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.
It seems that this has gone beyond any justifiable attempt at “anti-discrimination” and turned into a personal war. So at what point can he file an ethics complaint against her for this vendetta? I would even contribute to a gofundme to cover him suing her for harassment.
There is no gofundme for brisket.
Ah yes, this must be the tolerant left I’ve heard so much about.
There’s a lot of intolerance to go around. The only question is who wraps their intolerance in sweeter sounding rhetoric?
Sure–but the right don’t claim tolerance as their core value, while the left do (or at least did).
If the Supremes declared Colorado’s anti-discrimination law in Masterpiece I unconstitutional because it violated the Free Exercise clause of the First Amendment would we have even gotten to this point?
And with Phillips ready to take this new case before the High Court, do you think they’ll actually address the religious freedom aspect of this whole mess should it end up on their docket again?
As we both know, Masterpiece I was a punt, but this isn’t the right case to make the point. Bad facts make bad law.
At what point will the trans, gay, lesbian, etc. groups realize these types of activities are counterproductive?
They are turning off the middle ground by acting like bullies.
Most people are willing to live and let live, but when you keep poking people there will eventually be some pushback.
They don’t get that at all. Neither does BLM. I’ve seen several prominent people on the left express the thought that effective protest has to piss people off.
It’s incomprehensible to them that making people angry turn them away from your cause, not toward it. The point is to persuade, otherwise you’re just throwing a fit. Scardina in this case hasn’t persuaded anybody of anything except that he/she is an asshole.
The civil rights protests lead by MLK going on 60 years ago are still the most effective movement of my lifetime. King understood the moral high ground and how important it is to have it. Protestors these days are just complaining – they’ve got no real interest in affecting change. So Scardina forces the baker to quit his business – what in the world has she accomplished for trans rights?
When people stop jumping thru the hoops, they’ll probably stop holding them up. Flag burning became much rarer after SCOTUS ruled it couldn’t be punished as such.
Turning off the middle ground is a feature, not a bug. They aren’t interested in compromise. It is their way or the highway.
Cakes don’t offend people, people offend people.
Demands for respect rarely engender real respect.
Was this a demand for respect or hegemony?
Hegemony
Not sure of the reasoning that since the cake is not substantively different than another cake, then refusing to sell or provide it if it’s being used for a purpose that expresses the requestor’s protected characteristics is tantamount to an antidiscrimination violation. Since you invoked Nazi cakes, would a member of the Christian Identity movement, the white nationalist religion Timothy McVeigh was a member of, be able to sue if he walks into a Christian paraphernalia store and ask to buy an unadorned wooden cross, which the purveyor is happy to provide, only to renege when the Christian Identitarian expresses his plans to light it on fire at a service as an expression of his religion’s racist beliefs? Ones which the purveyor finds deeply offensive to his own religion? What if it’s a lumber supply store, and the Christian Identitarian says he’s going to make a wooden cross to then light on fire? What about refusing to sell animals to a prospective buyer who expresses an intent to use them in a religious animal sacrifice?
Extending the benefits of a protected class to sales which are intended to express some element of that protected class seems a bridge too far. This shouldn’t have to be a legal question, statutory or constitutional, though, if only people could mind their own business.
If Scardina had just bought a cake that was pink with blue icing Phillips would have sold it. Scardina deliberately made the issue political by explicitly stating the purpose to engage his limitations. At that point it became not about the cake but harassing Phillips and searching for reasons to attempt to ruin him. My IANAL understanding is that this is called barratry and is illegal in most jurisdictions.
Had Phillips agreed to make the cake would Scardina have actually placed the order? Seems Scardina may well not have wanted a cake but a bully pulpit.
I think I would have ruled for Phillips on this one.
I was against Phillip’s position in the original case, for a variety of reasons but most relevantly because of the issues that look like they showed up here. If you could place the cake in a lineup and no one could explain with any measure of certainty which cake was the gay one and why, it’s hard to say that there was a gay message in it. And since Phillips didn’t let the original plaintiffs get to the point of describing their desired cake, that was where things were. I figured, if they had said, “draw two grooms on the top,” then Phillips should have had the win. But he didn’t let them get that far so I couldn’t see how he had a compelled speech defense.
