due to Scardina’s transgender status. In contrast, Phillips claimed that it was not status but message that mattered. He said he would design a pink cake with blue icing for any person provided the message conveyed by it did not violate his religious convictions. But this cake would carry a baked-in message that a person could change his or her God-ordained sex, he said.

Jake Warner, an Alliance Defending Freedom attorney representing Phillips, said the Colorado court made the mistake of conflating status with message. He said this court, like some others, failed to consider the context of the creative work. “So in context, this cake clearly expresses a message,” said Warner. “The only question then is can the government force people like Jack—artists—to express messages that they disagree with.”

Schutz also dispensed with Phillips’ argument that requiring him to create a cake celebrating a gender transition violated his free exercise of religion. Because the law applied to all businesses and was not aimed at religion, Schutz declined to apply strict scrutiny—the highest standard of review. He looked only at whether the law’s infringement on religion was rationally related to a legitimate state interest.

“The Supreme Court has consistently held that the state has a legitimate, indeed compelling, interest in eliminating discrimination from public accommodations,” wrote Schutz.

ADF’s Warner said Phillips would appeal the ruling to the Colorado Supreme Court and, if necessary, to the U.S. Supreme Court. Yet he hopes that the nation’s highest court will in the interim provide clear guidance that will help resolve the clash between those holding a Biblical view of marriage and sexuality and activists intent on driving those views out of the public arena—including the marketplace.

In December, the Supreme Court heard oral arguments in a case pitting wedding website designer Lorie Smith against Colorado officials intent on pressing the same nondiscrimination claims against her as they did Phillips. Rather than wait to be snagged by the law, in 2016 ADF filed a pre-enforcement challenge to the law. After losing in a federal district court and a federal appeals court, Smith turned to the Supreme Court.

Legal observers widely expect a court majority to rule in Smith’s favor, a decision that could come anytime between now and late June, when the court’s term usually concludes. Yet the breadth of the ruling remains to be seen. A favorable ruling for Smith could head off another trip to the Supreme Court for Phillips because the Colorado Supreme Court would be bound to follow its reasoning.

In 2018, the Supreme Court handed Phillips a victory after the state went after him for declining to create a cake to celebrate a same-sex wedding. In a narrow ruling, the court sided with Phillips because the state’s state civil rights commission showed hostility to his religion in handling the case.

That kind of hostility by state officials is absent in the case Scardina brought against Phillips. Although the state initially investigated Scardina’s complaint, the state and Phillips reached a settlement on undisclosed terms after Phillips sued Colorado in federal court. That left Scardina to press a case against Phillips alone.

After a decade of lost business, death threats, and hateful phone calls and emails, Phillips points to his faith. “I know that God is sovereign over all of these situations, and He’s faithful and will do what He wants to do,” he said. “If He wants to use us in these trials and encourage other Christians, that's great, because it's important, not only to every American, but it's important for Christians to be able to stand and be encouraged.”