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Colorado baker challenges ruling against him after he declined to bake a gender transition cake

A baker who won a partial Supreme Court victory after refusing to make a wedding cake for a gay couple on religious grounds is now challenging another ruling that went against him over a refusal to make a gender transition cake. 

A lawyer for Jack Phillips on Wednesday challenged Colorado’s appeals court to overturn a ruling made last year in connection with a case brought against him by a transgender attorney.  

Autumn Scardina placed an order in 2017 with Phillip’s cake shop in Denver for a blue birthday cake with pink filling to signify her gender transition.

But Phillips, a Christian, refused to fulfil the request, testifying in court last year that he does not believe that someone can change genders and would not celebrate ‘somebody who thinks that they can.’

In a June 2021 ruling, Denver District Judge A. Bruce Jones said Scardina was denied a cake in violation of the law and fined him $500 – the maximum penalty under Colorado’s Anti-Discrimination Act.

While Phillips said he could not make the cake because of its message, Jones said the case was about a refusal to sell a product, not compelled speech.

‘The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly are no longer treated as ”others”,’ Jones wrote. 

But now Jake Warner, an attorney representing Phillips from the conservative Christian legal advocacy group Alliance Defending Freedom (ADF), is pushing for the court to overturn the ruling on the grounds that forcing Phillips to bake a cake signifying a message in contradiction with his beliefs is tantamount to violating his right to free speech.

Phillips famously won a partial victory at the U.S. Supreme Court in 2018 for refusing to make a wedding cake for a same-sex couple.

Colorado baker (pictured) violated the state’s anti-discrimination law by refusing to make a birthday cake for a transgender woman, a state judge ruled last year. But now his lawyers are pushing for the decision to be overturned

In Tuesday's ruling, Denver District Judge A. Bruce Jones said Autumn Scardina (pictured) was denied a cake that was blue on the outside and pink on the inside to celebrate her gender transition on her birthday in violation of the law

In Tuesday’s ruling, Denver District Judge A. Bruce Jones said Autumn Scardina (pictured) was denied a cake that was blue on the outside and pink on the inside to celebrate her gender transition on her birthday in violation of the law

In a June 2021 ruling, Denver District Judge A. Bruce Jones said Scardina was denied a cake in violation of the law and fined Phillips (pictured) $500 - the maximum penalty under Colorado's Anti-Discrimination Act

In a June 2021 ruling, Denver District Judge A. Bruce Jones said Scardina was denied a cake in violation of the law and fined Phillips (pictured) $500 – the maximum penalty under Colorado’s Anti-Discrimination Act

After receiving the ruling against him last year, Phillips’ legal representation said they would appeal the decision and accused Scardina, an attorney, of being an activist who set out to ‘test’ the baker. 

‘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,’ ADF general counsel, Kristen Waggoner, said in a statement.

‘Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions,’ the statement added.

Ms Waggoner said that the case ‘represents a disturbing trend: the weaponization of our justice system to ruin those with whom the activists disagree. 

‘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,’ she said. 

Scardina, an attorney, attempted to order the cake on the same day in 2017 that the U.S. Supreme Court announced it would hear Phillips’ appeal in the wedding cake case, that Phillips ultimately won.

Scardina said she wanted to ‘challenge the veracity’ of Phillips statements that he would serve LGBT customers, but her attempt to get a cake was not a ‘set up’ intended to file a lawsuit, Jones said.

One of Scardina’s attorneys, John McHugh, said the case is about how LGBT people are treated, not just what happened to her.

‘This is about a business that is open to the public that simply says to an entire class of people in the community that your identity, who you are, is something that is objectional,’ he said. 

‘This case started the day the Supreme Court decided they were going to hear our case. It was a very busy, very crazy day at the shop,’ Phillips said of the transgender cake to Fox News in March last year.

‘In the middle of all of this chaos, we got a phone call from an attorney in Denver asking us to create a cake pink on the inside with blue icing on the outside.’

He said that he was told the cake would be ‘two colors, a color scheme, a combination, designed to celebrate a gender transition.’ 

