Colorado judge dismisses 1 of 2 charges against Jack Phillips for not making pro-transgender cake

Baker Jack Phillips poses in his Masterpiece Cakeshop in Lakewood, Colorado, September 21, 2017.
Baker Jack Phillips poses in his Masterpiece Cakeshop in Lakewood, Colorado, September 21, 2017. | (Photo: Reuters/Rick Wilking)

A judge has decided to throw out one of two charges against Colorado-based Christian baker Jack Phillips over his refusal to make a transgender-themed cake.

A trans-identified man who goes by the name Autumn Scardina filed a lawsuit against Masterpiece Cakeshop in June 2019 after the baker refused to make a cake celebrating Scardina’s gender transition.

The suit claimed that Phillips violated two state laws, the Colorado Anti-Discrimination Act and the Colorado Consumer Protection Act, when refusing to create the cake.

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However, in a ruling released Thursday, Denver District Court Judge A. Bruce Jones granted the defendants’ motion to drop the charge of violating the CCPA by allegedly engaging in “an unfair or deceptive trade practice.”

“Defendants contend that Plaintiff cannot show an unfair or deceptive trade practice because the most salient materials Plaintiff allegedly relied on are not advertisements. Because the Court agrees with this contention, it need not address Defendants’ remaining arguments,” wrote Jones.

“Plaintiff has failed to establish an actionable unfair or deceptive trade practice. Accordingly, summary judgment enters in Defendants’ favor on Plaintiff’s CCPA claim.”

Jones did not dismiss the second charge, however, which accuses Phillips of violating CADA, explaining that Scardina “need not establish that [his] transgender status was the ‘sole’ cause of the denial of services.”

“Perhaps the analysis would be different if the cake design had been more intricate, artistically involved, or overtly stated a message,” continued Jones.

“The Court cannot conclude, based on the current record, that the act of making a pink cake with blue frosting, at Plaintiff’s request, would convey a celebratory message about gender transitions likely to be understood by reasonable observers.”

Alliance Defending Freedom General Counsel Kristen Waggoner, who is helping to represent Phillips, said in a statement on Thursday that the decision was “the first step toward final justice” for Phillips.

“Jack has been threatened with financial ruin simply because he makes decisions about which messages to create and celebrate — decisions that every other artist in Colorado is free to make,” she stated.

“Tolerance for different opinions is essential. We look forward to defending Jack — and ultimately prevailing — on the remaining claim.”

Over the past few years, Phillips has weathered extensive legal battles over his religious objections to making same-sex wedding and pro-transgender cakes.

In 2018, the United States Supreme Court ruled 7-2 that Colorado’s Civil Rights Commission was wrong to punish Phillips for refusing to make a same-sex wedding cake in 2012 when gay marriage was illegal in that state.

The Supreme Court ruled that the Commission violated Phillips' right to free exercise of religion due to the bias showed in their application of civil rights law. 

“To describe a man's faith as 'one of the most despicable pieces of rhetoric that people can use' is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere,” wrote then-Justice Anthony Kennedy, for the majority.

“This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”

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