Re: “Colorado court dismisses transgender cake case 4-3 decision on technicality,” Oct. 9 news story

Finally, closure in this case. I have always had the opinion that Autumn Scardina, knowing about the first case against Jack Phillips, deliberately brought the lawsuit against him to prove a point. Society seems to have lost the ability to respect someone’s beliefs, whether they be religious, political or whatever other topics you care to name. Personally, if an establishment doesn’t want your business, you can always go to another that will accommodate you. It’s that simple. I’m sure there are quite a few bakeries that could have created what she wanted. Instead, we reach for the first lawyer who will be most willing to waste the court’s time on something that is basically frivolous and cause unnecessary hardship to everyone involved. It’s time to get back to some civility in our society. There is a serious lack of it.

Val Milly Tenhaeff, Colorado Springs

Jack Phillips, a Christian baker in Lakewood, refused to make a cake for a transgender customer, just as he refused to bake a cake for a gay customer’s wedding in 2012. The U.S. Supreme Court had no problem ruling on the 2012 case and finding that Colorado civil rights commissioners had violated the Free Exercise Clause with their hostility toward Phillips’ religion. However, for some reason, the Colorado Supreme Court refused to rule on this new Phillips case regarding transgender discrimination.

In the majority opinion, Colorado Supreme Court Justice Melissa Hart wrote: “The underlying constitutional question this case raises has become the focus of intense public debate: How should governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market?” Justice Hart then stated: “We cannot answer that question.”  If the Colorado Supreme Court can’t answer that question, then who can?  The U.S. Supreme Court had no problem answering that exact same question in Phillips’ 2012 case. Wake up, Justice Hart. Do your job and answer the question.

This is a clear discrimination case pursuant to the , which provided:  “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation …” such as the bakery in Lakewood.

Michael J. Noonan, Georgetown

Denver Elections Division fails to adequately inform electorate

Re: “Voter Voices: You can weigh in on coverage of the election,” Sept. 29 news story

I commend The Post’s plan to offer full coverage of the fall’s election issues, including “the ballot measures [the voters will] decide.” Unfortunately, the Denver Elections Division does not share The Post’s intention of providing Denver’s voters with full information on Denver ballot issues, including the pros and cons of each issue. Instead, the Elections Division has just issued a truncated “blue book” addressing only the issues with TABOR implications — because the law requires it.

As for the many other Denver ballot issues confronting voters — including five amendments to Denver’s City Charter and two initiated ordinances addressing potential bans on fur products and slaughterhouses within the city — Denver’s “blue book” is silent. Voters can only find out about the very existence and the effect of these ballot measures by going online and mucking around on the Elections Division’s website until they find the information. This is the antithesis of good government and promoting an informed electorate; it places an unfair and unnecessary burden on voters to figure out what they are being asked to approve and why.

The Washington Post’s profound banner on each day’s newspaper — “Democracy Dies in Darkness” — should be taken to heart by the Elections Division, which should send every voter full ballot information.

Joseph W. Halpern, Denver

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In a 4-3 decision, the justices found they could not consider whether Phillips, owner of Masterpiece Cakeshop in Lakewood, can legally refuse to make a pink-and-blue cake for transgender attorney Autumn Scardina to celebrate her gender transition on the grounds that doing so would violate his Christian faith.

“The underlying constitutional question this case raises has become the focus of intense public debate: How should governments balance the rights of transgender individuals to be free from discrimination in places of public accommodation with the rights of religious business owners when they are operating in the public market?” Justice Melissa Hart wrote in the majority opinion. “We cannot answer that question.”

Scardina’s attorney, John McHugh, expressed disappointment and said he was evaluating if there were any remaining legal options.

“The Colorado Supreme Court decided to avoid the merits of this issue by inventing an argument no party raised,” McHugh said.

Phillips’ attorney, Jake Werner with the Arizona-based firm Alliance for Defending Freedom, said Tuesday that his client had been pursued and mocked for years by those who disagreed with him.

“Enough is enough,” Werner said. “Jack has been dragged through courts for over a decade. It¶¶Ňőap time to leave him alone.”

The ruling brings to a close a seven-year legal saga in which Phillips had argued that his actions were lawful because he refused to make the cake only because of the cake’s message, not because Scardina is transgender. His refusal to create a cake with that meaning is protected by the First Amendment, his attorneys argued.

But Scardina’s attorneys pointed out that a blue-and-pink cake has no inherent meaning and that the bakery would make and sell identical cakes to other customers. The bakery initially agreed to make a pink-and-blue cake for Scardina, until she explained its meaning.

Scardina, who is also a Christian, pursued a discrimination claim against Phillips after he refused to bake the cake in 2017. She filed a claim under Colorado’s Anti-Discrimination Act, or CADA, which prohibits businesses from refusing services based on protected characteristics like race, religion or sexual orientation.

