DISTRICT COURT, CITY AND COUNTY OF DENVER,STATE OF COLORADODATE FILED: June 15, 2021 5:20 PMCASE NUMBER: 2019CV322141437 Bannock St., Denver, CO 80202Plaintiff(s), AUTUMN SCARDINAv.Defendant(s), MASTERPIECE CAKESHOP INC et al.COURT USE ONLYCase Number:19CV32214Courtroom: 275Findings of Fact and Conclusions of LawTHIS MATTER comes before the Court following a bench trial on March 22-24, 2021.The Court, having reviewed the evidence presented, relevant legal authority, the parties’ posttrial submissions, and being otherwise fully advised, hereby makes the following findings of factand conclusions of law.IntroductionThe sole claim remaining for trial was whether Defendants violated Colorado’s AntiDiscrimination Act (“CADA”), § 24-34-601, C.R.S., in refusing Plaintiff’s request for a birthdaycake. The Court has organized this order under “findings of fact” and “conclusions of law.” Indoing so, the Court has not attempted to distinguish between any mixed questions of law andfact.1

Findings of FactI.The PartiesPlaintiff Ms. Autumn Scardina1.Ms. Scardina is a resident of Arvada, Colorado. (TMO § II (“Stip. F.”) at ¶ a.) Ms.Scardina is a lawyer and a member of a law firm in Denver. (Stip. F. ¶¶ b, c.) Ms. Scardina is atransgender female. (Tr. 46:7-14.)Defendants Masterpiece Cakeshop, Inc. and Mr. Jack Phillips2.Defendant Masterpiece Cakeshop, Inc. (“the Bakery”) is a Colorado corporationwith its principal place of business in Lakewood, Colorado. (Ex. 52 at ¶ 6.) The Bakery is coowned by Defendant Jack Phillips and his wife, Debra Phillips. (Tr. 265:4-6.) The Bakery alsoemploys their daughter, Lisa Eldfrick. (Tr. 480:25-481:1.)3.The Bakery is “a business engaged in the sale of baked items to the public,”including cookies, brownies, birthday cakes, pre-made cakes (or “store cakes”) and special-orderor custom cakes. (Ex. 52 at ¶ 6; Tr. 265:17-266:12.)4.Mr. Phillips is a resident of Lakewood, Colorado, and the operator of the Bakery.(Stip. F. ¶ e.) Mr. Phillips is ultimately responsible for the Bakery’s decisions about which goodsit will and will not sell and to whom. (Tr. 266:13-267:4.)5.Mr. Phillips is a man of good faith religious convictions. (Tr. 349:18-22.) He is adevout Christian who seeks to operate the Bakery consistently with his religious beliefs. (Tr.349:18-350:2.) Mr. Phillips sees himself as a “Christian witness.” He wants to live his life, do hisbusiness, and engage everyone in a way that honors Jesus Christ. (Tr. 364:23-365:11.) Mr.Phillips named the Bakery “Masterpiece” based on Jesus’ words in the Sermon on the Mount,where he said no man can serve two masters. (Tr. 330:18-331:5.)2

6.At the same time, Mr. Phillips chose to incorporate his business as a for-profitentity providing goods and services to the public. While this choice does not take him outsidethe protections of the First Amendment, it does subject him and the Bakery to CADA. Whetherthere is a conflict between the former and the latter is the primary legal issue in this case.II.Genesis of the Dispute: Defendants refused to provide a cake to a same-sex couplefor their wedding.7.In 2012, a same-sex couple entered the Bakery and requested a cake for theirwedding; Mr. Phillips declined. (Tr. 290:9-15.) There was no discussion about the design of thecake or whether the couple would be satisfied with one of the pre-made store-cakes. (Tr. 416:18418:14.) Instead, Mr. Phillips testified that he “knew immediately that [he] can’t create a cake fora same-sex wedding.” (Tr. 416:18-418:3.)8.Mr. Phillips told the couple that he would make them birthday cakes, showercakes, cookies, and brownies, but he cannot create a custom cake for a same-sex wedding. (Tr.417:14-418:14.) According to Mr. Phillips, that cake would have expressed messages thatcontradict his religious beliefs.9.Mr. Phillips’ decision led to a legal action brought by the Colorado Civil RightsDivision (“CCRD”). (Tr. 290:9-19.) His decision and the case were covered extensively in themedia and became part of a public debate about religious freedom and antidiscrimination laws.(Tr. 150:16-151:1.) Mr. Phillips was quoted in the media, gave TV interviews, and wrote op-edsseeking to explain his religious convictions. (Tr. 155:3-156:13, 160:5-162:14, 163:24-166:3,167:24-168:14; Ex. 231 at 5-6.) Concurrently, there has been an ongoing national public debateand discussions on gender identity and antidiscrimination laws. (Tr. 150:19-151:14, 153:22154:2.)3

