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Colorado baker Jack Phillips loses appeal in transgender case as Supreme Court ruling looms

An appeals court in Colorado ruled against
Jack Phillips
on Thursday after seeking to reverse a previous court decision that required him to bake a cake that celebrated a person’s gender transition.

Phillips has been ensnared in litigation for the better part of a decade due to his sincerely held
religious beliefs
that he says prevent him from designing certain cakes that celebrate themes that contradict his ideology. He won a case that went to the
Supreme Court
in 2018 after he declined to make a wedding cake for a gay couple but was sued again in the spring of 2021 after a man who self-identifies as a woman and changed his name to Autumn Scardina wanted Phillips to create a cake that was blue on the outside and pink in the middle.

The Alliance Defending Freedom, a legal group that represents Phillips’s business, Masterpiece Cakeshop, signaled a plan to appeal to the state Supreme Court, according to a press release.

“Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,”
ADF senior counsel Jake Warner, who argued before the court on behalf of Phillips in Scardina v. Masterpiece Cakeshop.


Judge Timothy Schutz authored the appeals court panel’s
44-page opinion
, affirming an earlier trial court ruling against Phillips, finding that he violated the Colorado Anti-Discrimination Act by not creating a cake to celebrate a person’s gender transition.

“Scardina testified [he] requested a custom pink and blue cake with no message or other design elements. The trial court found that [Masterpiece co-owner] Debra agreed to make that cake but then retracted the commitment once Scardina told her what the cake was for,” wrote Schutz.

The act of baking a pink cake with blue frosting “does not constitute protected speech under the
First Amendment
,” Schutz said.

“Additionally, the division concludes that [Colorado Anti-Discrimination Act’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,” the judge added.

Meanwhile, the ADF is already representing a separate client in a case known as
303 Creative v. Elenis
that the nine justices in Washington, D.C., heard last fall, which challenges the same law that has kept Phillips in court.

Lorie Smith, Kristen Waggoner

Lawyer Kristen Waggoner of the Alliance Defending Freedom, center, accompanied by by her client, Lorie Smith, a Christian graphic artist and website designer in Colorado, right in pink coat, speaks outside the Supreme Court in Washington, Monday, Dec. 5, 2022.

Andrew Harnik/AP

Following oral arguments on Dec. 5, ADF CEO and lead counsel Kirsten Waggoner told the Washington Examiner several conservative justices including Amy Coney Barrett
“identified the real issue”
of the “constitutional injury” her client faces against Colorado’s law.

Unlike Phillips’s legal battles, web designer and graphic artist Lorie Smith, founder of her company 303 Creative, has not been asked to conduct work that violates her sincere religious beliefs. Rather, she is challenging the Colorado Anti-Discrimination Act preemptively out of fear that she will be sued if she declines to make a wedding website for a same-sex couple. She’s also arguing her case on free speech grounds under the First Amendment rather than citing her religious objections.

When Phillips won his litigation before the high court in 2018, the justices decidedly avoided addressing whether the Colorado Anti-Discrimination Act breached the First Amendment, only holding that the Colorado Civil Rights Commission unfairly targeted him under the law.

During oral arguments in Smith’s case, Justice Neil Gorsuch suggested that under the Colorado Anti-Discrimination Act, Colorado forced Phillips to undergo a “reeducation program” when he refused to create a custom cake for a same-sex marriage.

Colorado argued that Smith’s business qualifies as a public accommodation that required her to serve every member of the community, including creating custom webpages for same-sex couples that would be celebrating such unions. Smith’s counsel contends her objections are based on the content she is requested to create, noting she has served LGBT clients for other requests in the past that don’t relate to sexual orientation.

While six Republican-appointed justices appeared to be swayed by Smith’s arguments, three Democratic-appointed justices raised concerns about how a ruling favoring Smith could extend further and allow vendors to refuse service on the basis of race.


“How about people who don’t believe in interracial marriage or people who don’t believe disabled people should be married?” Justice
Sonia Sotomayor
, an appointee of President Barack Obama, asked. “Where’s the line?”

A ruling in 303 Creative is expected before the end of June this year that could affect Phillips’s case if the high court deems the Colorado law infringes on First Amendment protections.

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