Metro Weekly

Colorado Baker Loses Appeal in Transgender Birthday Cake Case

The Colorado Court of Appeals rules that making a pink cake with blue frosting "is not inherently expressive," rejecting baker's free speech arguments.

Masterpiece Cakeshop – Photo: Jeffrey Beall, via Wikimedia

The Colorado baker who won a partial U.S. Supreme Court victory after refusing to bake a cake for a same-sex couple’s wedding lost his appeal of a lower court’s finding that he also discriminated against a transgender customer.

On January 26, the Colorado Court of Appeals ruled that Jack Phillips, the owner of Masterpiece Cakeshop, in Lakewood, Colorado, discriminated against Autumn Scardina, who asked for a custom-made birthday cake that would serve six to eight people.

Scardina asked for a pink birthday cake with blue frosting, to symbolize the anniversary of her coming out as transgender, which coincides with her birthday.

When Scardina first requested the cake, Debra Phillips, the wife of Masterpiece owner Jack Phillips, told Scardina that creating a cake with the exact specifications would not be a problem.

However, when Scardia explained the significance of the colors as being a “reflection” of her transition from male to female, Debra Phillips reversed course and said the bakery “probably could not make that cake because of the message.”

Scardina, an attorney, attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the same-sex wedding cake case. Scardina testified that she wanted to “challenge the veracity” of Phillips’ past statements that he would serve LGBTQ customers, but simply refused to bake custom-made wedding cakes for them.

Scardina later filed a complaint against Masterpiece Cakeshop with the Colorado Civil Rights Commission, alleging that the Phillips family had discriminated against her on the basis of gender identity.

The commission found probable cause that Phillips had discriminated against Scardina. 

Scardina followed up her complaint with a lawsuit alleging discrimination, based on the commission’s findings, with the matter going to trial in 2021.

The trial judge ultimately ruled in her favor, and Phillips’ lawyers appealed that decision.

Relying on the findings of the trial judge, the appeals court agreed that Masterpiece had initially agreed to make a cake conforming to Scardina’s specifications, only refusing after they were informed of the significance of the design.

The court of appeals’ ruling upheld a significant finding of the lower court ruling — that a cake meeting Scardina’s specifications, which the bakery would otherwise have made for a non-transgender customer, cannot be denied to a transgender customer solely because of their identity.

The court also ruled that baking a cake that would meet Scardina’s specifications was not a form of speech — undercutting the crux of one of Jack Phillips’ key legal arguments, which is that each cake he makes is a form of artistic expression. Phillips says compelling him to communicate a message that he does not agree with forces him to violate his Christian beliefs opposing homosexuality and same-sex marriage as well as that gender is binary and fixed at birth.

“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,” the court of appeals wrote in its ruling.

The court also rejected procedural arguments from Phillips’ legal team arguing for the lawsuit’s dismissal.

The court also found that Colorado’s Anti-Discrimination Act, which prohibits owners from refusing to provide services to people based on various protected characteristics like race, religion, or sexual orientation, does not violate business owners’ right to practice or express their religion.

The anti-LGBTQ legal organization Alliance Defending Freedom, which is representing Phillips, indicated it intends to appeal Thursday’s decision.

“One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs,” Alliance Defending Freedom senior counsel Jake Warner told The Associated Press in a statement.

But John McHugh, one of Scardina’s attorneys, said the court looked carefully at all the arguments and the evidence from the trial.

“[Jack and Debra Phillips] just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people,” he said.

In 2018, the U.S. Supreme Court ruled that the Colorado Civil Rights Commission had acted with anti-religious bias when it ruled that Jack Phillips had discriminated against gay couple Charlie Craig and Dave Mullins when he refused to create a cake for their same-sex wedding in 2012.

The high court said the commission had been dismissive of Phillips’ religious beliefs, but did not rule on the larger issue of whether a business owner’s religious objections allow them to flout nondiscrimination laws as they pertain to sexual orientation.

The high court recently heard another case challenging the Colorado Anti-Discrimination Act last year. In that case, a “Christian” graphic artist, Lorie Smith — also represented by Alliance Defending Freedom — who creates custom-made websites for weddings, is seeking an exemption from the law.

Although she has not yet been approached or asked to create a website for a same-sex couple, Smith claims the nondiscrimination law’s prohibitions on discrimination against LGBTQ individuals violate her freedom of speech and freedom of religion.

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