A Colorado District Court has handed down a decision imposing a penalty on a cake-maker for declining to provide a cake designed to celebrate a “gender transition”, in Scardina v Masterpiece Cakeshop Inc (Denver District Ct, Co; 19CV32214, 15 June 2021). If the name of the shop sounds familiar, it will be to those interested in “law and religion” issues in recent years. Jack Phillips and his Masterpiece Cakes business were previously sued, all the way to the US Supreme Court, because he had declined to make a cake designed to celebrate a same-sex wedding (for my comment on the Supreme Court decision, see “Colorado Wedding Cake Baker wins before US Supreme Court” (June 5, 2018). Sadly it seems that Mr Phillips will need to appeal this latest decision as well.

Leading to this case, Mr Phillips was asked by a transgender lawyer, Autumn Scardina, to provide a cake to celebrate their “gender transition” from male to female. The cake was to be blue on the outside and pink on the inside. The court ruled that “request was a not “set-up” to initiate litigation” (at [26]). But then in the next paragraph Judge Jones comments that:

Ms. Scardina was seeking to “challenge the veracity” of Mr. Phillips’ statements that he is willing to serve people who identify as LGBT and “call [his] bluff.”

Para [27]

Mr Phillips testified that he regularly served gay customers, and that he would have provided a “blue on the outside, pink on the inside” cake to anyone who simply asked for that design. But when the plaintiff explicitly spelled out the purpose for which the cake was ordered, he felt that to provide the cake in those circumstances would make him complicit in sharing a message which he did not believe.

Mr. Phillips also claims his religious beliefs prevent him from creating a custom cake celebrating a transition from male to female because expressing that message—that such a transition is possible and should be celebrated—would violate his religious convictions. He and his wife believe that God designed people male and female, that a person’s gender is biologically determined, and that gender does not change based on an individual’s perception or feelings. Mr. Phillips will not create a custom cake to celebrate a gender transition for anyone (including someone who does not identify as transgender). While Mr. Phillips will not create the requested cake to celebrate a gender transition, he could create a similar-looking cake to celebrate the birthday of someone who identifies as transgender. That message would not violate his religious beliefs.

Para [38]; reference to transcript page numbers omitted.

In other words, the basis for Mr Phillips declining to make the cake was not animosity to transgender persons, but a refusal to be required to support a message which he believes is contrary to his religious beliefs. In that respect, the case is very similar to the facts of the decision of the UK Supreme Court in  Lee v Ashers Baking Company Ltd [2018] UKSC 49, where a bakery in Northern Ireland were ruled not to be committing unlawful sexual orientation discrimination by declining to provide a cake supporting same-sex marriage. (See my comment on that decision: “No sexual orientation discrimination in declining to make a “gay cake”” (Oct 10, 2018).)

Nevertheless, this argument was rejected by Judge Jones. He ruled that Mr Phillips had been guilty of unlawful discrimination under Colorado’s Anti-Discrimination Act (“CADA”), § 24-34-601, C.R.S., on the ground of “sexual orientation” (which, somewhat oddly, is defined so that it includes an individual’s “transgender status”.)

Judge Jones held that the cake had been denied “because of” the plaintiff’s “transgender status” so long as that status “played some part” in the decision:

To meet the “because of” standard, Ms. Scardina need not establish that her transgender status was the “sole” cause of the denial of service. Rather, she need only show that the discriminatory action was based, in whole or in part, on her protected status. Craig, 2015 COA 115, 28-29. A “‘because of’ test incorporates the ‘simple’ and ‘traditional’ standard of but-for causation … [which] is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Bostock v. Clayton Cty., Ga., 140 S.Ct. 1731, 1739 (2020). This showing “need not be proven by direct evidence, but may be inferred from the circumstances.” Cunningham v. Dep’t of Highways, 823 P.2d 1377, 1381 (Colo. App. 1991).

Para [7] in the “Conclusions of Law”.

The invocation of the “but for” standard from the US Supreme Court decision in Bostock illustrates the detrimental effect that over-broad decision is having- see my comment on, and critique of, that decision in “The “ordinary meaning” of sex” (June 16, 2020). It seems clearly wrong to say that a decision motivated by a desire to avoid being required to support a particular message is made “because of” the transgender status of the customer, when the court accepted evidence that Mr Phillips would happily serve such a customer so long as no message was being conveyed by the order.

Judge Jones ruled that the general protection for free exercise of religion provided by the US First Amendment did not help in this case, as the Colorado law was a “neutral law of general applicability” (para [31] of Conclusions of Law), and hence impliedly the long-standing US Supreme Court decision of Employment Division v Smith 494 US 872 (1990) meant that no “religion clause” claim could succeed. Nor did the claim that the free speech clause was breached by compelling Mr Phillip’s speech succeed.

The facts here are very similar to those raised in the case of State v. Arlene’s Flowers, Inc., 441 P.3d 1203, (Wash. 2019), where a florist declined to provide flowers for a same-sex wedding. (See for comment on an earlier stage of the litigation, “Flowers and Freedom: the Arlene’s appeal in Washington State” (Feb 19, 2017).) An application for an appeal in this case to be heard before the US Supreme Court is under review. Perhaps this decision in Colorado will highlight for the Supreme Court why more detailed guidance is needed on the line to be drawn between unlawful discrimination based on a person’s status, and protected decision-making based on religious beliefs.