(CP) The Colorado Supreme Court has dismissed a lawsuit against Christian baker Jack Phillips over his refusal on religious grounds to make a cake celebrating a trans-identified individual’s so-called gender transition.
In a decision released Tuesday, the state’s highest court ruled 4-3 to dismiss the lawsuit against the owner of Masterpiece Cakeshop filed by Autumn Scardina, a biological male who identifies as a lady.
Justice Melissa Hart authored the bulk opinion, arguing that Scardina’s discrimination claim was not properly processed before the lawsuit against Phillips was filed.
“Could the district court properly consider the claims of discrimination presented here? In light of this dispute’s procedural journey, it couldn’t,” wrote Hart.
Hart noted that the Colorado Civil Rights Commission and the Colorado Civil Rights Division had previously agreed to “dismiss Scardina’s administrative grievance against Masterpiece and Phillips” but “without participation by Scardina.”
“Scardina could have appealed the Commission’s decision to shut the executive adjudication without providing the statutorily mandated order but [he] didn’t. Instead, [Scardina] brought [his] discrimination claim anew within the district court,” continued Hart.
“We granted certiorari to find out, amongst other issues, whether Scardina properly filed [his] case within the district court. We conclude that [he] didn’t.”
Hart clarified that, in dismissing the case, the state supreme court did “not consider the merits of Scardina’s [Colorado Anti-Discrimination Act] claim, nor whether Masterpiece’s conduct was protected under the First Amendment.”
Justice Richard L. Gabriel authored a dissenting opinion, claiming that almost all “erroneously gives Masterpiece and Phillips a procedural pass.”
“Substantively, the bulk’s ruling throws Scardina completely out of court and deprives [him] of the chance to hunt a treatment for alleged discriminatory conduct based on a novel interpretation of law that no party asserted and, to my knowledge, no court has adopted,” wrote Gabriel.
“I’m concerned that Masterpiece and Phillips will construe today’s ruling as a vindication of their refusal to sell non-expressive products with no intrinsic intending to customers who’re members of a protected class (here, the LGBTQ+ community) if Phillips opposes the aim for which the shoppers will use the products. Such a claim, though unfounded, could detrimentally impact those affected by such conduct.”
In 2019, Scardina filed a grievance against Phillips and Masterpiece Cakeshop over the refusal to make a pink cake with blue frosting that may have fun his gender transition.
The suit originally claimed that Phillips violated each CADA and the Colorado Consumer Protection Act by refusing to make the cake; nonetheless, a judge dismissed the latter claim in March 2021.
Denver District Court Judge A. Bruce Jones ruled in June 2021 that Phillips violated CADA, acknowledging that his decision “can be different if the cake design had been more intricate, artistically involved, or overtly stated a message attributable to Defendants.”
“Defendants’ expressive conduct argument fails because Defendants presented no evidence that an inexpensive observer would attribute any message that was conveyed by the cake to Defendants,” continued Jones.
In January 2023, a three-judge panel of the Colorado Court of Appeals also ruled against Phillips, concluding that the cake “expressed no message” and that “not all conduct constitutes speech.”
Phillips won a U.S. Supreme Court case in 2018 that centered on his refusal for religious reasons to bake a marriage cake that celebrated a same-sex marriage in 2012 when such unions weren’t legally recognized in Colorado.
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