Raul Labrador joined attorneys general from 21 other states urging the Colorado Supreme Court to protect Jack Phillips, the owner of Masterpiece Cakeshop, from being required to decorate a cake that goes against his religious beliefs.
Phillips first made headlines in 2012 when he declined to make a wedding cake for a same-sex couple. As a result, the Colorado Civil Rights Commission censured Phillips for discrimination.
The case traveled all the way up to the Supreme Court, which ruled in favor of Phillips in 2017, concluding that members of the Colorado Civil Rights Commission expressed impermissible hostility to Phillips’ religious beliefs.
As the Supreme Court heard his case, Phillips received a similar request for a custom cake from Autumn Scardina, a transgender woman, for a party to celebrate her gender transition.
Phillips declined to make the cake due to his religious beliefs that gender is unchanging. The amicus brief said Phillips will happily serve customers who identify as gay or transgender. He just drew the line at creating custom cakes.
Eventually, Scardina sued Phillips in Colorado courts.
“Once again, liberal activists have unjustly targeted Mr. Phillips,” Labrador said. “After years of fighting and decisive defeats in federal courts, activists are now challenging Mr. Phillips’ First Amendment rights in state court. In a desperate attempt to bully Mr. Phillips into submission, these activists are threatening everyone’s First Amendment rights. The Colorado Supreme Court must follow the ruling of the U.S. Supreme Court and protect Mr. Phillips’ First Amendment rights.”
The argument that was presented to the Colorado Supreme Court centers on three main ideas: Symbolic speech, court application of the First Amendment and whether or not it’s discrimination.
Symbolic speech allows interpretation of the First Amendment — specifically the freedom of speech clause — to be applied to non-verbal actions meant to convey a message. The First Amendment protects this action when an audience can reasonably assume the action is communicating a message.
“When Phillips creates a custom cake, he expresses an intended message,” the brief said. “Phillips learns about the customer and his celebration, envisions himself … taking part in the occasion and creates a cake representing the unique celebration.”
The brief argues that the gender transition cake counts as symbolic speech and that Phillips’ reasoning for declining is valid.
“The cake’s gender-transition symbolism would be apparent to people at Scardina’s birthday party because Scardina had come out as transgender on a previous birthday,” the brief said. “Indeed, that symbolism is precisely why Scardina asked for the pink-and-blue design. Creating that cake would have required Phillips to use his time, talents and energies to express a message about Scardina’s gender with which he disagrees.”
Court Application of the First Amendment
The brief said Colorado’s lower courts misapplied the First Amendment when they stated that forcing Phillips to bake Scardina’s cake wouldn’t count as compelled speech.
One reason the courts claimed this was because of the simplicity of Scardina’s request. It was a pink cake with blue frosting. However, the brief mentioned several other court cases where “simple” conduct was protected.
“Indeed, even simplistic conduct, like wearing black armbands or flying red flags, can be protected expression,” the brief said. “If monochromatic cloth can be expressive, a symbolic cake can’t be labeled non-expressive just because it’s simple.”
The court reasoned that the simple design of the cake didn’t clearly display a pro-transgender message to those in attendance and therefore could not count as symbolic speech.
The brief suggests that context is critical to determining the meaning of such speech and asserts that any person attending Scardina’s party would “immediately understand” the meaning and message behind the cake.
The brief disagrees with the notion that Phillips could disassociate the cake from its intended message. Instead, it argues that creating the cake creates the message and suggests that the baker at least implicitly agrees with it.
“Similarly, creating the cake would require Phillips to be “intimately connected” with Scardina’s message, if not express his own,” the brief said. “That’s like forcing a painter to accept a commission because he need not sign the finished work or requiring a photographer to shoot a wedding because no one will know that the photos are hers when they’re hanging on the client’s wall. The government cannot compel someone to express a message simply because he can disclaim that message later.”
Is it discrimination?
The brief refused the assertion that Phillips’s refusal to bake a gender transition cake harmed LGBT rights. Instead, it would refine the application of Colorado’s antidiscrimination so it would not be applied in order to compel speech.
“Phillips does not want to lend his talents to express messages with which he has a religious objection, but he happily serves LGBT customers,” the brief said. “He’ll sell them premade cakes for any purpose and create custom cakes that do not express a message contrary to his religious beliefs. It’s hard to see how this stigmatizes LGBT individuals.”
To read the amicus brief, visit this website.