Colorado’s top court on Tuesday ducked the question of whether a Christian baker had the right to refuse to create a cake for a customer celebrating a gender transition by dismissing the discrimination case on procedural grounds.
Lower courts in Colorado had concluded that Masterpiece Cakeshop and the bakery’s owner, Jack Phillips, had violated Autumn Scardina’s rights by refusing to make her a pink cake with blue frosting because of her identity as a transgender woman.
Phillips, whose prior refusal to make a wedding cake for a gay couple was at the center of a case that went to the U.S. Supreme Court, had on appeal urged the Colorado Supreme Court to conclude that requiring him to make the cake would infringe his free speech rights under the U.S. Constitution’s First Amendment.
But the state high court on a 4-3 vote avoided that issue entirely by instead concluding that under the Colorado Anti-Discrimination Act, Scardina, a lawyer, was not permitted to sue the baker in 2019 following an earlier administrative process.
Scardina had initially filed a discrimination complaint with the Colorado Civil Rights Division after Phillips refused to make the cake she wanted to order to celebrate her birthday and her identity as a transgender woman. She said he refused her order because of her identity.
The commission reached a confidential settlement with Phillips, without Scardina’s participation. Justice Melissa Hart, writing for the majority, said Scardina should have challenged that decision in an appeals court, rather than file a new lawsuit.
Justice Richard Gabriel, in a dissenting opinion joined by two other justices, called the majority’s ruling “troubling” for how it “throws Scardina completely out of court.”
“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.
Phillips’ lawyers at the conservative Christian legal rights group Alliance Defending Freedom in a statement said the ruling brings an end to the “harassment” of Phillips.
John McHugh, Scardina’s lawyer, said the court ducked the merits “by inventing an argument no party raised.”
Scardina placed her cake order the same day the U.S. Supreme Court in 2017 agreed to hear Phillips’ challenge to the Colorado Civil Rights Commission’s conclusion he discriminated against a gay couple for whom he had refused to make a wedding cake.
The U.S. Supreme Court in 2018 ruled in Phillips’ favor but on narrow grounds that avoided setting a major precedent allowing people to claim religious exemptions from anti-discrimination laws.
But in June 2023, in a case billed as a sort of sequel, the 6-3 conservative majority U.S. Supreme Court held the First Amendment protected web designer Lorie Smith from being compelled by Colorado to provide services to same-sex weddings.
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