10.After the Colorado Court of Appeals affirmed an administrative law judge’sfinding that Defendants had violated CADA by declining to create a custom cake for a same-sexwedding, the U.S. Supreme Court granted review on June 26, 2017, and eventually overturnedthe decision of the Colorado Court of Appeals. (Tr. 372:2-4, 378:21-379:4); see generallyMasterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018)(“Masterpiece I”).11.Ms. Scardina first learned about the Bakery from the media coverage of Mr.Phillips’ refusal to make a cake for the same-sex couple’s wedding. (Tr. 47:23-48:4, 58:4-12.)Ms. Scardina heard multiple statements attributed to Mr. Phillips that, while the Bakery wouldnot make cakes for same-sex weddings, the Bakery would provide any other baked goods,including birthday cakes, to LGBT individuals. (Tr. 60:16-61:2, 193:13-19, 301:17-22, 302:8-14(“I don’t bake cakes for same-sex weddings, but I’d be happy to make you anything else youwant.”); Ex. 127 at 3 (“[H]e would make cakes for their birthdays and sell them cookies orbrownies, but that he wouldn’t make a cake for a same-sex wedding.”).)III.Ms. Scardina twice requested a birthday cake, which also reflected and celebratedher transgender identity.12.On June 26, 2017, a few weeks before her birthday and after learning that the U.S.Supreme Court had agreed to review the Colorado Court of Appeals’ decision against Mr.Phillips and the Bakery, Ms. Scardina called the Bakery; Mrs. Phillips answered the phone. (Tr.59:10-13, 61:24-62:3, 170:13-20, 213:24-214:1.) Ms. Scardina asked if the Bakery could make acustom cake for her birthday for six to eight people. (Ex. 52 at ¶¶ 25-27; Tr. 63:1-63:16, 214:13216:2.) Mrs. Phillips responded that the Bakery could make a cake in the time indicated for theamount of people requested. (Tr. 62:10-15, 215:3-216:2.)4

13.The Bakery was unusually busy and chaotic that day. The press was there. Therewere many customers. And the shop received a high volume of phone calls. (Tr. 212:20-213:13,223:22-23, 229:2-12, 378:21-379:6, 490:2-8.) As a result, Mrs. Phillips answered Ms.Scardina’s initial call, instead of Mr. Phillips doing so. After discussing when the cake wasneeded and the cake’s size and design, (Tr. 213:14-216:2), Ms. Scardina elaborated that shewanted a birthday cake with a pink interior and a blue exterior. She also “explained that thedesign was a reflection” of her “transition[] from male-to-female.” (Ex. 136 at 8.)14.Based on her and her husband’s religious convictions, Mrs. Phillips stated that“[the Bakery] probably could not make that cake because of the message.” (Tr. 219:9-18,220:13-21, 221:23-222:2, 235:22-25.) Ms. Scardina then asked Mrs. Phillips to repeat herstatements so someone else could hear, at which point Mrs. Phillips believed something waswrong with the conversation and told the caller she would get Mr. Phillips on the phone. (Tr.222:3-18.) Mrs. Phillips then went to get Mr. Phillips to take the call, but when he picked up thephone, the line was disconnected. (Tr. 385:23-386:2, 388:16-389:1.)15.Ms. Scardina called back, and Lisa Eldfrick, who had witnessed her mother takethe prior call, answered the phone. Ms. Eldfrick indicated that the caller had just been on thephone with her mother, that her mother had stated that the Bakery could not make the cake, andrepeated that the requested cake “isn’t a cake we could make.” (Tr. 492:21-493:3.)16.Defendants testified that they declined the requested cake based on the messagethey believed it would have conveyed—that a person can change genders and that a gendertransition should be celebrated. (Tr. 219:16-25, 220:17-25, 222:1-2, 249:19-250:1, 307:21-308:3,311:17-21, 314:7-16, 394:24-395:5.) It would violate Mr. Phillips’s religious beliefs to send a5

