On January 26, 2023, a Division of the Colorado Court of Appeals decided Scardina v. Masterpiece Cakeshop, Inc., 2023 COA 8, a(nother) case about civil rights, the free exercise of religion, and cake.
You may be familiar with the name of this bakery, as a 2018 case involved it, too. That case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), addressed the constitutionality of Colorado’s civil rights law prohibiting sexual orientation discrimination. In that case, Masterpiece had refused to bake a custom cake for a same-sex wedding, and the Colorado Civil Rights Commission found that Masterpiece had violated the claimants’ civil rights. The United States Supreme Court punted on the question of the constitutionality of Colorado law and, instead, narrowly determined that at least one member of the commission had displayed particular animus toward religion. The Supreme Court of the United States reversed only because of a particular fact on the record, narrowing the reach of the opinion.
Enter Autumn Scardina. While Masterpiece was litigating over the same-sex wedding cake, Scardina contacted Masterpiece and asked for a pink cake with blue frosting. Masterpiece said it would make her that cake. When Scardina disclosed to Masterpiece that the cake was to celebrate her birthday and her identity as a transgender woman, however, Masterpiece then refused.
Colorado brought a civil rights administrative action against Masterpiece, which Masterpiece and the Commission settled. Scardina then sued Masterpiece in the district court and prevailed.
Masterpiece appealed. In the appeal, Masterpiece raised two primary categories of arguments – procedural and substantive. And a Division of the Court of Appeals, in an opinion authored by Judge Schutz, rejected each argument and affirmed.
Without getting into the weeds of the opinion, the animating force behind the procedural analysis was individual justice. While Masterpiece and the Commission resolved the claim without a contested hearing, Scardina was largely excluded from that process, so the Court of Appeals determined that she could have her day in court.
And on the substantive side, a few facts seemed to drive the decision. First was Masterpiece’s willingness to bake the cake for Scardina until it learned why she wanted it. Relatedly, therefore, was the trial court’s decision – affirmed by the Court of Appeals – that a pink case with blue frosting is not, itself, expressive. Masterpiece admitted that the cake, itself, was not inherently expressive of a pro-transgender message. It also admitted that it would have sold Scardina the exact same cake off the shelf but only refused to make a custom cake for her. Consequently, Masterpiece was not compelled to speak contrary to its owner’s religious beliefs by making the cake. It could thus be held liable for discriminating against Scardina because its refusal to serve her was because of her status as a protected individual.
The Court of Appeals also determined that, under current Supreme Court precedent, the action against Masterpiece did not violate the Free Exercise Clause because the law was neutral and secured a legitimate goal of government: the prevention against discrimination.
The opinion is a laudable example of a court acting like a court rather than a group of legislators in robes. Devoid of overheated rhetoric or grand pronouncements, it instead methodically reviews each argument on appeal – taking each seriously and analyzing the facts and the law – and reaches conclusions neutrally and dispassionately.
It also may avoid the pitfall posed by 303 Creative. The high court is likely to use that case to narrow civil rights protections for individuals who identify as LGBTQ+. And it will do so on free speech grounds. While 303 Creative will address what kinds of speech may be prohibited in the name of antidiscrimination, this case instead addressed what kinds of conduct counts as “speech” for the First Amendment analysis. Thus, even the expected ruling from the Supreme Court may not overturn the analysis in this case.
 Another Supreme Court case – 303 Creative LLC v. Elenis, No. 21-476 –presents the free-speech version of the same claim as Masterpiece. That case will be decided this term.  If you’d like to read it, you can access it here: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2023/21CA1142-PD.pdf