Masterpiece Cakeshop owner of Supreme Court fame notches another win, this time after refusing to bake cake celebrating transition of transgender lawyer

The highest court in Colorado has determined that a transgender woman’s discrimination lawsuit against a Christian baker will not be allowed to move forward.

As Law&Crime has previously reported, Autumn Scardina, a Denver-based attorney, sued Jack Phillips, the owner of Masterpiece Cakeshop, after he refused to make a cake — specifically, a pink cake with blue frosting — in 2017 celebrating the anniversary of her gender transition. Phillips is widely known as the baker who refused to make a cake for a gay couple’s wedding, citing his Christian beliefs . That matter that ended up before the U.S. Supreme Court, which ultimately ruled in Phillips’ favor , albeit on narrow procedural, not substantive, grounds.

The state’s civil rights commission found that Phillips’ refusal to fulfill Scardina’s order amounted to illegal discrimination under Colorado law and issued a $500 fine — a move that was upheld by a Denver judge in 2021. Phillips appealed , and in October 2023, the state Supreme Court said it would consider the case . Phillips, meanwhile, also sued the civil rights commission, as well as the state’s civil rights division, in federal court, alleging discrimination on the part of the state agencies based on his religion. Scardina tried to intervene in that case, but the court rejected that effort, determining that the agencies would sufficiently represent her interests. That case settled in 2019, with the two agencies agreeing to stop pursuing Scardina’s discrimination claim.

On Tuesday, a divided panel of the court’s seven justices ruled against Scardina , who had filed her lawsuit after the agencies dropped her complaint, but on procedural, not substantive, grounds — a fact that Justice Melissa Hart noted in the opinion’s opening paragraph.

“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?” the opinion begins. “We cannot answer that question however, because of a threshold issue of administrative law and statutory interpretation: Could the district court properly consider the claims of discrimination presented here? In light of this dispute’s procedural journey, it could not.”

The majority of the justices — including Hart, Chief Justice Monica M. Márquez, Justice Brian D. Boatright, and Justice Carlos A. Samour — found that Scardina should have pursued an appeal of the agencies’ decision to drop her claim against Phillips, instead of bringing the matter to court.

Colorado law, Hart wrote in the opinion, “authorizes complainants to pursue their case in the district court in four circumstances. The proceedings here did not trigger any of those circumstances.”

A dissent, penned by Justice Richard L. Gabriel and joined by Justices William W. Hood III and Maria E. Berkenkotter, says that the majority’s decision “erroneously gives Masterpiece and Phillips a procedural pass” and may be misinterpreted as giving permission to discriminate.

“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,” the dissent says. “Moreover, although the majority rules solely on procedural grounds, 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) if Phillips opposes the purpose for which the customers will 3 use the products. Such a claim, though unfounded, could detrimentally impact those affected by such conduct.”

Phillips’ lawyers celebrated the ruling.

“Free speech is for everyone,” said attorney Jake Warner with the Alliance Defending Freedom, a right-wing advocacy organization known for filing lawsuits aimed at rolling back the rights of gay , lesbian , and transgender people. Citing the Supreme Court’s ruling in favor of a Christian web designer who refused to create a wedding website for a gay couple, Warner said that “the government cannot force artists to express messages they don’t believe. In this case, an attorney demanded that Jack create a custom cake that would celebrate and symbolize a transition from male to female. Because that cake admittedly expresses a message, and because Jack cannot express that message for anyone, the government cannot punish Jack for declining to express it. The First Amendment protects that decision.”

Representatives for the plaintiff expressed disappointment, and said that the decision potentially endangers the rights of every person living in Colorado.

“We are very disappointed that the Colorado Supreme Court decided to avoid the merits of this issue by inventing an argument no party raised,” Scardina’s attorney John McHugh told Courthouse News . “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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