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Case Involving Baker Who Refused To Make a Transgender-Friendly Cake Pushes Forward

Is he rejecting a customer or rejecting a message? The difference matters.

CupcakeMatthew Benoit / Dreamstime.comA federal judge appears willing to let the baker at the heart of a Supreme Court ruling about gay wedding cakes move forward with a lawsuit asking whether Colorado can force him to bake a cake celebrating transgender transitions.

Jack Phillips of Masterpiece Cakeshop in Lakewood, Colo., filed a federal lawsuit in August, claiming the state was targeting him under its antidiscrimination laws for his refusal to bake a cake for a transgender customer. The customer, an attorney named Autumn Scardina, filed a complaint because Phillips declined to bake her the cake she wanted.

Scardina says Phillips refused to serve her because she's transgender. Phillips says that's not true: She specifically asked for a cake with a "blue exterior and a pink interior" to reflect her transition. Phillips has religious objections to recognizing sex changes and the celebratory message the cake was sending. He says he wasn't rejecting her specifically. He was rejecting the message of the cake and invoking his First Amendment right to not be compelled to express speech with which he disagrees. He would have declined to make the cake regardless of who asked for it.

Phillips and Masterpiece Cakeshop were the subject of a Supreme Court decision earlier this year in which the justices ruled, 7-2, that Colorado erred when the state found Phillips in violation of state law when he refused to bake a gay wedding cake. The justices, though, did not make any sort of determination that the baking of a cake is or is not a form of expressive speech. Instead, they determined that Colorado's Civil Rights Commission had approached the case with a clear animus toward Phillips' religious freedoms under the First Amendment.

This complaint by Scardina preceded that ruling, and Phillips is arguing that once again Colorado is targeting him because of animosity toward his religious faith.

This week, Colorado's attorney general tried to get Phillips' lawsuit dismissed because it's still working its way through Colorado's enforcement system. There's a state hearing scheduled for February.

But Senior Judge Wiley Y. Daniel of the United States District Court for Colorado seems reluctant to keep the case under the state's control, according to the Associated Press. After all, he noted, it was the Supreme Court justices themselves who took note of the state officials' apparent hostility to Phillips' religious beliefs. Instead, Daniel says he's inclined to let the case move forward and wants to hear more evidence before making a written ruling later.

When I blogged about this lawsuit back in August, I noted that this appeared to be a much more obvious case of compelled speech than a gay wedding cake. In the wedding cake debate, there was disagreement over whether simply making the cake counts as a statement of support for same-sex marriage, irrespective of whatever might actually be on the cake. In this case, Phillips is being ordered to make a cake that sends a very clear and obvious message about support for transgender identities. It's as wrong (and unconstitutional) for Colorado to order Phillips to produce a cake that expresses support for gender transitions as it would be to force him to produce a cake expressing disgust or dislike for them.

Photo Credit: Matthew Benoit / Dreamstime.com

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  • Fist of Etiquette||

    Shouldn't that be a picture of a cupcake with a spork?

  • Rat on a train||

    They only had plastic sporks.

  • Tony||

    Lol.

    I just realized Taco Bell is all trans food.

  • a ab abc abcd abcde abcdef ahf||

    I thought we were banning trans-fat.

  • Zeb||

    You win.

  • Juice||

    How is this case not going to be a rerun of the first one? Is it because the requested design is so simple and symbolic?

  • Brandybuck||

    Because the transgender twit in question is making a big deal of out it, deliberately choosing a venue that would refuse so it can file a case.

    It could simply have requested a strawberry cake with blueberry frosting, but no, it had to be explicitly symbolic if its self confusion.

  • Joe Emenaker||

    Pretty much. I think this design was specifically chosen so as to have almost no message at all (even though the _last_ one didn't say anything promotional of same-sex... like "Hey kids, try gay sex!"). In fact, from the description I've read, this probably has _less_ message than just about every other cake he happily sells. I think the idea is to try to undercut his stance of "compelled speech" by deliberately asking him to _refrain_ from speech he regularly, happily provides.

