DENVER — It was 10 years ago that Christian baker Jack Phillips declined to create a cake for a same-sex wedding, igniting a court battle pitting free speech against anti-discrimination laws, but the legal system isn’t finished with him yet.
Attorneys for Mr. Phillips urged the Colorado Court of Appeals on Wednesday to overturn a lower-court ruling in a civil lawsuit filed by Autumn Scardina over Masterpiece Cakeshop’s refusal to make a blue-and-pink cake symbolizing her gender transition.
Alliance Defending Freedom legal counsel Jake Warner argued that the district court erred in its June 2021 ruling that Mr. Phillips violated the Colorado Anti-Discrimination Act [CADA].
“On the same day that the Supreme Court decided to hear Phillips’ first case, plaintiff called Phillips’ shop and asked for a custom blue and pink cake to celebrate a gender transition,” Mr. Warner told the three-judge panel.
“That’s a message that Phillips cannot express for anyone, so he politely declined that request. The First Amendment protects his decision to decline to express that message,” the lawyer said.
Ms. Scardina, a lawyer, filed a civil lawsuit after the Colorado Civil Rights Commission dropped her 2017 complaint in a confidential settlement agreement with Mr. Phillips, the owner of the Lakewood bakery.
Mr. Warner said the commission’s decision should have precluded Ms. Scardina from having the case heard in district court.
“Under plaintiff’s logic, respondents like Phillips could settle with commission, maybe pay $1 million to settle the administrative suit, and then turn around and be sued again in district court to face a duplicative lawsuit there,” Mr. Warner said. “Who would play ball with the commission if they knew they were going to have to face another lawsuit in district court?”
Scardina attorney John McHugh argued that the settlement agreement failed to resolve “the fundamental issue of whether there was a discriminatory act here.”
“Mr. Phillips could have paid $1 million to the commission for the right for the commission to say, ‘As part of this settlement, we’re going to find no discriminatory act.’ There’s no evidence of that in the record,” Mr. McHugh said.
As for the free-speech argument, Mr. McHugh said that Mr. Phillips said that he would make and sell a pink cake with blue frosting to the public at large.
“What CADA compels is not for them to speak, not for them to affirm Ms. Scardina, and in fact Ms. Scardina did not ask for an affirmation of her gender — what it compels them to do is if you make that cake for one person, then you must make it and make it available to the general public,” he said.
CO and activists have harassed Jack Phillips for 10 years. He’s in court again today on his 3rd case.
— Kristen Waggoner (@KWaggonerADF) October 5, 2022
This term, we’ll argue Lorie Smith’s case at SCOTUS and hope SCOTUS will stop the gov’t from compelling speech.
Hear from Jack and Lorie in @USATODAYhttps://t.co/x4xKJnYxpW
Mr. Phillips won a partial victory before the Supreme Court in 2018 by finding the commission acted with anti-religious bias, a case that continues to reverberate as photographers, artists and florists decline requests for products that violate their religious beliefs.
In February, the Supreme Court agreed to hear a case brought by Lorie Smith, a Colorado graphic and website designer who wants to offer wedding services but not for same-sex ceremonies.
Like Mr. Phillips, Ms. Smith is challenging the state anti-discrimination law. She is also represented by the Alliance Defending Freedom.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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