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On Thursday, a three-judge panel of the Colorado Court of Appeals ruled against Masterpiece Cakeshop baker Jack Phillips, arguing he violated the Colorado Anti-Discrimination Act by refusing to bake a cake for a gender transition celebration.
Critics of the ruling point to Phillips’ earlier “win” at the Supreme Court, which narrowly ruled in his favor, as the reason the baker continues to be targeted by activists. In 2017, former Justice Anthony Kennedy wrote the majority opinion that some have argued essentially said Phillips could have lost his Supreme Court case if it hadn’t been for Colorado officials openly disparaging Phillips and his Christian views.
That narrow decision has allowed Phillips to continue to be persecuted, critics say. At the Washington Examiner, Quin Hillyer argued that the Supreme Court’s “search for the narrowest possible result merely invited further, seemingly endless rounds of new litigation.”
The latest lawsuit against Phillips comes from an activist attorney, Autumn Scardina, in Colorado who called Masterpiece Cakeshop on the same day the Supreme Court announced it would take his prior case – in which he was accused of discrimination for refusing to bake a cake for a same-sex wedding. The attorney requested Phillips create a custom cake that was pink on the inside and blue on the outside to celebrate a gender transition. According to the Alliance Defending Freedom (ADF), which represents Phillips, the attorney also called back to request a cake depicting Satan smoking marijuana in order to “correct the errors of [Phillips’] thinking.” Phillips declined to make either cake because of the messages they depicted. The activist has now sued.
“Naturally, Colorado’s courts ignored the patently offensive request for a Satan cake and instead again held Phillips responsible for illegal discrimination based on gender, his religious objections notwithstanding,” Hillyer wrote. “Today’s affirmation by the appeals court of the lower court’s ruling takes ample advantage of the loophole left open by the Supreme Court while cherry-picking from other Supreme Court religious liberty decisions to reach its desired, anti-Phillips conclusion.”
On Twitter, prominent conservative PoliMath also blamed the Supreme Court for the ongoing legal struggles of Masterpiece Cakeshop.
“The result of John Roberts pushing for the narrowest possible ruling in the earlier Masterpiece case is that they continued persecuting Jack Phillips for years,” PoliMath tweeted. “They will continue to do this to him until he dies.”
The result of John Roberts pushing for the narrowest possible ruling in the earlier Masterpiece case is that they continued persecuting Jack Phillips for years
They will continue to do this to him until he dies https://t.co/W8z3JF4iTv
— PoliMath (@politicalmath) January 26, 2023
The appeals court on Thursday argued that Phillips only refused to bake the cake after learning the client was transgender and wanted to use the cake to celebrate his birthday and gender transition.
“Thus, it was Scardina’s transgender status, and her desire to use the cake in celebration of that status, that caused Masterpiece and Phillips to refuse to provide the cake,” the court wrote, arguing the cake “expressed no message.”
But ADL argues that “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.”
“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,” the ADF said in a statement. “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.”