Masterpiece Cakeshop owner Jack Phillips Photo: Screenshot
This week, the Colorado Supreme Court avoided ruling on whether a Christian baker violated the Colorado Anti-Discrimination Act by refusing to bake a cake celebrating the transition of a transgender woman. They did so by dismissing the case solely on procedural and administrative grounds.
The case, Masterpiece Cakeshop v. Scardina, had been ruled on in lower courts in 2021 when they decided that Jack Phillips, the owner of the bakery, violated lawyer Autumn Scardina’s rights by refusing to bake her a cake on the grounds of her trans identity in 2019.
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However, the state Supreme Court argued that Scardina was not eligible to sue Phillips in the way that she did. She had initially filed a complaint with the Colorado Civil Rights Division following Phillips’ refusal. The Division ruled that Phillips had discriminated against Scardina, leading him to promptly sue the Division for alleged anti-Christian discrimination. Scardina had tried to intervene in this case, but was rejected.
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The Division reached a settlement with Phillips privately, which partly involved dropping Scardina’s discrimination claims. This was done without her involvement, leading her to file a separate lawsuit alleging discrimination.
However, the Colorado Supreme Court argued that Scardina should have filed an appeal with the Court of Appeals, rather than filing an entirely distinct lawsuit that then escalated through the courts. This is in spite of rulings from both the District Court and the Court of Appeals that indicated Phillips had discriminated against Scardina. The Supreme Court says these rulings should not have taken place.
“Irrespective of the merits of Scardina’s claim, the district court here was not permitted to consider her case… We therefore vacate both the division’s and the district court’s orders and dismiss this case. In so doing, we express no opinion about the merits of Scardina’s claims, and nothing about today’s holding alters the protections afforded by CADA,” writes the 4-3 opinion drafted by Judges Melissa Hart, Monica M. Márquez, Brian D. Boatright, and Maria E. Berkenkotter.
Three judges — Justice Carlos A. Samour, Richard L. Gabriel, and William W. Hood III — dissented, arguing that their colleagues had essentially just allowed discrimination to take place and gave a tacit endorsement of Phillips’ actions, in spite of their claims to the contrary.
“The majority now declines to reach the merits of this case. Instead, it erroneously gives Masterpiece and Phillips a procedural pass,” writes Justice Gabriel on behalf of the three judges. “It does so by concluding that the district court lacked the authority to hear Scardina’s case, relying on reasoning that no party presented in this case (even after we issued an order requiring supplemental briefing on the question of the court’s authority) and all but ignoring the argument that the parties actually presented to us, namely, that Scardina had failed to exhaust her administrative remedies. (To the extent that the majority addresses the exhaustion argument presented by Masterpiece and Phillips, it rejects that argument.)”
“I am concerned that Masterpiece and Phillips will construe today’s ruling as a vindication of their refusal to sell non-expressive products with no intrinsic meaning to customers who are members of a protected class (here, the LGBTQ+ community),” says Gabriel.
Phillips made headlines back in 2012 after he refused to bake a cake for a gay couple that was getting married, arguing that doing so would endorse their marriage. This case was settled out of court.
In the current case, he was represented by the Alliance Defending Freedom, a far-right legal organization and Southern Poverty Law Center-designated hate group notorious for opposing LGBTQ+ rights in many different legal cases, including in opposing Title IX rules that protect trans youth, defending conversion therapy, and advocating for healthcare discrimination against trans people.
“Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone. Free speech is for everyone. As the U.S. Supreme Court held in 303 Creative, the government cannot force artists to express messages they don’t believe,” said ADF Senior Counsel Jake Warner, referencing a similar anti-LGBTQ+ discrimination case that the ADF served as legal counsel on which was ruled in their favor.
“In this case, an attorney demanded that Jack create a custom cake that would celebrate and symbolize a transition from male to female. Because that cake admittedly expresses a message, and because Jack cannot express that message for anyone, the government cannot punish Jack for declining to express it. The First Amendment protects that decision,” Warner added.
Scardina’s attorney, John McHugh, told Courthouse News, “We are very disappointed that the Colorado Supreme Court decided to avoid the merits of this issue by inventing an argument no party raised. It is a fundamental principle of our legal system that courts decide issues based on the arguments presented by the parties. For the court to abandon that principle today does a disservice not just to Ms. Scardina, but to the entire state.”
McHugh said he is considering other legal options for the case.
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