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Masterpiece Cakeshop Baker Loses Appeal over Gender-Transition Cake

Jack Phillips at work at Masterpiece Cakeshop in Lakewood, Colo., in 2017.(Rick Wilking/Reuters)

January 26, 2023 9:03 PMListen to article

Christian baker Jack Phillips on Thursday lost his appeal in a case that stemmed from his refusal to make a cake for an individual’s gender transition.

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A Colorado Court of Appeals three-judge panel, all appointed by Democratic governors, upheld an earlier court decision requiring Phillips to bake the cake. Attorneys from Alliance Defending Freedom (ADF) representing Phillips said Thursday they plan to appeal the ruling.

Phillips won a case before the U.S. Supreme Court in 2018 over his refusal to make a custom wedding cake for a same-sex couple. Autumn Scardina tried to order a cake from Masterpiece Cakeshop that was blue on the outside and pink on the inside in honor of Scardina’s gender transition, on the same day in 2017 that the Supreme Court announced it would hear Phillips’s appeal in the wedding-cake case.

Scardina said during a March 2021 trial that the attempt to order the cake was a test to see whether Phillips would make good on his assertion that he would sell any other type of product but opposed making a gay couple’s wedding cake because, as a Christian, he was opposed to the religious ceremony involved, according to CBS Denver.

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Scardina’s lawyer, Paula Greisen, claimed the call was not a “setup” but rather “more of calling someone’s bluff.”

Phillips’s lawyer, Sean Gates, said the baker could not create the cake because he did not agree with the message it would send: that gender transition is something to be celebrated.

He argued that it was not discrimination against Scardina and later added that Phillips had also declined to make cakes with other messages he disagreed with, such as Halloween images.

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The court found “that the act of baking a pink cake with blue frosting does not constitute protected speech under the First Amendment.”

“Additionally, the division concludes that CADA’s [Colorado Anti-Discrimination Act] prohibition against discrimination based on a person’s transgender status does not violate a proprietor’s right to freely exercise or express their religion,” the court wrote.

The court ruled Phillips’s right to an accommodation based on his religious beliefs would not override Scardina’s “protected status” because the cake request did not have an “inherent meaning or expressed message.”

ADF senior counsel Jake Warner, who is representing Phillips in the case, responded to the ruling in a statement: “No one should be forced to express a message that violates their core beliefs.”

“Over a decade ago, Colorado officials began targeting Jack, misusing state law to force him to say things he does not believe,” Warner added. “Then an activist attorney continued that crusade. This cruelty must stop. 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.”

John McHugh, an attorney for Scardina, called the ruling was a “victory” for Scardina and the “greater LGBTQ community” in a statement to the Daily Caller.

“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 told the outlet. “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.”

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