DENVER (CN) — The owner of Masterpiece Cakeshop in Lakewood asked the Colorado Supreme Court on Tuesday to reverse a lower court’s finding that he discriminated against a transgender woman when he refused her request to make a pink birthday cake with blue frosting to commemorate her transition.
“Jack Phillips is an artist, he creates cakes for anyone, but he cannot create any message,” the baker’s attorney Jacob Warner argued in front of the state's high court.
Warner practices with the conservative advocacy firm Alliance Defending Freedom.
Phillips has been making a similar argument for more than a decade — since denying a gay couple’s commission for a wedding cake in 2012, citing his Christian beliefs to support his opposition to same-sex marriage.
The couple filed a complaint with the Colorado Civil Rights Commission, which went up to the U.S. Supreme Court. In June 2018, the high court narrowly sided with Masterpiece Cakeshop, finding the commission had not treated Phillips with “neutral and respectful consideration" and had made “official expressions of hostility to religion” in handling the case.
The justices did not weigh in on whether Phillips had discriminated against the couple by refusing to make their wedding cake.
In 2017, Autumn Scardina said she believed Phillips when he told the public he would make birthday cakes for anyone. She called to order a pink cake with blue frosting to celebrate the anniversary of her transition.
When Phillips refused, Scardina filed a new complaint with the Colorado Civil Rights Commission. Since this was not his first course with the commission, Phillips sued the state for harassment in federal court.
In 2019, the state and Phillips reached a settlement and withdrew their complaints, leaving Scardina with an empty plate. She sued the cakeshop directly in Denver state court in June 2019.
Phillips has held that Scardina should have appealed the settlement, rather than sue him directly — an argument rejected by two previous courts.
A Denver judge held a remote trial in March 2021 and, after finding in favor of Scardina, awarded her a $1 judgment. The Colorado Court of Appeals affirmed the ruling last year.
Phillips appealed to the Colorado Supreme Court. The court’s seven justices, who were all appointed by the state's last three Democratic governors, posed several hypotheticals, working to parse out the boundary where free speech collides with discrimination.
Phillips certainly couldn’t be compelled to design a gender-transition cake from the idea up, the court agreed. And he couldn’t be forced to draw explicit symbols or spell out words he didn’t believe in. But could he be required to create a plain white cake for a nonbinary customer — or custom rainbow cakes during Pride Month?
“What if one customer ordered a cake for her fraternal twins, another ordered a gender transition cake, another didn’t say what the cake was for, and a fourth said ‘I was pregnant with twins, and they died before I gave birth, so I’m ordering a pink cake with blue icing, and I’m going to go home and shove it down the sink,’” Justice Melissa Hart posed.
“The meaning changes when the customer takes it home," she continued, "but no one would know if you made four identical cakes and they all went to the wrong houses.”
Warner countered that the context matters, especially for the baker.
“Cakes can appear facially identical, but even the same words can have different meaning in different context, like ‘my body my choice,’ which has different meaning to abortion advocates and anti-vaxers,” the attorney argued.
Last year in 303 Creative v. Elenis, the U.S. Supreme Court sided with a Christian website designer who preemptively sued fearing she would be compelled to design websites for same-sex weddings.
Although that case was also backed by the Alliance Defending Freedom, Justice William Hood found key distinctions in the requested commissions.
“I wonder if that case is really on point, where she would vet the couple and learn about them to tell their story,” Hood said.
“Public accommodations laws are designed to get away from, ‘Your kind isn’t welcome here,’ and it seems like you’re substituting ‘message’ for ‘kind.’”
In response, Warner circled back to the distinction between serving a person and creating a message.
“Mr. Phillips has testified he will not make any baked good for LGBTQ people that reflects their identity as LGBTQ,” said Scardina’s attorney, John McHugh, of the Denver firm Fennemore Craig. “He will not make rainbow cakes in June or something that reflects their role as a parent or spouse.”
McHugh asked the panel to affirm the findings of the trial court and Court of Appeals.
Following arguments, Chief Justice Brian Boatright thanked the parties, but did not indicate when or how the court would decide the case. Justices Richard Gabriel, Monica Marquez, Carlos Samour and Maria Berkenkotter rounded out the panel.
Outside the Ralph L. Carr Colorado Judicial Center, Phillips spoke to press, flanked by supporters holding signs declaring “Justice for Jack.”
“Activists have tried to punish me for my beliefs, and they have tried to make me change my beliefs, but I believe in free speech,” Phillips said. “The government cannot force Americans to make speech they do not believe in.”
After the crowd cleared, Scardina stepped up to the microphone with her attorneys by her side.
“There is no message in a pink and blue cake. He said he would make the cake for anyone else, but he would not make it for someone who is transgender,” Scardina said. “The only message I’m asking him to send is ‘I’m open to all.’”
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