Nine years ago, a gay couple went into Masterpiece Cakeshop and asked baker Jack Phillips to craft a cake to celebrate their same-sex wedding. Phillips refused, based on his Christian conviction that marriage is between one man and one woman, but he offered to sell the men anything else in the shop. They reported him to the Colorado Civil Rights Commission, sparking a six-year legal battle up to the Supreme Court. Shortly after the Supreme Court found in favor of Phillips, a transgender lawyer targeted the Christian baker, beginning the battle all over again.
On Thursday, the Denver County district court granted Phillips a partial victory, striking down one of the legal claims the transgender lawyer, Autumn Scardina, brought against him. Yet the court refused to drop Scardina’s other claim in the lawsuit, leading to protracted litigation, once again.
“The decision by the court to dismiss one of the claims against Jack Phillips is the first step towards final justice,” Kristen Waggoner, general counsel at Alliance Defending Freedom (ADF), the firm representing Phillips, said in a statement on Thursday.
“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. Tolerance for different opinions is essential. We look forward to defending Jack—and ultimately prevailing—on the remaining claim,” Waggoner added.
According to ADF, Scardina first approached Masterpiece Cakeshop on June 26, 2017, the very day the Supreme Court agreed to hear Phillips’ case. Scardina, a biological male who identifies as a female, requested cake art celebrating his gender transition. The shop declined the request, since creating such a cake would violate Phillips’ religious beliefs about gender.
A few days later, another caller from a number associated with the name “Scardina” asked for a “birthday” cake for Satan, complete with a red and black theme and an image of Satan smoking marijuana. Phillips denied this cake as well.
On June 4, 2018, the day the Supreme Court issued its decision, someone emailed Phillips claiming to be a “member of the Church of Satan.” The email requested a “three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” black Dildo [sic]. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake.”
Scardina’s law practice states, “We take great pride in taking on employers who discriminate against lesbian, gay, bisexual and transgender people and serving them their just desserts.”
Scardina first went to the Colorado Civil Rights Commission, which found probable cause that Phillips had discriminated against the lawyer on the basis of sexual identity. Ultimately, the commission dropped the case, but Scardina himself filed a lawsuit against Phillips.
Scardina alleged that Masterpiece Cakeshop violated the Colorado Consumer Protection Act (CCPA) by engaging in deceptive advertising and that the bakery violated the Colorado Anti-Discrimination Act (CADA) by discriminating against him on the basis of his gender identity.
Scardina claimed that Phillips advertised his willingness to serve LGBT people in his shop, but he intended not to sell birthday cakes to them, in a bait-and-switch.
Yet Denver District Court Judge A. Bruce Jones ruled that Scardina had failed to show that Phillips even advertised this message. The transgender lawyer pointed to numerous press reports about Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), along with photographs of birthday cakes on the Masterpiece Cakeshop website.
Jones noted, however, that “Phillips was speaking on a matter of public concern: his legal case. … These materials are not commercial speech, and thus cannot be classified as advertisements under the CCPA.”
Scardina claimed that “Phillips and his bakery attempted to exploit the news coverage by stating they would sell birthday cakes to LGBT customers.” Jones rightly dismissed this preposterous argument. “If Defendants were engaged in such a stealth advertising campaign, they successfully disguised it within their speech on a matter of public concern,” he wrote.
As for the photographs, they qualify as advertisements but “are not deceptive standing alone.”
Jones ruled that “the Court sees no meaningful distinction between punishing Defendants for their noncommercial speech and punishing them for advertisements as contextualized by Plaintiff via reference to separate noncommercial speech. The First Amendment would not tolerate either circumstance.”
While the judge dismissed Scardina’s CCPA claim, he did not dismiss the CADA claim.
Phillips argued that Masterpiece Cakeshop would not make a cake celebrating a gender transition for anyone, yet Jones noted that the Colorado Court of Appeals dismissed a similar argument in Craig v. Masterpiece Cakeshop (2018).
“Making a pink cake with blue frosting, the design [Scardina] requested, would at most be symbolic speech. As such, the relevant inquiry is whether making Plaintiff’s cake would have been inherently expressive conduct,” Jones argued. “Whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.”
The judge ruled that making such a cake would not necessarily “convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design.”
So Jack Phillips and his counsel at ADF face yet another court battle, in which they will work to prove that Masterpiece Cakeshop’s cakes are expressive speech and that being forced to bake a cake to celebrate transgender identity would violate Phillips’ free speech and religious freedom rights.
Even though the Supreme Court ruled in favor of Phillips, it did not rule on the central question at issue: whether or not the creation of cakes or other art celebrating same-sex weddings (or other events to which Christians like Phillips would object, such as a gender transition party) constitutes protected speech under the First Amendment.
In the wake of the Supreme Court’s horrific decision in Bostock v. Clayton County (2020) — which redefined “discrimination on the basis of sex” to include discrimination on the basis of “sexual orientation” and “gender identity” — this question is more important than ever.
Under Bostock and President Joe Biden’s related executive order, Christians and conscientious objectors across the country could face protracted legal battles like the one Jack Phillips currently faces. If Democrats manage to pass H.R. 5, the “Equality Act,” that would eviscerate religious freedom, carving out a specific exemption from religious freedom protections just for claims of discrimination on the basis of sexual orientation and gender identity.
Laws against discrimination on the basis of sexual orientation and gender identity have enabled LGBT activists to target dissenters like Phillips for prosecution in the service of ideological enforcement.
The same commission that hounded Phillips defended another baker’s right to refuse to create cakes that stated a message with which she disagreed. Worse, the commission compared Phillips’ actions to Nazi apologists, even though Phillips’ own father fought the Nazis and liberated a concentration camp in World War II.
Scardina’s lawsuit only underscores the fact that activists will seek to use Bostock and Biden’s order to hound Christian artists out of existence.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.