Christian Baker Asks Judge to Toss Suit Over Unbaked Transgender Birthday Cake

Colorado-based Masterpiece Cakeshop says a transgender woman jumped the gun by suing over its refusal to make a cake to commemorate her transition.

Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store in Lakewood, Colo. (AP Photo/Brennan Linsley, File)

DENVER (CN) — A Christian baker asked a Denver judge to dismiss a civil rights lawsuit brought by a customer for refusing to make a pink cake with blue frosting celebrating her transgender birthday.

Autumn Scardina, a transgender woman, first filed a complaint through the Colorado Civil Rights Commission against Masterpiece Cakeshop owner Jack Phillips in 2018 claiming gender discrimination after he refused to make the cake celebrating the anniversary of her transition. Since this was not his first course with the commission, Phillips sued the state for harassment in federal court.

The commission previously sued Phillips in 2014 after he refused to make a same-sex couple’s wedding cake. Then, as now, he said his religious beliefs prevent him from creating something he doesn’t believe in.

In a 7-2 ruling, the U.S. Supreme Court overturned the commission’s finding — which had been upheld by an administrative law judge and the Colorado Court of Appeals. The justices found the commission had not treated Phillips with “neutral and respectful consideration,” and had made “official expressions of hostility to religion” in handling the case.

In 2019, the state and Phillips reached a settlement and withdrew their complaints, leaving Scardina where she started with an empty plate.

She sued the cakeshop directly in Denver state court this past June. Now attorneys with the Alliance Defending Freedom, who represent Phillips, want the court to dismiss the case, arguing Scardina should have gone to the appeals court for a second course instead of opening a new tab at the trial court level.

“At some point, your honor, this must stop. Mr. Phillips just wants to get back to his life and make cakes,” said the bakery’s attorney Jake Warner during Thursday’s hearing via video conference.

“If plaintiff had any questions, [she] could have filed at the court of appeals and the district, but plaintiff wants to start the case all over and that isn’t fair to Mr. Phillips,” Warner said.

Scardina’s attorneys say they can’t file an appeal without a final decision from the commission, which settled with the bakery before making one.

“The commission did not under Colorado law issue a final order so there is nothing to appeal,” explained attorney John McHugh of Denver-based firm Reilly Pozner, before a background of Star Wars posters. “Scardina had no legal right to stop the commission from settling the case.”

Denver District Judge Alan Jones pushed back—if the commission closed the case, that becomes as good as any final decision.

“What you’re describing is a new complaint, not an appeal,” McHugh clarified. “[Masterpiece is] asking you to overrule the decision of the commission. Think about the Gordian knot they are trying to form here.”

Jones acknowledged the procedural complications.

“The commission is saying you’re out of luck here, you’ve gone far enough to preclude yourself from going into district court, but not far enough to reach a final order on the merits of the case [with the commission],” Jones said.

Scardina was also unable to intervene in the federal lawsuit between Masterpiece Cakeshop and the state.

“Part of several ironies here, include [U.S. District Judge Wiley] Daniel saying—understandably—I’m not going to let Scardina into this court because the commission is there to protect her interests,” acknowledged Jones. “It turns out, the commission was not there to protect her interests.”

No decision was reached on the merits of Scardina’s complaint to the commission. When the state left the table and settled with the bakery, Colorado Attorney General Phil Weiser said, “After careful consideration of the facts, both sides agreed it was not in anyone’s best interest to move forward with these case. The larger constitutional issues might well be decided down the road.”

Jones did not indicate whether he will let the case proceed in his court, but after the two-hour tele-hearing, promised to issue a ruling before the end of April. 

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