But in this case there is an actual message. The plaintiff says that the cake is symbolic, and who and why. That the symbolism is minimal doesn’t seem important. That the symbolism is coded in such a way that the typical observer wouldn’t understand doesn’t seem important. Phillips isn’t speculating about the encoded message. This plaintiff went out of their way to explain it.
I can’t emphasize how much I felt like the original trial gave Phillips more rope than he deserved. I didn’t even have a problem with the trial court’s rhetoric- there IS a long history of religious beliefs being the source of discriminatory behavior that the government can validly regulate!
But I set a rule on the original case. An actual discernable message, and not just some speculative nonsense about maybe this maybe that, or a moan about subsequent use by the customer. In this case the message is essentially encoded, but an encoded message is still a message.
I can’t see anything that suggests that my original rule was wrong. So I think Phillips should have won. The plaintiff literally walked up to my line and stuck a toe over the edge.
Not that what I think matters.
Yes. A demand that they get what they want, because they have the right to have it. Sounds like both a demand for respect and hegemony. The two concepts go together.
I bet this was a reply to something, but I think you’re very much mistaken. Hegemony is control, which has nothing to do with respect. Respect is earned. Hegemony is imposed. They do not go together.
It was a reply to your question above. The people who practice hegemony think they are only demanding respect. They haven’t learned the difference, and/or they are tired to trying to earn it, and turn to demanding it. It is like social change – you ask nicely at first, but when the deplorables don’t get the message, you convince them “by any means necessary”.
The logic of “discrimination ‘in part'” is specious here, to say the least. It seems to give away that the discrimination had nothing to do with the customer being transgender if you have rely on it. Are we to believe that the Baker would have been perfectly ok to bake the same cake for the same purpose as long as a cisgendered person made the order?
I’d also say that the customer’s desire to “get” the baker for his beliefs makes this an inapplicable use of the law. Someone smarter than me will have to make the argument, but I dont believe the Constitution allows folks to use the government to attack others for their beliefs, religious or otherwise. This person’s attempt to do so may not invalidate the law, but it shouldn’t be allowed to stand.
The non-lawyers seem to be out fishing for emanations and penumbras on this one.
The cake was just a cake, Phillips would have been happy to sell it to a person that proclaimed it would be used to celebrate the birthday of their boy and girl twins. The only issue here is that Phillips wishes to engage in commercial transactions only with people that subscribe to his view of the world.
Did Scardina intentionally hurt Phillips’ feelings by proclaiming that in Scardinas’ mind the cake represented something that Mr Phillips, abhors? This is quite likely. In past posts you have argued against letting another’s feelings be the legal standard.
In the end the person with the boot is Phillips, and he placed it on his own neck. If you sell cakes, you need to sell them to all people regardless of whether you like how they think. A simple commercial transaction does not support or validates another’s belief or lifestyle. Phillips is free to follow his religious beliefs but in this case, he wants to impose them on others and that is the line he crossed.
There might be a huge constitutional difference between feelings and sincerely held religious beliefs.
Mr. Phillips sincerely held religious beliefs are not changed when he sells his cake. Mr. Phillips is free to believe whatever he likes and nothing Scardina does or says keeps Mr. Phillip’s from holding to his beliefs.
Explain to me how you would handle the situation where Mr. Phillips has already sold a cake and once the purchaser had taken possession, he hurts Mr. Phillips feelings by telling him that the cake has some meaning to him that offends Mr. Phillips and contradicts Mr. Phillips beliefs.
Are you suggesting that Mr. Phillips would have some cause of action because the purchaser had offended Mr. Phillips religious beliefs? Can you define how Mr. Phillips religious beliefs are in anyway harmed by how Scardina perceives the cake?
Mr. Phillips bakes and sells cakes, his shop is a public accommodation. The thoughts and feelings of the purchasers of these cakes are not a basis to deny service.
I don’t know whether you’re incapable of grasping the issues in this case or just refuse to do so. Either way, you’ve had your say.
I think someone should step forward and retain Scardina (attempt to) to sue Colorado that the anti-discrimination clauses respecting “perceived gender” are unconstitutional vague for subjectiveness
And then complain to the Bar Association when he refuses
Good try, but ain’t gonna work. Representing a client isn’t the same as baking a cake.