Cake baker who refused to bake ‘gender transition cake’ ruled against in Colorado appeals court again

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By KATE ANDERSON | THE 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.

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 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 Daily Caller News Foundation 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.”

23 COMMENTS

  2. They just keep pushing and demanding. There must not be any other cake stores around for the alphabet group to order cakes from. Maybe they should take the money spent on overpriced lawyers and start their own cake bakery.

  4. THIS HAS GONE FAR ENOUGH!!!!! We the people, we patriots need to get behind those who refuse to compromise their moral compass!!! Let us not stand by, doing nothing. Speak up!!!

  5. This has absolutely nothing to do with a cake. It’s all about an agenda because Mr. Scardina could have just requested the cake, as he did WITHOUT saying a word about it’s intent. But no, he went in there knowing exactly what he was doing with a well thought out plan. Me, if I were Jack Phillips would have made a cake with the outside color frosting as requested (blue) but make the cake itself red and white. Then, knowing Mr. Scardina would return all sorts of pissed off, I’d just apologize and offer a refund. Phillips just didn’t play this game right.

  6. Why can’t these people find a bakery that will cater to their beliefs instead of harassing Mr. Phillips? Whatever
    happened to “No shirt, No shoes, No service “. I’m so sick of gays & trans and their agenda, it is hard to be
    tolerant these days.

  8. You left out a few facts:
    1. In his previous court case, the baker asserted that he would not deny service to LGBTQ customers, he just couldn’t include aspects that violated his faith (i.e., two grooms on top);
    2. The plaintiff specifically targeted this baker, because she didn’t believe said assertion;
    3. The reason the court found “no inherent meaning or expressed message” on the cake is because it had no symbols, figures, or writing. It was simply a color scheme that represented something to the plaintiff.
    4. The baker originally agreed to make the cake, finding nothing offensive about the color scheme.
    5. The baker rescinded his agreement after the plaintiff (weeks later) told him the personal significance of the color scheme.

    So now the baker is moving the goalposts. It’s not so much that creating a cake with an LGBTQ message violates his faith, it’s that providing any cake to any LGBTQ customer violates his faith. If you support this position, do you also support (say) a car wash refusing an LGBTQ driver? And if you support that (which I’m sure some MRAK readers do), how is that different from a car wash attendant refusing a conservative, or a Christian, or an Asian?

  9. Do word of mouth advertising only. Do not have a lobby. Remove open closed signage and hours open. Operate in the private. By appointment only. Freedom of economic association. File a written protest with your legislature immediately one or two-page protest eho what where why double spaced to federal evidence standards. If ignored by legislative file one separately against them personally with judicial notice of by appointment only status confirmed by cpa.

  11. I’ll take this seriously when the complaint goes to a Muslim baker and asks for the same. With a side of pork chops.

  12. They can keep him tied up and definitely in the Supreme Court which he will when every time. They just want to keep their name in the funny papers. I would go ahead and bake the blue and pink cake. It doesn’t mean it has to taste good.

    • Maybe Mr Scardina should be presented with a ‘special case’ and forced to work that. Maybe represent a straight person that was assaulted by LGBT activists.

  13. We have the right to contract without neighbors stepping in. A paints my fence for x. He’s happy. I’m happy. It’s not your business. He is NOT obliged to paint your fence for whatever reasons.

  14. It is impossible to be equally “fair” to everyone. A business owner is just as entitled to have reservations as anyone. If he excludes services to certain groups then he will not receive revenue from this group or their sympathizers. There’s many extreme examples that could be applied for conjecture, but nobody should be forced into servitude against their will, regardless of the reasons. This used to be called slavery.

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