Last week, Denver District Judge A. Bruce Jones fined Jack Phillips, the owner of Masterpiece Bakery, for refusing to bake a cake that was blue on the outside and pink on the inside to celebrate the gender transition of Autumn Scardina. The court ruled that Phillips’s refusal to make the cake due to Scardina’s transgender status violated the Colorado Anti-Discrimination Act.
Phillips argued he could not make the cake because the message it conveyed conflicts with his religious beliefs. The court countered that the case was about the refusal to sell a product, not compelled speech.
Phillips famously found himself in the government’s crosshairs for the first time years ago. In the Masterpiece Cakeshop case, the Supreme Court ruled narrowly in favor of Phillips, finding that the Colorado Civil Rights Commission displayed “a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.” The Supreme Court left undecided whether a business owner’s rights to freedom of religion and speech can justify his refusal to engage in commerce with homosexuals.
In similar cases involving Oregon baker Sweet Cakes by Melissa and Washington state florist Arlene’s Flowers and Gifts, the high court remanded the cases back to the state courts for further adjudication. In the Oregon case, the state argued that “baking is conduct, not speech” in contending that “a bakery open to the public has no right to discriminate against customers on the basis of their sexual orientation.”
Discrimination entails treating an individual differently based on some characteristic, such as race, sex, or sexual orientation. But did Phillips actually engage in discrimination? His refusal to sell one of his cakes was based on the particular message conveyed by the design or inscription on the cake, not on whether the would-be customer was gay or transgender.
There is no indication that Phillips refused to sell any product to an LGBT person that he was willing to sell to a straight person. This is not discrimination; this is the right of a business owner to decide on both the products that he sells and those he does not.
Why Must Phillips
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