Colorado judges consider meaning of pink and blue cake in transgender discrimination case

The case involving Denver-area baker Jack Phillips is the latest of three in Colorado pitting LGBTQ+ civil rights against First Amendment rights. In a previous case, Phillips won a partial victory before the U.S. Supreme Court in 2018 after refusing to bake a cake for a gay couple’s wedding.

The Colorado Supreme Court took Tuesday’s oral arguments in the transgender celebration cake case under advisement without immediately ruling.

The affair arose when Phillips initially agreed to bake a cake for attorney Autumn Scardina, but then declined after Scardina explained she was going to use it to celebrate her gender transition.

The Colorado Court of Appeals sided with Scardina, ruling that the pink and blue cake — about which Scardina requested no writing — was not speech protected by the First Amendment.

Colorado Supreme Court justices asked attorneys for both sides what kind of cake with no writing on it a baker could refuse to bake, while Colorado’s anti-discrimination law prohibits refusing to provide services based on characteristics protected areas such as race, religion or sexual orientation.

They also asked whether Phillips would have agreed to bake an identical cake for different purposes, such as to celebrate the birth of twins, a boy and a girl.

“It’s only when they enter the consumer’s home that they understand the message. It’s the same cake. It’s a pink cake with blue frosting,” Judge Melissa Hart told Phillips’ attorney, Jake Warner, suggesting other hypothetical scenarios involving pink and blue cakes.

Warner argued that the cakes Phillips created are protected by free speech. He told the judges that what Scardina told Phillips about the purpose of the cake was important to his right to free speech.

“The message became different when Phillips was told it was to celebrate and symbolize a transition from male to female,” Warner told the judges. “Cakes can look identical facially and you can have identical content that expresses a different message.”

Warner drew the line, however, and said Phillips should sell pre-made cakes, including pink cakes with blue frosting, to anyone, for any reason.

Judge Maria Berkenkotter asked Phillips if he thought a white cake with white frosting could be denied to a customer who said it represented a gender transition.

“But this cake lacks symbolism,” Phillips said. “The message is not as clear in the cake as we have it here.”

Later, Judge Monica Márquez asked Scardina’s lawyer, John McHugh, whether Phillips would have agreed to bake a rainbow-colored cake similar to the rainbow designs used to promote the LGBTQ+ identity.

“They would happily bake the same cake for other customers,” McHugh said, referring to Phillips’ previous statements.

The cake’s features were not a factor in Phillips’ partial victory in the gay couple’s lawsuit against him before the U.S. Supreme Court, which ruled that the Colorado Civil Rights Commission had unfairly disdained the beliefs nuns of Phillips.

Another recent case in Colorado concerns free speech and LGBTQ+ rights. Last summer, the U.S. Supreme Court ruled in favor of a Colorado graphic designer who did not want to create wedding websites for same-sex couples.

Graphic designer Lorie Smith, who like Phillips is represented by the Alliance Defending Freedom, challenged the same state law. The court’s conservative majority said forcing her to create websites for same-sex marriages would violate her right to free speech.

Both sides in the dispute over Scardina’s cake order say the U.S. Supreme Court’s new ruling strengthens their arguments.