  • John C. Randolph||

    The SJWs are just going to keep coming after this guy at taxpayers' expense until they suffer some personal consequences. He should be suing them as individuals for violating his civil rights.

    -jcr

  • esteve7||

    The totalitarian / fascist left strikes again. Totalitarians in every sense of the word.

    With Tucker Carlson, it's not enough to say "I don't like his show, I'm not going to watch it", no, it's "I don't like his show, therefore no one should be able to watch it".

    With Patreon, you may not like person X, Y, or Z, so instead of just not giving them money, you want to prevent other people from being able to give them money.

    For this baker, instead of just not doing business with him, you want to force him to be your slave and do what you want.


    What a despicable, evil ideology.

  • JasonPen||

    Spot on, well said!

  • Don't look at me!||

    Would they go after him with the same zeal to make a nazi or kkk cake?

  • C. S. P. Schofield||

    I believe that the Colorado's Civil Rights Commission gave a pass to a baker that declined to make a Nazi (or maybe it was a KKK) cake about the same time they ruled against this guy the first time, and that that was a major point in the SCOTUS decision.

    I could be wrong, though. Keeping track of all these Progressive/Left hissy fits is more trouble than it's worth.

  • $park¥ The Misanthrope||

    I've heard recently, on this very site, that once you start making use of public services you are bound to not censor anyone regardless of the message.

  • Azathoth!!||

    I've heard recently, on this very site, that once you start making use of public services you are bound to not censor anyone regardless of the message.

    Indeed.

    But that's not what the law says.

    And, in fact, we've been attacked, deplatformed, demonetized and demonized for taking that stance.

    So we'll take your stance--because that's what you've shown us--through use of force-- that you want.

    And YOUR stance is, if a private business, like Facebook, Google, Patreon, or Visa, doesn't want to do business with someone, they don't have to.

    Of course, let's stop the nonsense--your ACTUAL stance is 'do what we say and shut the fuck up'.

    We can never be in the right, no matter what we do. Because only YOU are allowed to be right.

    Even if you're wrong.

  • I'm Not Sure||

    I wonder if Ms. Scardina has ever refused to handle the case of someone who showed up at her office in search of representation.

  • BYODB||

    I question if Mr. Scardina even is transgender or if this is a convenient way for a shitty lawyer to try and make a buck by pretending. Say, how does one prove they're transgender? I mean, if they can't afford to lop off their dick do we not count them?

  • Brandybuck||

    It used to be so simple. If you had a penis you were male, if you had a vagina you were female. An exceedingly small percentage of the population has both or neither, but they are a special case. So if a male went and got surgery to remove the penis and install a vagina, they had indeed become a female.

    But today you get men who put on dresses and insist on being actual bona fide females. The claim to be part of the sisterhood without ever once having had a period in their life. As if gender were just a club one could join.

    It's NOT just about wanting to be the other sex, it's about insisting that the law compel people into treating them as if they were the other sex.

    p.s. It's not about sex versus gender, because everyone outside the academic unreality zone know they are synonyms. Words that mean the same thing but used in different contexts.

  • Zeb||

    Well, mostly synonyms or coincident at least. Some things have gender but not sex and that is not at all a new idea.

  • perlchpr||

    Hey, this reminds me, I'm flying on Saturday. I should go buy a dress, opt out at the TSA checkpoint, and insist on a female agent to do my pat down.

    (I mean, other than the fact that I actually want to get where I'm going, rather than go to jail. Never been to Germany, and Christmas in Berlin with friends sounds like a lot more fun than Christmas by myself in Albuquerque. Or Christmas in ... hrm. Bernalillo County Detention Center? I'm not sure where they'd put me. I guess if there's a federal facility nearby, I'd end up there.)

    I suppose I could just wear my kilt, but, again, wanna actually make it to my destination.

  • C. S. P. Schofield||

    "if a male went and got surgery to remove the penis and install a vagina, they had indeed become a female."

    Actually, no. Because so-called 'sex change' surgery does not install a vagina. It creates a wound. It does not change the person's sex; it makes them the mutilated victim of speculative psychology and (at best) overambitious reconstructive surgery. And if the suicide rates among the people who have undergone the surgery and the hormone treatments are anything to go by, it doesn't even provide a satisfying fantasy.

