On the heels of a U.S. Supreme Court victory this summer for a graphic artist who didn’t want to design wedding websites for same-sex couples, Colorado’s highest court said Tuesday it will now hear the case of a Christian baker who refused to make a cake celebrating a gender transition.
The announcement by the Colorado Supreme Court is the latest development in the yearslong legal saga involving Jack Phillips and LGBTQ+ rights.
Phillips won a partial victory before the U.S. Supreme Court in 2018 after refusing to make a gay couple’s wedding cake.
He was later sued by Autumn Scardina, a transgender woman, after Phillips and his suburban Denver bakery refused to make a pink cake with blue frosting for her birthday and to celebrate her gender transition.
Scardina, an attorney, said she brought the lawsuit to “challenge the veracity” of Phillips’ statements that he would serve LGBTQ+ customers. Her attorney said her cake order was not a “set up” intended to file a lawsuit.
The Colorado Supreme Court didn’t explain how or why it made the determination to hear the case. It was announced in a long list of decisions about which cases they will hear and reject.
The case involves the state’s anti-discrimination law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation. The key issue in the case is whether the cakes Phillips creates are a form of speech and whether forcing him to make a cake with a message he does not support is a violation of his First Amendment right to free speech.
Earlier this year, the Colorado Court of Appeals sided with Scardina in the case, ruling that the cake — on which Scardina did not request any writing — was not a form of speech. It also found that the state’s anti-discrimination law does not violate business owners’ right to practice or express their religion.
Graphic artist Lorie Smith, who is also from Colorado and is also represented by the Alliance Defending Freedom, challenged the same state law in the 303 Creative case that was decided by the U.S. Supreme Court in June. The court’s conservative majority said forcing her to create websites for same-sex weddings would violate her free speech rights.
Both sides in the dispute over Scardina’s cake order think the new U.S. Supreme Court ruling will bolster their arguments.
“We are grateful that the Colorado Supreme Court will hear Jack Phillips’ case to hopefully uphold every Coloradan’s freedom to express what they believe,” said Jake Warner, Phillips’ Alliance Defending Freedom attorney. “Jack has been targeted for years by opponents of free speech, and as the U.S. Supreme Court recently held in 303 Creative v. Elenis, no one should be forced to express messages they disagree with.”
Scardina’s attorney, John McHugh, said that the 303 Creative ruling was narrow and applied only to businesses that are creating speech of their own — which the Colorado Court of Appeals had already ruled did not include Phillips’ company making the cake.
“It’s very important for businesses and the public in Colorado to understand that our anti-discrimination law still is in full force and there is no general right to discriminate against people in Colorado if you’re a business owner,” McHugh said.
Phillips asked the state Supreme Court to consider his appeal in April.
University of Denver Law Professor Alan Chen said Tuesday that the Colorado Supreme Court will have to determine if baking a pink cake with blue frosting and no writing “is more like designing a website or more like renting chairs.”
“If it’s not speech, then the only reason that Phillips is refusing to make it is because of the transgender status of his client, and that violates the law,” Chen said.
Scardina attempted to order her cake on the same day in 2017 that the U.S. Supreme Court announced it would hear Phillips’ appeal in the wedding cake case.
Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that he had discriminated against her.
Phillips then filed a federal lawsuit against Colorado, accusing it of a “crusade to crush” him by pursuing the complaint.
In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement Scardina was not involved in. She pursued the lawsuit against Phillips and Masterpiece Cakeshop on her own.
No date was set for a hearing in the case. Both sides will have to submit their legal arguments to the court in the coming months.