When that claim was dismissed, she sued Phillips in district court, and the case from there rose through the state’s courts all the way to the Colorado Supreme Court. However, the justices ruled Tuesday that Scardina had no procedural authority to file the case in district court, and so the case must be dismissed.

“CADA is not ambiguous,” Hart wrote. “It is quite clear about when a litigant may file an action in the district court… None of the circumstances that permit an action in the district court occurred here. We therefore vacate both the division’s and the district court¶¶Ňőap orders and dismiss this case. In so doing, we express no opinion about the merits of Scardina’s claims, and nothing about today’s holding alters the protections afforded by CADA.”

Chief Justice Monica Márquez and justices Brian Boatright and Carlos Samour joined the majority opinion. Justices Richard Gabriel, William Hood and Maria Berkenkotter dissented, calling the ruling “troubling on many levels.” Scardina was within her rights to sue in district court, the dissenting justices argued.

“Substantively, the majority’s ruling throws Scardina completely out of court and deprives her of the opportunity to seek a remedy for alleged discriminatory conduct based on a novel interpretation of law that no party asserted and, to my knowledge, no court has adopted,” Gabriel wrote in the dissent.

The state Supreme Court’s procedural pass ends another chapter in a more than decade-long saga for Phillips and Masterpiece Cakeshop.

Phillips in 2012 also refused to bake a cake for a gay couple’s wedding, and won a partial victory at the U.S. Supreme Court in 2018 when the justices ruled he could refuse to make the cake because of his religious convictions.

In June 2023, the U.S. Supreme Court also ruled that a Colorado graphic designer could refuse to make wedding websites for same-sex couples because of her Christian faith. The justices in that case found the websites were expressive content protected by the First Amendment, and that the state could not force the designer to create messages she does not believe in.

The Associated Press contributed to this report.

Re: “Jack Phillips’ cakes are expression and should be protected,” June 23 commentary

Krista Kafer’s Sunday editorial defending “Jack Phillip’s cakes” does make sense on the most superficial level. Should a hired singer have to sing a racist song for a Ku Klux Klan rally? Or should a baker have to put a swastika on the wedding cake of an avowed Nazi?

The problem is that Klansmen and Nazis are not protected minority groups under civil rights statutes. Blacks, gays, and trans people are. Thus, Jack Phillips has no more right to refuse a wedding cake for a gay couple or a pink and purple cake for a trans woman than he would to refuse to make a wedding cake for an interracial couple.

And it was not long ago that many Southerners claimed deeply held Bible-based religious beliefs against interracial marriage. If allowed, the next step would be to allow a hotelier the right to refuse a room to a biracial couple or a gay couple or a trans woman. We have civil rights laws to protect minorities for a reason. That doesn’t mean you have to agree with those laws. We have freedom of thought and expression in this country. But you aren’t free to discriminate against protected classes of people in the public marketplace.

Marcus Pohlmann, Highlands Ranch

I used to live in Lakewood and attended 12-step meetings at the clubhouse two doors down from Jack Phillips’ shop. Jack would make celebration cakes for us, and he served the most delicious, reasonably priced lattes in the neighborhood. Jack always had a treat and kind word for anyone who came in. We often talked about his art, court cases, politics and religion. Jack had firm beliefs and his art was just that; his art. I went to the same church on occasion as Jack. Jack and I didn’t agree on everything, but we shared a love for his art.

Here’s the thing: In this latest trans case, Jack is being set up. Jack was set up several times by the LGBTQ+ community before and after his seminal U.S. Supreme Court case. Setting someone up, taking away their joy (Jack no longer makes wedding cakes because he’s been set up), taking away a substantial source of income — that’s just mean. The LGBTQ+ community is doing the same thing to Jack as was done to them.

Ginger Harris, Denver

Hello, I’d just like to express extreme disappointment in your publishing of the following sentence in Krista Kafer’s recent opinion piece on the gender transition cake case:

“[Science] can only answer questions about biological sex affirming that there are two sexes, male and female, which are determined at the beginning of life.”

While I agree with the sentiment of much of the article with regard to free speech, this sentence ignores the fact that thousands of intersex people are born each year, let alone the fact that many people experience hormone imbalances caused by either genetic or environmental factors that result in biological development that doesn’t fit neatly into a male or female categorization.

Allowing your opinion columnist to publish a factually incorrect sentence that misleadingly presents itself as cold, hard science is a disservice to your readers and further marginalizes people who deal with the realities of a non-binary biology (in contrast to the psychological body dysmorphia the author is attempting to make a point about).