    With rare exceptions, you are born male or born female, and you are stuck. Dumping large amounts of hormones that your body is not designed (whether by a Creator or by Evolution) to handle is a bad idea, and allowing a surgeon to remove functioning flesh and make non-functioning replicas is worse.

    I firmly believe that one day the Doctors (both surgical and psychological) who recommend this practice will be considered quacks similar to the doctor who used to graft monkey testicle tissue onto male patients on a variety of pretexts.

  • SlimTim||

    It seems like the state has an even weaker case then it did last time.

    Last time the state was citing him for illegal discriminating for refusing to design a custom wedding cake for a same-sex ceremony while designing custom wedding cakes for opposite-sex wedding ceremonies.

    This time he state is citing him for illegal discrimination for refusing to design a 'gender transition' cake for a transgendered individual, but he's not designing 'gender transition' cakes for non-transgendered individuals.

  • Mickey Rat||

    This is legal harassment by a commission filled with activists given judicial power. They are not an unbiased forum where someone can receive a fair and impartial hearing.

    The interesting thing is Scardinia may have undermined their own case by requesting other cake designs that were offensive to Philips sensibilities but had nothing to do with Scardinia's sexuality that Philips also refused to make.

  • Brian||

    I'm sure it's just a coincidence that masterpiece cake shop was the only cake store in town with two kinds of icing. There was nowhere else for her to go. It was completely adult of her to take the matter straight to the lawyer, as anyone would do when encountering religious believes one disapproves of. She is definitely not an asshole.

  • Trainer||

    Or make it themselves. It's not like it's a life-sized bronze statue that requires talents, years of experience, expertise and expensive and specialized equipment. Anyone can make a cake.

  • Tony||

    Jesus fucking Christ, can we at least agree that it's the cake guy who's the asshole?

  • John||

    No. It is the metally ill freaks who are screwing with him who are the assholes.

  • Tony||

    It's cute when you put on your bigot act. You didn't even start saying trans people were mentally ill until you read some other conservacunt here saying it. Here or the comments section at the daily caller. That your brain is impenetrable explains how the quasi-thoughts you have have such a superficial quality.

  • wreckinball||

    There you go , it only takes one or two posts for the fucking idiot to come out.

  • BYODB||

    If he were an asshole he'd be chasing them down in the street to berate them. Are you bemoaning the pacifism of the Christian faith in the 20th century now? I suppose they could take some pages out of Islam and get a bit more respect from the gay community...

  • Tony||

    I'm bemoaning the assholery of the remaining dregs of Christianity in America that can't break their habit of being assholes to minorities like heroin junkies with heroin or tolerate modern sensibility as if we should applaud them for being the asshole who ruins parties.

    The real political effort here is to give Christian assholes more freedom to be assholes. I didn't say anything about constitutionality, I am talking about assholes.

  • BYODB||

    The irony of you calling out an entire faith for being assholes that provides more charity worldwide than any other organization is noted.

  • Tony||

    Is that what we're calling pretty much all the world's genocides?

  • Eddy||

    First they try to run their own businesses, then they're committing genocide. You can't give an inch to these people.

  • Tony||

    Other people who killed off significant portions of the global human population repeatedly usually get at least a stern admonition.

  • Zeb||

    Wait, who are you accusing of multiple genocides?

  • Harvard||

    You seem to always comment on this subject in an odd , queer way.

  • perlchpr||

    Who here is surprised that Tony is full of shit, again?

    https://en.wikipedia.org/wiki/Genocides_in_history

  • DesigNate||

    Communists are routinely praised by dipshits like you.

  • Agammamon||

    Not your favorites - the communists.

  • Jerry B.||

    Well, let's look at 20th century genocides.

    Armenia - not Christians.

    USSR - not Christians

    Nazi Germany - not Christians

    Communist China - not Christians

    Cambodia - not Christians

    Rwanda - not Christians

  • Trainer||

    Considering the world's genocides are committed by irreligious ideologues...

