At the end of a four-day trial, a Denver judge will decide whether a Christian baker who refused to make a transgender birthday cake violated the Colorado Anti-Discrimination Act.
(CN) — Three years after the U.S. Supreme Court sided with Masterpiece Cakeshop — albeit narrowly — in a case over a same-sex wedding cake, a transgender woman took the Christian bakery back to a Denver court Monday after the bakery refused to make a birthday cake commemorating her gender transition.
“They say she asked for a sex-change cake. She says she asked for a birthday cake. That doesn’t matter. What matters is they refused to make her a cake based on her identity,” attorney John McHugh, who represents plaintiff Autumn Scardina, told Denver County Judge Alan Jones in the first day of trial Monday. McHugh practices with the Denver-based firm Reilly Pozner.
Although Scardina did not personally know Charlie Craig and David Mullins, the same-sex couple who sued Masterpiece in 2012 for refusing to make their wedding cake, she felt like their cause was her cause.
“It was painful to watch as a member of the community,” Scardina recalled on the virtual witness stand. “I came out as transgender in 2010 and started the transgender process in 2012, and anyone who’s been there knows it’s not for the faint of heart. I had lost my marriage and lost my family. I felt particularly vulnerable and angry.”
Scardina vented by writing emails to Phillips in August 2012 in which she called him a bigot and a hypocrite. The Colorado Civil Rights Commission picked up Craig and Mullins’ complaint in 2014. Then, as now, Phillips said his religious beliefs prevent him from creating cakes to celebrate occasions he doesn’t believe in.
In a narrowly tailored 7-2 ruling issued in June 2018, 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.
They did not weigh in on whether Phillips had discriminated against the couple by refusing to make their wedding cake.
By 2017, Scardina said she had forgotten her anger over the same sex wedding cake, and believed Phillips when he told the public he would make birthday cakes for anyone.
But Phillips refused to make a pink cake with blue frosting to celebrate the anniversary of Scardina’s transition, so she filed a new complaint through the Colorado Civil Rights Commission in 2018 claiming gender discrimination. Since this was not his first course with the commission, Phillips sued the state for harassment in federal court.
In 2019, the state and Phillips reached a settlement and withdrew their complaints, leaving Scardina where she started with an empty plate. She sued the cakeshop directly in Denver state court in June 2019.
“Why not just bake the cake? That’s a question Jack Phillips gets asked a lot. Avoid years of litigation, avoid the death threats. Just make the cake. But Jack Phillips sees himself as an artist, and the cake as an expression of his soul,” explained Phillips’ attorney Sean Gates of the firm Charis Lex. “Jack Phillips’ cakes convey a message.”
The conservative Christian organization Alliance Defending Freedom is also supporting Phillips’ defense.
Showing a slideshow of racecar, cat and basket-shaped cakes, Gates said, “Even though he creates a lot of cakes, none of them are the same. When he makes a cake, he finds out what that person loves so he can create the right message for the right time.
“But Jack Phillips is a Christian and his religion affects what he can create,” Gates continued. “Jack Phillips will make cakes for all people, but he cannot make cakes for all messages.”
Phillips says that over the years he has declined to make cakes celebrating Halloween, alcohol, racism and marijuana as well as ones with demeaning messages.
“Masterpiece Cakeshop has regular customers who are gay, Masterpiece Cakeshop has regular customers who are transgender. The issue has to do with the message,” Gates argued. “The evidence will show that if Jack Phillips bakes that cake that it would mean he agrees a gender transition is something to celebrate. This lawsuit isn’t about discrimination, it’s about the freedom to disagree.”
Jones is presiding over the four-day trial, which is being held remotely in light of the Covid-19 pandemic.