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Another Update on the Cake Wars - Masterpiece Cakeshop Wins Again

smac97

By smac97
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smac97 Grand Master

smac97

Posted
Posted (edited)

So we've had a number of discussions about the "Masterpiece Cake Shop" Case and similar cases:

An update just out today: Colorado Supreme Court dismisses lawsuit harassing cake artist Jack Phillips

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DENVER – The Colorado Supreme Court ruled Tuesday to dismiss a lawsuit brought by an attorney who’s been harassing cake artist Jack Phillips, owner of Masterpiece Cakeshop, for more than 12 years.

Alliance Defending Freedom attorneys have been defending Phillips since 2012, when he was first sued for declining to create a custom cake celebrating a same-sex wedding because it violated his religious beliefs. Around that same time, the attorney who filed the most recent lawsuit against Phillips first contacted him, calling him a hypocrite and bigot. For more than 12 years now, Phillips has been relentlessly pursued and mocked by government officials and activists who disagree with his views.

“Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone,” said ADF Senior Counsel Jake Warner. “Free speech is for everyone. As the U.S. Supreme Court held in 303 Creative, the government cannot force artists to express messages they don’t believe. In this case, an attorney demanded that Jack create a custom cake that would celebrate and symbolize a transition from male to female. Because that cake admittedly expresses a message, and because Jack cannot express that message for anyone, the government cannot punish Jack for declining to express it. The First Amendment protects that decision.”

The "attorney who's been harassing" Jack Philips is Autumn Scardina.

More here:

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Colorado's Supreme Court on Tuesday dismissed on procedural grounds a lawsuit against a Christian baker who refused to bake a cake for a transgender woman. Justices declined to weigh in on the free speech issues that brought the case to national attention.

Baker Jack Phillips was sued by attorney Autumn Scardina in 2017 after his Denver-area bakery refused to make a pink cake with blue frosting to celebrate her gender transition.

Justices said in the 6-3 majority opinion that Scardina had not exhausted her options to seek redress through another court before filing her lawsuit.

“We express no view on the merits of these claims,” Justice Melissa Hart wrote for the majority.

Scardina’s attorney, John McHugh, expressed disappointment and said he was evaluating if there were any remaining legal options.

“The Colorado Supreme Court decided to avoid the merits of this issue by inventing an argument no party raised,” McHugh said.

The justices in the minority faulted the ruling and said it gave Phillips “a procedural pass. They noted that every factfinder and judicial officer who heard the case concluded the baker's conduct violated the Colorado Anti-Discrimination Act.

The dissenters also said they were concerned that Phillips would construe the ruling as a vindication.

However, Hart wrote that nothing in the ruling alters protections under the anti-discrimination law.

Phillips’ attorney, Jake Werner with the Arizona-based firm Alliance for Defending Freedom, had argued before the high court that the baker’s actions were protected free speech and that whatever Scardina said she was going to do with the cake mattered for his rights.

Werner said Tuesday that his client had been pursued and mocked for years by those who disagreed with him.

“Enough is enough,“ Werner said. ”Jack has been dragged through courts for over a decade. It’s time to leave him alone.”

The case was among several in Colorado pitting LGBTQ+ civil rights against First Amendment rights. In 2018, Phillips scored a partial victory before the U.S. Supreme Court after refusing to bake a cake for a gay couple’s wedding.

Scardina attempted to order her cake the same day the U.S. Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. Scardina said she wanted to challenge Phillips' claims that he would serve LGBTQ+ customers and denied her attempt to get the cake was a set up for litigation.

Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the Colorado Civil Rights Commission, which found probable cause he discriminated against her.

In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement Scardina was not involved in. She pursued the lawsuit against Phillips and Masterpiece Cakeshop on her own.

That’s when the case took a wrong turn, justices said in Tuesday’s ruling. Scardina should have challenged the state’s settlement with Phillips directly to the state's court of appeals, they said.

Instead, it went to a state judge, who ruled in 2021 that Phillips had violated the state's anti-discrimination law for refusing to bake the cake for Scardina. The judge said the case was about refusing to sell a product, and not compelled speech.

The Colorado Court of Appeals also sided with Scardina, ruling that the pink-and-blue cake — on which Scardina did not request any writing — was not speech protected by the First Amendment.

So it's not an adjudication on the merits.  That's too bad, as I suspect the lawsuits will just continue.

