Yet More Trouble for Jack Phillips - The American Spectator | USA News and Politics
Yet More Trouble for Jack Phillips
Jack Phillips, owner of Masterpiece Cakeshop in Denver, Colo., October 2017 (Alliance Defending Freedom/YouTube)

Jack Phillips hit the news again last week. This time, conservatives’ favorite baker got slammed by a Colorado state appeals court for refusing, for religious reasons, to bake a transition cake for a man celebrating his alleged transition to a woman.

It seems like ancient history when the owner of Masterpiece Cakeshop in suburban Denver first flew onto America’s religious-liberty radar. And on the telescoped time frame of the sexual revolution — when it seems like only yesterday that sex was inextricably tied to procreation, divorce was still difficult, and shacking up was still illegal — it is ancient history; it happened way back in 2012, three years before a 5–4 Supreme Court installed same-sex marriage as the law of the land. That was when Phillips first landed in hot legal water for refusing to bake a gay wedding cake because he believed in traditional one-man-one-woman marriage, a “sin” for which he was eventually absolved, at the highest bench in the land but in the narrowest sense possible.

Even before that Supreme Court ruling came down, in 2018, he found himself again standing before the Colorado Civil Rights Commission, the same tribunal that hassled him initially over the gay wedding cake, this time because he wouldn’t create a custom cake for a transgender transition.

Phillips has been under fire for trying to live out his faith in the business world for over a decade.

In 2017, a Denver lawyer named Autumn Scardina phoned in an order to Masterpiece Cakeshop requesting a custom-made cake to celebrate Scardina’s own “transition” to a woman — a pink cake with blue frosting, for those of you keeping score at home. Phillips said no — he would not design a cake that promoted something that conflicts with the Bible; according to the decision, “[H]e believes that God designed people male and female, that a person’s gender is biologically determined.”

Scardina sued Phillips in the Colorado Civil Rights Commission; Phillips sued as well, claiming he was being targeted for his religious beliefs. The case went away in March 2019, when the civil-rights panel and Phillips mutually agreed to drop legal action.

After the icing on that cake had hardened, so to speak, Scardina sued again in state court. Same complaint; different court. That decision didn’t go Phillips’ way, so he pled his case to the state appeals court, which also ruled against the baker.

The appeals-court decision is the one that came down last Thursday.

While featuring many of the familiar turns of the wedding-vendor brouhahas, this one adds a few twists of its own. The requested cake featured no scribed message, and the cakeshop accepted the order when it was first phoned in, changing its mind only when it discovered the purpose for the cake.

Phillips admitted he would make such a cake for other customers if he was unaware of how the cake was to be used and even acknowledged that a pink cake with blue frosting “has no intrinsic meaning and does not express any message.”

Reads the court ruling, authored by Judge Timothy Schutz:

It was only after Scardina disclosed that she was transgender and intended to use the cake to celebrate both her birthday and her transition that Masterpiece and Phillips refused to provide the cake. Thus, it was Scardina’s transgender status, and her desire to use the cake in celebration of that status, that caused Masterpiece and Phillips to refuse to provide the cake.

Phillips argued the opposite: that his refusal to bake Scardina’s cake was not because of the lawyer’s status — he said he would have sold the same cake to the same customer were it not to be used to celebrate a transgender ceremony — but, rather, because of the message conveyed by its intended use to celebrate such status. “Thus,” the decision maintains, “resolution of the issue rests upon whether the creation of a pink cake with blue frosting constitutes protected speech.”

The court ruled that the cake expressed no message, so Phillips could not have been forced to violate his religious beliefs by making it: “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.”

Of course, courts have ruled that mere action constituted protected speech in the past, and that government may not force a person to communicate a particular message: “The Supreme Court has repeatedly recognized that in some instances, actions or conduct that are not accompanied by words may constitute ‘inherently expressive’ conduct that rises to the level of speech for purposes of First Amendment protection.” Organizing parades, protesting a war by wearing an armband, burning or declining to salute a flag — all have been considered protected speech. “But not all conduct constitutes speech,” the decision continues. “Rather, the First Amendment extends only to conduct that is ‘inherently expressive.’”

A transgender cake was “inherently expressive” when it conveyed “a particular message” and carried the “likelihood … that the message would be understood by those who viewed it.” The court said that Sardina’s requested cake didn’t meet these standards.

Ed Whelan, writing at National Review, had a go at the “inherently expressive” standard and the court’s ruling on it:

The court thinks it significant that Masterpiece Cakeshop “conceded at trial” that a pink cake with blue frosting has “no inherent meaning.” But Scardina assigned a coded meaning that would, one might say, be baked into the cake, and Masterpiece Cakeshop did not want to express that coded meaning….

To put the point more simply: Scardina told Masterpiece Cakeshop that the cake design would express a message that Scardina wanted to express. So how does Masterpiece Cakeshop have no First Amendment interest against being coerced to participate in the expression of that message?

Phillips has been under fire for trying to live out his faith in the business world for over a decade, having been to the Supreme Court once already. Whether his lawyers stand before that august panel again is to be determined, but Alliance Defending Freedom plans on appealing this ruling. Said ADF’s Jake Warner:

Free speech is for everyone. No one should be forced to express a message that violates their core beliefs…. Over a decade ago, Colorado officials began targeting Jack, misusing state law to force him to say things he does not believe. Then an activist attorney continued that crusade. This cruelty must stop. One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs.


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