Colorado Supreme Court dismisses transgender cake case on technicality

The Colorado Supreme Court on Tuesday declined to rule on whether Christian baker Jack Phillips can refuse to make a celebratory gender-transition case for a transgender customer, and instead dismissed the case on a technicality.

In a 4-3 decision, the justices found they could not consider whether Phillips, owner of Masterpiece Cakeshop in Lakewood, can legally refuse to make a pink-and-blue cake for transgender attorney Autumn Scardina to celebrate her gender transition on the grounds that doing so would violate his Christian faith.

“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?” Justice Melissa Hart wrote in the majority opinion. “We cannot answer that question.”

The ruling brings to a close a seven-year legal saga in which Phillips had argued that his actions were lawful because he refused to make the cake only because of the cake’s message, not because Scardina is transgender. His refusal to create a cake with that meaning is protected by the First Amendment, his attorneys argued.

But Scardina’s attorneys pointed out that a blue-and-pink cake has no inherent meaning and that the bakery would make and sell identical cakes to other customers. The bakery initially agreed to make a pink-and-blue cake for Scardina, until she explained its meaning.

Scardina, who is also a Christian, pursued a discrimination claim against Phillips after he refused to bake the cake in 2017. She filed a claim under Colorado’s Anti-Discrimination Act, or CADA, which prohibits businesses from refusing services based on protected characteristics like race, religion or sexual orientation.

When that claim was dismissed, she sued Phillips in district court, and the case from there rose through the state’s courts all the way to the Colorado Supreme Court. However, the justices ruled Tuesday that Scardina had no procedural authority to file the case in district court, and so the case must be dismissed.

“CADA is not ambiguous,” Hart wrote. “It is quite clear about when a litigant may file an action in the district court… None of the circumstances that permit an action in the district court occurred here. 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.”

Chief Justice Monica Márquez and justices Brian Boatright and Carlos Samour joined the majority opinion. Justices Richard Gabriel, William Hood and Maria Berkenkotter dissented, calling the ruling “troubling on many levels.” Scardina was within her rights to sue in district court, the dissenting justices argued.

“Substantively, the majority’s ruling throws Scardina completely out of court and deprives her of the opportunity to seek a remedy for alleged discriminatory conduct based on a novel interpretation of law that no party asserted and, to my knowledge, no court has adopted,” Gabriel wrote in the dissent.

The state Supreme Court’s procedural pass ends another chapter in a more than decade-long saga for Phillips and Masterpiece Cakeshop.