DENVER — On the heels of a U.S. Supreme Court victory this summer for a graphic artist who didn’t want to design wedding websites for same-sex couples, Colorado’s highest court said Tuesday it will now hear the case of a Christian baker who refused to make a cake celebrating a gender transition.
The announcement by the Colorado Supreme Court is the latest development in the yearslong legal saga involving Jack Phillips and LGBTQ+ rights.
Phillips won a partial victory before the U.S. Supreme Court in 2018 after refusing to make a gay couple’s wedding cake but was later sued by Autumn Scardina, a transgender woman, who asked his suburban Denver bakery to make a pink cake with blue frosting for her birthday. It refused after Scardina explained it would celebrate her transition from male to female.
The justices didn’t explain how or why they made the determination. It was announced in a long list of decisions about which cases they will hear and reject.
The case involves the state’s anti-discrimination law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation. The key issue in the case is whether the cakes Phillips creates are a form of speech and whether forcing him to make a cake with a message he does not support is a violation of his First Amendment right to free speech.
Earlier this year, the Colorado Court of Appeals sided with Scardina in the case, ruling that the cake was not a form of speech. It also found that the anti-discrimination law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners’ right to practice or express their religion.
Graphic artist Lorie Smith, who is also from Colorado and also represented by the Alliance Defending Freedom, challenged the same state law in the 303 Creative case that was decided by the U.S. Supreme Court in June. The court’s conservative majority said forcing her to create websites for same-sex weddings would violate her free speech rights.
“We are grateful that the Colorado Supreme Court will hear Jack Phillips’ case to hopefully uphold every Coloradan’s freedom to express what they believe,” said Jake Warner, Phillips’ Alliance Defending Freedom attorney. “Jack has been targeted for years by opponents of free speech, and as the U.S. Supreme Court recently held in 303 Creative v. Elenis, no one should be forced to express messages they disagree with.”
Scardina’s attorney, John McHugh, said that the 303 Creative ruling was narrow and applied only to businesses that are creating speech of their own — which the Colorado Court of Appeals had already ruled did not include Phillips’ company making the cake.
McHugh added that he was “excited” Colorado’s high court would hear the challenge.
“It’s very important for businesses and the public in Colorado to understand that our anti-discrimination law still is in full force and there is no general right to discriminate against people in Colorado if you’re a business owner,” said McHugh.
Phillips maintains that the cakes he creates are a form of speech and asked the state Supreme Court to consider his appeal in April.
Scardina, an attorney, attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. During trial, she testified that she wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBTQ+ customers.
Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that he had discriminated against her.
Phillips then filed a federal lawsuit against Colorado, accusing it of a “crusade to crush” him by pursuing the complaint.
In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement Scardina was not involved in. She pursued the lawsuit against Phillips and Masterpiece Cakeshop on her own.
Bedayn is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.
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