message to anyone that he would celebrate a gender transition. It would not matter if the messageonly goes to one person. (Tr. 411:24-412:8, 414:8-15.)17.The Court finds that Ms. Scardina initially asked if the Bakery could make a pinkcake with blue frosting for 6 to 8 people and Mrs. Phillips agreed that the Bakery could make therequested cake. (Ex. 52 at ¶¶ 27-28.) On this issue, Ms. Scardina’s and Mrs. Phillips’ memory ofthe phone call was different. (Contrast Tr. 63:25-64:17 (Ms. Scardina) with id. at 216:7-12 (Mrs.Phillips).) The Court need not determine credibility to resolve this conflict, however, becauseDefendants admitted in their answer that Ms. Scardina’s version was accurate. (Ex. 52 at ¶ 28.);Agnew v. Agnew, 185 P. 259, 259 (Colo. 1919) (a defendant’s answer is a judicial admission thatcannot be controverted).18.This conflict is also a distinction without any effect because Mrs. Phillipsconfirmed that the Bakery would have made a pink cake with blue frosting if Ms. Scardina hadnot then shared her protected status and the meaning of the colors to her. (Tr. 239:11-15.) Onlyafter Mrs. Phillips stated that the Bakery could make the requested item did Ms. Scardina thenshare that she had chosen those colors to reflect and celebrate her transition from a male to afemale. (Tr. 64:18-66:8.)19.When she was refused service by Defendants, Ms. Scardina stated it “stung”—she felt as if she was considered an undeserving, objectionable human and that she was not asvaluable, worthy or important as other customers. (Tr. 91:3-10, 92:12-18.) The rejection felt likea strike at her dignity and at the LGBT community. (Tr. 92:1-3.)20.IV.Ms. Scardina was in Denver during the call. (Tr. 61:3-21.)Defendants would make an identical-looking item for other customers.21.Mr. Phillips agreed that the Bakery would make the same cake requested by Ms.Scardina for other customers. (Tr. 315:23-316:9, 366:8-14.). In fact, the Bakery has made and6

sold cakes that recognize the cisgender status of an individual, such as a pink cake for thebirthday of a person who is identified as female at birth, or a blue birthday cake for a person whois identified as male at birth. (Tr. 267:12-14, 268:2-12.)22.Mr. Phillips, however, has strong religious beliefs that it is not possible for aperson to be transgender. (Tr. 307:21-308:1.) He and his wife do not believe that a person cantransition from the gender assigned at birth. (Tr. 212:2-7, 307:21-308:1.) As a result, Mr. Phillipsbelieves Ms. Scardina is a male and will not acknowledge her transgender status or that she is afemale. (Tr. 307:10-12, 308:12-16.)23.Defendants agree that a pink cake with blue frosting has no inherent meaning anddoes not express any message. (Tr. 221:1-8, 273:10-20; see also id. at 454:2-13.)24.Defendants will accept a customer’s representations about what the custom-madebakery item will reflect, and will sell that custom item as long as it comports with their religiousbeliefs. (Tr. 362:2-16, 238:16-239:15.) Defendants’ custom cakes might not communicate anyparticular message unless the purchaser discloses to them what the item is intended to convey.(Tr. 281:17-22.) Defendants agree that if there was a pre-made pink and blue cake that Ms.Scardina wanted to purchase from the Bakery for a celebration of a birthday or a gendertransition, they would not have objected to selling her that item even if she disclosed themeaning it had for her. (Tr. 352:19-353:6.)25.Ms. Scardina was aware of the previous litigation involving the Bakery’s refusalto sell a wedding cake to a gay couple and that Mr. Phillips had made public statements that hewould sell any other baked goods to the LGBT community. (Tr. 60:13-61:2, 193:9-19.) It washer understanding that Mr. Phillips only objected to selling a wedding cake because of hisreligious beliefs concerning marriage. (Tr. 58:13-59:9, 60:13-61:2, 166:13-25.) Ms. Scardina7

