In contrast, there's been virtually no mainstream media coverage of Phillips's upcoming trial: On March 22, he's scheduled to appear in Denver District Court to defend his June 2017 decision not to make a birthday cake for Autumn Scardina, a transgender woman. While at first blush, the case — originally filed in 2019 — might seem virtually identical to the previous one, lawyer Paula Griesen of Denver-based King & Griesen LLP, who's representing Scardina in conjunction with Reilly Pozner LLP's John McHugh, argues that this latest controversy "is very different" from the previous one.
Explains Griesen: "This is saying, 'There's a line here. You cannot decide you will not serve me because of my status and base that on religious beliefs.'"
Kate Anderson, senior counsel for Alliance Defending Freedom, the national organization that's worked on Phillips's behalf for years, disagrees. In a statement provided to Westword, she stresses, "Jack serves everyone; he just can’t express all messages through his custom cakes. Even after the Supreme Court condemned the state for acting with ‘clear and impermissible hostility’ toward Jack because of his beliefs, Jack continues to be targeted. Scardina’s relentless pursuit of Jack is an obvious attempt to punish him for his views, banish him from the marketplace and financially ruin him and his shop. Free speech is for everyone, including those we disagree with. A win for Jack would affirm the right of all Americans to live and speak freely."
The U.S. Supreme Court case is titled Masterpiece Cakeshop v. the Colorado Civil Rights Commission, because, back in June 2014, the commission determined that there was probable cause to believe that Phillips had discriminated against Charlie Craig and David Mullins, the gay couple that wanted a wedding cake. But by a 7-2 vote, the Supremes rebuffed the commission for reasons that now-retired Justice Anthony Kennedy outlined in his majority opinion. "The Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality," he contended.
The decision "was very narrow," Griesen stresses. "The court specifically said it's unremarkable that states have civil rights laws that protect the LGBTQ+ community. That was not an issue, and the law itself was not questioned by the U.S. Supreme Court. The only reason the case was remanded was because of certain statements by the Colorado Civil Rights commissioners that the court thought showed a religious bias."
Moreover, she continues, "Masterpiece Cakeshop and its owner made it very clear they were only objecting to the wedding cake because of the religious significance of weddings. That was their position, and they stated it repeatedly in their nationwide media campaign — that they would be happy to sell other products to the LGBTQ+ community, including birthday cakes and cookies and any other baked goods."
Scardina, who is also an attorney, "wanted that to be true," Griesen says. "She hoped it would be true — but there was a concern that this wasn't the Cakeshop's true position, and since she had a birthday coming up, she decided to try to order a cake. That's all she did. She ordered a cake that anybody else would order, and they said fine — until she told them about her gender identity. That's when they refused. She didn't ask for a gender celebration cake or anything of the sort. She just asked for a birthday cake — and birthday cakes have no religious expression. So she was denied the same cake anybody else could get because of her status as a transgender woman."
Griesen adds, "I understand and respect Jack Phillips's religious beliefs. I am not questioning them, and neither is Ms. Scardina. We have not asked him to engage in activity that would express any message that we believe would be contrary to his religious beliefs. In fact, we're not asking him to express any message whatsoever. His religious views are personal, and Ms. Scardina is a religious person. But we're simply saying that in our state, with our citizens, you can't decide not to serve someone because of the status of the customer. There are no religious implications to requesting a birthday cake, and there are no valid grounds for the objection to refuse to make her a birthday cake."
Aside from a few vague allusions to a March court appearance in items such as this piece from the Christian Daily, as well as a fundraising bid on behalf of Masterpiece Cakeshop by the conservative Colson Center, the impending trial has flown under the radar — and at one point, it seemed possible that the matter might be resolved in advance. "Jack Phillips and Autumn Scardina sat down together and had coffee...in the context of trying to reach a resolution," Griesen reveals. Although she declines to provide details regarding the chat, she confirms that "both sides were respectful to each other. But there is a fundamental disagreement, and sometimes those are best resolved by the court."
Click to read Autumn Scardina v. Masterpiece Cakeshop and Jack Phililps.