It may help to compare Scardina's requested cake described above ("the pink-and-blue cake — on which Scardina did not request any writing") with the her purported initial requests back in 2017:

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According to a verified complaint filed today by my old colleagues at the Alliance Defending Freedom, on June 26, 2017 — the very day the Supreme Court granted Jack’s request to review his wedding-cake case — a lawyer named Autumn Scardina called Masterpiece Cakeshop and “asked Masterpiece Cakeshop to create a custom cake with ‘a blue exterior and a pink interior’ — a cake ‘design’ that, according to the lawyer,” reflected “the fact that [the lawyer] transitioned from male-to-female and that [the lawyer] had come out as transgender.”

Lest anyone wonder whether this request was made in good faith, consider that this same person apparently made a number of requests to Masterpiece Cakeshop. In September 2017, a caller asked Phillips to design a birthday cake for Satan that would feature an image of Satan smoking marijuana. The name “Scardina” appeared on the caller identification. A few days earlier, a person had emailed Jack asking for a cake with a similar theme — except featuring “an upside-down cross, under the head of Lucifer.” This same emailer reminded Phillips that “religion is a protected class.”

On the very day that Phillips won his case at the Supreme Court, a person emailed with yet another deliberately offensive design request:

I’m thinking a three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9″ black Dildo. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake. I can provide it for you if you don’t have the means to procure one yourself.

And finally, two days later, a person identifying as “Autumn Marie” visited Phillips’s shop and requested a cake featuring a pentagram. According to ADF, “Phillips believes that person was Autumn Scardina.”

Hard to definitively say how much of this is attributable to Scardina.  

Anyway, I could see Phillips feeling like he was just being harassed.  And he very well may have been, but not to an extent actionable at law or violative of his First Amendment rights.  

Meanwhile, a pink cake with blue frosting that even Phillips agrees has no "intrinsic meaning" and no "express{ed} message" seems to take this case out of the "Free Speech" realm.

Thanks,

-Smac

Edited by smac97
1
LoudmouthMormon Veteran

LoudmouthMormon

Posted
Posted
21 hours ago, smac97 said:

So it's not an adjudication on the merits.  That's too bad, as I suspect the lawsuits will just continue.

I suspect that Jack and his business have obtained the unsought faux-honor as a tried and tested way to get a case started in ways where it will head to SCOTUS.  

In the mood to get a cake with blue icing and pink cake and transgender-specific messaging on it?  It's not like you're lacking in options.  I notice Elegant Bakery4 is just down the road from Masterpiece cakeshop.  There are two Coldstone Creameries.  A few miles to the west and you've got Le Bakery Sensual - they advertise naughty cakes - something tells me they'd be pretty affirming.  Cain's Creative Cakes.  Or maybe Pietro's Bakery.   Or Cakes Iconic.  Katherine's.  Cake Crumbs Bakery.  Yours Truly Cupcake.   Denver is a big place and there are lots of options.

Nah, let's go to the place that has made international news, twice, for refusing gay stuff.   Totally innocent and understandable decision, right?  Has nothing to do with habitual lawsuits or legal activism.

 

 

 

1
smac97 Grand Master

smac97

Posted
  • Author
Posted
59 minutes ago, LoudmouthMormon said:
Quote

So it's not an adjudication on the merits.  That's too bad, as I suspect the lawsuits will just continue.

I suspect that Jack and his business have obtained the unsought faux-honor as a tried and tested way to get a case started in ways where it will head to SCOTUS.  

In the mood to get a cake with blue icing and pink cake and transgender-specific messaging on it?  It's not like you're lacking in options.  I notice Elegant Bakery4 is just down the road from Masterpiece cakeshop.  There are two Coldstone Creameries.  A few miles to the west and you've got Le Bakery Sensual - they advertise naughty cakes - something tells me they'd be pretty affirming.  Cain's Creative Cakes.  Or maybe Pietro's Bakery.   Or Cakes Iconic.  Katherine's.  Cake Crumbs Bakery.  Yours Truly Cupcake.   Denver is a big place and there are lots of options.

Nah, let's go to the place that has made international news, twice, for refusing gay stuff.   Totally innocent and understandable decision, right?  Has nothing to do with habitual lawsuits or legal activism.

I am somewhat ambivalent about this lawsuit.  See, e.g., here:

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The ruling brings to a close a seven-year legal saga in which Phillips had argued that his actions were lawful because he refused to make the cake only because of the cake’s message, not because Scardina is transgender. His refusal to create a cake with that meaning is protected by the First Amendment, his attorneys argued.

But Scardina’s attorneys pointed out that a blue-and-pink cake has no inherent meaning and that the bakery would make and sell identical cakes to other customers. The bakery initially agreed to make a pink-and-blue cake for Scardina, until she explained its meaning.

"The bakery initially agreed to make a pink-and-blue cake for Scardina, until she explained its meaning."

Ah, well.

Thanks,

-Smac

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