I would like to see the author issue a correction to this piece and an apology to intersex people who are continually told by non-scientists that their genetics and biology at birth are somehow invalid according to science.

Mike Lewis, Denver

Coaches and professors should not date students. Period.

Re: “Abuse of power — DU and CU still allow coaches to pursue sexual relationships with student athletes, against NCAA recommendations,” June 23 commentary

Thank you for Karen Denison Clark’s opinion column in Sunday’s Perspective Section. I wish it had been a headline news article on the paper’s front page where it really belongs. I’d like to know what the regents at DU and CU have been smoking or is it some of the mushrooms they’ve been imbibing in?

Does anybody recognize the names Jerry Sandusky or Larry Nassar? If I were in the leadership of either university, I’d not demand the resignation of any coach or professor sexually involved with a student; I’d fire them for cause. Period.

Truthfully, I wish I were an attorney because I know I could get rich being an ambulance chaser with these policies.

Both of these schools better reevaluate this policy and change it pronto. If I were a parent, I wouldn’t send my child to either school.

Steven Williams, Grand Junction

Barnes & Noble champions Colorado authors

Re: “Will Barnes & Noble save or destroy Tattered Cover?” June 23 editorial

The AuthorU.org community and the Colorado Authors Hall of Fame fully support Barnes & Noble’s resurrecting Tattered Cover. With James Daunt taking the reins of B&N as CEO in 2019, one of his missions was to create and transform the chain into a bookseller that supports the community and local authors.

In Colorado’s Front Range, it has enthusiastically aided the bookselling efforts of many local authors. With the support of B&N and its Bookfairs, 50 Colorado-connected authors have been inducted into the Colorado Authors Hall of Fame. When Joyce Meskis, former owner of the Tattered Cover, was honored at the first induction in 2019 for her vision and contribution to and for authors, the event had a sold-out crowd. B&N was there.

At the 2023 Induction, B&N was honored with the Best Bookseller Supporting Authors. The Hall also delivers the Aspiring Author Scholarships to five recipients every other year — scholarships valued at $15,000 each. One carries the B&N name and is financially supported by the company throughout the year with donations that B&N contributes from the BookFairs in many of its bookstores. Five more will be named this September.

Speaking for both AuthorU.org and the Colorado Authors Hall of Fame, Barnes & Noble could restore the honor and respect that Tattered Cover once had and was lost from the mismanagement that occurred after Joyce Meskis sold and retired.

Judith Briles, Aurora

Editor’s note: Briles is president and CEO of AuthorU.org and Colorado Authors Hall of Fame

We can clean up our skies

Re: “Is Earth really getting too hot for people to survive?” June 23 commentary

The words “climate change” are so controversial.  Believe, not believe, fake news, real news or what. But it’s next to impossible to argue with the following two sentences: “When people burn carbon — whether it’s coal in a power plant or gasoline in a vehicle — it creates carbon dioxide (CO2). This invisible gas builds up in the atmosphere and traps the sun’s warmth near the earth’s surface.”

We cleaned up our rivers in the 1970s; no reason we can’t clean up our skies now.

Kimberly Konkel, Denver

Petitioning for change: There must be a better way

Passionate about a potential ballot measure? You’ll see petitioners gathering signatures to place it on the ballot. Seems straightforward, but it’s not. According to Article V of the Colorado Constitution, signatures equal to 5% of the votes from the last general election are needed, which would be 124,238 signatures.

Gathering 20 signatures per hour (a very optimistic figure), volunteer petitioners would need 6,212 hours. With jobs and families, a passionate volunteer might petition 5 hours a week. Enter the industry of signature gathering. Firms pay anywhere from $5 to $15 per signature. The gatherers are a motley crew of individuals willing to leave their families for weeks at a time to travel to each state that needs a new measure passed. Very few of the people gathering signatures are even voters in your state.

Why do we rely on this outdated system? We have the technology for secure, efficient voter engagement via text. The current process favors the wealthiest backers, as usual, not the public good. It’s time for change.

Wyatt Carr, Denver

I am a strong supporter of the First Amendment right “to petition the Government for redress of grievances.” A manifestation of that right is the Colorado initiative, whereby anyone, after collecting sufficient signatures, can have any matter they wish to be law put on the ballot for the voters, not the legislature, to decide. While implementing the First Amendment guarantee, the initiative process often litters the Colorado ballot with complex issues that voters are ill-equipped to adjudicate.

Deciding on which candidates for office deserve our vote (the primary purpose for an election) is challenge enough for some people, and a litter of initiative issues also requiring their decision prompts some voters to not vote on them at all, or worse, to not vote at all.

I propose a revision to the initiative process. The legislature, in its next session, would be required to consider issues that the petition process had qualified to be on the ballot. If the legislature failed to act to the satisfaction of the advocates, the matter would then be placed on the ballot for the voters to decide.

