By John A. Sparks

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. Phillips lost there at the trial court level and again when he appealed that unfavorable decision to an intermediate appellate court in the Colorado system — the Colorado Court of Appeals.

The latest legal ruling was penned by Judge Timothy J. Schutz, writing for a three-judge panel of that court. The opinion first dealt with several technical procedural issues then turned to the substantive issues. His opinion supported the trial judge’s conclusion that Masterpiece’s refusal to bake a gender transition cake for Scardina violated CADA. CADA’s language makes it unlawful “to refuse, withhold from, or deny an individual … because of … sex, sexual orientation, gender identity, gender expression … the full and equal enjoyment of the goods or services … of a place of public accommodation.” He endorsed the reasoning of the trial court judge, which emphasized the initial “willingness” of Masterpiece to bake the cake followed then by the retraction once the purpose of the cake became clear. He also pointed to Jack Phillips’ statement that a pink cake with blue icing did not necessarily have any “intrinsic meaning.”

The Schutz opinion refused to recognize that Scardina’s first call deliberately failed to give the full information about the intended use of the cake. The order was also placed on a day when the Masterpiece Cakeshop employees were distracted by the unexpected good news that the Supreme Court would take up their case invoking the gay men. That very same day, once Jack Phillips knew that the order would make his artistry part of a gender transition celebration, he unequivocally said he would not bake the cake.

Schutz also rejected the argument by Masterpiece and Phillips that the Civil Rights Commission had used an unfair double-standard by refusing the complaints of religious customers who were denied service on orders they placed with Colorado bakeries for cakes containing a strong biblical message against homosexuality.

The Colorado Appeals Court still had to deal with the obvious problems of free speech and freedom of religious exercise. Concerning speech, Schutz recognized that Colorado had no right to compel a citizen to speak a message to which he objected. However, the opinion questioned whether requiring Phillips to bake a pink cake with blue icing was really “speech” at all. Judge Schutz had to acknowledge that the courts have long recognized that conduct intended to express a position on an issue or advocate a point of view, even if not accompanied by actual words, still falls in the category of speech. For example, the U.S. Supreme Court has protected the “speech rights” of students who were protesting the Vietnam War by silently wearing black arm bands to school. It has protected the “speech” of laborers who were picketing even though no words were spoken.

Because of this long line of precedents, Judge Schutz must concede that if the conduct conveys a certain message and would be understood by those who viewed it as conveying a certain message, then that conduct, or action, can be regarded as speech and that the law cannot compel citizens to engage in speech which is contrary to their convictions.

From here on, however, the opinion loses its credibility. It claims that the baking of the blue/pink cake itself conveys no message even as part of a gender transition party — a party extolling a man now identifying as a woman. In fact, inexplicably, Judge Schutz refers to the very testimony of a witness in the case who stated that if he attended such a party where a blue/pink cake was featured, the cake would convey a message. And what would that be? According to the witness, “It would represent from male to female, the colors.” But Judge Schutz defies ordinary understanding and logic when he writes: “the information [about a man becoming a woman] is not derived from any artistic details or message by the baker … the message … would be generated by the observer based upon their understanding of the purpose of the celebration.”

This part of the opinion is simply nonsensical. Using the cake colors and their positioning — one color on the outside and one on the inside — the message which the baker of the cake is compelled to convey is clear: the host of the party may appear to be a male on the outside (blue), but nevertheless on the inside he is female (pink). If Phillips bakes a white cake with chocolate icing, that message is not conveyed. If he bakes what he has been directed to bake, pink with blue icing, he helps to send a message which violates his beliefs and convictions.

Despite its faulty reasoning, the court concludes that Masterpiece is not compelled to produce a message contrary to Phillips’ convictions because baking the cake in this way is “not inherently expressive and any message or symbolism it provides to observers would not be attributed to the baker.”

What about the question of the free exercise of religion? Here the Colorado Court of Appeals relied upon a Supreme Court case, Employment Division v. Smith (1990). In that case, two defendants claimed that their free exercise of religion was infringed because they were criminally prosecuted for taking an illegal drug — peyote — during a Native American religious ceremony and when they were fired could not claim unemployment compensation from Oregon. The Supreme Court found that if the law in question is “neutral” and “generally applicable,” which the Oregon law against using peyote was, the persons who disobeyed it would not be protected by the free exercise clause as long as the state could show a rational reason for the law.

This is what Colorado claims about CADA as applied to Masterpiece and Phillips. Colorado asserts that CADA is “neutral” and “generally applicable” and Colorado’s commitment to preventing discrimination is within the rational state interest. Therefore, the free exercise of religion which is arguably thwarted by CADA is not sufficient to override the Colorado public accommodations statute under the doctrine of Smith.

Judge Schutz is still left with another part of the Smith decision that he has to address. Under Smith, the court did allow that the government would have to meet a higher standard, usually called “strict scrutiny,” if the litigant asserting a religious liberty violation could show that his free exercise claim was coupled with another independent constitutional right, like freedom of speech, for example. This coupling of two different rights is sometimes called the “hybrid-rights” argument. If two rights were at stake, the government would then have to show that the interest it is trying to further by enforcing the law is “compelling” — that is, absolutely critical to its success. This is a very high legal hurdle over which Colorado would have to leap. Specifically, Colorado would have to show that, for example, certain limited exceptions for the religious scruples of service providers would crucially and fundamentally undermine the state’s overall anti-discrimination policy. Judge Schutz simply side-stepped this question by saying that in the court’s opinion, since Masterpiece and Phillips were unable to show a wrongful interference with their freedom of speech, they cannot avail themselves of the hybrid-rights defense, since they have not shown two separate rights.

If this case reaches the U.S. Supreme Court, what should the court do? It must face the issues squarely and not avoid them. At the very least, it should use the hybrid-rights portion of Smith to place a heavy burden on Colorado to show why the clear abundance of alternative cake artists who are not bound by religious convictions still compels it to force Phillips and others like him to choose between violating their beliefs or facing business destroying fines. Further, the court should make clear that if state legislatures refuse to craft reasonable religious exceptions to its public accommodation statutes, then the court will be left with no other alternative than to strike those statutes down as unconstitutional because they contravene the freedom of speech and free exercise protections accorded citizens by the First Amendment.

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.