In Scardina v. Masterpiece Cakeshop, Inc., (CO Ct. App., Jan. 26, 2023), a Colorado state appellate court held that Masterpiece Cakeshop and its co-owner Jack Phillips violated the Colorado Anti-Discrimination Act when they refused a transgender woman’s order for a pink cake with blue frosting. The woman sought the cake to celebrate her birthday and her gender transition. The court said in part:
[A] proprietor may not refuse to sell a nonexpressive product to a protected person based on that person’s intent to use the product as part of a celebration that the producer considers offensive….
We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina….
Masterpiece and Phillips argue, requiring them to make a cake that they know will be used to celebrate an occasion that their faith informs them is an affront to God’s design violates their right to freely exercise their religion.
In the context of providing public accommodations, however, a proprietor’s actions based on their religious beliefs must be considered in light of a customer’s right to be free from discrimination based on their protected status. The Supreme Court has long held that the Free Exercise Clause does not relieve a person from the obligation to comply with a neutral law of general applicability…. CADA is a neutral law of general applicability….
The Supreme Court has consistently held that the state has a legitimate, indeed compelling, interest in eliminating discrimination from public accommodations.,,, Thus, CADA is rationally related to a legitimate governmental interest. Accordingly, CADA may be enforced against Masterpiece and Phillips without violating their right to the free exercise of religion.
In a press release, ADF said that it would appeal the decision.