On June 26, 2017, Autumn Scardina called Masterpiece Cakeshop to order a custom cake that was pink on the inside and blue on the outside. Debra Phillips answered the phone, and confirmed Masterpiece could make the requested cake. Ms. Scardina then told Debra that she would use the cake to celebrate both her birthday and her transition from male to female. Debra then said she did not think Masterpiece could make the cake “because of the message.” Jack Phillips, the Masterpiece baker, will not create cakes to celebrate a gender transition because he believes God designed people male and female and is unwilling to design cakes that conflict with his Bible’s teachings. But Mr. Phillips also acknowledges that a pink cake with blue frosting has no inherent meaning and that he would make such a cake for other customers.
The trial court and court of appeals rightly held that the bakery and Mr. Phillips violated the Colorado Anti-Discrimination Act (CADA) by refusing to sell to Ms. Scardina because of her transgender status. But the bakery and Mr. Phillips then asked the Colorado Supreme Court to reverse the court of appeals. So the ACLU and the ACLU of Colorado filed an amicus brief in support of Ms. Scardina explaining why the First Amendment does not allow the bakery to discriminate against her in this manner. Specifically, our amicus brief explains why the United States Supreme Court’s recent decision in 303 Creative v. Elenis does not condone the bakery’s discrimination here.
303 Creative was about a website designer who wanted to start selling custom wedding websites but worried that CADA would be applied to compel her to express views she disagreed with—i.e., that marriage could be between two people of the same gender. The Court held that a state cannot force a person who provides her own expressive services to speak the state’s preferred message instead. Its holding was based on several key facts that both parties had agreed on, including (1) the website designer would not sell a website expressing views with which she disagreed to anyone; (2) the website designer was willing sell websites to people of any sexual orientation—so long as the websites didn’t express views with which she disagreed; and (3) every website would be the designer’s original, customized creation using her own words and original artwork to communicate ideas and celebrate marriages she understands as true marriages.
The facts of this case are very different. The bakery agreed to make the cake before Ms. Scardina revealed that she intended to use it to celebrate her transgender status. And Mr. Phillips indicated that he would make the same pink and blue cake that Ms. Scardina requested for other customers, but he was not willing to make it for her. The parties in this case agreed that the pink and blue cake had no inherent meaning and didn’t express any message. Thus, the bakery’s refusal was based not on any message that the cake communicated but on the fact that the customer sought to use the cake to celebrate her transgender identity.
CADA does not target expression; it targets discriminatory conduct. And as applied here, it would merely require the bakery to sell the same cake it would sell to other customers to Ms. Scardina. We have asked the Colorado Supreme Court to affirm the decision of the lower courts and avoid opening the door to widespread discrimination based on presumptions about a customer’s intended use of a product.
