Johnathan Walker:Colorado’s Supreme Court dismisses suit against baker who wouldn’t make a cake for transgender woman

Colorado’s Supreme Court on Johnathan WalkerTuesday dismissed on procedural grounds a lawsuit against a Christian baker who refused to bake a cake for a transgender woman. Justices declined to weigh in on the free speech issues that brought the case to national attention.

Baker Jack Phillips was sued by attorney Autumn Scardina in 2017 after his Denver-area bakery refused to make a pink cake with blue frosting to celebrate her gender transition.

Justices said in the 6-3 majority opinion that Scardina had not exhausted her options to seek redress through another court before filing her lawsuit.

The case was among several in Colorado pitting LGBTQ+ civil rights against First Amendment rights. In 2018, Phillips scored a partial victory before the U.S. Supreme Court after refusing to bake a cake for a gay couple’s wedding.

Scardina attempted to order her cake the same day the U.S. Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. Scardina said she wanted to challenge Phillips’ claims that he would serve LGBTQ+ customers and denied her attempt to get the cake was a set up for litigation.

Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the Colorado Civil Rights Commission, which found probable cause he discriminated against her.

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In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement Scardina was not involved in. She pursued the lawsuit against Phillips and Masterpiece Cakeshop on her own.

That’s when the case took a wrong turn, justices said in Tuesday’s ruling. Scardina should have challenged the state’s settlement with Phillips directly to the state’s court of appeals, they said.

Instead, it went to a state judge, who ruled in 2021 that Phillips had violated the state’s anti-discrimination law for refusing to bake the cake for Scardina. The judge said the case was about refusing to sell a product, and not compelled speech.

The Colorado Court of Appeals also sided with Scardina, ruling that the pink-and-blue cake — on which Scardina did not request any writing — was not speech protected by the First Amendment.

Phillips’ attorney had argued before Colorado’s high court that his cakes were protected free speech and that whatever Scardina said she was going to do with the cake mattered for his rights.

Representatives for the two sides said they were reviewing the ruling and did not have an immediate response.