hoped that Mr. Phillips’ statements about selling birthday cakes to members of the LGBTcommunity were true and that he would make her the requested cake for her birthday. (Tr. 80:1520, 93:5-94:7.)26.The Court specifically finds that Ms. Scardina’s request was a not “set-up” toinitiate litigation. In making this finding, the Court has considered Ms. Scardina’s otherinteractions with Defendants. The Court accepts her explanation for any rudeness, and relies notonly on Ms. Scardina’s testimony at trial, but her demeanor while testifying. Ms. Scardinacredibly stated that she would have purchased the cake if Defendants had agreed to make it.27.Ms. Scardina was seeking to “challenge the veracity” of Mr. Phillips’ statementsthat he is willing to serve people who identify as LGBT and “call [his] bluff.” (Tr. 92:24-93:4,94:6-7, 169:8-14.) Ms. Scardina sequenced what was said on the call to try to prevent Mr.Phillips from arguing “it wasn’t about who I was, but rather the message of what the cake was.”(Tr. 184:11-185:13.) Instead of ordering a plain white cake and then telling the Bakery “I’m atransgender person,” Ms. Scardina told the Bakery that the cake was to celebrate a transitionfrom male to female and that the design reflected that transition. (Tr. 182:4-185:20, 188:12189:4, 216:7-12, 219:2-4; Ex. 133; Ex. 136 at 8.)V.Ms. Scardina timely brought this claim against Defendants.28.Ms. Scardina filed a CADA discrimination charge against the Bakery with theCCRD on July 20, 2017 based on Defendants’ decision not to create the pink and blue cake tocelebrate a gender transition. (Tr. 74:24-75:6, 177:4-9; Ex. 46.) Both parties requestedjurisdictional extensions of time, ultimately extending the CCRD’s jurisdiction until October 13,2018. (Tr. 432:18-434:19, 436:11-19.)29.The CCRD issued a Probable Cause Determination against the Bakery on June28, 2018. (Ex. 137; Tr. 508:12-16.)8

30.The Colorado Civil Rights Commission issued its Notice of Hearing and FormalComplaint on October 9, 2018. (Ex. 138; Tr. 504:1-10.) Mr. Phillips was named a party to thatcomplaint. (Ex. 138; Tr. 316:20-22, 317:2-3.)31.The administrative case was closed on March 7, 2019 and the CCRD determinedMs. Scardina had exhausted her administrative remedies. (Ex. 140; Ex. 141; Tr. 504:1-10.)32.The Commission issued a closure order and dismissed with prejudice theadministrative complaint on March 22, 2019. (Ex. 140; Ex. 141; Tr. 504:1-10.)33.Plaintiff did not appeal this dismissal or request and receive a right-to-sue letter.This suit was timely filed on June 5, 2019.34.Defendants moved to deposit 500.01 with the court registry to moot the CADAclaim. Defendants later tendered a cashier’s check for 500.01 to Plaintiff on February 18, 2021and also promised to pay court-ordered costs.VI.Additional Findings regarding Defendants and LGBT Customers35.Defendants regularly serve customers who identify as gay or lesbian. (Tr. 350:25-351:2.) Defendants also serve customers who identify as transgender. (Tr. 351:14-24, 486:1-10.)36.Defendants’ willingness to serve those who identify as LGBT includes thecreation of custom cakes for them. (Tr. 350:20-351:2.) For instance, Defendants create a customcake every year to celebrate the birthday of a lesbian couple’s daughter. (Tr. 295:19-24, 485:1325.) Mike Jones testified that he told Phillips he was gay on his first visit to the Bakery and hasreceived custom cakes and other items many times over the course of his 25 or more visits. (Tr.441:16-21, 442:16-19, 447:19-448:4, 450:4-12.) Defendants have never declined to serve Mr.Jones. (Tr. 442:20-22.) Mr. Jones has also not requested a gay-themed cake.37.While Defendants generally are willing to serve anyone, Mr. Phillips claims hisreligious beliefs prevent him from creating custom cakes that express messages that would9

