While many Americans were busy traveling to see family members or buying last minute gifts in the days leading up to Christmas, Colorado cakebaker Jack Phillips was once again in court seeking to defend his livelihood.
On December 19, Phillips and his lawyers at Alliance Defending Freedom (ADF) filed their opening brief in Masterpiece Cakeshop v. Scardina at the Colorado Supreme Court.
Here’s a brief recap of the case.
In 2017, the U.S. Supreme Court announced it would take up Jack’s first case after he was sued for refusing to create a custom cake for a “same-sex wedding.” He won that case in 2018 when the court held that the Colorado Civil Rights Commission had expressed unconstitutional religious hostility towards Jack.
But on the same day the Supreme Court announced it would hear Jack’s first case, an activist, transgender-identified attorney named Autumn Scardina called Jack’s shop and requested he create a “custom-designed cake, pink on the inside and blue on the outside, that would symbolize and celebrate a gender transition.”
Jack is a follower of Jesus Christ who believes that human beings are created male and female (Genesis 1:27), so he politely refused Scardina’s request.
In response, Scardina filed a complaint with the Colorado Civil Rights Commission, and, when the Commission declined to prosecute the cake baker, sued Jack in 2019 for allegedly discriminating against him because of his “gender identity.”
But Scardina is far from the victim in this case. In addition to the “gender transition” cake, Scardina has also called Jack’s shop to request he create a custom cake “depicting Satan smoking marijuana,” to “correct the errors of Phillips’ thinking.”
Scardina is not a lawyer acting in good faith. Nor is he a transgender-identified person simply looking to live his life. Rather, he is an activist attorney intentionally seeking to ruin Jack’s life and livelihood.
In this latest lawsuit, Jack lost both at the trial court and again at the Colorado Court of Appeals, which ruled 3-0 against him on January 26, 2023.
Those losses have led Phillips to appeal to the Colorado Supreme Court.
“Phillips has suffered enough,” the opening brief tells the court. “The State’s past prosecutions prompted death threats and vandalism and cost Phillips six years of his life, a significant part of his business, and most of his employees – harms that endure even though he eventually won those cases.”
“He’s now been in courts defending his freedom over a decade. This crusade against Phillips must stop. He asks this Court to reverse.”
It’s difficult to predict how the Colorado Supreme Court will rule in Jack’s case.
On the one hand, all seven members of the court were appointed by Democrat Colorado governors. That would seemingly not bode well for Jack’s cause.
However, earlier this year, the U.S. Supreme Court issued a landmark opinion protecting the freedom of speech in a related case – 303 Creative v. Elenis. In that decision, the Supreme Court protected the right of another Coloradan – Christian graphic artist and website designer Lorie Smith – to refuse to speak government-coerced messages that violate her beliefs about marriage.
The law that was weaponized against Smith – Colorado’s anti-discrimination law – is the same one being used against Jack Phillips.
The 6-3 opinion, authored by Justice Neil Gorsuch, held that “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking message with which the designer disagrees.”
The Court went on to explain, “The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy.”
“This Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech.”
It’s that exact point – the right of everyone to speak messages the government happens to disagree with – that Phillips’ lawyers are asking the Colorado Supreme Court to apply to his case.
“Free speech is for everyone. As the U.S. Supreme Court held in 303 Creative, the government can’t force artists to express messages they don’t believe,” said ADF Senior Counsel Jake Warner after filing the opening brief, adding,
Because the activist attorney asked Jack to create a custom cake that would celebrate and symbolize a transition from male to female, the requested cake is speech under the First Amendment. We are urging the court to apply 303 Creative to reverse the appeals court’s decision punishing Jack.
As the 23 states and free-speech advocates who showed their support for Jack affirm, you don’t have to agree with Jack’s views to agree that no one should be compelled to express ideas and messages they don’t believe.
If the Colorado Supreme Court rules against Jack, he would once again need to seek relief from the U.S. Supreme Court.
The Daily Citizen will keep you updated of important developments in this case.
The case is Masterpiece Cakeshop v. Scardina.
Jack Phillips has been interviewed on the Focus on the Family Broadcast to discuss his legal fight, and how his Christian faith has sustained him. To listen to “Loving Others While Standing by My Beliefs” with Jack Phillips, click here.
Additionally, you can purchase a copy of Jack’s book, The Cost of My Faith: How a Decision in My Cake Shop Took Me to the Supreme Court, here.
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Photo from ADF Legal.