The Colorado Supreme Court on Tuesday dismissed a lawsuit against a Christian baker on procedural grounds refused to bake a cake for a transgender woman. The justices declined to address the free speech issues that brought the case to national attention.
Baker Jack Phillips was sued in 2017 by attorney Autumn Scardina after his Denver-area bakery refused to make a pink cake with blue icing to celebrate her gender transition.
The justices said in the 6-3 majority opinion that Scardina had not exhausted her remedies in another court before filing her lawsuit.
“We have no opinion on the merits of these claims,” Justice Melissa Hart wrote for the majority.
Scardina’s attorney, John McHugh, expressed disappointment and said he was evaluating whether any legal options remained.
“The Colorado Supreme Court has decided to sidestep the merits of this issue by concocting an argument that neither side has advanced,” McHugh said.
The minority justices criticized the ruling, saying it gave Phillips “a procedural clearance. They noted that every fact finder and judicial officer who heard the case concluded that the baker’s conduct violated the Colorado Anti-Discrimination Act.
The dissenters also said they were concerned Phillips would take the ruling as vindication.
However, Hart wrote that nothing in the ruling changes protections under the anti-discrimination law.
Phillips’ attorney, Jake Werner of the Arizona-based firm Alliance for Defending Freedom, had argued before the high court that the baker’s actions protected free speech and that whatever Scardina said she was going to do with the cake mattered was for his rights.
Werner said Tuesday that his client was pursued and mocked for years by those who disagreed with him.
“Enough is enough,” Werner said. ‘Jack has been dragged through the courts for more than ten years. It’s time to leave him alone.”
The case was one of many in Colorado pitting LGBTQ+ civil rights against First Amendment rights. In 2018Phillips won a partial victory before the U.S. Supreme Court after refusing to bake a cake for a gay couple’s wedding.
Scardina tried to order her cake on the same day the U.S. Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. Scardina said she wanted to dispute Phillips’ claims that he would serve LGBTQ+ customers and denied that her attempt to obtain the cake was an impetus for lawsuits.
Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the Colorado Civil Rights Commission, which found probable cause that he discriminated against her.
In March 2019Attorneys for the state and Phillips agreed to drop both cases under a settlement that did not involve Scardina. She pursued the lawsuit against Phillips and Masterpiece Cakeshop on her own.
That’s when the case took a wrong turn, the judges said in Tuesday’s ruling. Scardina should have challenged the state’s settlement with Phillips directly in the state appeals court, they said.
Instead, it went to a state judge, who ruled in 2021 that Phillips violated the state’s anti-discrimination law for refusing to bake the cake for Scardina. The judge said the case was about refusal to sell a product, not coerced speech.
The Colorado Court of Appeals also sided with Scardina, ruling that the pink and blue cake — which Scardina did not request to be inscribed — was not protected from speech by the First Amendment.