violate his religious convictions. (Tr. 235:18-21, 351:21-352:11.) Defendants established thispolicy even before they opened the Bakery in 1993. Pursuant to this policy, Defendants havedeclined to create many types of cakes because of their religious convictions. (Tr. 355:6-9,358:12-16.) These include cakes promoting Halloween, the “Day of the Dead,” cakes with HarryPotter and Game of Thrones themes, cakes celebrating same-sex weddings, and cakes demeaningLGBT individuals. (Tr. 304:9-305:12, 306:4-307:6, 354:24-355:22, 358:2-359:3, 359:22360:15.)38.Mr. Phillips also claims his religious beliefs prevent him from creating a customcake celebrating a transition from male to female because expressing that message—that such atransition is possible and should be celebrated—would violate his religious convictions.(Tr. 314:7-315:14.) He and his wife believe that God designed people male and female, that aperson’s gender is biologically determined, and that gender does not change based on anindividual’s perception or feelings. (Tr. 212:2-7, 307:21-308:3, 394:24-395:5.) Mr. Phillips willnot create a custom cake to celebrate a gender transition for anyone (including someone whodoes not identify as transgender). (Tr. 366:8-367:10.) While Mr. Phillips will not create therequested cake to celebrate a gender transition, he could create a similar-looking cake tocelebrate the birthday of someone who identifies as transgender. That message would not violatehis religious beliefs. (Tr. 366:8-367:10, 396:12-19.)VII.Mr. Phillips and the “Art” of Custom Cakes39.Mr. Phillips uses artistic techniques and tools when making bakery items,including both pre-made and special-order cakes, but particularly for the latter. (Tr. 334:6-15,335:16-336:22, 398:3-14.) When they are purchased, pre-made and special-order cakes and otheritems are placed in boxes which display the Bakery’s logo. (Tr. 397:8-20.)10

40.Mr. Phillips took a number of art classes in school. (Tr. 325:23-326:3, 327:2-10.)As he learned how to decorate cakes, Mr. Phillips realized that many of the same art techniquesthat he used in his art classes could be applied to creating cakes. (Tr. 329:9-25.) For instance, heuses watercolor skills he learned from art class on his cakes. (Tr. 333:19-334:24.) He also usesartistic tools when creating his cakes, such as paint palettes, paintbrushes of varying sizes andtextures, palette knives, and sponges. (Tr. 335:21-336:22, 338:10-17; DX-2.) Reflecting the useof artistic tools and techniques, the Bakery’s logo is a paint palette with a brush and whisk. (Tr.331:8-20; Ex. 30.)41.Mr. Phillips uses artistic techniques and tools to create intricate custom cakes,which convey the message of the cake not only through written words that may appear on thecake (such as “Happy Birthday,” “Congratulations,” etc.) but also by the design of the cakeitself. (Tr. 344:19-345:8, 346:14-347:10.) He uses these skills to create cakes unique to acelebration and to express an intended message. (Tr. 414:22-415:23.) To reach this goal, Mr.Phillips may use his artistic skills for even simple tasks, such as selecting and applying colors.(Tr. 411:13-23.) Examples of Mr. Phillips’ custom cakes are pictured in Trial Exhibits. (Ex. 2;Ex. 6; Ex. 41.)42.As part of the process of creating a custom cake, Mr. Phillips envisions himself atthe particular celebration. (Tr. 347:18-348:10.) He thinks of himself as a participant at the eventhe creates a cake to celebrate. (Tr. 348:6-14.) Mr. Phillips also seeks to communicate through hiscustom cakes. For example, when he creates a custom cake for a memorial service, through thedesign of the cake, Mr. Phillips seeks to communicate that he cares, that he feels the family’ssorrow and their loss. (Tr. 348:15-349:10.) When he creates a cake, he feels he is “agreeing withthe message and taking part in [the occasion].” (Tr. 395:11-16, 409:14-20.)11

