Denver Judge Keeps Birthday Cake Lawsuit in the Oven

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

DENVER (CN) — A Denver judge denied a Christian baker’s motion to dismiss a discrimination lawsuit filed against him after he refused to make a birthday cake commemorating a gender transition.

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.

The state and Phillips reached a settlement in 2019 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.

Phillips’ attorneys with the Alliance Defending Freedom asked the court to dismiss the case arguing among other things, that it belongs in the appeals court.

“In essence, defendants claim there is a point of no return — the commencement of a hearing — after which a complaint is bound by the [Civil Rights] Commission’s decision, subject only to an appeal to the court of appeals,” wrote Judge A. Bruce Jones in a 7-page order. Governor Bill Ritter appointed Jones in 2011.

“Contrary to defendants’ argument, the commission’s closure order, with its finding of exhaustion, left plaintiff no option but to sue in district court,” Jones wrote.

Although Jones denied the dismissal, he noted Scardina needs to provide more information about the “‘repeated’ false representations and advertisements regarding [Masterpiece’s] willingness to make cakes for members of the LGBT community” to support her argument under the Colorado Consumer Protection Act.

Scardina can submit an amended complaint within 14 days, after which Masterpiece has 14 days to answer.

“Ms. Scardina is thrilled to move forward with this case and show that Masterpiece Cakeshop and Jack Phillips refused to make a birthday cake for her simply because she is transgender,” said her attorney, John McHugh with Denver firm Reilly LLP. “Ms. Scardina is hopeful that the defendants will finally learn that they are not exempt from Colorado’s Anti-Discrimination Act and must comply with the laws of this state.”

The Alliance Defending Freedom did not respond immediately to request for comment.

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