The Colorado Supreme Court announced on Tuesday that it will decide whether a Lakewood cake maker violated the state’s anti-discrimination law when he declined to supply a cake to celebrate a customer’s gender transition, or if the First Amendment protected his refusal.

The case involves a familiar name: Masterpiece Cakeshop, whose owner, Jack Phillips, was the subject of a 2018 U.S. Supreme Court decision on the subject of LGBTQ+ discrimination. At the time, the nation’s highest court sided with Phillips on narrow grounds, finding Colorado did not fairly adjudicate the claim that Phillips discriminated against a same-sex couple who requested a wedding cake.

This time, however, a U.S. Supreme Court ruling that recently limited the scope of the Colorado Anti-Discrimination Act (CADA) could cause Phillips to prevail under the principle that government cannot force someone to speak in violation of their beliefs — even if that speech takes the form of commercial products and services.

The same day the Supreme Court agreed to hear the original Masterpiece Cakeshop appeal, a transgender attorney, Autumn Scardina, called the store to see if Phillips would provide non-wedding cake services to LGBTQ+ customers. Scardina spoke to Phillips’ wife, Debra, over the phone, asking for a blue and pink birthday cake. Debra Phillips confirmed they would make the cake, until Scardina disclosed the cake would celebrate her transition from male to female.

Phillips then said she did not believe her husband could provide such a product.

The Colorado Civil Rights Commission eventually dismissed the case as part of a settlement with Jack Phillips, but Scardina filed suit to allege Phillips violated CADA’s prohibition on discrimination in the marketplace.

After a 2021 trial, Denver District Court Judge A. Bruce Jones found in Scardina’s favor. Although Phillips sought to operate his business in line with his Christian beliefs, and he objected to the “message” of Scardina’s proposed cake, Jones believed Phillips’ own self-expression was not implicated by Scardina’s request to bake a blue and pink cake.

“The Court concludes that Defendants denied Ms. Scardina goods and services because of her transgender status,” Jones wrote in June 2021. “The concept that a business can decide whether to make the requested item depending on what information the customer provides would establish the equivalent of a ‘Don’t Ask, Don’t Tell’ rule — LGBT individuals would be entitled to equal service only to the extent they do not request goods that reflect their identity as LGBT individuals.”

In January, a three-judge panel of the state’s Court of Appeals upheld Jones’ ruling, believing a cake did not amount to protected speech under the First Amendment.

“We conclude 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,” wrote Judge Timothy J. Schutz. “Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake.”

Phillips appealed to the state Supreme Court through the Alliance Defending Freedom, a legal group that represents Christians in cases seeking to limit LGBTQ protections. He argued his decisions about cake making hinge on the message the cake expresses, not the identity of the person ordering it.

“CADA compels Ukrainian cake artists to create cakes promoting the Russian invasion and atheist cake artists to create cakes celebrating the resurrection of Christ,” wrote his attorneys. “That violates the First Amendment.”

Supporting Phillips were a range of conservative groups and elected officials, many of whom avoided identifying Scardina by her gender pronouns and argued Phillips was the subject of persecution.

U.S. Rep. Doug Lamborn, R- Colorado Springs, claimed the Supreme Court could decide the case “without calling into question anti-discrimination laws.” Six Republican state legislators argued the case was emblematic of a “high-stakes battle over the character of the American nation.”

“Here Colorado officials expressly required Petitioner to renounce his religious character and identity to artistically express himself in an otherwise accessible marketplace,” the lawmakers wrote, alleging that governments “often” privilege sexual and gender identities over religious ones.

While Phillips’ appeal was pending, the U.S. Supreme Court in June handed down a landmark ruling about the ability of certain business owners to refuse service to LGBTQ customers. In 303 Creative v. Elenis, which also arose from Colorado, the court’s 6-3 conservative majority ruled that governments may not force speech-based businesses to create messages they disagree with.

Scardina drew the Colorado Supreme Court’s attention to the ruling, pointing out 303 Creative involved “pure speech” — specifically, creating websites. In contrast, the Court of Appeals found Phillips’ cake making was “not inherently expressive.”

The Supreme Court agreed to answer whether Phillips’ refusal to create a blue and pink cake violated CADA, or whether the First Amendment protected his decision. The justices will also address whether Scardina could properly bring her claim on procedural grounds.