The Colorado Supreme Court has sidestepped the contentious issue of whether a Christian baker can refuse to make a cake for a customer celebrating a gender transition, dismissing the discrimination case based on procedural grounds. The decision, rendered Tuesday, came after lower courts determined that Jack Phillips, owner of Masterpiece Cakeshop, had violated Autumn Scardina’s rights by declining to create a pink cake with blue frosting, citing her identity as a transgender woman.
Phillips, who previously gained national attention for his refusal to make a wedding cake for a gay couple—a case that ultimately reached the U.S. Supreme Court—argued that compelling him to bake the cake would infringe upon his First Amendment rights to free speech. However, the Colorado Supreme Court, in a narrow 4-3 vote, did not address the free speech claim, opting instead to focus on the procedural aspect under the Colorado Anti-Discrimination Act. The court concluded that Scardina, a lawyer, could not sue Phillips in 2019 after an earlier administrative process had taken place.
Scardina originally lodged a discrimination complaint with the Colorado Civil Rights Division after Phillips refused her cake order for her birthday celebration. She asserted that the refusal was rooted in her transgender identity. The commission eventually reached a confidential settlement with Phillips without Scardina’s involvement. Justice Melissa Hart, writing for the majority, indicated that Scardina should have pursued an appeal of that decision rather than initiating a new lawsuit.
In dissent, Justice Richard Gabriel, along with two other justices, criticized the majority’s ruling as “troubling,” emphasizing that it effectively barred Scardina from seeking justice. “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,” he stated.
Phillips’ legal team from the conservative Christian group Alliance Defending Freedom hailed the ruling as an end to what they termed the “harassment” of Phillips. In contrast, John McHugh, representing Scardina, expressed disappointment, claiming the court avoided the core issues by creating an argument not presented by either party.
Notably, Scardina placed her cake order on the same day the U.S. Supreme Court agreed to hear Phillips’ previous case regarding discrimination against a gay couple. In 2018, the Supreme Court ruled in favor of Phillips on narrow grounds, avoiding the establishment of a significant precedent on religious exemptions from anti-discrimination laws. More recently, in June 2023, the conservative majority of the Supreme Court ruled that the First Amendment protected web designer Lorie Smith from being compelled to provide services for same-sex weddings.
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