A more desirable outcome would be for the legislature to debate the matter, receiving testimony from the advocates and any other party with “skin in the game.” The decision, whether yea or nay, would be the result of the legislative process, which is fundamental to our republican system of government and, despite its flaws, the most reliable method to determine our laws.

David Wolf, Lakewood

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The First Amendment prevents Congress from making laws that abridge the right to free expression and free exercise of religion and thanks to the 14th Amendment, state and local governments, cannot make such laws either.

The flip side to the right to expression is the right to be silent. The government cannot coerce individuals into advocating beliefs contrary to their own.

Last year’s Supreme Court decision affirmed that right. It said the state cannot coerce individuals into advocating for ideas with which they disagree even at their place of business. “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” wrote Justice Neil Gorsuch

Advocating or expressing belief isn’t just done with words but through symbols like the Star of David, the Republican elephant and the Democratic donkey, peace signs, the Hindu Om figure, pink triangles, the Gadsden Flag, and through events that celebrate and commemorate beliefs.

The government cannot force an atheist to wear a hijab, a musician to play the communist Internationale, or a Kosher deli to serve a ham sandwich. Likewise, it cannot force a baker to make a blue and pink cake for a gender transition celebration. The baker has the right not to advocate.

This right, protected by the First Amendment, was the subject of this week’s Colorado Supreme Court hearing. Autumn Scardina, a biological man who lives as a woman, sued Jack Phillips, owner of the Lakewood Masterpiece Cakeshop, under Colorado’s public accommodation law after the baker refused to make a gender transition celebration cake.

Scardina initially went after Phillips by filing a complaint with the Colorado Civil Rights Division. Phillips countersued and the state, chastened by an earlier U.S. Supreme Court loss in the , backed off. If the Colorado Supreme Court fails to uphold Phillips’ rights, it is likely to be castigated once more.

The right to expression free of state coercion is essential not only for individual liberty but for a free society with a thriving marketplace of ideas.

Can a person be born into the wrong body? That¶¶Ňőap a metaphysical question.

Can a person have a different gender than his biological sex? That¶¶Ňőap for each person to decide.

Should individuals who live as the opposite sex be allowed to use sex-segregated spaces that do not correspond with their biological sex (bathrooms, locker rooms, prisons, sports teams, etc.). That¶¶Ňőap a political question.

Science cannot answer these answers. It can only answer questions about biological sex affirming that there are two sexes, male and female, which are determined at the beginning of life. Everything else is up for grabs.

The First Amendment protects individuals as they answer metaphysical, cultural, and political questions about identity and other issues. The First Amendment also protects the free exercise of religion. Differing faith traditions including atheism provide different answers to metaphysical questions about the nature of being, the meaning of life, relationship to deity or deities, revelation, and morality. This includes questions about gender.

The state on its own or at the behest of an individual cannot under the Constitution deny individuals the right to advocate or the right not to advocate by word or by symbol. The Colorado court can spare the taxpayer another trip to D.C. by affirming it.

Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer.

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Are they artists in the true sense of the word? Are they somehow expressing something when they put together the sandwich precisely as you request it?

Instinctively, many of us would say “no.” Slapping cheese, meat, and condiments onto bread does not seem like the sandwich makers’ speech, especially when they are simply following the customer’s instructions. But the Colorado Supreme Court is considering a case not far removed from that hypothetical. The case has significant implications for non-discrimination protections not only in Colorado but beyond.

In Masterpiece Cakeshop, Inc. v. Scardina, the bakery, Masterpiece Cakeshop, refused to make a cake for Autumn Scardina after she disclosed she was transgender. Specifically, Scardina asked Masterpiece to make a custom pink birthday cake with blue frosting. There were no other design elements, words, or messages on the cake. Masterpiece first agreed to make the cake. But once Scardina disclosed to the bakery that the cake colors celebrated her gender transition from male to female, the owner declined to make the cake, claiming that doing so conflicts with the owners’ religious beliefs.

The refusal arguably violates the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination on the basis of gender identity. Masterpiece, however, contends that being required to make the cake would compel expressive speech contrary to their religious beliefs in violation of the First Amendment. To be protected by the First Amendment, the compelled act must be “speech,” in that it must be expressive.

If the court holds that there is a First Amendment violation, then enforcement of Colorado’s prohibition on discrimination on the basis of gender identity (and other bases, such as gender, race, or sexual orientation) will be significantly curtailed.

How did we get here, where courts are asking whether baking a cake is speech?

