A Colorado baker who won the right in the United States Supreme Court to refuse to bake a wedding cake for a same sex couple is back in the news with a new cake and a new lawsuit.  This time, so far, he is on the losing end. In a 2018 decision, the United States Supreme Court ruled that Masterpiece Cakeshop, a Colorado bakery owned by devout Christian Jack Phillips could refuse to bake a cake for a same sex couple and not violate the Colorado Anti-Discrimination Act.  The Supreme Court concluded that the creation of the wedding cake was expressive conduct, and to force Phillips to make the cake would violate his religious freedom. While the first Masterpiece case was pending in the Supreme Court, a woman named Autumn Scardina called Masterpiece and ordered a blue cake with pink frosting.  Masterpiece agreed it could make the cake, but the Scardina disclosed that she intended to use the cake to celebrate her birthday and her transgender status.  Hearing that, Masterpiece refused to make the cake. Scardina filed a lawsuit alleging that Masterpiece violated the CADA. The trial court agreed, and fined Masterpiece $500.  The Colorado Court of Appeals upheld the trial court’s ruling.  In affirming the trial court, the appellate court found that the pink cake with blue icing had no particular inherent meaning and does not express any message.  According to the trial court, “Phillips would make the same pink and blue cake for other customers and would even sell an identical pre-made (as opposed to custom ordered) cake to Scardina, even if she disclosed the purpose of the cake.”In the appellate court’s view, Masterpiece clearly violated the CADA.  It initially agreed to bake the cake and backed off that commitment when it learned Scardina planned to use the cake to celebrate her transgender status.  Accordingly, “but for” that status, Masterpiece would have made the cake.  And the appellate court did not consider the lower court’s finding to violate Phillips’s religious freedom.  As it noted, “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. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina.” I think the court got this case right, but it is important to note that it doesn’t really establish an absolute rule.  The details matter.

The fact that Scardina did not ask for more explicit expression on the cake made the difference.  Were the cake more expressive  – if she wanted it to contain the message “congratulations on your transition”– the decision would likely have come out differently.  And this case may make it to the U.S. Supreme Court, so it’s probably too early to come to any hard conclusions.  For now, however, it appears that Phillips cannot have his cake and eat it too.

Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

This article originally appeared on Cincinnati Enquirer: Strictly Legal: More cake controversy