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Americans Do Not Have Freedom of Cake, at Least in Colorado

Baker Jack Phillips is a fellow who seems to be constantly spoiling for a fight. He is already well known because he refused to bake a cake for a gay couple, and was sort of sustained in that by the U.S. Supreme Court. SCOTUS did not exactly say that Phillips was within his rights to refuse; it said that Colorado authorities had mishandled the situation and had failed to properly observe Phillips' procedural rights. So, the baker won on that basis.

That means that the question of cake expression remains an open one. And in an apparent effort to resolve the matter, Phillips recently refused another client. In this case, the cake was ordered by Autumn Scardina, and was supposed to be pink with blue frosting. Phillips was happy to accept the job, until he learned that Scardina planned to use the cake to celebrate her transition from male to female. At that point he refused the gig.

Yesterday, the Colorado Court of Appeals issued its ruling in the case filed by Scardina. Its finding, in a nutshell, was that "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," and so the order could not lawfully be refused. So, Phillips loses and Scardina wins. Undoubtedly, mastering the nuances and subtleties of dessert interpretation is why people sign up for law school in the first place. We understand that Harvard Law has a particularly renowned program in the jurisprudence of pastry.

Phillips is going to appeal to the Supremes, of course. We'll see if they take the case, or if they try to resolve the matter once and for all with their decision in the already-scheduled case involving a web designer who refused to create a site for a same-sex wedding. Meanwhile, we cannot help but observe that if you are a man who is deeply invested in traditional conceptions of masculinity, "baker who regularly makes pink cakes" seems an odd career path to choose.

And as long as we are at it, let us also point out that this week, Pope Francis called for the decriminalization of homosexuality worldwide. This man is the supreme leader of the Roman Catholic Church, the same institution that brought you the Crusades and the Inquisition. True, the Pontiff is not hanging a rainbow flag from St. Peter's basilica, or saying that the Church will begin performing LGBTQ marriages. But still, when even the Vicar of Christ is saying, "C'mon. Leave the gay folks alone," then the anti-LGBTQ folks should really see they are fighting a losing battle. (Z)

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