This isn’t Masterpiece Cakeshop’s first rodeo. Previously, it was victorious at the U.S. Supreme Court in a case where the owner also refused to make a cake, this time for a same-sex wedding. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the U.S. Supreme Court narrowly concluded that members of the Colorado Civil Rights Commission demonstrated hostility to the religious convictions of the owner, Jack Phillips, when they ruled he had discriminated against the same sex couple who had filed suit.

More relevant to the current Masterpiece case, however, is the U.S. Supreme Court decision in 303 Creative LLC v. Elenis. In yet another LGBTQ+ rights case out of Colorado, the Court held that the First Amendment can outweigh civil rights protections. In that case, a web designer refused to create a bespoke wedding webpage for a gay couple given her religious objections to same-sex marriage. While a clear violation of CADA, the Supreme Court nevertheless allowed 303 Creative to refuse to create the webpage. According to the Court, the webpage design was expressive and thus protected as speech by the First Amendment.

The holding in 303 Creative reaches far beyond concerns of religious liberties. Under the Supreme Court¶¶Ňőap reasoning, any business could deny a putatively speech-producing service to a person belonging to a protected class simply because it is philosophically or politically opposed to that group. Religious objections are not necessary.

The key inquiry for the intersection of non-discrimination protections and the First Amendment is whether the relevant acts qualify as speech due to their expressive character. Speech extends beyond the spoken or written word. The U.S. Supreme Court generally has taken an expansive view, including things like flag burning, arm bands, and parades.

The question before the Colorado Supreme Court is whether baking a cake as directed by the client constitutes expression by the baker. To us, this case is more like the Subway Sandwich Artist. You tell the Artist what you want on the sandwich, and they make it. No expression is involved. Similarly, the baker was given specific directions for the color of the cake. There was no creative input on the baker’s part, nor was there a message included on the cake. Indeed, as the Colorado Court of Appeals observed, Phillips agreed in general that a pink cake with blue frosting has no “particularly inherent meaning.”

There may be circumstances in which businesses’ services involve expression of their own, but this isn’t one of them. The Colorado Supreme Court has this route to conclude that the denial of services to Scardina should violate CADA on this narrow ground, which is what the Court of Appeals concluded.

This approach would leave unanswered a broader question: what if the baker did provide input into the design of the cake, like the webpage designer in 303 Creative? The Colorado Court of Appeals reasoned that “this act of creating a custom cake … is inherently expressive and therefore entitled to First Amendment protection.”

Regardless of this assessment, we think there is still space for a broader ruling: that the non-discrimination protections at stake in the case survive First Amendment review. Even if the Court decides the pink and blue cake is Masterpiece’s speech (rather than Scardina’s), the interest in protecting people from outright discrimination based on gender identity outweighs any speech interests at stake in these cases.

In legal jargon, the CADA survives strict scrutiny because it is narrowly tailored to advance a compelling state interest: stopping discrimination in the commercial sphere against people based on their sexual orientation, gender, gender identity, race, and other protected classes. The laws are narrowly tailored because such prohibitions are the only means to eliminate discrimination in public accommodations. That interest is unrelated to speech regulation.

Thanks to the U.S. Supreme Court, courts will have to discern what constitutes protected “expressive” versus unprotected “non-expressive” conduct in various commercial settings to determine whether a party can discriminate. 303 Creative has sent us down a rough path that hopefully the Colorado Supreme Court can help smooth.

Tim Holbrook and Alan Chen are both professors of law at the University of Denver Sturm College of Law.  Holbrook is an advocate for the LGBTQ+ community and served as co-counsel for former National Football League players supporting marriage equality. Chen is a leading national expert in free speech and the First Amendment.

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The case involving Denver-area baker Jack Phillips is the latest of three in Colorado pitting LGBTQ+ civil rights against First Amendment rights. In a previous case, Phillips scored a partial victory before the U.S. Supreme Court in 2018 after refusing to bake a cake for a gay couple’s wedding.

The Colorado Supreme Court took Tuesday’s oral arguments in the transgender celebration cake case under advisement without ruling right away.

The case originated when Phillips initially agreed to make a cake for attorney Autumn Scardina but then refused after Scardina explained she was going to use it to celebrate her gender transition.

The Colorado Court of Appeals 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.

The Colorado Supreme Court justices asked attorneys for both sides what sort of cake without any writing on it a baker could refuse to make while the Colorado Anti-Discrimination Act prohibits refusing to provide services based on protected characteristics such as race, religion or sexual orientation.

They also asked if Phillips would have agreed to make an identical cake for different purposes, such as to celebrate the birth of boy-and-girl twins.

“It¶¶Ňőap only when they get into the home of the consumer that they take on the message. They are the same cake. It¶¶Ňőap all a pink cake with blue icing,” Justice Melissa Hart told Phillips’ attorney, Jake Warner, in suggesting other, hypothetical scenarios involving pink-and-blue cakes.

