The Continuing 9-Year Assault Against Jack Phillips Unmasks the True Threat of the ‘Equality Act’

Nine years ago, a gay couple went into Masterpiece Cakeshop and asked baker Jack Phillips to craft a cake to celebrate their same-sex wedding. Phillips refused, based on his Christian conviction that marriage is between one man and one woman, but he offered to sell the men anything else in the shop. They reported him to the Colorado Civil Rights Commission, sparking a six-year legal battle up to the Supreme Court. Shortly after the Supreme Court found in favor of Phillips, a transgender lawyer targeted the Christian baker, beginning the battle all over again.

On Tuesday, the Denver County district court ruled that Phillips had violated the Colorado Anti-Discrimination Act (CADA) by refusing to bake a custom cake celebrating the biological man’s “transition” to a woman. The court found Phillips guilty because his wife had provisionally agreed to bake a pink cake with blue frosting before the transgender lawyer, Autumn Scardina, had explained that he intended the cake to symbolize his gender transition.

“The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as ‘others.’ This case is about one such product–a pink and blue birthday cake–and not compelled speech,” Judge A. Bruce Jones wrote.

THE SECOND WAVE

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Yet Scardina had specifically targeted Phillips for his convictions, and he claimed that “Phillips and his bakery attempted to exploit the news coverage by stating they would sell birthday cakes to LGBT customers.” Scardina sued Phillips, claiming that Masterpiece Cakeshop violated the Colorado Consumer Protection Act (CCPA) by engaging in deceptive advertising and that it violated CADA by discriminating against him.

Judge Jones rightly rejected Scardina’s absurd charge that Phillips had engaged in a stealth marketing campaign, but he ruled against Phillips on CADA.

Kirsten Waggoner, general counsel at Alliance Defending Freedom (ADF), the law firm representing Phillips, explained that Scardina’s lawsuit targeted Phillips for his faith.

“Jack Phillips serves all people but shouldn’t be forced to create custom cakes with messages that violate his conscience. In this case, an activist attorney demanded Jack create custom cakes in order to ‘test’ Jack and ‘correct the errors’ of his thinking, and the activist even threatened to sue Jack again if the case is dismissed for any reason,” Waggoner said in a statement on Thursday.

“Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions,” Waggoner added. “This case and others–including the case of floral artist Barronelle Stutzman, whose petition is pending before the U.S. Supreme Court–represents a disturbing trend: the weaponization of our justice system to ruin those with whom the activists disagree.”

“The harassment of people like Jack and Barronelle has been occurring for nearly a decade and must stop. We will appeal this decision and continue to defend the freedom of all Americans to peacefully live and work according to their deeply held beliefs without fear of punishment,” Waggoner concluded.

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According to ADF, Scardina first approached Masterpiece Cakeshop on June 26, 2017, the very day the Supreme Court agreed to hear Phillips’ case. Scardina, a biological male who identifies as a female, requested cake art celebrating his gender transition. The shop declined the request, since creating such a cake would violate Phillips’ religious beliefs about gender.

A few days later, another caller from a number associated with the name “Scardina” asked for a “birthday” cake for Satan, complete with a red and black theme and an image of Satan smoking marijuana. Phillips denied this cake as well.

On June 4, 2018, the day the Supreme Court issued its decision, someone emailed Phillips claiming to be a “member of the Church of Satan.” The email requested a “three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” black Dildo [sic]. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake.”

Scardina’s law practice states, “We take great pride in taking on employers who discriminate against lesbian, gay, bisexual and transgender people and serving them their just desserts.”

Scardina first went to the Colorado Civil Rights Commission, which found probable cause that Phillips had discriminated against the lawyer on the basis of sexual identity. Ultimately, the commission dropped the case, but Scardina himself filed a lawsuit against Phillips.

In his ruling refusing to drop Scardina’s CADA claim against Phillips, Judge Jones wrote that “whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.”

The judge ruled that making such a cake would not necessarily “convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design.”

The judge employed similar logic in ultimately ruling against Phillips.

Even though the Supreme Court ruled in favor of Phillips, it did not rule on the central question at issue: whether or not the creation of cakes or other art celebrating same-sex weddings (or other events to which Christians like Phillips would object, such as a gender transition party) constitutes protected speech under the First Amendment.

In the wake of the Supreme Court’s horrific decision in Bostock v. Clayton County (2020) — which redefined “discrimination on the basis of sex” to include discrimination on the basis of “sexual orientation” and “gender identity” — this question is more important than ever.

Under Bostock and President Joe Biden’s related executive order, Christians and conscientious objectors across the country could face protracted legal battles like the one Jack Phillips currently faces. If Democrats manage to pass H.R. 5, the “Equality Act,” that would eviscerate religious freedom, carving out a specific exemption from religious freedom protections just for claims of discrimination on the basis of sexual orientation and gender identity.

In fact, the “Equality Act” looks like a legal scalpel, specifically designed to ensure that Christians like Jack Phillips will have no legal defense against lawsuits like Scardina’s.

Laws against discrimination on the basis of sexual orientation and gender identity have enabled LGBT activists to target dissenters like Phillips for prosecution in the service of ideological enforcement.

The same commission that hounded Phillips defended another baker’s right to refuse to create cakes that stated a message with which she disagreed. Worse, the commission compared Phillips’ actions to Nazi apologists, even though Phillips’ own father fought the Nazis and liberated a concentration camp in World War II.

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Scardina’s lawsuit only underscores the fact that activists will use the “Equality Act” to hound Christian artists out of existence.