Twelve years later and Colorado is still arguing whether a Lakewood cake baker has the right to discriminate against gay and transgender people because his religion tells him to, and the U.S. Constitution lets him do it.
This week, the controversy over public businesses being able to justify their bigotry because of religious beliefs returned to Colorado’s highest court.
Lakewood cake baker Jack Phillips was back in the hot seat, defending his 2023 decision to not sell a pink cake with blue icing to attorney Autumn Scardina.
Phillips originally agreed to make the cake, and then he changed his mind when he found out Scardina wanted to serve the cake when celebrating her gender transition.
This is the same Jack Phillips who refused to sell a cake to two men in 2012 to celebrate their marriage. Six years later, the case finally made its way to the U.S. Supreme Court, where justices waffled on a meaningful decision. Instead, the high court ruled freedom of religion is important, and so are Constitutionally guaranteed civil rights.
So there.
That and a more recent ruling from the same court — this time on the make-believe case of a Colorado website designer who didn’t want to make websites for gay couples if she actually ever had to really do it — made clear that there are defensible religious reasons to discriminate against LGBTQ+ Americans, but not Black or brown Americans, unless they’re gay.
What the high court refused to cede, is that LGBTQ+ Americans are equal to straight Americans in the eyes of the law, even if not in some courts or bakeries.
To be clear, the Supreme Court says that the issue is one of free speech and religion. Baking cakes and launching prefab websites are matters of art, free thought and “deeply held” religious beliefs, the court ruled.
The case this week illustrates the ethical and legal quicksand all this homophobia and bigotry is built on.
The pink cake with the blue icing could be sold to a customer who wanted to celebrate upcoming fraternal twins, the high Colorado court pointed out. But the same cake would not be sold to another person for something the business owner deemed unsavory, as he religiously believes.
The same business transaction for the same service and even the same product withheld from someone a business owner doesn’t believe in, is just a civil rights violation.
Most Americans agree that Phillips should not be allowed to tell Black people, Mexican immigrants, short people or lefties that he will not do business with them because they are either Black, Mexican, short or left-handed.
How can any court, or American, seriously try to rule that Americans do not have the right to wield their religion to discriminate against ethnic minorities — but they can arm themselves with religious beliefs to justify discriminating against lesbians, gays, bisexuals transgender and queer Americans?
They cannot.
Relatively recent Supreme Court rulings wandering into the religious weeds doesn’t change what previous court rulings have made ironclad. The reason this kind of discrimination has been banned is made clear in Supreme Court standards such as Brown v. Board of Education, Atlanta Motel Inc. v. U.S., Katzenbach v. McClung, and Loving v. Virginia. The high court has been consistent: There are no reasons public entities and public businesses can discriminate.
Yet Colorado is right back in 2012 again.
Some critics of all of these lawsuits say religious rights should afford Phillips a bye because these two gay men or a transgender woman could have found someone else to make a cake to celebrate their “blasphemy.”
That would mean that we should allow businesses to go back to hanging up “Whites Only” signs, as long as Black people and other minorities have other options at hand.
Equal means equal. It doesn’t matter if selling wedding cakes to gay or mixed-race couples is wrong in the eyes of your church, your great-aunt, your bookkeeper or your wire-hair fox terrier. Same means same.
The state needs to continue defending the rights of all Colorado residents against those who try to diminish them.
Let us be careful not to confuse the point here. Mr. Phillips indicates that he has no problem serving people of all varieties. What he does have a problem with is creating messages on his cakes which conflict with his deeply held religious beliefs. A person can come in in drag and ask for a pink and blue cake and they will get one. But the plaintiff in this case did not really want a cake. What she wanted was a confrontation that she could then use to sue Mr. Phillips. That is why she explained the reason and symbolism for the type of cake she ordered knowing that it would conflict with Mr. Phillips religious beliefs. Freedom of religion is primary in the Constitution and is what this country was founded on. As such it supersedes other presumed rights. The Supreme Court recently upheld this point. This is typical of how the political left wing operates. They believe they have the right to shout down, cancel or harass anyone who does not fall in line with their left wing narrative and beliefs. And while I personally believe his interpretation of scripture is misguided, I have to admire Mr. Phillips willingness to stand up for his beliefs and rights despite ongoing harassment by the LGBW (Lesbian, Gay, Bi and Whatnot) community.