Warner maintained the cakes Phillips creates are protected free speech. He told the justices that what Scardina told Phillips about the purpose of the cake mattered for his free-speech rights.

“It became a different message when Phillips was told it was to celebrate and symbolize a transition from male to female,” Warner told the justices. “Cakes can appear facially identical and you can have facially identical content that expresses a different message.”

Warner drew a line, however, and said Phillips would have to sell pre-made cakes, including pink cakes with blue icing, to anyone for any purpose.

Justice Maria Berkenkotter asked Phillips if he thought a white cake with white frosting could be refused to be made for a customer who said it represented gender transition.

“But that cake is lacking the symbolism,” Phillips said. “The message is not as clearly in the cake as we have here.”

Later, Justice Monica Márquez asked Scardina’s attorney, John McHugh, if Phillips would have agreed to make a rainbow-colored cake similar to rainbow designs used to promote LGBTQ+ identity.

“They would happily make the same cake for other customers,” McHugh said, referring to previous statements by Phillips.

Cake features were not a factor in Phillips’ partial victory in the gay couple’s case against him before the U.S. Supreme Court, which found the Colorado Civil Rights Commission was unfairly dismissive of Phillips’ religious beliefs.

Another recent case in Colorado centers on freedom of speech and LGBTQ+ rights. Last summer, the U.S. Supreme Court ruled in favor of a Colorado graphic artist who didn’t want to design wedding websites for same-sex couples.

Graphic artist Lorie Smith, who like Phillips is represented by the Alliance Defending Freedom, challenged the same state law. The court¶¶Ňőap conservative majority said forcing her to create websites for same-sex weddings would violate her free speech rights.

Both sides in the dispute over Scardina’s cake order think the new U.S. Supreme Court ruling bolsters their arguments.

The request in dispute, from a person identified as “Stewart,” wasn’t the basis for the federal lawsuit filed preemptively seven years ago by web designer Lorie Smith, before she started making wedding websites.

But as the case advanced, it was referenced by her attorneys when lawyers for the state of Colorado pressed Smith on whether she had sufficient grounds to sue.

The revelation distracts from Smith’s victory at a time when she might have been basking in her win in , which is widely considered a setback for gay rights.

Smith named Stewart — and included a website service request from him, listing his phone number and email address in 2017 court documents. But Stewart told The Associated Press he never submitted the request and didn’t know his name was invoked in the lawsuit until he was contacted this week by a reporter from The New Republic, which .

“I was incredibly surprised given the fact that I’ve been happily married to a woman for the last 15 years,” said Stewart, who declined to give his last name for fear of harassment and threats. His contact information, but not his last name, were listed in court documents.

He added that he was a designer and “could design my own website if I need to” — and was concerned no one had checked into the validity of the request cited by Smith until recently.

Smith’s lawyer, Kristen Waggoner, said at a Friday news conference that the wedding request naming Stewart was submitted through Smith’s website and denied it was fabricated.

She suggested it could have been a troll making the request, something that¶¶Ňőap happened with other clients she has represented. In 2018, her client, Colorado baker Jack Phillips, won a partial U.S. Supreme Court victory after refusing to make a gay couple’s wedding cake, citing his Christian faith.

“It¶¶Ňőap undisputed that the request was received,” Waggoner said. “Whether that was a troll and not a genuine request, or it was someone who was looking for that, is really irrelevant to the case.”

Colorado Attorney General Phil Weiser on Friday called the lawsuit a “made-up case” because Smith wasn’t offering wedding website services when the suit was filed.

Weiser didn’t know the specifics of Stewart¶¶Ňőap denial, but said the nation’s high court should not have addressed the lawsuit¶¶Ňőap merits “without any basis in reality.”

About a month after the case was filed in federal court challenging an anti-discrimination law in Colorado, lawyers for the state said Smith had not been harmed by the law as they moved to dismiss the case.

Her lawyers maintained Smith did not have to be punished for violating the law before challenging it. In February 2017 they said even though she did not need a request in order to pursue the case, she had received one.

“Any claim that Lorie will never receive a request to create a custom website celebrating a same-sex ceremony is no longer legitimate because Lorie has received such a request,” they said.

Smith’s Supreme Court filings briefly mentioned she received at least one request to create a website celebrating the wedding of a same-sex couple. There did not appear to be any reference to the issue in the court¶¶Ňőap decision.
___

Associated Press researcher Rhonda Shafner contributed to this report from New York

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But things were a little bumpy early on. Lorie Smith is a Denver-area graphic artist. She launched 303 Creative to love her neighbors while promoting causes close to her heart. Like most artists, Lorie works with all people but can’t express all messages. For Colorado officials, that was a problem. Lorie learned that officials would misuse state law to force her to say things about marriage she doesn’t believe if she were to start making wedding websites with marriage stories that she reported and wrote.

