It wasn’t because Jack Phillips’ cakes were so delicious, although they are apparently in great demand, but because Autumn Scardina wanted to “get him.” And Denver District Court Judge A. Bruce Jones held she did.
The cake in question was ordered for a birthday. The woman who called Masterpiece Cake Shop to ask for it wanted pink on the inside, surrounded by a layer of blue frosting. She explained to the shop employee it was to honor her gender transition.
At that point, the woman at the shop said they likely could not make it.
And that’s how Jack Phillip’s [sic] second, possibly precedent-setting, court case began.
The problem wasn’t that a transgender person wanted to buy a cake. Phillips was happy to sell a cake to anyone, regardless of their sexual orientation or gender identity. It wasn’t that Phillips took issue with making a custom cake that was pink on the inside and frosted in blue. It wasn’t that the purchaser of this custom cake was transgender and wanted a cake of these colors. It was that the cake, the purchaser explained to Mrs. Phillips on the phone, “‘was a reflection’ of her ‘transition from male-to-female.’” That, Mrs. Phillips responded, was a problem.
Scardina was a lawyer and, in light of the outcome of Masterpiece I, she was determined to take Phillips down. Had she just wanted a cake, she could have had one. But she didn’t want a cake. She wanted to test the law, test Phillips, and in the process become a transgender hero, and so she took that one extra step that would have been needless otherwise. The step that she expected would push Phillips over the edge so she could then sue him. Which she did.
In his decision, Judge Jones held that Phillips’ refusal to bake Scardina a cake, not because Scardina was transgender and not because he had an aesthetic issue with pink cake and blue icing, but because her purpose for the cake was to reflect her gender transition, violated Colorado’s anti-discrimination law.
There is no dispute, and the Court finds, that the Bakery is a place of public accommodation. C.R.S. § 24-34-601(1). There is no dispute, and the Court finds, that Ms. Scardina falls within the class of individuals protected by CADA and informed Defendants of her transgender identity when placing her order. There is no dispute, and the Court finds, that Ms. Scardina requested “goods or services” from Defendants and her requests were denied. The only dispute is whether Defendants’ refusals were “because of” Ms. Scardina’s transgender status. Ms. Scardina argues that Defendants’ refusal to provide her the requested cake was based, at least in part, on her status as a transgender female. Defendants argue that they did not refuse the requests because of Ms. Scardina’s identity, but because of the message the cake would have conveyed.
What distinguishes this case from Masterpeice I is that Scardina didn’t seek to have any particular message created on the cake, but rather two colors of her choosing for her purpose. The argument that the cake reflected some artistic expression was proffered and rejected. It was a cake with icing, like any other cake with icing, where the colors were pink and blue and the buyer was transgender and claimed to want it for some personal motive.
There are analogies that make this all very sticky. Would a Jewish Holocaust survivor be compelled to make a cake with colors to celebrate the Anniversary of the Third Reich? But then, Nazis aren’t a protected class. Don’t Phillips’ free speech and sincerely held religious beliefs count for anything, even if traditional religion has become devalued, if not despised, by the new secular religion?
The Court concludes that a reasonable observer of the requested cake would not attribute any message to Defendants and would not understand the cake to convey the message claimed by Defendants, i.e., endorsement of a gender transition. Therefore, Defendants have failed to carry their burden to show that providing the requested cake constituted any type of symbolic or expressive speech protected by the First Amendment.
Scardina’s claimed purpose didn’t, according to the court, change much substantively, even if she poked Phillips where it hurt.
Here, Defendants admit they use most if not all the same skills when creating premade goods and concede that those items are not expressive speech. Defendants also agree that to understand any message conveyed in a custom cake, you would “have to ask the customer.” Based on the evidence presented, the Court concludes that Defendants were not requested by Ms. Scardina to engage in self-expression. Perhaps the analysis would be different if the cake design had been more intricate, artistically involved, or overtly stated a message attributable to Defendants. (Emphasis added.)
Judge Jones has a point here. Scardina’s motive to “get” Phillips didn’t turn a banal cake into either an artistic expression or violation of religious belief. It was just a cake. It was a cake that could have been bought at any bakery, but then Scardina couldn’t target Phillips, do some intentional harm to this person whose views she hated (because hater gonna hate) and become a huge hero in the transgender community by taking down a baker.
Judge Jones’ decision seems legally sound, as far as it goes. This might not have been the right fact pattern for Phillips to argue that his religious freedom and expressive speech were implicated. The cake was too ordinary. It was just a cake, and to the extent it carried any “message,” it came from Scardina’s mouth rather than the color of the icing. But that someone as ill-motivated and hateful as Scardina needed to go after Jack Phillips who, right or wrong, just wants to bake cakes and not be forced to do so in violation of his conscience leaves us in a vicious place.
If the perspective was “live and let live,” Scardina could be transgender all she wants and Phillips could be religious all he wants. Instead, the fight isn’t over getting the boot off people’s neck but who gets to wear the boot. Today, it’s Scardina.