A Colorado judge has stunningly ruled that an artist’s creations are not speech at all and the state is allowed to force a baker to violate his own religious beliefs in order to submit to the demands of a transgender activist.
The ruling from A. Bruce Jones, a judge in the state’s Second Judicial District, came in a lawsuit brought by Autumn Scardina, a lawyer who was born a man and now lives as a woman.
He demanded a cake from Jack Phillips of Masterpiece Cakeshop in the Denver suburban area. He wanted it pink and blue to mark his “transition” to a woman.
Phillips is the baker who earlier was attacked under Colorado’s anti-discrimination law for declining to provide a wedding cake for a same-sex duo. A state commission publicly excoriated him for his faith and likened him to Nazis, an act that ultimately brought a rebuke from the U.S. Supreme Court for being hostile to faith. The court decided that case in Phillips’ favor. 7-2.
Critical to that decision was the fact that evidence revealed that when homosexual bakers in Colorado were asked to create a cake condemning homosexuality, they refused on the grounds it was a message they couldn’t support. The state supported their refusal yet required Phillips to undergo re-indoctrination because he wanted the same control over his messages.
Alliance Defending Freedom counsel Kristen Waggoner, who has fought on behalf of Phillips for nearly 10 years since he was attacked in the same-sex wedding case, said the decision will be appealed.
“Jack Phillips serves all people but shouldn’t be forced to create custom cakes with messages that violate his conscience. In this case, an activist attorney demanded Jack create custom cakes in order to ‘test’ Jack and ‘correct the errors’ of his thinking, and the activist even threatened to sue Jack again if the case is dismissed for any reason. Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions,” she said.
The judge claimed that the case was not in any way a “setup.”
But Waggoner said, “This case and others—including the case of floral artist Barronelle Stutzman, whose petition is pending before the U.S. Supreme Court—represents a disturbing trend: the weaponization of our justice system to ruin those with whom the activists disagree. The harassment of people like Jack and Barronelle has been occurring for nearly a decade and must stop. We will appeal this decision and continue to defend the freedom of all Americans to peacefully live and work according to their deeply held beliefs without fear of punishment.”
Scardina admitted he had “vented” against Phillips by writing him emails when his same-sex wedding cake case was going on. Scardina called him a bigot and hypocrite, according to testimony.
Then Scardina claimed to have forgotten about being upset and wanted Phillips to make a “birthday” cake.
The state of Colorado earlier had joined Scardina in the battle against Phillips’ faith, but dropped its case when he sued the state for harassment in federal court. In 2019, the state and Phillips reached a settlement and withdrew their complaints.
Scardina then sued Phillips separately.
Evidence shows Phillips has a policy of declining to make cakes with messages regarding Halloween, alcohol, racism and marijuana, or other issues that violate his faith.
“Free speech protections still can apply where the customer is also a speaker,” the judge said. “Although Ms. Scardina could be considered a speaker in this context, defendants … would not have joined in that speech by making the requested cake. …”
He admitted that many activities are “inherently expressive,” and the application of the public accommodation laws in those cases had the effect of foisting “a third-party’s message on another speaker.”
But he denied Phillips’ speech.
“That is not a concern here.”
In fact, he claimed the “requested cake” would not be “any type of symbolic or expressive speech protected by the First Amendment.”
“Mr. Phillips may often use artistic techniques and tools to create baked goods. However, the fact that goods or services may involve some level of artistry or skill does not transform all such goods into ‘expressive speech,'” the judge claimed.
During the course of the earlier case, it was Diann Rice, then a member of the state commission, who expressed hostility against Christian faith.
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination,” she said. “And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”
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