The First Amendment prohibits the government from acting with hostility against sincere religious beliefs, yet Colorado twice prosecuted Christian baker Jack Phillips with such hostility. This week, Phillips got another chance to defend himself against another kind of hostility—the anger of a male lawyer named Autumn Scardina, who identifies as female and said he wanted to “correct the errors of [Phillips’] thinking.”
Phillips believes that marriage is between one man and one woman and that God made human beings male and female. As such, he refused to celebrate a same-sex “marriage” by crafting a custom cake for an event between two men, and he also refused to celebrate a gender transition by crafting a cake with pink on the inside and blue on the outside—the cake Scardina requested.
Phillips has repeatedly argued that his First Amendment right to free speech protects his ability to refuse to celebrate messages with which he disagrees, and he has noted that he refuses to bake cake art celebrating Halloween, for example. The Colorado Civil Rights Commission argued that Phillips had discriminated against the same-sex couple on the basis of their sexual orientation, and against Scardina on the basis of his gender identity.
Phillips has clarified that he will serve everyone regardless of sexual orientation or gender identity. Still, he will not use his cake art to celebrate all messages, particularly the idea that a same-sex ceremony is the same as a wedding and that a man can become a woman.
The Supreme Court dismissed the commission’s charges in 2018, ruling that the commission had acted with “clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’] objection.” The commission dismissed its second case against Phillips in 2019 after Phillips again uncovered evidence that the commission continued to act with hostility toward his faith.
Commission members hadn’t just assumed that Phillips’ refusal to bake the cake was motivated by hate, not sincere belief. In 2014, a commissioner had declared that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination.”
Phillips’ own father fought the Nazis in World War II. In a 2018 hearing, Phillips recalled that his father “landed in Normandy, he crossed France and Germany, he got a Purple Heart because of a mortar attack — which sent him back to England, patched him up, sent him back to combat in Germany. He finished the war there.”
His father also liberated the Buchenwald concentration camp. “For this commissioner to compare the decision not to bake the cake portraying this message that was so antithetical to my belief about marriage, comparing that to the Holocaust, it was just such an insult,” Phillips said at the time.
On the same day the Supreme Court ruled in Phillips’ favor in 2018, Scardina placed a call to Masterpiece Cakeshop. He requested a custom cake to celebrate his alleged gender transition. After Phillips declined, Scardina called back, requesting a second custom cake depicting Satan smoking marijuana—to “correct the errors of [Phillips’] thinking.”
Phillips declined this request as well. Yet this comment seems to reveal the exact same hostility Colorado impermissibly exercised against the baker.
What, exactly, are the “errors” of Phillips’ thinking? Scardina may disagree with the baker’s views on marriage and gender, but does that mean he must be compelled to adopt Scardina’s own views?
A Colorado appeals court upheld Scardina’s claim against Phillips in January, and Alliance Defending Freedom, Phillips’ law firm, appealed the ruling to the Colorado Supreme Court in April.
In June, the U.S. Supreme Court upheld the rights of 303 Creative owner Lorie Smith, a Colorado graphic designer who wanted to expand her business to serve weddings. She feared that, under the way Colorado applied the Colorado Anti-Discrimination Act—the same act that Colorado claimed Phillips violated—she would not be able to offer her services only to weddings involving one man and one woman, according to her beliefs. In fact, the law suggested it would be illegal for her to speak or advertise about her beliefs if she opened her business to weddings.
She argued, like Phillips, that she would not discriminate against people who identify as lesbian or gay, but that she would not offer her creative services to celebrate a same-sex wedding. The Supreme Court agreed, ruling that Smith abiding by her beliefs in her business did not constitute discrimination against people on the basis of their sexual orientation.
The Supreme Court ruled that Colorado cannot misuse its law to punish and coerce people it disagrees with.
In Phillips’ case against Scardina, ADF filed a supplemental brief, citing the 303 Creative case as a reason for the Colorado Supreme Court to reconsider the January ruling. This week, the Colorado Supreme Court agreed to take up that case.
The current case, like Smith’s, revolves around the issue of free speech. Does Jack Phillips have the free speech right to refuse to celebrate a gender transition by baking a celebratory cake? Scardina claims that Phillips has discriminated against him for his gender identity, but Phillips says he would not bake a cake celebrating a gender transition even if a non-transgender person requested it.
The trial court in the case found that the requested custom cake “symbolized a transition from male to female,” since the color pink “represents female or woman” and the color blue “represents male or man.” The court further found that the cake’s “symbolism” is “apparent given the context of gender-reveal cakes.”
The Colorado Supreme Court has given Phillips another chance to demonstrate that he does not object to people based on sexual orientation or gender identity but to the messages they ask him to celebrate by crafting custom cake art.
Phillips has faced a relentless attack on his faith-based positions about sexuality and gender, aligning with orthodox Christian doctrine tracing back to the Old and New Testaments. The Left’s prosecution of him bodes ill for all Christians who dare to stand on doctrine against the spirit of the age.
Following the U.S. Supreme Court, Colorado’s Supreme Court should uphold Phillips’ free speech rights, finally bringing the relentless persecution of this faithful baker to a fitting end.
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