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 he violated the state’s anti-discrimination law by refusing to make a cake celebrating a gender transition.
A lawyer for Jack Phillips on Wednesday urged Colorado’s appeals court — largely on procedural grounds — to overturn last year’s ruling in a lawsuit brought by a transgender attorney.
Autumn Scardina, a male trial lawyer who identifies as a woman, called Phillips’ suburban Denver cake shop in 2017 requesting a birthday cake that had blue frosting on the outside and was pink inside to celebrate his “gender transition.”
At trial last year, Phillips, a Christian, testified he did not believe someone could change genders and he would not celebrate “somebody who thinks that they can.”
Jake Warner, an attorney representing Phillips from the conservative Christian legal advocacy group Alliance Defending Freedom, said the ruling was wrong. 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, violating his constitutional right to free speech.
10 years of harassment
1 #SCOTUS win
3 separate legal cases
…and Jack Phillips is still in court.
That’s why we need a definitive SCOTUS ruling in our upcoming case, 303 Creative. Free speech is for everyone.#CreateFreely
— Alliance Defending Freedom (@ADFLegal) October 5, 2022
Judge Timothy Schutz, who was appointed by Democratic Gov. Jared Polis, noted Phillips’ wife initially told Scardina the bakery could make the cake before Scardina volunteered that the design was meant to celebrate his transition to a woman.
One of Scardina’s lawyers, John McHugh, said Scardina did not ask the shop to endorse his idea, just sell him a cake that it would sell anyone else.
Both Scardina and Phillips spoke outside the court of larger issues involved.
The transgender lawyer claimed the case was about the “dignity of LGBTQ Americans and Coloradans and the rule of law.”
Phillips said he was fighting for the rights of all Americans to live according to their consciences “without fear of punishment” by 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 declined to bake a cake celebrating the wedding of Charlie Craig and Dave Mullins in 2012. The justices called the commission unfairly dismissive of Phillips’ religious beliefs.
The high court did not rule on the larger issue of whether a business can turn away LGBT-oriented requests based on religious objections. But it will get another chance when it 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 decline 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 Colorado’s law violates her free speech and religious rights.
In agreeing to take the case, the Supreme Court said it would only examine the free speech issue.
Smith is also defended by Alliance Defending Freedom. Phillips’ lawyers unsuccessfully asked Colorado’s appeals court to delay hearing arguments in his challenge until after the Supreme Court rules in Smith’s case.
Scardina 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. He testified he wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBT customers.
Before filing suit, Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that Phillips had discriminated against her. Phillips then filed a federal lawsuit against Colorado, citing its “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. Warner told the appeals court panel that Scardina was required to appeal to the state appeals court first before filing a lawsuit, and since he did not, the ruling against Phillips should be thrown out because the state court judge who heard the lawsuit did not have jurisdiction.
McHugh argued the settlement did not reach a conclusion on Scardina’s discrimination claim so there was nothing to stop him from filing a lawsuit against Phillips to pursue it.
After the trial of the lawsuit last year, Denver District Judge A. Bruce Jones rejected Phillips’ argument that making the cake would constitute compelled speech, claiming it was simply a product sold by a business that couldn’t be withheld from people who have traditionally been treated unfairly and are protected by the state’s anti-discrimination law.
The Democrat-nominated judge said Phillips’ decision not to provide the requested cake was “inextricably intertwined” with his refusal to recognize Scardina as a woman.
The Western Journal has reviewed this Associated Press story and may have altered it prior to publication to ensure that it meets our editorial standards.
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