Controversial baker takes his fight against transgender flag cake to Colorado Supreme Court

The Colorado Supreme Court has begun hearing arguments in the case of Jack Phillips, the owner of Masterpiece Cakeshop, who refused to bake a cake for a trans customer because of his religious beliefs. 

Lawyers for Phillips, who owns the bakery in Lakewood, a suburb of Denver, previously argued that to force him to bake a cake with a message that contradicts his beliefs is the same as violating his right to free speech.

In 2021, Phillips was fined $500 (about £380 at the time) for discrimination after he refused to bake a cake in the colours of the trans flag.

He lost an appeal against the ruling last year, with the Colorado Court of Appeals deciding that cake is not a form of speech, and his refusal to serve attorney and trans woman Autumn Scardina violated the state’s anti-discrimination law. 

Phillips took a further appeal to the Colorado Supreme Court, which began hearing arguments on Tuesday (18 June), asking it to reverse the lower court’s findings.

Phillips maintains that he is protected under the First Amendment

“Jack Phillips is an artist, he creates cakes for anyone, but he cannot create any message,” the baker’s attorney Jacob Warner argued in front of the Colorado Supreme Court.

Warner explained that Phillips would bake a cake for any customer as long as the message on it didn’t clash with his beliefs, so if he hadn’t known Scardina’s cake was for a gender transition, he would have made it. 

Warner is a member of conservative advocacy firm Alliance Defending Freedom, Courthouse News reports.

During the appeal hearing, Justice Melissa Hart questioned: “What if one customer ordered a cake for her fraternal twins, another ordered a gender transition cake, another didn’t say what the cake was for, and a fourth said ‘I was pregnant with twins, and they died before I gave birth, so I’m ordering a pink cake with blue icing, and I’m going to go home and shove it down the sink.’”

“The meaning changes when the customer takes it home,” she continued, “but no one would know if you made four identical cakes and they all went to the wrong houses.”

However, Warner countered that the context matters, especially for the baker, saying: “Cakes can appear facially identical, but even the same words can have different meaning in different context, like ‘my body my choice,’ which has different meaning to abortion advocates and anti-vaxxers.”

In response, Autumn Scardina’s lawyer John McHugh said it isn’t about the message, but the people he’s refusing to serve.

“Mr. Phillips has testified he will not make any baked good for LGBTQ+ people that reflects their identity as LGBTQ+,” said McHugh. “He will not make rainbow cakes in June or something that reflects their role as a parent or spouse.” He asked the panel to uphold the findings of the initial trial and Court of Appeals.

Jack Phillips maintains that his cakes are a form of speech and protected under the First Amendment. It has not yet been confirmed how or when the court will rule on the Jack Phillips Masterpiece Cakeshop appeal.

Masterpiece Cakeshop in Colorado was first sued in 2012 when it refused to bake a wedding cake for a gay couple. That case went all the way to the Supreme Court, which eventually ruled in Phillips’ favour in 2018. 

Last year, the US Supreme Court gave a Christian wedding-website designer from Colorado the right to refuse to serve LGBTQ+ couples.