This is the norm in Colorado. For some years, state officials and others have been trying to punish cake artist Jack Phillips, owner of Masterpiece Cakeshop, for refusing to create art inconsistent with his beliefs. Lorie feared the same punishment, so she faced a grueling choice: curb her business, change her beliefs, or challenge an unjust law. She chose to protect free speech both for herself and those who disagree with her. And it¶¶Ňőap a good thing she did.

Now, the Supreme Court has held that the government can’t force Lorie to express things she doesn’t believe. The ruling protects all people — including those who disagree with Lorie’s views. As the opinion notes, the state of Colorado’s position “would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.” The ruling ensures that speakers—not the government—choose what they say.

But not everyone is cheering. Critics say this win will take us back to dark times in our nation’s past. That¶¶Ňőap a lie. States will continue to apply public-accommodation laws to stop discrimination based on who someone is. The ruling protects only people speaking–people like Lorie who decide which projects to take based on what they will express, not who requests them. Lorie’s win ensures only that states do not misuse their laws to punish speakers they disagree with.

As our nation has matured, its commitment to free speech has enabled our most significant progress — from abolishing slavery and securing women’s right to vote to passing the Civil Rights Act and protecting equal opportunities for women and girls. Some may think these advances were inevitable, but those movements flourished because our nation refuses to coerce people whose speech the government disagrees with. Without the freedom to speak, we shutter diverse views, meaningful debate, and the condition for progress.

Protecting free speech is also rooted in love for our neighbors. It extends the same freedom for others that we seek to enjoy ourselves. No matter whether you agree with Lorie’s view on marriage, President Biden’s view on Ukraine, or Governor Polis’ view on gun control, all Americans should cheer Lorie’s win because it ensures that government cannot compel views it disagrees with. You can disagree with Lorie’s views yet celebrate her freedom to express them — because it¶¶Ňőap the same freedom that ensures you can say what you believe without punishment.

This June has made many winners. Congratulations to Nuggets fans, who are celebrating their team’s first NBA title, and to students who finished the academic year strong. But unlike an NBA title or final grade, where some win and others fail, 303 Creative is a win for all Americans. Free speech came out on top. So take up the pen, load the camera, and clean the paintbrush — you can now speak. Freely.

Jake Warner is senior counsel for Alliance Defending Freedom (@ADFLegal), which represents Lorie Smith and 303 Creative.

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The high court ruled for Littleton graphic artist Lorie Smith, who said her Christian faith prevents her from creating wedding websites for same-sex couples. Smith, who runs the business 303 Creative, wanted to make wedding websites only for straight couples.

She challenged Colorado’s public accommodation law, which says that if she offers wedding websites to the public, she must provide them to all customers. Businesses that violate the law can be fined, among other penalties. Many states have such laws.

Justice Neil Gorsuch in which the court’s conservative majority found that any wedding websites created by Smith would be expressive content protected by the First Amendment right to free speech, and that Colorado cannot force Smith to say or create messages that she does not believe.

“If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs,” Gorsuch wrote of Colorado’s law. “That is an impermissible abridgment of the First Amendment¶¶Ňőap right to speak freely.”

The court noted that Smith has agreed she will work with people of all sexual orientations, and is only refusing to create wedding websites — and not other products — for same-sex couples. Smith brought the lawsuit against Colorado’s law proactively and has never refused to make a wedding website for a gay couple.

“…The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong,” Gorsuch wrote. “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive,’ ‘misguided, or even hurtful.’ But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is reversed.”

The court’s three liberal justices dissented. Justice Sonia Sotomayor called the ruling “profoundly wrong” in a dissent joined by Justices Elena Kagan and Kentanji Brown Jackson. Sotomayor read the dissent aloud from the bench Friday in a sign of particular disagreement with the majority.

“Today is a sad day in American constitutional law and in the lives of LGBT people,” she wrote. “The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate…the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.'”

Smith’s supporters on Friday hailed the decision as a victory for free speech and religious freedom, while opponents — including President Joe Biden — said the decision erodes equal rights and opens the door for businesses to discriminate against people of all types.

“While the Court¶¶Ňőap decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans,” Biden said in a statement. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith and women.”

U.S. Rep. Lauren Boebert, who represents Colorado’s Western Slope, referred to the court’s decision as “a HUGE victory for religious liberty” r.

Smith’s attorneys said in a statement Friday that the ruling was a win for “all Americans.”

“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it,” said Kristen Waggoner, general counsel for the Alliance Defending Freedom, which represented Smith.

