DENVER (CN) — If only her favorite colors were pink and blue, Masterpiece Cakeshop owner Jack Phillips might be able to make a custom cake for Autumn Scardina, the transgender woman who sued him after he refused to make a cake celebrating her transition birthday. So said the Colorado cake shop owner Monday evening when he asked the Denver County Court to dismiss the lawsuit filed in June.
The issue is thicker than fondant — Scardina says the bakery illegally discriminated against her because of her gender.
But Phillips, a Christian, says the cakes he makes reflect his values. No matter who requested it, Phillips said, he would not make cakes conveying messages that conflict with his beliefs, including baked goods celebrating Halloween or atheism.
“Both Scardina and Phillips understood that Scardina’s custom cake would be more than a birthday cake; it would ‘celebrate’ and reflect a gender transition,” according to his 26-page motion to dismiss, which cites 46 other cases.
“Just because Phillips declined to create that cake expressing that message does not mean Phillips would decline to create a cake for Scardina that looks identical but expresses a different message.”
The Colorado Civil Rights Commission sued Phillips in 2014 after he refused to make a same-sex couple’s wedding cake. Then, as now, he said his religious beliefs prevent him from creating something he doesn’t believe in.
In a 7-2 ruling, the U.S. Supreme Court overturned the commission’s finding — which had been upheld by an administrative law judge and the Colorado Court of Appeals. The justices found the commission had not treated Phillips with “neutral and respectful consideration,” and had made “official expressions of hostility to religion” in handling the case.
Then in July 2017, Denver-based attorney Autumn Scardina called Masterpiece Cakeshop requesting a pink cake with blue frosting. In her lawsuit, she said she made the request believing Phillips’ public statements that while he could not make a cake for a gay wedding, members of the LGBT community were welcome to order birthday cakes at his shop.
But Phillips said there are limits.
“No one could reasonably think that Phillips promised to create every cake requested of him just because someone calls it a ‘birthday cake.’ That would mean Phillips promised to create ‘birthday cakes’ with racist messages, to create those cakes for $1, and to create those cakes as large as a house,” his attorney Jonathan A. Scruggs wrote in the motion to dismiss.
Scardina first pursued her claim through the state Civil Rights Commission, to which Phillips filed a countersuit in federal court. Colorado settled with Phillips in March with both parties agreeing to drop their cases.
At the time, Colorado Attorney General Phil Weiser said Scardina was free to pursue her claim on her own dime. Now Phillips claims the court cannot review Scardina’s claim since she did not appeal to the commission before filing the latest lawsuit.
Phillips’ attorney Scruggs is with the Alliance Defending Freedom of Scottsdale, Arizona, a nonprofit that says its mission is to “advocate for the right of people to freely live their faith.”
“It’s time to move on and leave Jack alone,” the firm’s senior vice president Kristen Waggoner said in a statement.
“This new lawsuit is nothing more than an activist’s attempt to harass and ruin Jack because he won’t create custom cakes that express messages or celebrate events in conflict with his conscience.”
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