WASHINGTON — Colorado baker Jack Phillips — whose refusal to make a wedding cake for a same-sex couple led to a Supreme Court case — lost his case before a state appeals court over his refusal to make a birthday cake celebrating a gender transition.
The Colorado Court of Appeals ruled on Jan. 26 that the requested pink cake with blue frosting ordered in 2017 is not a form of speech and that Phillips’ refusal to make it violated a state anti-discrimination law.
Phillips, who was represented by Alliance Defending Freedom attorneys, plans to appeal the court’s decision.
“Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” said Jake Warner, senior counsel for the Arizona-based law firm.
The appeals court decision in 2021 sided with a trial judge’s ruling that said Phillips, the owner of Masterpiece Cakeshop, violated Autumn Scardina’s rights by denying her service once he realized the cake was to celebrate her gender transition.
When the case was argued at the trial court, Phillips said he didn’t believe someone could change genders, and he did not celebrate “somebody who thinks that they can.”
Scardina initially filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that Phillips had discriminated against her. Phillips, in turn, filed a federal lawsuit against the state of Colorado, saying it was engaged in a “crusade to crush” him by pursuing Scardina’s complaint.
The case echoes the 2018 Masterpiece Cakeshop case, where the Supreme Court sided with Phillips in its 7-2 ruling but stopped short of creating a free speech exemption to anti-discrimination laws.
Justice Anthony Kennedy, writing for the majority, said the opinion had a limited scope and “must await further elaboration.”
The nation’s high court revisited the broader issues raised in this decision in a case it heard last fall about a Colorado graphic designer, Lorie Smith, who said she does not want to create wedding websites for same-sex couples based on her Christian beliefs about marriage. A decision on that case is expected this June.
The U.S. Conference of Catholic Bishops (USCCB), joined by the Colorado Catholic Conference and other religious groups, sided with the designer as they did with Phillips when his case went before the Supreme Court.
In an amicus brief, they said the website case gives the court the chance to clarify free speech issues it fell short of doing in 2018.
The USCCB’s brief said there is a “pressing need for the court to clarify how the compelled speech doctrine applies to wedding-vendor cases and other disputes.”
It also said Smith’s case “provides an appropriate and especially important opportunity to invoke free speech protections again to address the ongoing tensions in wedding-vendor cases and in the current cultural context more broadly.” The brief also implored the court to “protect individuals from compelled speech and to provide space in the public square for minority voices.”