43.In each of his custom cakes, Mr. Phillips invests his “time and [his] talents and[his] energies to create something. And if that something contains a message or is to go to anevent that [he] can’t participate in or disagree[s] with, then [he] can’t, in good conscience, createit.” (Tr. 408:13-21.) As the owner and lead cake artist, Mr. Phillips makes the final decisions onwhether the Bakery will create requested custom cakes. (Tr. 241:16-19, 266:13-16, 483:22-24.)44.Defendants often create custom cakes that convey messages through symbolism.For example, Defendants created a cake resembling a torch. (DX-4.) The torch symbolized thefact that a father was retiring and passing the family business on to his son. (Tr. 486:21-487:14.)45.Somewhat paradoxically, Defendants’ policy based on their religious convictionsapplies only to custom cakes. When Mr. Phillips makes premade cakes, he may make six at atime and design them similarly. He produces them to look the same, and he can sell many ofthem. (Tr. 415:24-416:16.) Defendants sell premade cakes to anyone—even if they know itwould be used for a celebration that could conflict with Mr. Phillips’ religious beliefs. (Tr.352:19-24, 484:5-11.) For example, Defendants would sell a premade cake to a customer whowould use it at a gender-transition celebration or for any other reason. (Tr. 352:25-353:6, 408:1321.) Unlike premade cakes, Mr. Phillips creates each custom cake one at a time from scratch; heseeks to express himself through each of his custom cakes. (Tr. 167:9-19, 415:24-416:16.)46.Defendants place all completed custom cakes in a box bearing the Bakery’s logo,phone number, and address. These details show that he made the cake. (Tr. 362:17-363:4.)Knowing that the customer and other people will see his cakes and realize they came from theBakery, affects the cakes Mr. Phillips creates and the messages he promotes. (Tr. 365:2-20.) Mr.Phillips believes his custom cakes reflect him personally and the Bakery, and he wants his cakesto represent them well. (Tr. 364:17-22.)12

47.Defendants assert that context often determines a custom cake’s message and isan important factor that informs whether Mr. Phillips will create a custom cake. For example,while Mr. Phillips will not create a rainbow-colored cake to reflect gay pride, he would create asimilar-looking cake for a Sunday school class discussing Noah’s ark. (Tr. 365:21-366:7, 368:112, 406:9-20.) Likewise, while Mr. Phillips would create a cross-shaped cake for a church tocelebrate Easter, he would not create a similar-looking cake for a racist group to reflect whitesupremacy. (Tr. 367:11-25.)48.Ms. Scardina testified that the requested cake was to be used at a familycelebration of her birthday and gender transition. (Tr. 62:16-23, 65:2-15, 80:21-81:7, 145:11-17,149:25-150:5, 169:21-170:6, 187:10-12, 188:16-189:4, 189:16-20, 191:20-25.) In context, herconcept of the requested cake, with a pink interior and blue exterior, symbolized a transitionfrom male to female:A. Ms. Scardina explained that the design was a reflection of her transition frommale-to-female and that she had come out as transgender on her birthday. (Ex.136 at 8.)B. The color pink in the custom cake represents female or woman. (Tr. 145:24146:1, 146:17-19, 488:16.) The color blue in the custom cake represents male orman. (Tr. 146:11-16, 488:16-17.)C. Ms. Scardina testified that the requested cake design was “symbolic of theduplicity of [her] existence, to [her] transness.” (Tr. 146:20-147:1.)D. Ms. Scardina further testified, “the blue exterior represents what society saw[her] as on the time of [her] birth” and the “pink interior was reflective of who[she is] as a person on the inside.” (Tr. 150:2-5.)13

E. The symbolism of the requested design of the cake is also apparent given thecontext of gender-reveal cakes, which have become popular in at least the last sixyears. (Tr. 231:3-5, 488:1-489:4.) The interior of the cake is either pink (for ababy girl) or blue (for a baby boy); the exterior will be different colors so that thebaby’s gender is only revealed when the parents cut into the cake. (Tr. 488:1-25.)49.From the foregoing facts, the Court further finds as follows: (a) Ms. Scardina didnot ask Defendants to have Mr. Phillips use his creative thought processes to create a cake with aparticular message—Ms. Scardina had pre-determined the cake’s simple design of blue and pink;(b) Ms. Scardina also did not request that Mr. Phillips participate in her birthday or transitioncelebration, or even package her order in a Masterpiece container—she only asked him to supplya cake for that event; (c) Mr. Phillips may use his artistic skills for simple tasks such as selectingand applying colors, but that does not equate to creating a message in doing so—to the extent histestimony was intended to suggest otherwise, the Court did not find it persuasive or credible; (d)the design of the cake—if the colors pink and blue even rise to the level of being a “design”—was not the reason Defendants refused to make the cake; and (e) instead, it was Ms. Scardina’sintended use of the cake—to celebrate her transition—that caused the refusal.Conclusions of Law1.To prove a violation of CADA, Plaintiff must show that, but for Ms. Scardina’stransgender status, Defendants would not have refused to provide the requested cake. C.R.S. §24-34-601(2)(a); Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 280 (Colo. App. 2015)(“[P]laintiffs must prove that, ‘but for’ their membership in an enumerated class, they would nothave been denied” service.), rev’d on other grounds, 138 S.Ct. 1719 (2018). The but-for test14

