Colorado’s Masterpiece Cakeshop and its owner, Jack Phillips, continue to be the subject of litigation over whether the First Amendment protects their right to refuse certain custom cake requests by LGBTQ customers even though the Colorado Anti-Discrimination Act (CADA) bars such discrimination.
Last week, a Colorado appeals court ruled in favor of customer Autumn Scardina, a transgender woman who filed suit against Masterpiece Cakeshop under the CADA law for refusing to make her a pink birthday cake with blue frosting to celebrate not only her birthday but her transition from a man to a woman.
The appeals court affirmed the decision of the trial court, which rejected Masterpiece’s Free Speech claim on the ground that without any letters or symbols, a pink cake with blue frosting is not inherently expressive and is thus not constitutionally protected speech. The court also rejected Phillips’ religious Free Exercise claim:
[A] proprietor’s actions based on their religious beliefs must be considered in light of a customer’s right to be free from discrimination based on their protected status. The Supreme Court has long held that the Free Exercise Clause does not relieve a person from the obligation to comply with a neutral law of general applicability. Both our state and federal courts have concluded that CADA is a neutral law of general applicability.
Phillips announced his intention to appeal this ruling. Importantly, the long-running case (the request and refusal took place in 2017) brings with it several procedural disputes and technical questions of law. The case may ultimately be resolved by one of those questions rather than the underlying constitutional issue. If so, it wouldn’t be the first time that has happened
A previous case involving Masterpiece’s refusal to provide a cake for a same-sex marriage celebration went all the way to the U.S. Supreme Court. In 2018, the Court issued a 7-2 ruling in favor of Phillips and his business, but it based the decision only on its finding that comments from officials demonstrated the Colorado Civil Rights Commission failed to give “neutral and respectful consideration” to owner Jack Phillips’ religious objection. As BJC noted at the time, the Court’s narrow opinion avoided ruling on whether or not the service refusal actually violated the law, leaving the door open for this and other cases to raise factual variations of that same question.
The Supreme Court is already considering another case involving the same Colorado law. 303 Creative v. Elenis is a Free Speech case brought by a web designer who wishes to create wedding websites but not for same-sex marriages (BJC’s Amanda Tyler and Holly Hollman discussed the case on an episode of their podcast Respecting Religion). Oral arguments were held in December. The outcome of that case – expected by June of this year – may also impact Scardina v. Masterpiece. Stay tuned.