A Christian baker — whose Supreme Court case gained national attention after he refused to sell a custom wedding cake to a gay couple — is back in federal court this week. But this time it’s because his shop refused to create a blue-and-pink cake for a transgender woman’s birthday.
Lawyers for the owner of Masterpiece Cakeshop in Lakewood, Colorado, said in a complaint in US District Court on Tuesday the cake’s design “would have celebrated messages contrary to his religious belief that sex — the status of being male or female — is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed.”
Masterpiece owner Jack Phillips contends the Constitution’s guarantees of free speech and religious exercise give business owners like him an exemption to state nondiscrimination laws — and he argues LGBT people have become “emboldened” by the previous lawsuit against him and waged a campaign of harassment.
The case began June 26, 2017 — the same day the Supreme Court agreed to hear the wedding cake case — when Autumn Scardina, a lawyer in Denver, called Masterpiece Cakeshop with her own cake order. (It’s unclear from the complaint whether Scardina was aware of the high-profile case when she called Masterpiece Cakeshop for her own order. She did not immediately respond to a request for comment.)
“They asked what I wanted the cake to look like, and I explained I was celebrating my birthday on July 6, 2017, and that it would also be the 7th year of my transition from male to female,” says a complaint Scardina filed last summer with the Colorado Civil Rights Commission. “When I explained I am a transexual and that I wanted my birthday cake to celebrate my transition by having a blue exterior and a pink interior, they told me they will not make the cake based on their religious beliefs.”
“The woman on the phone told me they do not make cakes celebrating gender changes,” her complaint continued. “The woman on the phone did not object to my request for a birthday cake until I told her I was celebrating my transition from male to female. I believe other people who request birthday cakes get to select the color and theme of the cake.”
“I was stunned,” Scardina added in her complaint, saying the woman at the bakery hung up the phone.
The Colorado Anti-Discrimination Act, known as CADA, bans places of public accommodation — such as shops and restaurants — from discriminating against customers based on their sexual orientation or gender identity. As such, the commission found probable cause on June 28, 2018, that Phillips broke the law when he declined to make a cake for the transgender woman.
“A claim of discriminatory denial of full and equal enjoyment of a place of public accommodation has been established,” the commission found, noting that the Supreme Court’s ruling in the Masterpiece wedding cake case found Colorado can indeed protect gay people from discrimination.
In that case, Phillips had won a narrowly tailored victory at the Supreme Court, which ruled the Colorado Civil Rights Commission exhibited “hostility” toward Phillips’s religious beliefs. (A commissioner had compared Phillips’s defense to defenses of slavery and the Holocaust.) In that case, the state sued Phillips.
Although the high court didn’t rule on his central arguments — that Phillips has a constitutional right to sidestep nondiscrimination laws because of his religious objections — Phillips and his lawyers have been emboldened to go on the offensive. This time around, Phillips and the Alliance Defending Freedom filed the lawsuit first, arguing the state’s protections for transgender people show the state is “blatantly and brazenly hostile toward religion.”
But while Phillips contends the Supreme Court’s previous ruling vindicates him now, the latest case differs from the dispute over the wedding cake. Chiefly, the lawsuit does not show specific examples of the Colorado Civil Rights Commission exhibiting “hostility” toward Phillips’s religion in the way it handled the transgender woman’s case — which was central to the Supreme Court’s decisions in the wedding cake case.
Second, the transgender woman’s cake, although designed to reflect her transition, was not to be used in any ceremony celebrating her gender change — removing Phillips’s previous argument that the message he created was part of a ceremony that violated his religious beliefs.
Phillips had also said previously his recusals were limited to same-sex weddings.
“I’ll make you birthday cakes, shower cakes, cookies, brownies,” Phillips recalled saying in an interview with the New York Times last September about the first lawsuit. “I just can’t make a cake for a same-sex wedding.”
Phillips is asking the court to block Colorado from enforcing its nondiscrimination law in this case, foremost because its application violates his First Amendment right to religious exercise. He argues that the nondiscrimination law’s enforcement, which lacks an exemption for religious shopkeepers, fails a legal standard of being generally applicable and neutral — instead, he alleges, the state “targets, shows hostility toward, and discriminates” against people of faith.
Phillips further argues the state violated his First Amendment right to free speech, which allows him to abstain from speech, such as refusing to make a pro-transgender expression in a cake. The state, he alleges, violated his rights “by forcing Phillips and Masterpiece Cakeshop to speak and create custom expressive cakes that communicate messages in violation of their religious beliefs.”
Finally, Phillips contends Colorado officials have infringed on his right to due process under the 14th Amendment for subjecting him to “an unfair and biased administrative enforcement, adjudication, and review process.”
The Alliance Defending Freedom, a Christian legal group representing Phillips, has waged war in the courts for business owners to deny services that communicate messages in conflict with their sincerely held religious beliefs. While their arguments have been anchored around refusing service to LGBT people or denying contraception coverage to women, their broader arguments raise concerns from critics they will rip loopholes into nondiscrimination policies across the board, potentially opening the door to racial discrimination in the name of religion, for example.