Scardina v. Masterpiece Cakeshop, Inc.
| Decision Date | 26 January 2023 |
| Docket Number | 21CA1142 |
| Citation | 2023 COA 8 |
| Parties | Autumn Scardina, Plaintiff-Appellee, v. Masterpiece Cakeshop, Inc. and Jack Phillips, Defendants-Appellants. |
| Court | Colorado Court of Appeals |
SUMMARY
This dispute arises out of a customer's effort to purchase a cake from a cake shop. The customer requested a custom pink cake with blue frosting. The shop indicated it could make the cake as requested. The customer then told the shop's employees that the cake was intended to celebrate her birthday and her identity as a transgender woman. Upon learning this additional information, the shop refused to sell the cake to the customer.
The customer subsequently brought an action against the cake shop and one of its owners under the Colorado Anti-Discrimination Act (CADA), asserting that she was illegally denied service based on her transgender status. The trial court ruled in favor of the customer and assessed a fine of $500.00 against the defendants, who now appeal.
A division of the court of appeals rejects the defendants' argument that the customer's lawsuit was barred by her alleged failure to exhaust administrative remedies. The division also concludes the customer's claim was not rendered moot by the defendants' delivery to her of a check in the amount of $500.01, which was accompanied by a denial of any CADA violation.
Turning to the constitutional issues presented, the division concludes that the act of baking a pink cake with blue frosting does not constitute protected speech under the First Amendment. The division also rejects the defendants' argument that the enforcement of CADA against them in this case is an application of an unconstitutional "offensiveness rule," which they contend permits proprietors to refuse to provide services that they find offensive based on secular views, while prohibiting others from declining to provide goods or services based on religious views. Additionally, the division concludes that CADA's prohibition against discrimination based on a person's transgender status does not violate a proprietor's right to freely exercise or express their religion.
City and County of Denver District Court No. 19CV32214 Honorable A. Bruce Jones, Judge
Fennemore Craig, P.C., Amy Jones, John M. McHugh, Denver Colorado; King & Greisen, LLP, Paula Greisen, Denver, Colorado, for Plaintiff-Appellee
Ventola Law, Samuel M. Ventola, Denver, Colorado; Jonathan A. Scruggs, Jacob P. Warner, Scottsdale, Arizona; John J. Bursch, Kristen K. Waggoner, Washington D.C., for Defendants-Appellants
Holland & Hart, LLP, Elizabeth H. Titus, Tina R. Van Bockern, Utsarga Bhattarai, Thomas A. Morales, Jr., Denver, Colorado, for Amici Curiae Colorado Hispanic Bar Association and Colorado Lesbian, Gay, Bisexual and Transgender Bar Association Nicole Hunt, Kate Sawyer, Phoenix, Arizona, for Amicus Curiae Arizona Attorney General Mark Brnovich
Brownstein Hyatt Farber Schreck, LLP, Carrie E. Johnson, Denver, Colorado, for Amicus Curiae Colorado Women's Bar Association
¶ 1 This case requires us to resolve a dispute between the parties arising out of important rights that each enjoys. The plaintiff, Autumn Scardina, contends she was denied service by a bakery because of her identity as a trans woman, in violation of her right to be free from discrimination in a place of public accommodation. In contrast, the defendants, Masterpiece Cakeshop, Inc. (Masterpiece) and its proprietor, Jack Phillips, contend their decision not to make a cake for Scardina was based on their firm and sincere religious beliefs and the right to be free from compelled speech that would violate those beliefs. We agree with the trial court's judgment in favor of Scardina and therefore affirm.
¶ 2 We first describe the factual and procedural circumstances leading to this dispute. We then address Masterpiece and Phillips' contention that Scardina's claims are barred by her failure to exhaust administrative remedies and by their tender to her of the maximum fine that could be imposed for a violation of the Colorado Anti-Discrimination Act (CADA). Lastly, we address whether the trial court properly determined that Masterpiece and Phillips violated Scardina's right to be free from discrimination based on her identity as a trans woman, and whether such a conclusion violates Masterpiece and Phillips' right to be free from compelled speech or their right to freely exercise their religious faith.