requires that Ms. Scardina prove the protected trait “actually motivated” Defendants’ decisionand had a “determinative influence” on the outcome. Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993).2.The Colorado Constitution, Article II, Section 10, and the First Amendment to theU.S. Constitution protect a person’s decision not to express a message. Wooley v. Maynard, 430U.S. 705, 714 (1977); Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., 515 U.S. 557,573 (1995). These protections against compelled speech apply even though publicaccommodation laws generally regulate conduct. See Hurley, 515 U.S. at 573 (publicaccommodation law could not compel “speech”); Brush & Nib Studio, LC v. City of Phoenix(“B&N”), 448P.3d 890, 903-05 (Ariz. 2019) (same); Telescope Media Grp. v. Lucero (“TMG”),936 F.3d 740, 752-56 (8th Cir. 2019) (same). And the protections may apply even when thecustomer is also a speaker. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1062 (9th Cir.2010) (“As with all collaborative creative processes, both the [artist] and the person receiving the[art] are engaged in expressive activity.”); B&N, 448 P.3d at 911 (similar); Buehrle v. City of KeyWest, 813 F.3d 973, 977 (11th Cir. 2015) (similar); TMG, 936 F.3d at 758 (similar).3.The Colorado Constitution, Article II, Section 4, and the First Amendment to theU.S. Constitution protect the “free exercise” of religion. Defendants may assert a free-exercisedefense when government action burdens their “sincerely held religious beliefs.” CambridgeChristian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, Inc., 942 F.3d 1215, 1246 (11th Cir. 2019);see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993)(“At a minimum, the protections of the Free Exercise Clause pertain if the law at issuediscriminates against some or all religious beliefs or regulates or prohibits conduct because it isundertaken for religious reasons.”). Religious beliefs need not be “acceptable, logical, consistent,15

or comprehensible to others in order to merit First Amendment protection.” Lukumi, 508 U.S. at531 (cleaned-up). Government may not “target[] religious conduct for distinctive treatment.” 546.I.Legal issues before the Court.4.The parties presented several issues for resolution at trial regarding whetherDefendants violated CADA. First is whether the refusal to provide Ms. Scardina with goods andservices offered by Defendants to the public was “because of” her status as a transgender female.If that issue is resolved in Ms. Scardina’s favor, Defendants raised the following challenges: (1)whether application of CADA in this context violates Defendants’ free expression and religiousexercise rights; and (2) whether the claims against the Defendants are procedurally barred. TheCourt addresses each of these issues below.II.Defendants refused Ms. Scardina’s requests because of her identity as a transgenderwoman.5.Under CADA, “[i]t is a discriminatory practice and unlawful for a person, directlyor indirectly, to refuse, withhold from, or deny to an individual or a group, because of sexualorientation the full and equal enjoyment of the goods[ or] services of a place of publicaccommodation[.]” C.R.S. § 24-34-601(2)(a). Sexual orientation includes an individual’stransgender status or the perception thereof. C.R.S. § 24-34-301(7).6.There is no dispute, and the Court finds, that the Bakery is a place of publicaccommodation. C.R.S. § 24-34-601(1). There is no dispute, and the Court finds, that Ms.Scardina falls within the class of individuals protected by CADA and informed Defendants ofher transgender identity when placing her order. There is no dispute, and the Court finds, thatMs. Scardina requested “goods or services” from Defendants and her requests were denied. Theonly dispute is whether Defendants’ refusals were “because of” Ms. Scardina’s transgender16

status. Ms. Scardina argues that Defendants’ refusal to provide her the requested cake was based,at least in part, on her status as a transgender female. Defendants argue that they did not refusethe requests because of Ms. Scardina’s identity, but because of the message the cake would haveconveyed.7.To meet the “because of” standard, Ms. Scardina need not establish that hertransgender status was the “sole” cause of the denial of service. Rather, she need only show thatthe discriminatory action was based, in whole or in

15/6/2021 · II. Genesis of the Dispute: Defendants refused to provide a cake to a same-sex couple for their wedding. 7. In 2012, a same-sex couple entered the Bakery and requested a cake for their wedding; Mr. Phillips declined. (Tr. 290:9-15.) There was no discussion about the design of the