Two Tuxes and a Trans Cake: Religious Liberty on the Docket Again

The straight baker who won’t make a gay cake is back in court – can he prevail?

 By: Pennel Bird March 25, 2021 Articles, Law

by Pennel Bird

Remember back when a Colorado baker refused to bake a cake for a same-sex couple’s wedding based on personal religious beliefs? His name was Jack Phillips, and whether one agreed with him or not, his principled stand took him all the way to the Supreme Court, where he won a partial victory.

At issue was whether the state should – or constitutionally could – compel a private business owner to provide a service that contravened his faith. At the time, the Colorado Civil Rights Commission ruled that Phillips violated the state’s anti-discrimination laws, but the Supreme Court narrowly overturned that decision, ruling that the Commission had demonstrated “clear and impermissible hostility” to religion. This was in 2018. Feeling vindicated, Phillips returned to confectionary. The Masterpiece Cakeshop was back in business and was able to stay open, even though a small avalanche of negative press in an increasingly progressive state had gutted its customer base.

Jack Phillips

On the same day the Supreme Court announced it would hear Phillips’ appeal in the gay wedding cake case, a transgender woman named Autumn Scardina attempted to order a birthday cake to celebrate her identity as a transgender woman. The cake was intended to be pink on the inside and blue on the outside to commemorate her journey.

As an attorney and LGBTQ activist making her request on the day the Supreme Court agreed to hear Phillips’ case, Scardina knew full well she was testing fraught legal waters – and good for her. These important socio-cultural issues need to be vetted in the highest court in the land and not just in the court of public opinion. The Supreme Court’s imprimatur confers legitimacy on a ruling – whether one agrees with the decision or not.

When the Colorado Civil Rights Commission decided to move forward with Scardina’s complaint, Phillips filed a countersuit. In capitulation, the Commission ultimately decided to drop Scardina’s case – possibly because the highest court in the land had overturned its previous decision against The Masterpiece Cakeshop. Scardina then filed a complaint in Denver Civil Court, alleging that Phillips violated both Colorado’s Anti-Discrimination Act and the Consumer Protection Act.

Scardina had claimed she was testing the sincerity of Phillip’s stand on religious grounds by ordering the trans-cake. For his part, Phillips’ attorney claims his client refuses to make many cakes memorializing messages with which he disagrees, including Halloween-themed cakes. Scardina’s attorneys argue that Phillips refused to sell a cake to Scardina because she is transgender – even though he claimed in front of the Supreme Court that he would serve cakes to all members of the LGBTQ community. For this reason, Scardina’s representation maintains, he is not being honest with the public.

Philips’ attorney believes the continual lawsuit suit filings are an ongoing attempt to harass his client.

Many left-leaning gay Americans want to compel people like Jack Phillips to violate their faith in the name of greater tolerance. Many right-leaning gay Americans (yes, they do exist) wonder why LGBTQ consumers don’t just vote with their wallets and take their business elsewhere. The issue defies pat answers or easy solutions.

If Autumn Scardina’s suit makes it to the Supreme Court, that body will have to rule on an element of the case many feel it “punted’ on with the Two Tuxedos Cake Case: Does a business owner have the right to refuse LGBTQ folks on the basis of faith?

A suggestion for Autumn if she wins that case: a blue cake with pink frosting – and nine black-robed figurines atop.

~

Read more from author Pennel Bird.