Colorado Supreme Court dodges constitutional question, dismisses latest Masterpiece Cakeshop case on procedural grounds

The Colorado Supreme Court, by 4-3, declined on Tuesday to address the high-profile issue of a Christian baker's refusal to make a cake for a customer celebrating a gender transition, instead concluding the case was not properly filed in the first place.

Previously, a trial judge and the state's Court of Appeals agreed Masterpiece Cakeshop, owned by Jack Phillips, denied service to Autumn Scardina based on her transgender status, which amounted to a violation of the Colorado Anti-Discrimination Act (CADA). The Supreme Court subsequently agreed to examine whether Phillips' cake-making was "speech" protected by the First Amendment, notwithstanding the anti-discrimination law.

However, the Supreme Court ultimately did not reach that question. Instead, the majority concluded Scardina mistakenly filed her lawsuit in the district court when she should have sought review in the Court of Appeals at the outset.

"Irrespective of the merits of Scardina’s claim, the district court here was not permitted to consider her case. Masterpiece has argued as much throughout this litigation, though for reasons slightly different than those we rest on here," wrote Justice Melissa Hart in the Oct. 8 opinion.

Justice Richard L. Gabriel dissented, slamming the majority for relying on an argument the parties did not raise themselves and for potentially misreading the law. He also pointed out the majority's sidestepping of the constitutional issue could embolden future denials-of-service based on a customer's protected traits.

"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)," wrote Gabriel for himself and Justices William W. Hood III and Maria E. Berkenkotter.

“Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone,” said Jake Warner, senior counsel with the Alliance Defending Freedom, which represented Phillips.

Lawyers for Scardina worried the court's decision may discourage potential victims of discrimination from using the adjudicatory process, and were disappointed the Supreme Court avoided resolving the conflict between free speech rights and anti-discrimination protections.

"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," said attorneys John M. McHugh and Paula Greisen in an emailed statement.

Phillips was the subject of a 2018 U.S. Supreme Court decision stemming from his similar refusal to provide a wedding cake to a same-sex couple. The nation's highest court sided with Phillips on narrow grounds. Since then, however, the conservative-majority court decided 303 Creative v. Elenis , another case out of Colorado involving a Christian website designer who wanted to refuse to create websites for same-sex weddings without running afoul of CADA.

Addressing the constitutional issue head-on, the majority decided custom wedding websites were "pure speech" protected by the First Amendment. Phillips subsequently invoked the 303 Creative decision in defending his refusal to serve Scardina based on the message the gender transition cake would have conveyed.

Although oral arguments to the state Supreme Court touched on a range of difficult issues — whether business owners must honor requests for expressive services they find offensive, whether such refusals amount to statements of " your kind isn't welcome here " — Masterpiece Cakeshop alternatively asserted Scardina improperly filed suit to begin with.

Ultimately, the Supreme Court latched onto that procedural point, although without endorsing Masterpiece Cakeshop's precise reasoning.

Hart explained that the sequence of events resulting in the closure of Scardina's complaint in the Colorado Civil Rights Commission meant she could not seek judicial review directly in the district court. Therefore, the majority vacated the trial judge's detailed findings of discrimination.

Hart also suggested the way the commission ended Scardina's complaint was "in possible violation of its statutory obligation."

Gabriel, on behalf of the dissenting justices, criticized the majority for relying on an argument neither side had used. Hart, earlier this year, had warned the Court of Appeals against that exact practice "without offering some clear justification for doing so."

In Gabriel's view, the majority's justification for veering off in a different direction — wanting to interpret Colorado law correctly — was unpersuasive.

"In such a case, I believe that it is particularly important for a court not to raise and rely on arguments of its own derivation, so as not to open itself to questions about its proper role or neutrality," he argued. "Moreover, nothing in CADA (or anywhere else) explicitly limited the district court’s subject matter jurisdiction over this case."

The case is Masterpiece Cakeshop, Inc. et al. v. Scardina.