The Colorado Court of Appeals ruled Thursday against Christian cakeshop owner Jack Phillips, finding that he violated the state’s anti-discrimination law by declining to bake a custom birthday cake to celebrate a gender transition.
A three-judge panel upheld the Denver District Court’s June 2021 ruling that Mr. Phillips violated the Colorado Anti-Discrimination Act when Masterpiece Cakeshop turned down a 2017 request by lawyer Autumn Scardina to create a pink birthday cake with blue frosting, symbolizing her transition from male to female.
“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 48-page opinion by Judge Timothy Schutz. “Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina.”
Alliance Defending Freedom general counsel Kristen Waggoner said Mr. Phillips will appeal the decision to the Colorado Supreme Court, decrying the “weaponization of our justice system to ruin those with whom the activists disagree.”
The decision came with Mr. Phillips now in his 11th year of litigation over his First Amendment right to refuse to convey messages with which he disagrees versus the Colorado law barring discrimination based on sexual orientation and gender identity.
Ms. Scardina called to request the custom cake on the same day that U.S. Supreme Court agreed to hear Mr. Phillips’ case against the Colorado Civil Rights Commission, which had penalized the Lakewood bakery for its refusal to make a cake for a same-sex wedding.
The high court ruled in 2018 on narrow grounds in Mr. Phillips’ favor.
“Jack Phillips serves all people but shouldn’t be forced to create custom cakes with messages that violate his conscience,” said Ms. Waggoner. “In this case, an activist attorney demanded Jack create custom cakes in order to ‘test’ Jack and ‘correct the errors’ of his thinking, and the activist even threatened to sue Jack again if the case is dismissed for any reason.”
Scardina attorney Paula Greisen said the appeals court’s decision “affirms that in the state of Colorado businesses are not going to be allowed to discriminate against their customers,” adding that she was confident the state’s high court would agree.
“I think the Colorado Supreme Court, like every court in Colorado that has looked at these issues, will affirm that a business owner will not be allowed to discriminate against the LGBTQ community or other members of our society,” Ms. Greisen told The Washington Times.
Over a decade ago, CO officials began targeting Jack, misusing state law to force him to say things that violate his beliefs. Then an activist attorney continued that crusade.
— Alliance Defending Freedom (@ADFLegal) January 26, 2023
This cruelty must stop. https://t.co/iEDCNGssrK
Ms.Scardina initially filed a complaint with the commission, but it was dismissed in a settlement with Mr. Phillips after he sued the panel for harassment, prompting Ms. Scardina to bring a civil lawsuit in 2019.
The Supreme Court is now considering a challenge to Colorado’s anti-discrimination law brought by Christian graphic designer Lorie Smith, owner of 303 Creative, who wants to create websites for traditional but not same-sex wedding ceremonies.
Ms. Waggoner called for an end to the “harassment” against Mr. Phillips and other religious small-business owners.
“We will appeal this decision and continue to defend the freedom of all Americans to peacefully live and work according to their deeply held beliefs without fear of punishment,” said Ms. Waggoner.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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