Baker Jack Phillips Loses Appeal in Trans Woman's Discrimination Suit

Jack Phillips, the Colorado baker who’s been sued multiple times for anti-LGBTQ+ discrimination, has been dealt a setback by an appeals court.

The Colorado Court of Appeals Thursday upheld a lower court’s ruling that Phillips, owner of Masterpiece Cakeshop in Lakewood, violated the state’s antidiscrimination law by refusing to make a cake celebrating a transgender woman’s transition.

Autumn Scardina ordered the cake in 2017, requesting that it be pink with blue frosting. The shop originally agreed to create it, then rejected the order after Scardina explained the symbolism. Phillips said that creating the cake would go against his religious beliefs and that being forced to do so would violate his free speech rights.

But the cake is not a form of speech, the appeals court ruled. “We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” Judge Timothy Schutz wrote for a three-judge panel of the court.

Phillips had also argued that the case was moot because he offered to pay Scardina $500.01 but not admit he violated the law. The trial court had fined him $500 for the violation. The appeals court was not swayed by this argument either.

John McHugh, a lawyer for Scardina, issued a statement celebrating the ruling, Reuters reports. He called it a “victory not just for Ms. Scardina and the greater LGBT community, but for all Coloradans, who can take comfort that our laws apply equally to everyone.”

Scardina had ordered the cake on the same day the U.S. Supreme Court heard a case brought against Phillips by a same-sex couple after he rejected their order for a custom wedding cake, citing his conservative Christian beliefs. Phillips won at the high court, which ruled that the Colorado Civil Rights Commission had shown insufficient respect for his religion when it found he had committed illegal discrimination.

The Supreme Court did not rule on the larger question of whether business owners can be exempt from antidiscrimination laws because of their religious beliefs. It is revisiting this issued in another Colorado case, 303 Creative v. Elenis, in which a web designer wants to create wedding websites but not for same-sex couples. The court heard the case in December and is expected to rule in the spring.

Phillips’s lawyers with the anti-LGBTQ+ Alliance Defending Freedom said they will appeal the ruling in the Scardina case. “Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” ADF Senior Counsel Jake Warner said in a press release. The ADF had represented Phillips in the same-sex couple’s case as well.

Scardina had filed a complaint against Phillips with the Colorado Civil Rights Commission in addition to her lawsuit. Phillips then sued the commission, saying it was harassing him. In 2019, the commission and Phillips both agreed to drop their actions, but Scardina remained free to pursue her lawsuit.