  • Agammamon||

    This.

    As an atheist, its hard for me to blame the world's ills on religion when my own philosphical stance includes groups that have probably, in the last century alone, killed more people than all of Christianity throughout its history.

  • a ab abc abcd abcde abcdef ahf||

    Whoa whoa whoa there, Tony. Your "remaining dregs of Christianity" puts them squarely in the minority camp. Your other comments clearly imply that SJW proggies like yourself are the majority. Whose side are you on?

  • Don't look at me!||

    Or that it is somehow acceptable to call someone in a minority an asshole.

  • DesigNate||

    Everyone should have the freedom to be assholes, Tony. Everyone.

  • Barnstormer||

    No. Not just no; Hell no.

  • Get To Da Chippah||

    No, we cannot agree on that.

  • Zeb||

    He might be an asshole. He might sincerely hold the particular beliefs he professes and believe that they are truly the will of the creator of the universe. He might be standing on principle just to make a point. I have no idea which it is.

    The people going out of their way to get him into a position where they can sue him are definitely assholes.

    It does seem weird to me that someone would have religious beliefs that forbid them from participating even tangentially in something their religion disapproves of. But a lot of religion seems weird to me, so who am I to judge? If he says that's his religious belief, then it is as far as the law should be concerned.

  • perlchpr||

    It appears to be assholes all the way down, actually.

  • MatthewSlyfield||

    Everyone has an asshole. If you don't have an asshole, you must be full of shit. :)

  • perlchpr||

    There's a difference between having an asshole, and being an asshole.

    Everyone involved here seems to be demonstrating the latter quality.

  • DesigNate||

    Yeah, it's the guy just minding his own business that's the only asshole.

    *I think it's fucking stupid to refuse anyone that wants to pay you money.

  • Agammamon||

    Why would we agree on that?

  • Agammamon||

    Jesus Tony, sometimes you come in here and just blatantly show everyone what a bigot you are.

  • BYODB||

    And after this lawsuit fails, a gay male couple with a gender fluid latin baby will request a cake celebrating all 58 genders their child simultaneously occupies. Of course, both of them will be lawyers and of course it will be on the very day this court case is decided.


    Of course, the beatings will continue until morale improves.

  • Rich||

    The customer, an attorney named Autumn Scardina, filed a complaint because Phillips declined to bake her the cake she wanted.

    If Autumn had *really* transitioned she would have baked her own cake.

    *** ducks ***

  • Zeb||

    And made me a sandwich.

  • Diane Reynolds (Paul.)||

    What am I going to do with all these papier mache heads of Trump?

  • Diane Reynolds (Paul.)||

    doh! Wrong thread.

  • perlchpr||

    I think the correct answer is still to make pinatas out of them. Yeah, yeah, it's probably cultural appropriation, but who the fuck cares?

  • Agammamon||

    There is no more appropriate cultural appropriation than a pinata in the likeness of Trump.

  • Eddy||

    "In the wedding cake debate, there was disagreement over whether simply making the cake counts as a statement of support for same-sex marriage, irrespective of whatever might actually be on the cake."

    Oh, come on, pull the other one.

    "You can make any cake you want to make in support of my gay wedding, you don't even have to write 'gay weddings are awesome' in icing on the top of the cake - see how I'm trying to meet you halfway, hater? How can you claim you're being forced to affirm my choices, and by the way, how dare you not affirm my choices!"

  • Tony||

    By the way, indeed. People will forever be free to be stupid bigots, Allah willing. The American government, however, has always been better dressed when it's not actively promoting bigotry with special legal privileges for bigotry.

  • Eddy||

    Better dressed? What kind of cisnormative crap is that? Let everyone dress how he, she, they, hir, ze or it wants!

  • Harvard||

    Tol ya. Another odd, queer response.

  • Tony||

    I also like sucking cock.

  • Harvard||

    Fingered. That would explain those Lyndon Johnson ears.

  • Zeb||

    I'm all for getting rid of special privileges. Don't make anyone bake a cake for any reason. Shouldn't just be religion.

