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Colorado Bakery Loses Gender Transition Birthday Cake Appeal

'We conclude that creating a pink cake with blue frosting is not inherently expressive,' said the Colorado Court of Appeals

The Colorado Court of Appeals has ruled that Masterpiece Cakeshop violated state law after declining to make a cake ordered by a transgender person.

The court affirmed the legality of a Colorado law that outlawed refusing service to people based on race, religion or sexual orientation which defense lawyers argued violated the right to practice or express one’s religious belief. Additionally, the court said the pink and blue cake was not a form of speech. 

“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, per AP News

Masterpiece Cakeshop made national news after baker Jack Phillips, a Christian, declined to make a wedding cake for a gay couple. The United States Supreme Court ultimately ruled in favor of Phillips in June of 2018 — finding that the Colorado Civil Rights Commission had acted with an anti-religious bias and in violation of the First Amendment when it sanctioned him following a complaint from the couple.

The day the Supreme Court agreed to hear the case in 2017, the plaintiff Autumn Scardina called the cakeshop and ordered a pink cake with blue frosting. Masterpiece Cakeshop initially accepted the order but subsequently declined after Scardina told the business that the cake was to celebrate Scardina’s gender transition from male to female. 

“They just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people,” Scardina’s attorney John McHugh told the court. 

Scardina, who is also an attorney, called the cakeshop and requested a cake with an image of Satan smoking marijuana. This request was also declined by Phillips.

Scardina filed a complaint with Colorado’s Civil Rights Commission, which found that Phillips’ actions had been discriminatory. Scardina then sued Phillips and Masterpiece.

Phillips sued Colorado, which settled with the baker in March of 2019.

Scardina testified that ordering the gender transition cake was a test intended to “challenge the veracity” of Phillips’ contention that he would serve LGBTQ customers.  

Phillips has said that making the cake would compel him to express a message which is in violation of his religious beliefs. 

The Alliance Defending Freedom, which is representing Phillips, said in a Jan. 26 statement that the cake decorator intends to appeal the court’s ruling.

“Free speech is for everyone. No one should be forced to express a message that violates their core beliefs,” said ADF Senior Counsel Jake Warner. “Over a decade ago, Colorado officials began targeting Jack, misusing state law to force him to say things he does not believe. Then an activist attorney continued that crusade. This cruelty must stop.”

“One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs,” Warner continued. “Cultural winds may shift, but freedom of speech is foundational to our self-government and to the free and fearless pursuit of truth.”

“Phillips works with all people and always decides whether to take a project based on what message a cake will express, not who is requesting it,” the ADF concluded.

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