From plain white cakes to rainbow-colored ones, the Colorado Supreme Court considered a variety of hypothetical cake-design scenarios Tuesday as it heard arguments in the case of a Christian baker who refused to make a pink cake with blue icing to celebrate a gender transition. 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 scored a partial victory before the U.S. Supreme Court in 2018 after refusing to bake a cake for a gay couple’s wedding. However, this new case takes it up another notch as attorneys on both sides presented arguments about what kind of cakes without any writing on them could be refused by bakers.
The Colorado Court of Appeals sided with attorney Autumn Scardina, who had sued Phillips after he initially agreed to make a cake for her but then refused when she explained that the pink-and-blue cake was meant to celebrate her gender transition. The court ruled that the First Amendment did not protect this kind of speech.
During oral arguments, justices asked attorneys on both sides what sort of cakes without any writing on them a baker could refuse to make while still respecting their free-speech rights. They also inquired if Phillips would have agreed to make an identical cake for different purposes, such as celebrating the birth of boy-and-girl twins.
“It’s only when they get into the home of the consumer that they take on the message,” Justice Melissa Hart told Phillips’ attorney Jake Warner. “They are the same cake. It’s all a pink cake with blue icing.”
Warner maintained that what Scardina told Phillips about the purpose of the cake mattered for his free-speech rights, saying it became a different message when he was informed it was to celebrate and symbolize her transition from male to female.
Cakes can appear facially identical but still express different messages. Warner drew a line, however, stating that Phillips would have to sell pre-made cakes including pink ones with blue icing for anyone for any purpose.
Justice Maria Berkenkotter asked if Phillips thought he could refuse to make a white cake with white frosting because it represented gender transition. “But that cake is lacking the symbolism,” Phillips said. “The message is not as clearly in the cake.”
Another recent case centers on freedom of speech and LGBTQ+ rights, where last summer’s U.S. Supreme Court ruling favored a Colorado graphic artist who didn’t want to design wedding websites for same-sex couples.
Both sides think this new U.S. Supreme Court ruling bolsters their arguments in the dispute over Scardina’s cake order.