In June of 2017, a woman named Autumn Scardina asked Christian baker Jack Phillips, of Masterpiece Cakeshop, to make a cake that was blue on the outside and pink on the inside.
That was a perfect normal order. Phillips would’ve made that cake for any other customer. But Scardina ordered that cake on purpose. She told the employees that she wanted to purchase it to celebrate her birthday… and the seventh anniversary of when she came out as transgender.
And suddenly Phillips decided he wouldn’t sell her that cake. His Christian bigotry prevented him from selling a cake to a trans customer.
That distinction is important because Phillips, a year later, won a legal case in which he said he wouldn’t sell a cake for a same-sex wedding. While the Supreme Court’s decision was very narrow, decided on a technicality, and applied to only his situation, it effectively meant his Christian faith trumped Colorado’s anti-discrimination laws. He was allowed to say no to that cake because he believed it would be an endorsement of same-sex marriage, as ridiculous as that claim might be. Interestingly enough, he made it clear at the time that he would’ve sold the gay couple a cake for a birthday or graduation — just not their wedding.
This is why Scardina’s request was clever. She ordered a cake right off the menu like any other customer. But now Phillips was saying he wouldn’t sell it to her because she was transgender.
The Colorado Civil Rights Commission said that was a form of discrimination. Phillips then sued the Commission (along with then-Gov. John Hickenlooper) for allegedly discriminating against him.
On Tuesday, he lost that fight. Denver District Court Judge A. Bruce Jones said that Phillips’ bigotry was a clear violation of the law.
The Court concludes that Defendants denied Ms. Scardina goods and services because of her transgender status. Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female. Defendants are, however, willing to make cakes for non-transgender individuals that reflect that person’s gender. And Defendants would “gladly” make an identical looking cake for other customers.
The Court concludes that a reasonable observer of the requested cake would not attribute any message to Defendants and would not understand the cake to convey the message claimed by Defendants, i.e., endorsement of a gender transition. Therefore, Defendants have failed to carry their burden to show that providing the requested cake constituted any type of symbolic or expressive speech protected by the First Amendment.
Beautiful. It is completely irrelevant that this was always meant to be a publicity stunt because it still exposed Phillips for what he was: Not a conservative Christian with sincerely held religious beliefs. Just a bigot who refuses to serve LGBTQ customers even when they want to buy the same products he would’ve sold straight, cis customers without a second thought.
The conclusion in Jones’ decision is especially juicy. In their defense, Phillips and his lawyers at the right-wing Alliance Defending Freedom quoted a very famous line from a Supreme Court decision involving the Pledge of Allegiance. This was the decision that said students were not obligated to say the Pledge if they had religious or other reasons against it. Justice Robert H. Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Phillips’ team quoted that line to basically say the government couldn’t force him to hold views in favor of LGBTQ rights.
But Judge Jones wasn’t having any of it:
Defendants quote the stirring words of Justice Jackson… But as Defendants also argue, context matters. In Barnette, government officials insisted that the children of Jehovah’s Witnesses salute the flag — a basic form of compelled patriotism through symbolic speech… That is quite different than preventing places of public accommodation from discriminating against transgender persons. The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as “others.” This case is about one such product — a pink and blue birthday cake — and not compelled speech.
That sound you hear is a mic dropping.
Phillips’ lawyers plan to appeal the decision, but this case isn’t legally controversial. It’s clear-cut. Being Christian doesn’t absolve you from following anti-discrimination laws. But Phillips and Alliance Defending Freedom, for some reason, want to keep fighting until everyone in the country believes that Christianity and bigotry are synonymous.