I agree, Kirk. The gay couple and this woman did not go to order cakes, but to have a confrontation. What’s wrong with peaceful coexistence between different believers? To go further, why can “religious” zealots dictate what non-believers can do with our own bodies? Let’s clear up this question….everybody MYOB.
Really? I mean REALLY? I cannot count the ways or the times religion or politics have historically been used as an excuse for discrimination against a group or individuals right to exist much less right to free speech. Doesn’t matter Left or right wing, religion has always been used by extremists on Any side to justify discrimination and create some really horrific chapters in history.
I mean had anyone here had thought about it, the thing to do would be to laugh about it, protest some, but bake the cake, and maybe misspell something- this for that. THAT would have been the “Christian” thing to do. Done deal. But no, if Mr. Phillips and later the court had truly considered free speech And Religious freedom to its highest ideals then they should have Also considered the LGBTQ+ couples right to Their Free Speech and Religious freedom too.
At worst this should have been a draw pointing out the rights of both parties but reminding Mr. Philips that he owns a public business that Serves the Public – meaning All protected classes. You’re Welcome to appeal.
By the way Gandi famous for passive confrontation of oppressive British rule, by challenging convention and asserting British law, made his point and established his people’s human rights too. It is I think a good way to make a positive change. Hopefully you don’t have a problem with that too.
I hate to say it, but it seems to me that the court upheld the rights of Mr. Phillips while they fully denied the gay couples rights! How exactly is that not discrimination? By the Supreme Court.
Why should that concern you Mr. Kirk S.?, Do you not realize that, that Same double standard can be just as arbitrarily applied to you or me? It sets a slippery precedent to undermine ALL of our rights for any individual or group of us. That precedent can be used in future decisions. That Scares me. It should scare you too Mr. Kirk S. It should scare All of us! Naw I’m not LGBTQ+ but they are American, same as me, with the same rights we hopefully get keep. The law here was, after all, designed to be applied equally. I say- this is the United States of America, Home of the Free and sometimes ya just gotta Be Brave.
So anyway, thank You Sentinel for this Op-ed – it needed to be said – with clear eyes, in a Loud Clear Voice. Thank You sentinel, very good article.
Kirk, the 1st Amendment also guarantees freedom from religion, which was what many of the early settlers of America wanted. Were you in the shop to hear the conversation between the baker and his would-be customer? If not, don’t ascribe motives. Deal in facts, not your biases.
Of course, what’s left out of this op-ed is that Scardina’s a vexatious litigant who primarily benefits from having a bunch of anti-Christian queer evangelicals on the Civil Rights Commission, mainly to force Phillips to indulge Scardina’s delusion about his own biology.
“Equal means equal. It doesn’t matter if selling wedding cakes to gay or mixed-race couples is wrong in the eyes of your church, your great-aunt, your bookkeeper or your wire-hair fox terrier. Same means same.”
If “same means same” (what a hilariously dopey glittering generality), then by that logic Phillips should also be forced by the Civil Rights Commission to bake a cake celebrating pedophilia.
It seems to me that people have no control over which gender they’re attracted to, any more than I had control over the color of my eyes.
I can’t discriminate against disabled people by refusing them service because I don’t liked disabled people. I can’t discriminate against gay people if they make me uncomfortable. I can’t refuse to sell a product to a Jewish customer just because I’m a bigot.
I’ve never heard a gay person say that one day he sat down and consciously measured the pros and cons of different sexualities and then made a choice. That’s not how people or sex work. Yet there’s still widespread hostility toward gays, as if they’re gay solely to piss people off.
Grow up.
I believe the mistake often made is to assume it is one way or another – either it is a choice or it isn’t. The solution is that it is a choice for some, and is not for others. Freud believed we are all born bi and it is culture and upbringing that causes most of us to be heterosexual. I have worked with adolescents that knew they were homosexual from childhood. I have also seen teens who acted out their sexual needs with others of the same sex simply because there was no one of the opposite sex around. They later chose opposite sex when they had the opportunity. Science tells us that the sexuality of the brain occurs later than that of the anatomy. Because of this, sometimes they aren’t congruent.
Funny how “it’s a private company!” doesn’t apply when your own side is being hit with its own repressive tolerance.
Grow up yourself. You simply confirm that this political polarization needs to continue escalating.