Mountain States Legal Foundation is back at the Colorado Supreme Court to support Jack Phillips and his bakery. Yet again, Masterpiece is fighting to protect Jack’s artistic expression and free speech rights.
This time, the question is whether a person can force Jack to design and make a cake for a transgender transition celebration. Unfortunately, the Colorado courts have said that yes, Jack can be forced to “bake the cake.”
In April of this year, we filed a brief urging the Colorado Supreme Court to hear Jack’s case. To their credit, the state Supreme Court agreed to hear the matter, and now it’s time to really show why the Constitution prevents people from forcing creative artists to bend to their will.
Mountain States filed a new amicus brief detailing why the Colorado Supreme Court must reverse the decision against Jack, and finally give him some peace from the constant barrage of anti-free speech advocates. Our argument is based on established precedents that have already decided similar questions.
We’ve Been Here Before
Recall that Jack has previously won in the US Supreme Court, in the 2018 case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. But before that case was resolved in his favor—indeed, on the very day that the Supreme Court announced that they would take his case, in the summer of 2017—an activist attorney named Autumn Scardina demanded Jack bake a cake celebrating a transition from male to female. It is important to note that Scardina requested the cake specifically to celebrate the transition—this was not some generic blue and pink cake, but a piece imbued with significant symbolic meaning.
When Jack refused on the grounds that such symbolism would violate his core beliefs, Scardina decided to open a new front in the war against personal liberty and creative artists.
The heart of the disagreement between Jack and Scardina is whether baking a cake is speech, and thus protected by the First Amendment, or merely run-of-the-mill business conduct that must comply with public accommodation laws.
Undeniable Symbolism
We argue that it is absolutely undeniable that due to the fact Scardina specifically told Jack that the colors of the cake (blue on the outside, “hiding” a pink interior) represented a “reflection and celebration” of the idea that a person can “transition” from one sex to the other, there can be no other conclusion that the cake is speech. The lower courts erred in their judgement that baking the cake was just regular business conduct.
For more than half a century, the US Supreme Court has recognized that the guarantee of free speech is not limited to literal words written on a page, or spoken out loud. Human beings communicate through a vast array of diverse and non-verbal methods, including by the use of symbols.
The specific design features of the cake dictated by Scardina were meant to be, and clearly were, symbolic. Because Jack is being forced to create a symbol that has meaning, and because he objects to the underlying message, the lawsuit against him is barred by the First Amendment.
We highlighted and stressed this point for the Colorado Supreme Court in our brief. We are confident that if the judges consider the facts of the matter, Jack will be vindicated—and finally left alone in peace.
MSLF is joined on the brief by the Americans for Prosperity Foundation, the Southeastern Legal Foundation, and the Manhattan Institute.
