
Colorado SupCo tosses trans woman’s cake case against Christian baker
DENVER (CN) — Citing procedural errors, a divided Colorado Supreme Court on Tuesday dismissed a transgender woman’s discrimination lawsuit against the Christian baker who refused to create a pink cake with blue icing to celebrate her gender transition birthday.
"The underlying constitutional question this case raises has become the focus of intense public debate: How should governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market?” wrote Colorado Supreme Court Justice Melissa Hart in a 29-page opinion on behalf of the majority.
“We cannot answer that question however, because of a threshold issue of administrative law and statutory interpretation: Could the district court properly consider the claims of discrimination presented here? In light of this dispute’s procedural journey, it could not,” continued Hart, an appointee of Democratic Governor John Hickenlooper.
The majority of justices agreed that Autumn Scardina should not have sued a cake shop owner directly but rather appealed a Colorado Civil Rights Commission's decision, which she had a clear pathway to do. Since she failed to appeal, she did not have the right to bring a new claim in state court, they said in their ruling.
Hart questioned whether the state commission violated its statutory duties in entering a private settlement with Phillips, and noted that Scardina had an option to challenge that action.
"Neither the statute nor the regulations permit the commission to settle a complainant’s charge of discrimination with a respondent of its own accord without the complainant’s participation,” Hart wrote. “If any party finds the results unfavorable, they may appeal.”
In 2017, Scardina asked Jack Phillips, who owns Masterpiece Cakeshop in Lakewood, Colorado, to make her a pink cake with blue frosting to celebrate the anniversary of her gender transition.
When Phillips refused, Scardina filed a complaint with the commission. This was not Phillip’s first course with the commission — his 2012 refusal to bake a wedding cake for a same-sex couple landed him at the U.S. Supreme Court. The nation's high court narrowly sided with Phillips in 2018 after finding the state commission had not treated him with “neutral and respectful consideration" and made “official expressions of hostility to religion” in handling the case.
Faced with a new inquiry after Scardina’s complaint, Phillips sued the state for harassment in federal court, which denied Scardina’s motion to intervene. In 2019, the state and Phillips reached a settlement and withdrew their complaints, leaving Scardina with an empty plate. The state failed to issue a formal, appealable order explaining its dismissal and Scardina sued the cake shop directly in Denver state court in June 2019.
A Denver judge held a remote trial in March 2021 and, after finding in favor of Scardina, awarded her a $1 judgment. The Colorado Court of Appeals affirmed the ruling last year.
In Tuesday’s opinion, however, the Colorado Supreme Court reversed, accepting a version of Phillips' argument that Scardina didn't follow the correct path in suing him directly.
Hart was joined on the opinion by Supreme Court Chief Justice Monica Marquez, along with justices Brian Boatright and Carlos Samour Jr., all appointed by Democratic governors.
Phillips’ attorneys at the conservative law firm Alliance Defending Freedom applauded the decision, underscoring the lengthy litigation their client has faced and citing another of the firm’s U.S. Supreme Court wins.
“Jack has been dragged through courts for over a decade. It’s time to leave him alone,” said attorney Jake Warner in a statement. “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. 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.”
Scardina’s attorneys said they were unhappy not just with the ruling, but with the justices' rationale.
“We are very disappointed that the Colorado Supreme Court decided to avoid the merits of this issue by inventing an argument no party raised,” John McHugh of Fennemore in Denver told Courthouse News via email. “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 pointed to Justice Richard Gabriel’s dissent which criticized the majority for giving Phillips a procedural pass after “every factfinder and judicial officer to have heard this case concluded that Masterpiece’s conduct violated the Colorado Antidiscrimination Act."
Justices Maria Berkenkotter and William Hood, also Democratic appointees, signed the 27-page dissent.
Gabriel called the implications of the majority ruling “troubling on many levels,” and lamented that Scardina has now been stripped of any remedy to redress discrimination.
“Procedurally, the majority adopts an unprecedented administrative regime under which, once a merits hearing is set, (1) a district court can never hear the matter; and (2) an administrative agency may never settle the matter over a claimant’s objection, no matter how unreasonable that objection may be, but instead must litigate the matter to its conclusion,” Gabriel wrote. “In my view, neither law nor sound policy supports such a conclusion."