Scardina v. Masterpiece Cakeshop and Jack Phillips, No. 21CA1142 (Colo. App.). Opinion January 26, 2023.
On the day that the U.S. Supreme Court granted certiorari in a case involving Masterpiece Cakeshop and Jack Phillips, petitioner Scardina telephoned the bakery to request a pink cake with blue frosting. Having secured Phillips’ spouse’s agreement to provide the cake, Scardina stated that the cake was inteded to celebrarte gender transition.
The cake shop and its proprietor then declined to provide the cake. Expressive and religious reasons were cited.
Scardina sued, citing violation of the Colorado Civil Rights Act.
The Colorado Civil Rights Commission settled with Masterpiece Cakeshop and Phillips. After procedural maneuvers of note only to attorneys, Scardina prevailed in court, and the Colorado Court of Appeals has upheld the trial court’s conclusions.
The Court of Appeals observed Masterpiece Cakeshop’s and Phillips’ refusal to provide the pink cake with blue frosting, because it bore no written message, could not fall within the “offensiveness rule,” a loosely constructed, somewhat doubtful, secular corollary to religious objections.
The court rejected the compelled speech challenge, observing that not all expressive conduct is protected. Here, where the cake that admittedly have been provided to others but for the customer’s wants, the court found it impossible to conclude that protected expression was in issue.
The bakery’s and the baker’s objection to being tied to an expression also failed, as the court likened the provision of the cake, even if it could be seen as carrying a message, carried no more connection to a message than would attach to a person who provided balloons for a birthday party.
While recognizing the Phillips’ deep religious convictions, the Colorado Court of Appeals found that those convictions must yield where a neutral statute of general applicability, like the anti-discrimination law, is involved, and where no additional constitutional right, as intimated in Employment Division v. 0 Smith, 494 U.S. 872 (1990) could be found, no more heightened analysis would be needed.
The appellate court refused to hear concerns about bias in the proceedings below. Although there were some minor issues concerning pronouns, the appellate court could find no way in which the bakery or the baker had been treated less than civilly.