Members of the Colorado Supreme Court explored on Tuesday the tension between LGBTQ customers’ ability to be free from discrimination in the marketplace and business owners’ competing right not to be forced to express messages that violate their conscience.

During oral arguments, some justices noted the difficulty of disentangling customers’ protected characteristics, like race or sexual orientation, from products and services that convey some broader meaning.

“Public accommodations laws are designed to get us away from ‘your kind isn’t welcome here,'” said Justice William W. Hood III. “It feels to many like this just substitutes ‘kind’ with the word ‘message.’ You could imagine a sign that says, ‘Your kind isn’t welcome here,’ cross out the word ‘kind’ and just put in ‘message.'”

In the case at hand, Masterpiece Cakeshop in Lakewood declined to make a blue and pink cake for Autumn Scardina once she disclosed that the design reflected her transition from male to female.

The store’s owner, Jack Phillips, was the subject of a 2018 U.S. Supreme Court decision stemming from his similar refusal to provide a wedding cake to a same-sex couple. The nation’s highest court sided with Phillips on narrow grounds, but in Scardina’s subsequent litigation, a trial judge found Phillips discriminated against Scardina based on her transgender status in violation of the Colorado Anti-Discrimination Act (CADA).

Further, the state’s Court of Appeals concluded the First Amendment did not protect Phillips’ religious-based objection to creating the cake Scardina described.

To the state Supreme Court, the parties disputed how broadly a ruling in Phillips’ favor would sweep. Phillips’ attorney, Jacob P. Warner, characterized the litigation as implicating the custom speech of “protected artists” and, as such, is “an exceedingly narrow case.”

Scardina’s lawyer, on the other hand, warned any exception to CADA would be hard to contain.

“A house painter could stand up and say, ‘Every time I paint a house, I like to imagine the couple living in there and how happy they are and I just couldn’t express that message for a same-sex couple or an interracial couple,'” argued John M. McHugh.

When is a cake ‘speech?’

The arguments focused on a particular stage in the provision of Phillips’ services: The making of the cake and the message allegedly conveyed if Phillips is aware the cake symbolizes a gender transition he personally disagrees with. Multiple members of the Supreme Court wondered where Phillips’ rights end and those of his customers begin under various scenarios.

Justice Melissa Hart asked about four hypothetical customers, each seeking a blue and pink cake but for different reasons. One customer, like Scardina, is ordering a gender transition cake. Another is pregnant and is expecting male and female twins. The third is mourning the loss of their male and female twins. The fourth orders the cake with no explanation.

“All four of those cakes are just a pink cake with blue icing. Why isn’t Jack Phillips making a choice, or Masterpiece Cakeshop making a choice, among customers?” she wondered. “Those four cakes could go to the wrong houses and it wouldn’t matter. … It’s the same cake.”

Content that is identical on its face can express a different message, responded Warner, who is with the Alliance Defending Freedom, a legal group that represents Christians in cases seeking to elevate religious exercise through challenges to LGBTQ protections and abortion rights.

“My body, my rights’ might mean one thing to an abortion advocate. It means something totally different to an anti-vaxxer,” he said.

What if Scardina requested a plain white cake, pressed Justice Maria E. Berkenkotter, but disclosed she would use it to celebrate her transition?

“That’s a harder case,” conceded Warner. “Here, the customer is acknowledging this cake expresses a message —”

“To her,” interjected Berkenkotter, suggesting there would be no message attributable to the cake maker in that scenario.

Direction from SCOTUS

A central issue in the appeal is the U.S. Supreme Court’s decision last year in 303 Creative v. Elenis, a case out of Colorado involving Christian website designer Lorie Smith who wanted to refuse to create websites for same-sex weddings without running afoul of CADA. The conservative-majority court sided with Smith, finding the custom wedding websites were “pure speech” protected by the First Amendment. The Alliance Defending Freedom also represented her and her graphic design company.

The parties in Phillips’ appeal disputed whether 303 Creative would control the outcome in his case. Scardina contended that unlike Smith’s case, which relied heavily on an agreement between Colorado and Smith about the details of her conduct, the case against Phillips had resulted in factual findings by a trial judge that Phillips discriminated on the basis of Scardina’s transgender status.

Justice Richard L. Gabriel raised a concern the U.S. Supreme Court also referenced in 303 Creative: Must business owners always honor customers’ requests for speech-based services they find offensive?

“Someone comes in to a Jewish baker and says, ‘I want you to make whatever cake and I’m doing it for my neo-Nazi celebration,'” he said. “That’s not speech in your view? It doesn’t matter what they (customers) say as long as the cake doesn’t have an expressive meaning?”

“Neo-Nazi is not a protected status in Colorado,” responded McHugh. But “does this mean that in some extreme instances, somebody who endorses bigoted religious views might be able to force somebody to make a cake for a bigot? Yes, because the law is generally applicable.”

Ultimately, Phillips advocated for the Supreme Court to recognize “message-based objections” in the marketplace. He argued nearly three dozen times in his written briefs that he was being “punished” for his religious views.

“The objection,” summarized Justice Carlos A. Samour Jr., “is to making the cake with the knowledge of what it’s gonna be used for?”

“More specifically,” added Justice Monica M. Márquez, “that the design of the cake incorporates that message.”

Several outside entities also weighed in on both sides of the case prior to the arguments.

In support of Phillips, multiple Republican state lawmakers asserted governments “often elevate” sexual orientation and gender identity above religious affiliation. Cyndol Haller, a baker in Florida, said she was drawn into a court battle in her state because she was reluctant to make a cake with an anti-LGBTQ slogan. Haller wrote that if the First Amendment protected her, it “must protect Jack Phillips.”

Supporting Scardina, the Colorado LGBTQ Chamber of Commerce maintained the cake in question was not Phillips’ custom speech and that the government frequently compels people to express messages they might disagree with — such as requiring product disclosures and mandating reporting for child abuse. More than a dozen Democratic-led states pointed to a 2022 survey of 92,000 transgender participants, in which 9% indicated they had been denied equal treatment or service in the past year due to their gender identity.

The parties also disputed whether Scardina properly brought her civil suit in the first place, in light of a settlement the state and Phillips reached in federal court that affected her original civil rights complaint.

The case is Masterpiece Cakeshop, Inc. et al. v. Scardina.