The Colorado cake wars continue, with a literally colorful twist

Since Amy Coney Barrett replaced Ruth Bader Ginsburg, not a single conservative Christian plaintiff has lost on the merits at the Supreme Court. The judicial justifications for these decisions have become increasingly implausible, and taken together they have made the law increasingly unintelligible.

It will get worse. A case now heading to the court offers a genuinely sympathetic claimant whose probable victory will make the law even more dangerously incoherent.

Jack Phillips, the owner of Masterpiece Cakeshop in Denver, won an earlier case in the Supreme Court in 2018. He objects to same-sex marriage on religious grounds and so refused to make a wedding cake for a same-sex couple. The couple sued, citing Colorado’s ban on sexual orientation discrimination. The case promised to address major questions about the balance between gay rights and religious liberty, but the court ended up disposing of it in a way that evaded those questions by inventively declaring that the state adjudicators were biased against Phillips.

Autumn Scardina is a transgender woman. On the day that the Supreme Court agreed to hear the earlier case, she called Phillips’s bakery to order a pink cake with blue frosting. She did not describe any words or decorations. The bakery confirmed that it could make the cake. Then Scardina declared that the cake was to celebrate her transition from male to female. Phillips thereupon refused the order, later explaining that he “won’t design a cake that promotes something that conflicts with [his] Bible’s teachings” and that “he believes that God designed people male and female, that a person’s gender is biologically determined.”

Scardina is an attorney, and she carefully sequenced her questions so that there could be no doubt that Phillips would sell this type of cake to the general public. Scardina complained to the state Civil Rights Commission, which found that Phillips had discriminated on the basis of transgender status. That finding was clearly correct as a matter of state law — Phillips refused to sell her something that he was willing to provide to anyone else.

Phillips then sued the Commission, claiming that he was being unfairly targeted. After his Supreme Court victory, the Commission, noting the Supreme Court’s remarkable sympathy for his claims, prudently agreed to terminate its proceedings.

Scardina then filed her own lawsuit against Phillips, as she had a right to do under the state law. That case is now before the Colorado Supreme Court. It is hard to see how, as a matter of legal doctrine, she can lose, and in fact she won in both the trial and appellate courts below. But if she wins, the case will very likely end up before the U.S. Supreme Court.

Phillips’s brief, filed a few weeks ago, shows how weak his legal case is. His basic problem, as the Colorado Court of Appeals unanimously declared, is that he has no valid free speech claim: “creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker.”

Phillips emphasizes that, “based on Scardina’s words and the cake’s context,” the cake does convey a message. Earlier cases confirm that context matters: a black armband, worn by a high school student during the Vietnam War, conveyed an antiwar message, and the school could not suppress that message.

But the state is often permitted to regulate conduct that conveys a message. Under long-settled free speech law, the crucial question is whether “the governmental interest is unrelated to the suppression of free expression.” In the armband case, the state was targeting a message. Here, however, the antidiscrimination law has nothing to do with speech. A racist business doesn’t acquire a free speech claim just because everyone knows that serving black people implies a message of equality that the owner rejects. The court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”

Phillips’s brief then jumps to an entirely different idea: in yet another earlier case involving Colorado’s antidiscrimination statute, Supreme Court Justice Neil Gorsuch repeatedly claimed that the “very purpose” of applying that law was “eliminating … ideas” that the state doesn’t like. A law is invalid if it seeks to accomplish an impermissible end. If Gorsuch were right (for the record, he is not), all antidiscrimination laws would be unconstitutional.

Scardina’s relentless campaign against Phillips is reprehensible. But law consists of rules, and sometimes malicious and vindictive people have valid legal claims. Scardina cleverly came up with a cake design with no explicit message for Phillips to reject, but which had a significance that would repel him and induce him to refuse. So, even though he has stopped making wedding cakes and was bothering no one, she gets to entrap him with this trick. Nyah, nyah.

One might defend Scardina by observing that it has not been unusual for civil rights groups to use testers to determine whether real estate brokers discriminate against blacks. But such testing uncovers actual ongoing discrimination. Phillips was unlikely ever to discriminate against even a transgender person unless confronted with the scenario that Scardina crafted.

Scardina claims that she is upholding principles of nondiscrimination: “I don’t think the law can accommodate individuals sidestepping secular law based on your own internal religious belief. It descends into chaos very, very quickly.” But this litigation was her idea. And, if the dispute gets to the Supreme Court, it is likely to produce exactly the kind of bad law that she claims to fear. It is as unsympathetic a test case as anyone could devise.

The Supreme Court would be eager to rule against her, and the result is likely to be some vague expansion of what counts as free speech, or some vague limit on discrimination law. Devising the right balance between gay rights and religious liberty is difficult, but here’s a good starting point: don’t provoke pointless fights.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him @AndrewKoppelman.