A Bible verse is displayed in baker Jack Phillips' Masterpiece Cakeshop in Lakewood, Colorado U.S. September 21, 2017. Picture taken September 21, 2017

A Bible verse is displayed in baker Jack Phillips’ Masterpiece Cakeshop in Lakewood, Colorado U.S. September 21, 2017. Picture taken September 21, 2017 

Colorado lawyer Autumn Scardina poses for photos outside the Ralph Carr Colorado Judicial Center in Denver, Wednesday, Oct. 5, 2022

Colorado lawyer Autumn Scardina poses for photos outside the Ralph Carr Colorado Judicial Center in Denver, Wednesday, Oct. 5, 2022

Baker Jack Phillips is the owner of Masterpiece Cakeshop in Lakewood, Colorado

Baker Jack Phillips is the owner of Masterpiece Cakeshop in Lakewood, Colorado

‘We told the customer, this caller, that this cake was a cake we couldn’t create because of the message, the caller turned around and sued us,’ Phillips told Fox News. ‘This customer came to us intentionally to get us to create a cake or deny creating a cake that went against our religious beliefs.

‘This customer had been tracking our case for multiple years. This case was just a request to get us to fall into a trap,’ he added at the time. 

Phillips previously won a case that was heard before the Supreme Court in 2018 after he refused to make a wedding cake for a same-sex couple.

In a 7-2 ruling, the Supreme Court ruled that Colorado’s Civil Rights Commission displayed anti-religious bias when it sanctioned Phillips for refusing to make a wedding cake in 2012 for Charlie Craig and Dave Mullins, a same-sex couple. 

In 2018, the Supreme Court ruled that Colorado's Civil Rights Commission displayed anti-religious bias when it sanctioned Phillips for refusing to make a wedding cake in 2012 for Charlie Craig and Dave Mullins, a same-sex couple (pictured)

In 2018, the Supreme Court ruled that Colorado’s Civil Rights Commission displayed anti-religious bias when it sanctioned Phillips for refusing to make a wedding cake in 2012 for Charlie Craig and Dave Mullins, a same-sex couple (pictured) 

In a 7-2 ruling, the Supreme Court ruled that Colorado's Civil Rights Commission displayed anti-religious bias when it sanctioned Phillips for refusing to make a wedding cake in 2012 for Charlie Craig and Dave Mullins, a same-sex couple

In a 7-2 ruling, the Supreme Court ruled that Colorado’s Civil Rights Commission displayed anti-religious bias when it sanctioned Phillips for refusing to make a wedding cake in 2012 for Charlie Craig and Dave Mullins, a same-sex couple

Phillips’ lawyers argued that his cakes are an art form – a ‘temporary sculpture’ – and being forced to create one to commemorate a gay wedding would violate his rights under the U.S. Constitution to freedom of speech and expression and free exercise of religion.

He told the state civil rights commission at the time that he can make no more than two to five custom cakes per week, depending on time constraints and consumer demand for the cakes that he sells in his store that are not for special orders. 

Mullins and Craig, represented by the American Civil Liberties Union, said Phillips was using his Christian faith as pretext for unlawful discrimination based on sexual orientation. 

The ACLU said the baker was advocating for a ‘license to discriminate’ that could have broad repercussions beyond gay rights.

The case became a cultural flashpoint in the United States, underscoring the tensions between gay rights proponents and conservative Christians.

The litigation, along with similar cases around the country, is part of a conservative Christian backlash to the Supreme Court’s gay marriage ruling. 

Phillips and others like him who believe that gay marriage is not consistent with their Christian beliefs, have said they should not be required to effectively endorse gay marriage, despite it being legal.

Colorado’s definition of Discrimination in places of public accommodation

Baker Jack Phillips was found by a judge to have broken Colorado’s Anti-Discrimination Act and fined $500. But what does the act say? 

24-34-601. Discrimination in places of public accommodation – definition:

(1) As used in this part 6, ‘place of public accommodation’ means any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public; any place to eat, drink, sleep, or rest, or any combination thereof; any sporting or recreational area and facility; any public transportation facility; a barber shop, bathhouse, swimming pool, bath, steam or massage parlor, gymnasium, or other establishment conducted to serve the health, appearance, or physical condition of a person; a campsite or trailer camp; a dispensary, clinic, hospital, convalescent home, or other institution for the sick, ailing, aged, or infirm; a mortuary, undertaking parlor, or cemetery; an educational institution; or any public building, park, arena, theater, hall, auditorium, museum, library, exhibit, or public facility of any kind whether indoor or outdoor. ‘Place of public accommodation’ shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes.

(2) (a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.

(b) A claim brought pursuant to paragraph (a) of this subsection (2) that is based on disability is covered by the provisions of section 24-34-802.

(2.5) It is a discriminatory practice and unlawful for any person to discriminate against any individual or group because such person or group has opposed any practice made a discriminatory practice by this part 6 or because such person or group has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted pursuant to this part 6.

(3) Notwithstanding any other provisions of this section, it is not a discriminatory practice for a person to restrict admission to a place of public accommodation to individuals of one sex if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation. 

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