It’s the Alliance Defending Freedom’s Supreme Court

The latest Alliance Defending Freedom case uses the law against trans rights. And if that case doesn't have legs, the conservative legal group has more.

Barbie cake it's a cake
LGBTQ+ people are living in a world where business owners are no longer required to follow public accommodation laws if someone offends their evangelical Christian sensibilities. All photos by Austen Risolvato/Rewire News Group

For related stories, check out our special issue, “They the People.”

Anti-LGBTQ+ Colorado cake baker Jack Phillips and his equally bigoted attorneys, Alliance Defending Freedom, are at it again. This time, they’re teaming up to enshrine bigotry against trans people into law. ADF is no stranger to this type of impact litigation, where “impact litigation” can be defined as “drastically reducing the rights of people who can have children and the rights of LGBTQ+ individuals to simply live their lives.”

The ultra-conservative legal group played a role in creating Texas’ bounty hunter-style enforcement mechanism for SB 8, where any private citizen can sue an abortion provider or anyone who “aids and abets” someone getting an abortion. Helmed by GOP Sen. Josh Hawley’s wife, attorney Erin Hawley, Alliance Defending Freedom may succeed in getting rid of mifepristone, one of two pills used in medication abortions. Of course, ADF already represented Phillips in his 2018 Supreme Court case, Masterpiece Cakeshop v. Colorado, in which the Court ruled that Phillips could not be required to bake a wedding cake for a same-sex couple because doing so would violate his free exercise of religion under the First Amendment.

Masterpiece Cakeshop was a signal that LGBTQ+ rights are fragile. Earlier this year, the Supreme Court’s conservative supermajority decided 303 Creative v. Elenis, which made things even worse. In this case, Lorie Smith, a Christian web designer represented by ADF, filed a pre-emptive suit against Colorado because of its law prohibiting discrimination on the basis of sex or other protected status. Ostensibly, Smith was terrified by an inquiry from a same-sex couple who wanted a marriage website.

Barbie cake

It turned out the same-sex couple did not exist, nor had Smith ever made any marriage websites whatsoever, nor had Colorado taken any enforcement action against Smith. But the fake dispute served its purpose: to get a Supreme Court ruling that anti-LGBTQ+ business owners can refuse to serve same-sex couples because requiring them to do so violates the First Amendment’s free speech clause.

Now, Alliance Defending Freedom has another case out of Colorado, again working with the reliably bigoted Phillips. In 2017, Autumn Scardina, a transgender woman, asked Phillips to make a custom birthday cake—no words or symbols, just pink with blue frosting. Phillips’ wife, Debra, told Scardina the shop could make the cake, but then Scardina told her the cake was to celebrate both her birthday and her transition. Scardina was then told the shop couldn’t make the cake “because of the message.”

Phillips testified he “won’t design a cake that promotes something that conflicts with [his] Bible’s teachings” and that “God designed people male and female, that a person’s gender is biologically determined.” Because of that, he wouldn’t create a custom cake celebrating a gender transition, despite the fact the requested cake was nothing remotely resembling speech—it was just a two-color cake.

Colorado’s anti-discrimination law prohibits discrimination based on sex, sexual orientation, gender identity, or gender expression. In upholding the lower court’s ruling, the Colorado Court of Appeals said Phillips had violated Scardina’s rights because his refusal to bake a cake for her was solely due to her status as a trans woman. Phillips agreed that a pink cake with blue frosting does not inherently express any message, and said he would make a pink and blue cake for non-transgender customers and would sell a pre-made cake to Scardina even if she revealed what it was for.

This is, charitably, nonsense. Phillips and ADF’s bottom line is that they do not believe that LGBTQ+ people generally, and transgender people in particular, should be able to fully participate in society. To get around the fact that it is obviously discriminatory and violates Colorado law, ADF and Phillips lean on the idea that Phillips didn’t refuse service to Scardina because of her status as a trans woman, but rather on her conduct in identifying herself as trans and providing an explanation for the cake she wanted to buy.

Barbie coming out a cake

For trans folks who just want to buy a cake, this is a distinction without a difference. It doesn’t particularly matter why Jack Phillips doesn’t think he’s obliged to make a cake for a trans woman celebrating her transition. It doesn’t particularly matter why Lorie Smith thinks she shouldn’t have to design a website for a same-sex couple. What matters is that LGBTQ+ people are living in a world where business owners are no longer required to follow public accommodation laws if someone offends their evangelical Christian sensibilities.

Phillips’ current case is in Colorado state court, and after losses at the lower court and the court of appeals, Alliance Defending Freedom asked the state supreme court to hear the case. After the U.S. Supreme Court issued its ruling in 303 Creative, ADF filed a supplemental brief with the Colorado Supreme Court saying 303 Creative stands for “tolerance, not coercion” and therefore the case with the state appeals court should be thrown out, and the state supreme court should rule in Phillips’ favor. The idea that “tolerance” is best shown by allowing Phillips to refuse service to trans people is equal parts absurd and gross.

If the state supreme court refuses to take up Phillips’ case or rules against him, he could appeal to the U.S. Supreme Court. The Court doesn’t usually take appeals from state courts unless those courts decide a constitutional issue, which would be the case here. And why wouldn’t the Supreme Court take it up? This case presents yet another opportunity for the conservatives on the Court to continue to whittle away at the rights of trans people.

If this case doesn’t have legs, Alliance Defending Freedom has more in the pipeline. In Vermont, the group is representing a high school snowboarding coach who believes, “based on scientific evidence,” there are only two sexes, and trans girls cannot compete on girls’ teams. ADF donated to a group behind Florida’s “don’t say gay” bill and a group lobbying against protections for transgender students, and the legal group helped another law firm win a $95,000 settlement for a teacher who refused to use students’ pronouns. ADF also keeps a stable of “experts” available to trot out anti-trans pseudoscience and authored model laws to block trans kids from participating in sports.

This is what ADF does. This is what ADF is: a well-oiled, well-funded machine dedicated to eradicating trans people from public life. And they finally have a conservative majority on the Supreme Court that is wholly aligned with that goal.