Kate Anderson
- The Supreme Court may have to weigh in on free speech for Christian artists again, and Jack Phillips, a Colorado baker who refused to make a gender transition cake, told the Daily Caller News Foundation he’s ready to take his case to the higher court for a second time.
- Jake Warner, Phillips’ attorney and senior counsel with Alliance Defending Freedom, told the DCNF that he believes the Supreme Court’s previous ruling in 303 Creative would play a key role in winning Phillips’ case.
- “If we win every creative artist in Colorado, and then hopefully for every American, will be able to live and work freely … when they make decisions about what messages they will create or messages they will decline,” Phillips told the DCNF.
A Christian baker in Colorado is prepared to go to the Supreme Court for a second time after being sued for refusing to make a gender transition birthday cake, he told the Daily Caller News Foundation.
Jack Phillips beat a previous lawsuit at the high court in 2018 after he declined to make a cake for a gay wedding, but he was sued again in March 2021 by transgender lawyer Autumn Scardina, who called Phillips’ bakery in 2017 asking for a cake with blue frosting on the outside and pink frosting on the inside to represent a gender transition. The Colorado Supreme Court announced Tuesday that it would hear the case, and Phillips told the DCNF that if he ends up at the Supreme Court again that he hopes they can secure a victory for all artists.
“The government was trying to punish me because my views were different than what was the preferred message of the day,” Phillips said. “So my views are deeply held and the Constitution protects those and this is not just about making cakes, it’s about every American’s right to be able to live according to their conscience.”
Jake Warner, senior counsel with Alliance Defending Freedom and Phillips’ attorney, told the DCNF that he hopes a second Supreme Court appearance would be “unnecessary.”
“We hope that the Colorado Supreme Court rules for Jack, thus making it unnecessary to appeal anything back up to the U.S. Supreme Court, but if Colorado rules that state law can be misused to force Jack to create messages that go against his beliefs we will appeal and hopefully achieve final justice for Jack there,” Warner said.
Phillips has been dealing with litigation since 2012 after a gay couple came to his shop and asked him to make a cake celebrating their upcoming wedding, according to The New York Times. When Phillips refused due to his religious beliefs, he was sued and lost, but he filed his own lawsuit not long after against the Colorado Civil Rights Commission arguing the state was censoring his freedom of speech.
Phillips told the DCNF that it was a “chaotic day” when he got the call for the gender transition cake, which was just hours after the Supreme Court had decided to hear arguments on the original lawsuit. He said that it was made very clear to him that the cake was expressly for a gender transition party, which Phillips felt he could not support as a Christian.
“We serve everybody who comes in and we told the person, who requested this cake that was blue on the outside and pink on the inside, that was okay until they told us that the colors were symbolic of changing from male to female,” Phillips said. “So we told this person ‘We will gladly create this cake for you for another event, or any other custom cake that we would do for anybody else, or sell you anything in our shop but we can’t create this one because of the message it expresses.’”
Warner explained to the DCNF that though there were no words on the cake about gender transitioning, the Supreme Court had established in other cases that “symbolism” counts as speech. He said that speech is more than “just words” and that the “bottom line” for the court is “Does this item express a message?”
The Supreme Court ruled over the summer that a Christian web designer was protected under the First Amendment to choose not to create wedding websites for same-sex couples in the case 303 Creative LLC v. Elenis. Warner told the DCNF he felt that the case would play a strong role in Phillips’ defense.
“So at issue here is can the government compel an artist to express speech that they disagree with and that’s the exact issue where the U.S. Supreme Court decided in 303 Creative that free speech is for everyone,” Warner said. “The government can’t force anyone to express messages that goes against their beliefs and because we appealed Jack’s case to the Colorado Supreme Court before 303 Creative was decided the state Supreme Court will be the first to be able to apply that decision in Jack’s current case.”
Phillips told the DCNF that business has been “different” since he was first sued 11 years ago, but that he’s ready to take this fight all the way and, hopefully, close this chapter in his life.
“We’ve been in litigation for 11 years trying to protect the rights of all Americans to live and work according to their conscience without punishment from the government,” he said. “If we win every creative artist in Colorado, and then hopefully for every American, will be able to live and work freely…when they make decisions about what messages they will create or messages they will decline.”
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