Masterpiece Cakeshop owner Jack Phillips is again in the news after a Colorado state appellate court held that he illegally discriminated when he refused to make a case to celebrate a gender transition. The prospective customer had requested a pink cake with blue frosting.
The court in Scardania v . Masterpiece Cakeshop Inc. (CO Ct. App., Jan. 26, 2023) wrote, “We conclude that creating a pink cake with blue frosting is not inherently expressive and by any measure or symbolism it provides to an observer would not be attributed to the baker.”
The customer had requested a specific cake style often used to celebrate the gender transition from the outer color to the inner color.
The court ruled that although the baker might argue that the occasion the cake is intended for offends religious sensibilities, “[i]n the context of providing public accommodations, a proprietor’s actions based on their religious beliefs must be considered in light of a customer’s right to be free from discrimination based their protected status.”
The court relied on Employment Division v. Smith‘s analysis to find that “the Free Exercise Clause does not relieve a person from the obligation to comply with a neutral law of general applicability.”
Alliance Defending Freedom, also representing the web designer in 303 Creative v. Elenis, said it would appeal the decision, relying on free speech rather than the free exercise of religion. “Free speech is for everyone,” said ADF attorney Jake Warner. “No one should be forced to express a message that violates their core beliefs.”
Holding: Creating a pink cake with blue frosting is not inherently expressive and a baker must comply with public accommodations laws despite religious objections.
Holding: Religious liberty claims are subject to neutral laws of general applicability without strict scrutiny review.
Holding: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs that convey messages with which the designer disagrees, protecting free speech rights based on religious or moral objections.
