Colorado baker fights for gender transition cake

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DENVER — The Colorado baker who won a partial Supreme Court victory after refusing on religious grounds to bake a gay couple’s wedding cake a decade ago is challenging a separate ruling that he broke the law state anti-discrimination by refusing to bake a cake celebrating a gender transition.

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A lawyer for Jack Phillips on Wednesday urged the Colorado appeals court – largely on procedural grounds – to overturn last year’s ruling in a lawsuit brought by a transgender woman.

The woman, Autumn Scardina, called suburban Denver’s Phillips Bakery in 2017 asking for a birthday cake with blue frosting on the outside and pink on the inside to celebrate her gender transition. At last year’s trial, Phillips, a Christian, testified that he didn’t think anyone could change sex and that he wouldn’t celebrate “someone who thinks they can”.

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Colorado attorney Autumn Scardina poses for photos outside the Ralph Carr Colorado Judicial Center in Denver, Wednesday, Oct. 5, 2022.
Colorado attorney Autumn Scardina poses for photos outside the Ralph Carr Colorado Judicial Center in Denver, Wednesday, Oct. 5, 2022. Photo by Colleen Slevin /AP Photo

Jake Warner, a lawyer representing Phillips from the conservative Christian legal defense group Alliance Defending Freedom, said the decision was wrong. He said demanding Phillips create a cake with a message contrary to his religious beliefs is like forcing him to say something he doesn’t believe, violating his right to free speech.

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Judge Timothy Schutz noted that Phillips’ wife initially told Scardina the bakery could make the cake before Scardina volunteered to say the design was meant to celebrate her gender transition.

One of Scardina’s lawyers, John McHugh, said Scardina did not ask the store to approve his idea, but simply sold him a cake that he would sell to anyone else. He said whether or not Phillips sells a cake to someone cannot depend on what the customer tells him when he makes the cake.

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Both Scardina and Phillips have spoken outside of court about the larger issues at stake. Scardina said the case is about the “dignity of LGBTQ Americans and Coloradans and the rule of law.” Phillips said he fights for the rights of all Americans to live according to their conscience “without fear of punishment” by the government.

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In 2018, the Supreme Court ruled that the Colorado Civil Rights Commission acted with anti-religious bias in enforcing anti-discrimination law against Phillips after he refused to bake a cake celebrating Charlie Craig and Dave’s wedding. Mullins in 2012. The judges called the commission an unjust disregard for Phillips’ religious beliefs.

The High Court did not rule then on the broader issue of whether a company can raise religious objections to refuse to serve LGBTQ people. But he’ll get another chance when he hears a different case in the coming months challenging Colorado’s anti-discrimination law.

The case involves Lorie Smith, a Denver-area designer who wants to offer wedding website services, but says her Christian beliefs would lead her to refuse any request from a same-sex couple to design a wedding website. wedding. She also wants to post a statement on her website about her beliefs, but says Colorado law violates her freedom of speech and religious rights.

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In agreeing to take up the case, the Supreme Court said it would only consider the issue of freedom of expression.

Smith is also defended by Alliance Defending Freedom. Phillips’ attorneys unsuccessfully asked the Colorado Court of Appeals to delay hearing arguments in his challenge until the Supreme Court rules in the Smith case.

Scardina, a lawyer, attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. Scardina testified that she wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBT customers.

Before filing charges, Scardina first filed a complaint against Phillips with the state and civil rights commission, which found probable cause that Phillips had discriminated against her. Phillips then filed a federal lawsuit against Colorado, accusing it of a “crusade to crush it” by pursuing the lawsuit.

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In March 2019, state attorneys and Phillips agreed to drop both cases as part of a settlement in which Scardina was not involved. Warner told the appeals court panel that Scardina must first appeal to the state appeals court before filing a complaint and – since she failed to do so – the decision against Phillips should be overturned because the state court judge who heard the lawsuit lacked jurisdiction.

McHugh argued that the settlement failed to reach a conclusion on Scardina’s discrimination claim, so there was nothing stopping him from taking legal action against Phillips to pursue it.

After the lawsuit went to trial last year, Denver District Judge A. Bruce Jones rejected Phillips’ argument that making the cake constituted forced speech, saying he was was simply acting as a product sold by a company that could not be withheld from people who have traditionally been unfairly treated and are protected by state anti-discrimination law. He said Phillips’ decision not to provide the requested cake was “inextricably linked” to his refusal to recognize Scardina as a woman.

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