June is LGBT Pride Month, meaning that every single brand you love is covered in rainbows and glitter and declaring their support for all people gay, bisexual, transgender, and otherwise nonconforming in some fashion. Some of it is pure pandering, while some of it is tied to useful fundraising for valuable charitable causes. All of it is an awesome reflection of a positive cultural shift toward public inclusion of a class of people who were once treated like predators and sex fiends.
But a transgender Denver attorney named Autumn Scardina is spending this month using the courts in Colorado to go after a bakery that has become famous for its unwillingness to play along. Jack Phillips and Masterpiece Cakeshop are being sued, yet again, for refusing to bake somebody a cake.
Phillips and Masterpiece Cakeshop were central to a Supreme Court decision focusing on whether a baker could be required, under a state's anti-discrimination public accommodation laws, to bake a wedding cake for a gay couple. Ultimately, the court ruled 7-2 in Phillips' favor, but under a narrow analysis that determined the state's civil rights agency had shown bias against Phillips' religion when making its decision. The ruling left the underlying legal question unanswered of whether a baker who doesn't support same-sex marriage could be forced to make a wedding cake or whether doing so was compelling speech.
At the same time as that case was winding its way up to the Supreme Court, Phillips was contacted by Scardina for the purpose of making some sort of transgender celebratory cake—pink on the inside but with blue frosting. Masterpiece Cakeshop declined to make her cake, and Phillips indicated he held religious objections to "celebrating" a gender transition, just as he objected to same-sex marriage.
Scardina complained to Colorado's Civil Rights Commission, which went after him yet again under the state's anti-discrimination laws. Phillips fought back and countersued, arguing that the state was targeting him for punishment due to his religious beliefs.
In March, the state of Colorado and Phillips both agreed to drop their respective lawsuits. But while the state declined to keep pursuing this fight, this didn't stop Scardina from acting on her own in civil court. Scardina is herself an attorney who represents plaintiffs in LGBT discrimination cases, but here she's turning to lawyers with the Denver-based firms Reilly Pozner and King & Greisen to represent her in the city's District Court.
So this third lawsuit is fundamentally a repeat of the second lawsuit. Scardina is accusing the bakery of violating her civil rights as well as engaging in false advertising.
During this whole legal fight, Phillips has maintained that he was not discriminating against LGBT customers, but rather refusing to compromise his religious beliefs to create cakes that contained a message that he disagreed with. He would sell gay people birthday cakes and other baked goods, but he wouldn't make them a wedding cake. He would sell Scardina a cake, but he wouldn't make a cake for her that celebrated her transgender transition.
But in Scardina's lawsuit, her attempt to buy a cake from Phillips is described differently from how Phillips has told the story. In her lawsuit, she claims that she initially requested simply a birthday cake that had a pink interior with blue frosting. She says the shop seemed fine with that. Then she volunteered to them that the colors of the cake were meaningful to her because they signified her transition. It was only after they found out what the cake meant to her, she claims, that they objected and refused to bake the cake.
Her story seems to vary from what Phillips previously claimed, which is that she approached them for the purpose of making a cake specifically to celebrate her transgender identity. I don't know which version of the story (if either) is true, but if what Scardina is claiming is accurate, that means the shop didn't even see the cake itself as expressing a "message" until Scardina revealed it. If she had said nothing, she wants us to believe that the shop would have simply made the cake. Her argument, then, is that despite what Phillips claims, he is indeed rejecting her as a customer for being transgender.
Alliance Defending Freedom, which represented Phillips before the Supreme Court, says that this new lawsuit is simply a "rehash" of the previous one. Senior counsel Jim Campbell put out a statement noting, "It stumbles over the one detail that matters most: Jack serves everyone; he just cannot express all messages through his custom cakes."
Scardina's lawsuit, though, is claiming this isn't actually the case. The cake wasn't expressing a message. Which story behind the cake is the truth may end up helping determine the outcome of the lawsuit.
That the "reason" Phillips rejected her is so important makes this entire fight all the more culturally exhausting. Because this lawsuit was filed during Pride month, we can see the extensive effort nearly every other vendor outside of Masterpiece Cakeshop has been making to appeal to LGBT customers. If anything, the timing of Scardina's lawsuit highlights how much an outlier this bakery actually is, and that there are easy and simple marketplace solutions to the problem that perhaps do not require court interventions at all.
Read the lawsuit yourself here.