¶ 3 On June 26, 2017, the United States Supreme Court granted certiorari to review a division of this court's decision in Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, rev'd sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm'n, 584 U.S. ___, 138 S.Ct. 1719 (2018). Inside Masterpiece that day, it was busy due to the Supreme Court's announcement. Ordinarily, Phillips, a devout Christian, answered the phone. But because it was busy, his wife and Masterpiece's co-owner, Debra[1] Phillips, answered the phone when Scardina called to order a cake.
¶ 4 Although the precise content and timing of what happened next was disputed at trial, after considering the evidence - including the testimony of Scardina, Phillips, Debra, and the Phillipses' daughter, Lisa Eldfrick, as well as Masterpiece and Phillips' judicial admissions - the trial court made the following factual findings that are not challenged on appeal.[2]
¶ 5 Scardina stated she wanted to purchase a custom birthday cake for six to eight people and that she would need it in a few weeks. Scardina ordered a pink cake with blue frosting. She did not request that the cake contain any words, symbols, or details - just a pink cake with blue frosting. Debra confirmed that Masterpiece could make the requested cake.
¶ 6 Scardina then told Debra that the custom birthday cake had personal significance, reflecting Scardina's birthday as well as celebrating her transition from male to female. Debra replied that she did not think the shop could make the cake "because of the message" and said she would get Phillips on the phone. Before Phillips could speak to Scardina, the call was disconnected.
¶ 7 When Scardina called back, Eldfrick answered. Scardina again requested a custom pink and blue cake celebrating her birthday and her transition from a man to a woman. Eldfrick explained that the shop could not make the requested cake. Phillips never spoke to Scardina regarding the requested cake. He testified, however, that he "won't design a cake that promotes something that conflicts with [his] Bible's teachings" and that "he believes that God designed people male and female, that a person's gender is biologically determined." For these reasons, Phillips testified, he will not create a custom cake to celebrate a gender transition.
¶ 8 More generally, Phillips agreed that a pink cake with blue frosting has no "particular inherent meaning" and does not express any message. The trial court found that Phillips would make the same pink and blue cake for other customers and would even sell an identical premade (as opposed to custom ordered) cake to Scardina, even if she disclosed the purpose of the cake.
¶ 9 The procedural background involving Masterpiece and Phillips stretches over a decade of litigation. We start by summarizing Craig. We then describe the procedural history of Scardina's discrimination charge filed against Masterpiece and Phillips with the Colorado Civil Rights Division (CCRD). Lastly, we address the complaint that Scardina filed against Masterpiece and Phillips with the Denver District Court.
¶ 10 In 2012, Charlie Craig and David Mullins, a gay couple, went to Masterpiece to request a wedding cake. Phillips declined to make the cake based on his religious belief that marriage is between a man and woman and his corresponding belief that he could not make a cake for a same-sex wedding because it expressed a message contrary to those beliefs. Craig and Mullins filed a discrimination charge with the CCRD, and it found that probable cause supported their claim of discrimination based on their sexual orientation. A contested evidentiary hearing was held before an administrative law judge, who found in favor of the CCRD. The Colorado Civil Rights Commission (Commission) affirmed.
¶ 11 Masterpiece and Phillips appealed the Commission's decision to the Colorado Court of Appeals. A division of this court rejected their arguments that CADA was neither a neutral law nor a law of general applicability. It specifically concluded that CADA is generally applicable because "[o]n its face, it applies equally to religious and nonreligious conduct." Craig, ¶ 88. The division also concluded that CADA is neutral because it carves out an exemption for places primarily used for a religious purpose. Id. at ¶ 89. This exemption, the division concluded, also negated Masterpiece and Phillips' argument that CADA is hostile toward a business' or its owner's religious beliefs. Id.; see also §§ 24-34-601 to -605, C.R.S. 2022.
¶ 12 The United States Supreme Court reversed on a narrow basis. Specifically, it focused on comments made by certain Commission members and concluded the Commission's treatment of Masterpiece and Phillips' arguments displayed "elements of a clear and impermissible hostility." Masterpiece, 584 U.S. at ___, 138 S.Ct. at 1729. The Supreme Court also concluded the Commission did not consider Phillips' religious objection to making a same-sex wedding cake with "[t]he neutral and respectful consideration to which Phillips was entitled." Id.
¶ 13 As previously noted, Scardina filed a charge with the CCRD asserting that Masterpiece and Phillips...
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