Transgender Cake Lawsuit Dismissed by Colorado Supreme Court
The Colorado Supreme Court has dismissed a transgender woman's discrimination lawsuit against a Colorado baker on a technicality.
The Colorado Supreme Court dismissed a lawsuit against a Christian baker who refused to create a cake celebrating a gender transition for a transgender woman on procedural grounds.
In doing so, the court sidestepped the issue of whether — and to what extent — a person’s First Amendment rights override local nondiscrimination laws.
Lower courts in Colorado had previously ruled in favor of the woman, Autumn Scardina, finding — based on the facts of the case — that Jack and Debra Phillips, the owners of Masterpiece Cakeshop, in Lakewood Colorado, had discriminated against her by refusing to bake a custom-made cake only after they found out the purported significance of the cake.
According to the facts of the case, Scardina first asked for a custom-made birthday cake that would serve six to eight people. She then asked for a pink birthday cake with blue frosting. She was told by Debra Phillips that the bakery would have no trouble honoring her request.
However, Scardina later mentioned that the significance of the design was not only to celebrate her birthday, but the seventh anniversary of her coming out as transgender. At that point, Debra Phillips told Scardina that the bakery “probably could not make that cake because of the message.”
Scardina, an attorney by trade, placed the order on the same day in 2017 that the U.S. Supreme Court announced it would hear Masterpiece Cakeshop’s appeal of a lower court ruling, in a separate case, finding that Jack Phillips had discriminated against a gay couple by refusing to bake a cake for their same-sex wedding.
The nation’s highest court eventually sided with Phillips in that case, finding that Colorado authorities had failed to take into account Phillips’ religious beliefs, and his right to express them, when they found that he had violated the state’s nondiscrimination law.
Scardina testified in court that she placed the order because she wanted to “challenge the veracity” of Philips’ past statements — which she believed to be untrue — that he would serve LGBTQ customers, but would not bake custom-made cakes for same-sex weddings due to his religious and moral beliefs opposing homosexuality.
Scardina filed a complaint with the Colorado Civil Rights Commission, alleging that the bakery’s owners had discriminated against her based on her gender identity, which is technically prohibited under Colorado’s nondiscrimination laws.
The commission found probable cause that Masterpiece had discriminated against her but reached a confidential settlement with the Phillipses without Scardina’s participation.
Scardina later filed a discrimination lawsuit in court based on the commission’s earlier findings, and, following a 2021 trial, a lower court judge ruled in her favor.
Phillips’ lawyers appealed the decision to the Colorado Court of Appeals. The appeals court upheld the lower court’s ruling, finding that making a pink cake with blue frosting — which, unlike a wedding cake, bore no specific message about support for transgender identity — was not “inherently expressive,” and therefore did not constitute “compelled speech” that infringed on Jack Phillips’ First Amendment rights.
But the Colorado Supreme Court ruled, 4-3, on procedural grounds, that Scardina should have challenged the Colorado Civil Rights Commission’s decision to settle the case with Phillips without her involvement rather than file a new, separate lawsuit.
Because the Colorado Anti-Discrimination Act has specific language on when an action can be filed in court, and Scardina did not exhaust all her options, including challenging the commission’s actions in the Court of Appeals, she had no standing to bring the lawsuit.
The court then dismissed the case and vacated the lower courts’ rulings — conveniently sidestepping the crux of the dispute between Scardina and Phillips (which is different from the previous same-sex wedding case in which Phillips was victorious).
Justice Melissa Hart, writing for the majority, noted that in vacating the case, “we express no opinion about the merits of Scardina’s claims, and nothing about today’s holding alters the protections afforded by CADA.”
However, Justice Richard Gabriel, in a dissenting opinion, called the majority’s decision “troubling” for how it “throws Scardina completely out of court,” reports Reuters.
“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),” he wrote.
Scardina’s attorneys expressed disappointment with the ruling.
“We are very disappointed that the Colorado Supreme Court decided to avoid the merits of this issue by inventing an argument no party raised,” the Fennemore Law Firm said in a statement. “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.”
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