Masterpiece Cakeshop owner Jack Phillips doesn’t refuse to sell baked goods to anyone. What he objects to is baking cakes conveying a message with which he disagrees on religious grounds. So for a decade he has been subject to unrelenting lawfare trying to compel him to express views celebrating gay and transgender messages he claims are against his religious beliefs.The first of these cases involved a wedding cake for a gay wedding and went all the way to the U.S. Supreme Court which ruled in Phillips’ favor on mostly procedural grounds, as we reported in 2018, Supreme Court Ruled in Favor of Colorado Baker Who Refused to Bake Wedding Cake for Gay Couple.The Supreme Court opinion noted that the case was, in Phillip’s view, about religious freedom and forced speech:
Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.
There was a second case was over a cake celebrating gender transition, Colorado goes after Masterpiece Cakeshop again – this time over “gender transition” cake:
On June 26, 2017, the very same day the Supreme Court agreed to take the Masterpiece Cakeshop case, Attorney Autumn Scardina called the cake shop to request a “gender transition” cake. The cake shop declined, so on July 20, 2017, Scardina filed a complaint, with the Colorado Civil Rights Commission:
I believe I was unlawfully discriminated against because of my protectcd class(es) in violation of the Colorado Anti-Discrimination Act (CADA). 1.) On or about June 26. 2017, I was denied full and equal enjoyment of a place of public accommodation. Specifically, the Respondent refused to prepare my order for a cake with pink interior and blue exterior, which I disclosed was inttended for the celebration of my transition from male to female. Furthermore. 1hc Respondent indicated to me that to prepare such a cake would be against their religious beliefs. 2.) I believe I was discriminated against because of my protected class(cs).
That case was dropped, Masterpiece Cakeshop wins again – CO drops prosecution for refusal to bake ‘gender-transition cake’.
But it’s never really over, is it? There was a third case, in June 2019, Masterpiece Cakeshop Sued A Third Time, Ostensibly Over “Gender Transition” Cake. The complainant was the same woman as in case no. 2, but suing herself instead of the State of Colorado bringing the case:
Masterpiece Cakeshop in Colorado is once again the target of a lawsuit. This time, the family-run bakeshop is being sued not by Colorado but by the complainant, Attorney Autumn Scardina, in the dropped suit filed by the state….Round 3 now appears to be in progress: Scardina has now filed suit against the bakery and is seeking “damages on claims of Colorado Anti-Discrimination Act violations and deceptive and unfair trade practices.”
Phillips lost Round 3 in June 2021, Colorado Judge Fines Masterpiece Cakeshop For Refusing To Bake Gender Transition Cake
On June 15, 2021, state court judge A. Bruce Jones rendered the Findings of Fact and Conclusions of Law (pdf.), imposing a $500 fine for violation of the Colorado Anti-Discrimination Act.The Judge rejected the legal defense of freedom of religion and freedom from compelled speech:
In arguing that they should prevail in this matter, Defendants quote the stirring words of Justice Jackson in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 319 U.S. 624, 642 (1943). But as Defendants also argue, context matters. In Barnette, government officials insisted that the children of Jehovah’s Witnesses salute the flag—a basic form of compelled patriotism through symbolic speech. Id. at 627-30. That is quite different than preventing places of public accommodation from discriminating against transgender persons. The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as “others.” This case is about one such product—a pink and blue birthday cake—and not compelled speech.
An appeal was taken, and today the appeal was denied, with the court rejecting the argument that the cake was a form of speech:
The Colorado Court of Appeals ruled that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech….Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips’ shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female.“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,” said the court, which also rejected procedural arguments from Phillips.
From the Opinion:
¶ 1 This case requires us to resolve a dispute between the parties arising out of important rights that each enjoys. The plaintiff, Autumn Scardina, contends she was denied service by a bakery because of her identity as a trans woman, in violation of her right to be free from discrimination in a place of public accommodation. In contrast, the defendants, Masterpiece Cakeshop, Inc. (Masterpiece) and its proprietor, Jack Phillips, contend their decision not to make a cake for Scardina was based on their firm and sincere religious beliefs and the right to be free from compelled speech that would violate those beliefs. We agree with the trial court’s judgment in favor of Scardina and therefore affirm.***¶ 56 In a similar vein, Phillips testified he would make the same custom pink and blue cake for other customers. He stated he would make the cake if he did not know why the cake was being used, and, most critically, Phillips acknowledged that a pink cake with blue frosting “has no intrinsic meaning and does not express any message.”¶ 57 It was only after Scardina disclosed that she was transgender and intended to use the cake to celebrate both her birthday and her transition that Masterpiece and Phillips refused to provide the cake. Thus, it was Scardina’s transgender status, and her desire to use the cake in celebration of that status, that caused Masterpiece and Phillips to refuse to provide the cake.***¶ 59 …. For these reasons, we conclude that the trial court did not err by concluding that Masterpiece and Phillips discriminated against Scardina because of her status as a trans woman.***¶ 68 Masterpiece and Phillips assert that the trial court’s ruling compels them to speak in violation of their First Amendment Rights. To establish a claim for compelled speech, a defendant must show that the subject conduct constitutes (1) speech, (2) to which the defendant objects, that is (3) compelled by governmental action. Cressman v. Thompson, 798 F.3d 938, 951 (10th Cir. 2015). In this case, the second and third elements are not disputed. Thus, resolution of the issue rests upon whether the creation of a pink cake with blue frosting constitutes protected speech.***¶ 74 The question in this case, however, is not whether Phillips’ artistic efforts in creating a custom cake never or always amount to expressive conduct. Rather, the only issue presented is whether making a pink cake with blue frosting rises to the level of protected conduct….***¶ 83 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. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina.
Alliance Defending Freedom, which has represented Phillips from the start and is a premier religious liberty law foundation, says a further appeal will be taken:
“Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” said ADF Senior Counsel Jake Warner, who argued before the court on behalf of Phillips in Scardina v. Masterpiece Cakeshop. “Over a decade ago, Colorado officials began targeting Jack, misusing state law to force him to say things he does not believe. 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. The same law being used to punish Jack is also at issue now at the U.S. Supreme Court in 303 Creative v. Elenis. The Court there should reject Colorado’s attempt to mandate orthodoxy and drive views it disfavors from the public square and affirm that graphic artist Lorie Smith and all artists—writers, painters, photographers, filmmakers, calligraphers, cake artists, and more—have the right to create freely without fear of government punishment. Cultural winds may shift, but freedom of speech is foundational to our self-government and to the free and fearless pursuit of truth.”
Perhaps another trip to SCOTUS will happen. The high court looks very different than it did back in 2018, it is much more favorable to religious freedom and has a 6-3 majority on that topic. So maybe the second visit to SCOTUS will result in a ruling on the merits of whether anti-discrimination laws can be used to compel speech with which the speaker disagrees on religious grounds.
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