DENVER — A smorgasbord of hypothetical cakes was on the menu at the Colorado Supreme Court as the justices considered whether Christian cake artist Jack Phillips was within his rights when he refused to create a blue-and-pink cake to celebrate a gender transition.
The high court heard oral argument Tuesday in Scardina v. Masterpiece Cakeshop, the latest case in Mr. Phillips’ decade-long courtroom saga pitting LGBTQ activists against his bakery.
“Over the last 10 years, Colorado officials and activists have tried to punish me for my religious beliefs,” said Mr. Phillips at a press conference outside the courthouse. “They have even tried to change my beliefs. Through all this, I believe firmly that free speech is for everyone, and no one should be forced to express a message that they don’t believe.”
Inside the courtroom, the seven judges focused on the cake — blue on the outside, pink on the inside — that Autumn Scardina requested in 2017 to celebrate the first anniversary of her gender transition. Masterpiece declined to make the custom cake after learning what it represented.
Justice Melissa Hart listed examples of how identical blue-pink cakes could be used for four different occasions, including a gender transition; the birthday of boy-and-girl twins; the loss in utero of fraternal twins, or no occasion at all.
“Those four cakes could go to the wrong houses, and it wouldn’t matter,” Justice Hart said. “It’s pink cakes with blue icing. And if they go to the wrong houses, such as that the one that was for the fraternal twins went to the transition home, it wouldn’t matter. It’s the same cake.”
Jake Warner, the Alliance Defending Freedom attorney representing Mr. Phillips, said the cake creator’s impression of what the cake represents matters because “the compelled speech doctrine protects the individual freedom of mind.”
He said that “even the same words can express different things depending on the context,” citing Supreme Court Justice Ruth Bader Ginsburg’s majority opinion in the 2015 case Yates v. United States.
“For example, ‘my body, my rights’ might mean one thing to an abortion advocate, and mean something totally different to an anti-vaxxer,” Mr. Warner said. “Here, just because Phillips could create an identical-looking cake doesn’t mean that he can create this cake that expresses a message that goes against his beliefs.”
What if the client had asked for a white sheet cake or chocolate cake to celebrate a gender transition? Mr. Warner said such a cake would lack the symbolism of, say, a blue-and-pink or a rainbow cake.
“Phillips would gladly create that because he doesn’t have an objection to the use,” Mr. Warner said. “It’s just to the symbol, the message in the cake itself.”
“Over the last 10 years, Colorado officials and activists have tried to punish me for my religious beliefs. They have even tried to change my beliefs. Through all of this, I believe firmly that free speech is for everyone.” - ADF client Jack Phillips pic.twitter.com/FpGJupbtKc
— Alliance Defending Freedom (@ADFLegal) June 18, 2024
The Colorado Civil Rights Commission made a settlement with Mr. Phillips in regard to Ms. Scardina’s complaint against Masterpiece Cakeshop in Lakewood. Dissatisfied with that outcome, she sued and has won at the trial- and appeals-court levels.
The odds are also in Ms. Scardina’s favor at the Colorado Supreme Court, given that all seven justices were appointed by Democratic governors.
The loser is likely to seek review by the Supreme Court, which ruled narrowly in Mr. Phillips’ favor in the 2018 case Masterpiece v. Colorado Civil Rights Commission, finding that the commissioners exhibited religious bias against the Christian baker.
More relevant to the latest litigation may be the Supreme Court’s decision in 303 Creative LLC v. Elenis. The 2023 ruling held that Colorado could not compel the speech of Christian business owner Lorie Smith, who refused to create wedding websites for same-sex couples.
Mr. Warner said that “303 directly controls this case,” while Scardina attorney John McHugh made a distinction between the two, noting that Ms. Smith would “produce a final story for each couple using her own words and her own original artwork.”
“Those stipulations clearly distinguish 303 Creative from this case, where Mr. Phillips is being asked nothing more than to do what he has repeatedly said he will do for other customers, which is specifically make a pink cake with blue icing,” Mr. McHugh said.
Does that mean art without words cannot send a message?
“I’m trying to figure out where the line is. I hear you saying basically ’no, there is no sort of symbolic cake art that doesn’t involve words,’” Justice Maria Berkenkotter said.
Mr. McHugh replied: “No, I don’t think I would take it that far. One, that would be wrong because even pure speech doesn’t require words. It can require art. Pure speech means something that is inherently communicative.”
In other words, where the cake ends and the message begins will be up to the justices to decide. A ruling is likely to take several months.
Attending the oral argument in support of Mr. Phillips was Ms. Smith, the plaintiff in the 303 Creative case.
“I hope that the court will agree with the U.S. Supreme Court, who got it right in 303 Creative, with Lorie Smith’s case,” Mr. Phillips said. “The Supreme Court reaffirmed that Colorado cannot force artists to express messages inconsistent with their beliefs. We hope that the Colorado Supreme Court will do the same.”