  • Inigo Montoya||

    This.

    I'm no religious expert, but I'm pretty sure the Bible has zero mention of transgenderism. Neither for or against, it never mentions it at all.

    Why should religion be the reason for a baker to refuse to bake a cake? Maybe he can't bake a cake because his supplier ran out of some ingredient, or his sciatica is acting up and he's shutting down the shop for a while, or he only feels like baking bread and cookies that day. Sheesh.

    Competitive environment or not, it seems that bakers and other service providers should be able to say, "Go see X down the street, he can probably help you." I can't tell you how many times I've been turned away by some business with something like, "Sorry, we don't carry that. Try X instead." It never promoted hurt feelings in me or a desire to get the state government involved.

  • Barnstormer||

    I agree that religion is not the only basis a person could have for not approving of transgenderism (or homosexuality, or abortion).

    But see Deuteronomy 22:5.

  • Jerryskids||

    The whole problem here is that the idea of non-discrimination is a guard against governmental oppression, not individual bias. This isn't so much a matter of free speech or freedom of religion or non-discrimination, it's a matter of individual rights not extending to commerce for some strange reason. The idea is that engaging in commerce is not a fundamental human right but merely a privilege granted by the state and therefore the privilege of engaging in commerce hinges on serving the public interest. The DMV cannot refuse to issue driver's licenses to a disfavored group, I'm perfectly free to refuse entry to my home to any group I please. So why is it if I open a cake shop I'm treated more like the DMV than a homeowner? And where did people get the idea that businesses are more public than private property and feel perfectly entitled to stick their nose in the business of business? What's it to you who I do or do not choose to do business with, how much I pay my employees, how many of my top executives are left-handed disabled women of color, if I grant 12-weeks paid family leave and whether or not I support boycotting Israel?

  • Eddy||

    I'm just spitballing, but I think it started with Old English country inns.

    Back when travellers often had to choose between staying at an inn or freezing/boiling outdoors while waiting for the highwaymen to rob or kill them, English courts declared that inns had to accept all well-behaved, paying guests so long as there was room.

    Then there's the analogy with black people staying in their cars because no hotels or motels would serve them.

    From that, the government built up a whole set of rules telling business who they could or couldn't refuse service to. Eventually the "peril" faced by the customer evolved from staying outdoors as prey to brigands, to getting their feelings hurt because they have to cross the street to another merchant or service provider.

    Just goes to show that you start with the hard cases, then work your way up to the "OMG how do they even have a regulation about this?" cases.

  • Zeb||

    And if it's really about hotels refusing to accommodate black people, leaving them nowhere to stay, and it's a real problem (which it was not too long ago) I have much less problem with such a rule.
    But the notion that being able to buy confections from anyone you want is in the same league is ridiculous. As is the notion that many people seem to have that the only thing stopping the return of segregation are the laws requiring businesses not to discriminate.

  • Joe Emenaker||

    "Phillips is being ordered to make a cake that sends a very clear and obvious message about support for transgender identities...".

    I think you're _way_ off the mark, here. Simply doing the same thing he does, day in, day out, for every other customer who walks in the door, doesn't make for "messaging support". In fact, Adam Smith, when he talked about the "invisible hand" specifically mentioned that the motivations of the person you're buying from or selling to are immaterial to your individual commercial decisions. Also, it's not as though this caker is interrogating each customer to make sure that their intended purpose merits one of his creations. He could be making cakes for child-molesters, or drug-users, or satanists... and you're telling me that people are going to think, were he to sell them a cake, that he's signaling support for that behavior?

    How is this any different from a pharmacist who decides not to sell birth-control to a woman who walks in without a wedding-band on her finger? Are we to conclude that, if he just sells the pills to anyone with a valid prescription and cash in their hand as his signaling support for all of their lifestyles?

  • Don't look at me!||

    To make it fair and balanced, someone needs to force him to make a nazi cake.

  • Eddy||

    A cake to celebrate Hitler's birthday, but the nazis have to use their own frosting to write "Happy Birthday, Mein Fuhrer."

    There, nobody could possibly object to baking that!