Second challenge to Colorado’s law

Smith’s case, 303 Creative LLC v. Elenis, is the second high-profile challenge to Colorado’s public accommodation law to pit religious beliefs against gay rights in recent years.

In 2018, baker Jack Phillips won a partial victory at the U.S. Supreme Court after he refused to make a wedding cake for a gay couple in 2012. Phillips has since refused to make a transgender transition cake; he was sued and most recently lost an appeal to the Colorado Court of Appeals, which upheld the state’s public accommodation law.

The narrow decision in Phillips’ 2018 U.S. Supreme Court case set up a return of the issue to the high court, and legal observers had expected a much broader ruling with wider implications in the 303 Creative case.

Christopher Jackson, a Colorado attorney at Holland and Hart, said Friday that the Supreme Court decision is couched by its reliance on a long list of case-specific facts, which could limit its impact in other cases that do not closely match Smith’s circumstances.

Expressive speech is different from routine commercial services, and discrimination in the latter is still illegal, Jackson added.

“The question would be, really, is it speech versus is it ordinary commercial conduct?” he said. “I think even this court would say if you are a diner and you’re (refusing to serve) people food — like sit-ins in the ’60s — that is still a violation of the public accommodation law because there’s no expressive conduct in serving people food, so it doesn’t violate the First Amendment.”

But where the line is drawn on what is protected speech and what is discrimination is now tougher to know, he said.

“You can’t compel wedding websites, we know that now,” he said. “But what about renting a venue, providing tables and chairs, what about providing floral arrangements? … There’s just scenario after scenario and hypothetical after hypothetical, and I don’t think we know the answer.”

AG vows to limit ruling’s scope

Colorado Attorney General Phil Weiser vowed Friday to work to limit the scope and impact of the Supreme Court’s ruling, which he said creates a loophole — a First Amendment exception — to the state’s public accommodation law.

“It is clear this decision is not limited to one group — LGBTQ individuals — and it’s not limited to one type of expressive service — a website,” he said. “Booksellers, photographers and others are likely to be able to take advantage of this loophole.”

Weiser said the ruling was wrongly decided and must be overturned.

Brianna Titone, Colorado’s first openly transgender lawmaker, said Friday that the ruling was not unexpected, but still took her breath away.

“We worked so hard to fix these issues, to give people rights, and now just one decision after another from this court is eroding and creating cracks in all the progress we’ve made,” she said.

Colorado Gov. Jared Polis, the state’s first openly gay governor, said the U.S. Supreme Court is “increasingly obsessed with taking away freedoms.”

“These rulings run counter to Colorado values and we will continue to fight against bigotry and discrimination in all their ugly forms,” he said.

That sentiment was echoed by representatives of several Colorado organizations who gathered Friday to condemn the ruling and vowed to build an inclusive and welcoming environment for all people in the state.

“I know that businesses across Colorado and the majority of Coloradans disagree with this dangerous ruling and support LGBTQ+ equality,” said Nadine Bridges, executive director of One Colorado. “We call on all fair-minded businesses and owners to condemn discrimination and continue their longstanding commitment to treat everyone with dignity and respect.”

AJ Shaikh, chairperson at the Colorado LGBTQ Chamber of Commerce, also urged businesses to seek certification as LGBTQ-friendly through the chamber.

The Associated Press contributed to this report. 

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Updated 8:30 a.m.: This story has been updated to correct the court’s vote in this case.

The Colorado Court of Appeals ruled that that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech.

It also found that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners’ right to practice or express their religion.

Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips’ shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female.

“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,” said the court, which also rejected procedural arguments from Phillips.

Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal.

“One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs,” ADF senior counsel Jake Warner said in a statement.

John McHugh, one of the lawyers who represent Scardina, said the court looked carefully at all the arguments and evidence from the trial.

“They just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people,” he said of Phillips and his shop.

In 2018, the U.S. Supreme Court ruled that the Colorado Civil Rights Commission had acted with anti-religious bias in enforcing the anti-discrimination law against Phillips after he refused to bake a cake celebrating the wedding of Charlie Craig and Dave Mullins in 2012. The justices called the commission unfairly dismissive of Phillips’ religious beliefs.

The high court did not rule then on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people, but it has another chance to do so.

Last year it heard another case challenging Colorado’s anti-discrimination law, brought by a Christian graphic artist who does not want to design wedding websites for same-sex couples. Lorie Smith, who is also represented by ADF, claims the law violates her freedom of speech.

Scardina, an attorney, attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. During trial, she testified that she wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBTQ customers.

Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that he had discriminated against her.

Phillips then filed a federal lawsuit against Colorado, accusing it of a “crusade to crush” him by pursuing the complaint.

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 on her own.

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