The upcoming trial involving Denver attorney Autumn Scardina and Masterpiece Cakeshop's Jack Phillips over his refusal on what he says are religious grounds to bake Scardina a birthday cake after discovering that she's transgender has been streamlined. On March 4, a Denver District Court judge tossed a claim against Phillips involving an alleged violation of the Colorado Consumer Protection Act, but allowed the central discrimination assertion to stand.
The trial is scheduled to take place on March 22.
The opposing lawyers in the case have very different takes on the importance of the judge's move. Kristen Waggoner, who's representing Phillips on behalf of the national advocacy organization Alliance Defending Freedom, contends, "The decision by the court to dismiss one of the claims against Jack Phillips is the first step towards final justice. Jack has been threatened with financial ruin simply because he makes decisions about which messages to create and celebrate — decisions that every other artist in Colorado is free to make. Tolerance for different opinions is essential. We look forward to defending Jack — and ultimately prevailing — on the remaining claim."
Attorney Paula Griesen of Denver-based King & Griesen LLP, who's working on behalf of Scardina, admits to being disappointed that she won't be able to pursue one of the two claims. But she characterizes the judge's ruling as "a very narrow holding on a certain set of facts related to the Colorado Consumer Protection Act that has no bearing on the discrimination claim. It has nothing to do with the merits of whether or not businesses are allowed to refuse service to the LGBTQ+ community."
Masterpiece Cakeshop, located in Lakewood, was thrust into the headlines as a result of Phillips's 2012 refusal to make a wedding cake for a gay couple because of his Christian beliefs. The controversy spent years working its way through the legal system before the U.S. Supreme Court ruled in his favor in June 2018 — a decision that pivoted on what Griesen describes as "certain statements by the Colorado Civil Rights commissioners that the court thought showed a religious bias."
Meanwhile, in 2017, Scardina asked Masterpiece Cakeshop to bake her a pink birthday cake with blue frosting based, Griesen says, on Phillips's repeated statements in the press that "that they would be happy to sell other products to the LGBTQ+ community, including birthday cakes and cookies and any other baked goods." But upon learning of Scardina's transgender status, Phillips declined to do so, prompting the lawsuit that was originally filed in 2019.
The Alliance Defending Freedom subsequently filed a motion for summary judgment that would have short-circuited the trial had Denver District Court Judge A. Bruce Jones determined that both claims in the suit were lacking — but he only rejected the one involving the Colorado Consumer Protection Act, because he determined that Phillips's public statements didn't fit the definition of an advertisement or commercial speech.
"We don't agree," Griesen says, adding that Phillips engaged in "a national media campaign to garner sympathy and money for Masterpiece Cakeshop by insisting that [the previous case] was just about a wedding cake and he wasn't discriminating — and that message was used for years to not only drive business but garner sympathy and support, and it's been very successful."
At the same time, though, Jones's order seems to bolster the suit's claimed violation of the Colorado Anti-Discrimination Act. One section of his ruling states that CADA "does not protect Plaintiff only to the extent she keeps her thoughts to herself. Defendants have not shown that, as a matter of law, Plaintiff cannot prove discrimination because of her transgender status."
In Griesen's view, this passage "makes it clear that the court's focus in this case is on discrimination, and that's our focus, too. Ms. Scardina requested a pink cake with blue frosting, and the Masterpiece website states that it offers several different varieties of pink cake, and that it also offers blue frosting. And in fact, the website displays cakes that celebrate a person's gender identity" — a blue cake for a newborn baby boy, and pink for a girl.
While Griesen says she is looking forward to arguing the discrimination claim, she decries any efforts "to portray one side or another as the villain. We're not trying to do that to Masterpiece Cakeshop. We are respectful of their good faith religious views. This is just about fairness and equality under the law, and the more we try to villainize opposing viewpoints, the more we do a disservice to the dialogue, and to our pluralistic form of society."
She adds: "I wish the tone was different. We're not trying to paint Jack as a bad guy, and we really wish they'd stop painting Autumn as a bad person. We just want to find a way to co-exist that's respectful and appreciate that we can have differences, but we still have to operate as a society and a community together, without the degradation that comes with discrimination."
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