  • Mickey Rat||

    The Colorado Commission has already ruled against forcing that sort of thing. Some ideas are more protected than others.

  • Eddy||

    Colorado doesn't do it, but as of 2009, at least, some jurisdictions banned discrimination based on political orientation:

    http://volokh.com/2009/12/16/d.....modations/

  • Eddy||

    DC's protection is apparently limited to *recognized* political parties...

    https://bit.ly/2T1Qyfr

    ...which seems to mean the Big Two, the DC Statehood Green Party, and the Libertarian Party.

    https://bit.ly/2PUeIqa

    But the Libertarian Party, at least, would never endorse compulsory cakes! Wait...

  • Inigo Montoya||

    "He could be making cakes for child-molesters, or drug-users, or satanists... and you're telling me that people are going to think, were he to sell them a cake, that he's signaling support for that behavior?"

    Good point. He probably has baked cakes for people like that, but unknowingly. I doubt any baker has the desire or the time to delve into the personal history of every customer. Do you think before he bakes a cake that says Happy Birthday, he makes sure the kid who's having a birthday is deserving and not just some snot-nosed playground bully?

    But I doubt this Scarlatti character just asked for a cake that said Congratulations and would be pink inside and blue outside. I think the whole point was to make damn sure what the impending celebration was about in order to provoke the baker. It is like the Nazi cake question. I'll bet that bakers will sell birthday cakes on April 20 and not even think to ask whether it's meant to celebrate Hitler's birthday. But if someone walks in to a bakery with a swastika armband to buy a cake and explains it's for Hitler's birthday, the baker is within his rights to turn away the business. No doubt other bakers ill do it so long as the money is good and not worthless Deutchmarks.

  • Mickey Rat||

    Philips does not do custom cakes on themes he thinks are against his beliefs. He does not refuse service based on the customer's traits but on the theme he is being asked to create art for. For instance, he does not create Halloween themed cakes. He is not rejecting customers, just rejecting certain artistic commissions.

  • Diane Reynolds (Paul.)||

    How is it that cakes became the centerpiece of every sexual discrimination lawsuit?

  • Tony||

    As the man said, cake or death.

  • Diane Reynolds (Paul.)||

    We're all outta cake.

  • Eddy||

    There's a lot of dough in these kind of lawsuits.

  • Eddy||

    But I batter not start with the puns.

  • Inigo Montoya||

    There have been many times where I was pissed off at a retail establishment of one kind or another and made it a point to take my business elsewhere. I did not feel the need to take them to court, or try to entrap them into embarrassing themselves, etc. I guess maybe some of us have better things to do with our lives. But of course, that presumes that whatever retailer had made me angry actually had competition that I could buy from instead.

    Last time I checked, Colorado was a fairly big state population-wise. I don't think it's gradually emptying out like Illinois. So is this bakery the only place xe can order a cake or what?

  • wreckinball||

    Just go into a muslim bakery, ask for a gay wedding cake , get refused and take it the CO tribunal. They of course will see nothing wrong with that discrimination.

    Then we are at the exact same place as last time.

  • Agammamon||

    She specifically asked for a cake with a "blue exterior and a pink interior" to reflect her transition.

    So many of the conflicts would be avoided - if the people initiating them truly didn't want conflict - if they kept that parts of their lives that are no one else's business to themselves.

    If the buyer had just asked for a cake with a blue exterior and pink interior then that's what she would have gotten. But no, they had to fill the baker in on details that the baker didn't need to know.

    If you don't know, its because you don't need to knowm ,n'est-ca pas?

  • Azathoth!!||

    Nobody wants a cake. Or flowers or photos. Or any of the other bullshit these suits are brought over.

    They want to force someone who disagrees with them to do what they say.

    They want to feel smug and superior.

    You know, there's a goldmine here--

    Open the 'God Hates Fags' Wedding chapel, bakery, and reception facility. Go out and make a firm stance that you won't do things for homosexuals and then let them 'force' you to take their money as they pay your hyperinflated prices for the privilege' of having made some Christian hater do what they say.

    They'll get to 'win', and you'll get rich.

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