DENVER (CN) — The Colorado Court of Appeals on Thursday upheld a lower court finding that a Christian bakery owner discriminated against a transgender woman who tried to order a pink birthday cake with blue frosting.
“The trial court did not err by concluding that Masterpiece and Phillips discriminated against Scardina because of her status as a trans woman,” wrote Colorado Court of Appeals Judge Timothy Schutz in a 43-page opinion published Thursday.
Masterpiece Cakeshop, of Lakewood, came into fame after refusing to make a wedding cake for a same-sex couple in 2012 because doing so would violate owner Jack Phillips' Christian faith. In a narrowly tailored ruling, the U.S. Supreme Court sided with Masterpiece Cakeshop in 2017, after finding the state civil rights commission had not treated Phillips with “neutral and respectful consideration,” and had made “official expressions of hostility to religion” in handling the case.
The court did not weigh in on whether Phillips had discriminated against the couple by refusing to make their wedding cake.
Autumn Scardina says she called to place an order for a birthday cake after hearing Phillips say he was happy to make cakes for anyone — as long as the message did not violate his Christian beliefs. The bakery was happy to make her pink cake with blue icing until she revealed that it symbolized her transition from a man to a woman.
Phillips said he has received many crank calls for orders he can't make, including cakes promoting marijuana use and satanism.
Scardina filed a complaint with the state Civil Rights Commission prompting Phillips to sue the state for persecution. The state and Phillips reached a settlement and withdrew their complaints, leaving Scardina with an empty plate.
She sued the cakeshop directly in Denver state court in June 2019. Following a bench trial, a Denver judge ruled in favor of Scardina and awarded her $500. Masterpiece appealed.
"It was only after Scardina disclosed that she was transgender and intended to use the cake to celebrate both her birthday and her transition that Masterpiece and Phillips refused to provide the cake,” Román wrote in Thursday's opinion. “To prove a violation of the Colorado Anti-Discrimination Act, Scardina needed only to establish that ‘but for’ her status as a trans woman, Masterpiece and Phillips would have sold her the cake."
Using criteria established in Masterpiece v. Colorado Civil Rights Commission, the appeals court found Scardina’s order for a pink cake with blue frosting did not constitute protected speech.
"We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” Román wrote.
Scardina’s attorney John McHugh celebrated the ruling.
“The court held, consistent with U.S. Supreme Court precedent, that Mr. Phillips’ religious beliefs do not exempt him from antidiscrimination laws,” McHugh said in email. “This ruling is a victory not just for Ms. Scardina and the greater LGBT community, but for all Coloradans, who can take comfort that our laws apply equally to everyone.”
The conservative Christian organization Alliance Defending Freedom represented Phillips, who intends to appeal.
“I do hope whichever court is next, they will realize that this was expressive. We were told that the colors expressed a message and so we should be able to decline to create messages that go against our faith,” Phillips said. “I won’t go into details, but just last week a received another prank order that I declined to make.”
Pending clarification from the court, Phillips told Courthouse News he no longer makes custom wedding cakes.
Alliance Defending Freedom also represents Colorado graphic designer Lorie Smith of 303 Creative, who declined to make websites for same-sex weddings. The U.S. Supreme Court heard her case in December but did not indicate when or how it would decide the issue.
Judge Schutz was appointed by Democratic governor Jared Polis. Judges Stephanie Dunn and Matthew Grove, both appointed by Democratic governor John Hickenlooper, joined Román on the opinion.
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