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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.” Id.at 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