DENVER –
The Colorado baker who won a partial Supreme Court victory after refusing on religious grounds to make a gay couple’s wedding cake a decade ago is challenging a separate ruling that violated state anti-discrimination law by refusing to make a cake to celebrate gender transition.
An attorney for Jack Phillips on Wednesday urged the Colorado appeals court, largely on procedural grounds, to overturn last year’s ruling in a lawsuit brought by a transgender woman.
The woman, Autumn Scardina, called Phillips Bakery in suburban Denver in 2017 to request a birthday cake that had blue frosting on the outside and pink on the inside to celebrate her gender transition. At last year’s trial, Phillips, a Christian, testified that he didn’t believe someone could change gender and that he wouldn’t celebrate “someone who thinks he can.”
Jake Warner, an attorney representing Phillips with the conservative Christian legal advocacy group Alliance Defending Freedom, said the ruling was incorrect. He said requiring Phillips to create a cake with a message contrary to his religious beliefs amounts to forcing him to say something he does not believe in, violating his right to free speech.
Judge Timothy Schutz noted that Phillips’ wife initially told Scardina that the bakery could make the cake before Scardina volunteered for the design to celebrate her gender transition.
One of Scardina’s attorneys, John McHugh, said Scardina didn’t ask the store to back his idea, he just sold him a cake that he would sell to anyone else. He said that whether or not Phillips sells someone a cake he can’t depend on what the customer tells him when he’s making the cake.
Both Scardina and Phillips spoke outside of court about larger issues involved. Scardina said the case was about the “dignity of LGBTQ Americans and Coloradans and the rule of law.” Phillips said she was fighting for the rights of all Americans to live according to their consciences “without fear of punishment” from the government.
In 2018, the Supreme Court ruled that the Colorado Civil Rights Commission had acted with anti-religious bias in enforcing the anti-discrimination law against Phillips after he refused to bake a cake to celebrate the wedding of Charlie Craig and Dave Mullins in 2012. The justices called the commission unfairly dismissive of Phillips’s religious beliefs.
The high court then did not rule on the broader question of whether a company can invoke religious objections to deny service to LGBTQ people. But he’ll get another chance when he hears a different case in the coming months challenging Colorado’s anti-discrimination law.
The case involves Denver-area designer Lorie Smith, who wants to offer wedding website services but says her Christian beliefs would lead her to reject any request from a same-sex couple to design a wedding website. She also wants to post a statement on her website about her beliefs, but says the Colorado law violates her free speech and her religious rights.
In agreeing to take the case, the Supreme Court said it would only examine the issue of freedom of expression.
Smith is also defended by the Alliance Defending Freedom. Phillips’ attorneys unsuccessfully asked the Colorado appeals court to delay hearing arguments in his challenge until after the Supreme Court ruled in Smith’s case.
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 wedding cake case. Scardina testified that she wanted to “challenge the veracity” of Phillips’s statements that she would serve LGBT clients.
Before filing the lawsuit, Scardina first filed a complaint against Phillips with the state and civil rights commission, which found probable cause that Phillips had discriminated against her. Phillips later filed a federal lawsuit against Colorado, accusing him of a “crusade to crush him” by filing the complaint.
In March 2019, attorneys for the state and Phillips agreed to drop both cases under a settlement in which Scardina was not involved. Warner told the appellate court panel that Scardina should appeal to the state appellate court first before suing, and since she didn’t; the judgment against Phillips should be vacated because the state court judge who heard the lawsuit did not have jurisdiction.
McHugh argued that the settlement did not reach a conclusion on Scardina’s discrimination claim, so there was nothing to prevent him from filing a lawsuit against Phillips to proceed.
After the trial of the lawsuit last year, Denver District Judge A. Bruce Jones rejected Phillips’s argument that making the cake would constitute forced speech, saying it was simply a product sold by a company that it could not refuse to buy. people who have traditionally been treated unfairly and are protected by state law from discrimination. He said Phillips’ decision not to provide the requested cake was “inextricably intertwined” with his refusal to acknowledge Scardina as female.