DENVER (LifeSiteNews) – The Colorado Court of Appeals has ruled against Christian baker Jack Phillips’ right to decline to create cakes with messages that go against his religious beliefs in the latest chapter of the artist’s ongoing struggles since the U.S. Supreme Court refused to decisively settle his case.
In 2018, Autumn Scardina filed a complaint against Phillips, the proprietor of Masterpiece Cakeshop, for declining to bake a cake that would be pink on the inside and blue on the outside to celebrate his “transition” from male to female. Colorado Civil Rights Division (CCRD) director Aubrey Elenis claimed there was probable cause to conclude Phillips had unlawfully denied Scardina “equal enjoyment of a place of public accommodation.”
In response, the religious liberty nonprofit Alliance Defending Freedom (ADF) filed a federal lawsuit against outgoing Democrat Gov. John Hickenlooper and the state civil rights commission, accusing them of ignoring the Supreme Court’s 2018 ruling in Phillips’ favor over same-sex “marriage” cakes and continuing to discriminate against Phillips’ faith.
In March 2019, the state Attorney General’s office announced that it and Phillips’ attorneys “mutually agreed to end their ongoing state and federal court litigation,” including the CCRD action against Phillips, though the agreement did not preclude Scardina from filing a civil suit of his own in state court, which he did.
On Thursday, Division IV of the state appeals court ruled that “the act of baking a pink cake with blue frosting does not constitute protected speech under the First Amendment,” that enforcing the Colorado Anti-Discrimination Act against Phillips was not “an application of an unconstitutional ‘offensiveness rule,’” and that “CADA’s prohibition against discrimination based on a person’s transgender status does not violate a proprietor’s right to freely exercise or express their religion.”
“Phillips testified he would make the same custom pink and blue cake for other customers,” the ruling says. “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.’”
“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,” the opinion goes on. “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.”
“Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” ADF senior counsel Jake Warner said in response to the ruling. “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.”
As to the particulars of the court’s argument, which ADF will be appealing, Warner told the Daily Caller that Supreme Court precedent recognizes that “symbolic speech” without a written message is still constitutionally protected.
“What we have here is a cake that symbolically expresses the message and the Supreme Court in many cases throughout history has recognized that symbolic speech is protected speech,” he said. “Just because speech is symbolic does not mean it’s not protected, quite the opposite, the First Amendment says the government can’t force you to promote even symbolic speech that you disagree with.”
Phillips’ years of ongoing legal battles stem in large part from the nation’s highest court declining to issue a clear ruling on the core issues of the dispute when it had an opportunity to do so. Instead of clearly affirming that Phillips’ First Amendment rights had been violated, as conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch had advocated in concurring opinions, former Justice Anthony Kennedy’s majority opinion found that the state civil rights commission had displayed a “clear and impermissible hostility toward” the baker’s “sincere religious beliefs.”
ACLU attorney David Cole, who represented the gay couple that sued Phillips, wrote at the time that his side had “lost a battle but won the war,” interpreting Kennedy’s words to mean that absent such hostility, “states are free to require businesses, including bakers, to serve gay and lesbian customers equally, including in the provision of wedding cakes.” Cole went so far as to say the plaintiffs “could go right back into Masterpiece Cakeshop today and request a cake to celebrate their wedding anniversary.”
As a result, Phillips has “been in litigation for almost 10 years,” ADF attorney Jonathan Scruggs has lamented.