Literally on the same day in 2017 when the U.S. Supreme Court agreed to hear Phillips’ original case involving the two gay men, Scardina placed an order with Masterpiece Cakeshop for a cake to celebrate both Scardina’s birthday and transition to being a woman. Scardina first placed the order without mentioning the cake’s purpose, noting only that the cake was to be blue on the outside and pink on the inside. But during a second call on the same day, Scardina made clear the purpose of the cake for a trans celebration. At that point an employee of Masterpiece said the business could not bake such a cake. Phillips explained the reason why in testimony. He believed “that God designed people as male and female, that a person’s gender is biologically determined.” Making such a cake to celebrate a gender transition would violate his religious beliefs and force him to express views that were contrary to those beliefs. Scardina filed a complaint with the Colorado Civil Rights Commission. 

In 1950, Eileen Barton’s rendition of “If I knew you were coming I’d have baked a cake” became #1 on the Billboard charts. Until 2012, that song might well have been Colorado baker Jack Phillips’ favorite. But in that year, his three-decade love of baking cakes and other baked goods for those who patronized his Lakewood, Colorado Masterpiece Cakeshop turned into a decade-long nightmare of legal and cultural battles.

Today, Phillips would like nothing better than to return to the quiet hum of his baking establishment’s kitchen. Why isn’t that possible? Why can’t he resume preparing confections for customers without members of sexual minority groups demanding that he adopt and help celebrate their own peculiar view of human sexuality? Why is the state of Colorado menacing an upright citizen like Phillips with criminal complaints and fines?

Let’s briefly trace Jack Phillips’ unhappy legal trek.

In the 1970s, Phillips became a Christian and was convicted that his faith put limits on the types of customized cakes he would bake in his own private business. For example, he refused to portray witches and ghosts for Halloween or sexually suggestive images. In keeping with his Christian beliefs that marriage should be between one man and one woman, he concluded that he could not be part of the celebration of same-sex unions by artistically designing custom wedding cakes for such occasions.

Phillips’ faith commitments did not pose problems for him until 2012 when he respectfully declined a request from two gay men to bake a custom wedding cake for them. That got him in trouble with Colorado’s Anti-Discrimination Act (CADA) and the Colorado Civil Right Commission after the pair filed a claim alleging that Phillips discriminated against them because of their sexual orientation. Phillips defended his refusal, saying that his religious liberty and his freedom of speech, including the right not to be compelled to express a certain message, were being violated. To his chagrin, the administrative law judge hearing the case ruled that Phillips either had to bake cakes for all weddings or none. Furthermore, the judge’s order required Phillips to “retrain” his staff to accept requests involving gay weddings, and to report, over a two-year period, all cake orders he refused.

To make matter worse, when Phillips appealed, the Colorado Court of Appeals supported the commission and the law judge’s findings and remedies and the case went to the U.S. Supreme Court. There, in 2018, the Supreme Court found in favor of Phillips, but only on the weakest possible grounds. Some of the Colorado Civil Rights Commissioners made outlandish public statements during proceedings about Phillips’ religious beliefs, referring to them as “despicable pieces of rhetoric” which allowed him to use his “religion to hurt others.” There were other similar statements. All of this was too much for the U.S. Supreme Court. Justice Anthony Kennedy, along with six other justices who joined or concurred in his opinion, said that “the Commission’s treatment of Phillip’s case violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or a religious viewpoint.” (Keep in mind that Justice Kennedy wrote the Obergefell decision making same-sex marriage the law of the land.)

The Kennedy opinion, though a temporary victory for Phillips, was based on flagrant and foolish public misconduct by the Colorado governmental body hearing his case, and which was not likely to be repeated. Unfortunately, Kennedy’s opinion failed to address the central issue of whether the recently devised use of “public accommodation laws,” like the CADA law, to advance the claims of sexual minorities for equal treatment, should override the long-standing constitutional rights of speech and free exercise of religion. The court’s failure to face head-on that set of issues meant that providers like Phillips would be open to further legal challenges. That is precisely what has happened. A transgender woman—Autumn Scardina—who was an attorney, is doggedly pursuing Phillips and Masterpiece by every legal means available.

Literally on the same day in 2017 when the U.S. Supreme Court agreed to hear Phillips’ original case involving the two gay men, Scardina placed an order with Masterpiece Cakeshop for a cake to celebrate both Scardina’s birthday and transition to being a woman. Scardina first placed the order without mentioning the cake’s purpose, noting only that the cake was to be blue on the outside and pink on the inside. But during a second call on the same day, Scardina made clear the purpose of the cake for a trans celebration. At that point an employee of Masterpiece said the business could not bake such a cake. Phillips explained the reason why in testimony. He believed “that God designed people as male and female, that a person’s gender is biologically determined.” Making such a cake to celebrate a gender transition would violate his religious beliefs and force him to express views that were contrary to those beliefs.

Scardina filed a complaint with the Colorado Civil Rights Commission. Before that case could be heard, however, Phillips and Masterpiece brought an action in federal court against Colorado. Eventually, Phillips and Colorado settled by each withdrawing their respective suits. But the dispute was not ended.

Scardina then filed a civil suit on her own behalf in a state court, the current case being litigated.

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