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Colorado baker Jack Phillips back in court after refusing to make gender transition cake

Colorado baker Jack Phillips back in court after refusing to make gender transition cake

Masterpiece Cakeshop owner Jack Phillips decorates a cake in Lakewood, Colorado, September 21, 2017. | Reuters/Rick Wilking

Colorado baker Jack Phillips was back in court Monday in a lawsuit brought by a transgender activist attorney who alleges Phillips violated state law by refusing to make a cake celebrating a gender transition. 

Filed in state court, a transgender-identified male named Autumn Scardina attempted to order a birthday cake celebrating a gender transition on the same day in 2017 that the U.S. Supreme Court agreed to hear Phillips’ previous case, a dispute litigated in federal court which centered around his refusal to bake a custom cake for a same-sex couple in 2012.

Phillips eventually won his case at the Supreme Court in a 7-2 victory on narrow grounds in 2018 in Masterpiece Cakeshop, LTD et al. v. Colorado Civil Rights Commission

During virtual opening arguments Monday, Alliance Defending Freedom attorney Sean Gates said the baker's refusal to make Scardina’s cake was about the content of the message, not about Scardina, according to The Associated Press

Scardina reportedly told the court that the call was placed to Masterpiece Cakeshop after hearing Phillips say that he opposed making the cake because it involved a gay wedding but would sell any other product. 

Scardina’s lawyer Paula Greisen asked if the call was a “setup.” Scardina denied that notion. 

“It was more of calling someone’s bluff,” Scardina was quoted as saying.

In the 2018 ruling, the justices held that the state government agency did not show religious neutrality toward Phillips under the state’s anti-discrimination statute, stating that the CCRC had shown “clear and impermissible hostility.” 

The high court did not rule, however, on the larger issue of whether businesses and other places of public accommodation can invoke religious objections to refuse services to LGBT-identifying people.

ADF has represented Phillips since his legal battles began. Gates argued his client could not create a cake containing a message he felt violated his religious convictions.

“The message would be that he agrees that a gender transition is something to be celebrated,” Gates stressed, subsequently noting that the Colorado bakery owner had also declined to make other items he objects to, such as Halloween-themed products.

Before filing a lawsuit, Scardina filed a complaint with the CCRC. The state commission found probable cause to continue the matter as state law protects from discrimination based on sexual orientation and gender identity. 

In response, Phillips filed a federal lawsuit against the state of Colorado, arguing that the state government is on a “crusade to crush” him. Both cases were dropped in March 2019 under a settlement that permitted Scardina to file a case as an individual. 

The Alliance Defending Freedom said this week that Colorado has created a hostile environment for people like Phillips.

“Eight years is a long time to live under the weight of constant litigation that threatens the business you built and the people you love. During his first case, Jack lost a big part of his business and more than half of his employees,” ADF noted Monday in a blog post about his latest legal battle.

“Over the years, he and his family have also endured hate mail, nasty phone calls, and even death threats. This most recent lawsuit is a blatant attempt to punish Jack, banish him from the marketplace, and intimidate him out of business just for living according to his beliefs.”

Commenting on the case Tuesday on his Facebook page, evangelist Franklin Graham urged people to pray for Phillips.

"Jack is a humble, kind, and caring guy — and as a Christian, he also believes he has the right to live by his strongly held religious beliefs...His lawyer is right — 'Today it's Jack. Tomorrow it could be you.' Think about that America," he wrote.

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