Masterpiece Cakeshop Loses Appeal for Refusing to Bake Transgender Cake

LAKEWOOD, CO - AUGUST 15: Baker Jack Phillips, owner of Masterpiece Cakeshop, manages his
Hyoung Chang/The Denver Post via Getty Images

Colorado baker Jack Phillips, owner of Masterpiece Cakeshop, has lost an appeal for refusing to bake a cake celebrating a gender transition.

The Colorado Court of Appeals ruled on Thursday that Jack Phillips refusing to bake a cake celebrating the gender transition of Autumn Scardina did not constitute free speech, asserting that he broke the law by refusing a service to someone on the basis of race, religion, or sexual orientation. The court made this ruling after rejecting procedural arguments from Phillips, according to the New York Post.

“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,” said the court.

Scardina approached Phillips to bake the cake shortly after the U.S. Supreme Court agreed to hear his case for refusing a same-sex wedding cake. The court gave him a narrow victory in 2018. As Breitbart News reported at the time:

The Supreme Court granted a narrow victory to people of faith on Monday, holding 7-2 that the Constitution did not allow the Colorado Civil Rights Commission to order Christian baker Jack Phillips to bake a wedding cake for same-sex weddings because a commissioner said Phillips’ Christian beliefs on marriage were “despicable.”

The Court left open for another case the broader question of whether the government can force people of faith to participate in same-sex weddings when the government does not openly show open hostility to their religious beliefs.

Following Thursday’s ruling, John McHugh, an attorney representing Scardina, said the baker objected “to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people.”

Jake Warner, senior counsel for Alliance Defending Freedom, which represents Phillips, said in a statement that “Americans should be free to say what they believe, even if the government disagrees with those beliefs.”

In March, Phillips told Fox News that the case “started the day the Supreme Court decided they were going to hear our case.”

“It was a very busy, very crazy day at the shop,” Phillips said. “In the middle of all of this chaos, we got a phone call from an attorney in Denver asking us to create a cake pink on the inside with blue icing on the outside.”

The trial court initially ruled against Philips, ordering him to pay a fine of $500, which he appealed on the basis of the First Amendment.

“Turning to the constitutional issues presented, the division concludes that the act of baking a pink cake with blue frosting does not constitute protected speech under the First Amendment,” the trial court ruled, which the court of appeals affirmed.

Jack can now appeal to the Colorado Supreme Court and then the U.S. Supreme Court after that.

The case is Scardina v. Masterpiece, Colorado Court of Appeals, No. 21CA1142


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