Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
16-111
ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF COLORADO
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
JOHN M. GORE
Acting Assistant Attorney
General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
MORGAN L. GOODSPEED
Assistant to the Solicitor
General
ERIC TREENE
Special Counsel
BRINTON LUCAS
Counsel to the Assistant
Attorney General
LOWELL V. STURGILL JR.
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether Colorados public accommodations law,
Colo. Rev. Stat. 24-34-601(2)(a) (2016), violates the
First Amendment as applied to an individual who de-
clines to design and create custom wedding cakes for
same-sex wedding celebrations that violate his sincere-
ly held religious beliefs.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 7
Argument....................................................................................... 9
The First Amendments Free Speech Clause
bars the application of Colorados public
accommodations law to petitioners in this case .................. 9
A. A public accommodations law receives
heightened scrutiny where it compels both
creation of expression and participation in an
expressive event............................................................... 9
1. Public accommodations laws ordinarily do
not require First Amendment scrutiny .................. 9
2. A content-neutral law triggers heightened
scrutiny where it compels both expression
and participation in an expressive event .............. 14
3. Few potential applications of public
accommodations laws compel protected
expression ................................................................ 21
B. As applied to petitioners in this case, Colorados
public accommodations law is subject to, and
fails to satisfy, heightened First Amendment
scrutiny ........................................................................... 23
1. The application of Colorados public
accommodations law to petitioners triggers
heightened scrutiny ................................................ 23
2. The application of Colorados public
accommodations law in this case does not
satisfy heightened scrutiny .................................... 31
Conclusion ................................................................................... 34
(III)
IV
TABLE OF AUTHORITIES
Cases: Page
CasesContinued: Page
National Endowment for the Arts v. Finley,
524 U.S. 569 (1998).............................................................. 11
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ................. 26, 32
Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978) ....... 13
Pacific Gas & Elec. Co. v. Public Utilities Commn,
475 U.S. 1 (1986) ........................................................... 10, 31
Pea-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) ........... 32
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012),
vacated and remanded sub nom. Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013) ............................................. 26
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74
(1980) .............................................................................. 20, 29
R. A. V. v. City of St. Paul, 505 U.S. 377 (1992) ............. 7, 13
Ramlakan v. Kawall, No. A-2451-13T2, 2016 WL
2859456 (N.J. Super. Ct. App. Div. May 17, 2016) .......... 28
Riley v. National Fedn of the Blind of N.C., Inc.,
487 U.S. 781 (1988)................................................................ 9
Romer v. Evans, 517 U.S. 620 (1996) .................................. 11
Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47 (2006) ................................ passim
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ................. 14
Spence v. Washington, 418 U.S. 405 (1974) ........................ 16
Texas v. Johnson, 491 U.S. 397 (1989) .............. 16, 17, 21, 25
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ....... 10
United States v. OBrien, 391 U.S. 367 (1968) .............. 13, 14
West Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943)........................................................ 10, 31
Wooley v. Maynard, 430 U.S. 705 (1977) ...................... 10, 30
U.S. Const.:
Art. I, 8, Cl. 3 (Commerce Clause) ............................. 12
VI
Miscellaneous:
Simon R. Charsley:
Interpretation and Custom: The Case of the
Wedding Cake, 22 Man 93 (1987) ............................. 28
Wedding Cakes and Cultural History (1992) ........ 25, 27
VII
MiscellaneousContinued: Page
Glenn Collins, Extravagant Wedding Cakes Rise
Again, N.Y. Times, June 6, 2014 ................................. 26, 27
Carol Mcd. Wallace, All Dressed in White:
The Irresistible Rise of the American Wedding
(2004) .................................................................................... 25
Carol Wilson, Wedding Cake: A Slice of History,
5 Gastronomica: The J. of Critical Food Stud.
(Spring 2005) ....................................................................... 27
In the Supreme Court of the United States
No. 16-111
MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL.
ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF COLORADO
(1)
2
1
This brief uses the term custom to mean a cake created for a
specific event and a specific client, as opposed to a baked good avail-
able for immediate purchase by the public.
4
2
Colorados public accommodations law, Colo. Rev. Stat.
24-34-601, is broader than Title II in two relevant respects. First,
the Colorado statute applies to more types of businesses than
Title II, which does not cover the bakery at issue. See pp. 22-23,
infra. Second, the Colorado statute treats sexual orientation as a
protected class, see Colo. Rev. Stat. 24-34-601(2)(a), whereas Title II
covers only race, color, religion, and national origin, 42 U.S.C.
2000a(a).
13
405 (1974) (per curiam), the Court held that the dese-
cration of an American flag in protest of various govern-
ment policies was expressive conduct under the First
Amendment. Conduct amounts to protected expres-
sion, the Court explained, if subjectively the actor
inten[ded] to convey a message, and objectively the
likelihood was great that the message would be under-
stood by those who viewed it. Johnson, 491 U.S. at 404
(citation omitted); see FAIR, 547 U.S. at 66 (explaining
that expressive conduct must be inherently expres-
sive).
Public accommodations laws compel expression
whether speech or expressive conductwhen they
mandate the creation of commissioned goods or the pro-
vision of commissioned services that are inherently
communicative. That situation might arise if a public
accommodations law were applied to painters, photog-
raphers, poets, actors, musicians, or other professional
artists. Assuming that those artists offer their creative
services to the public, a State might attempt to bar a
painter who agrees to paint a custom portrait of an op-
posite-sex couple at their wedding from declining to
paint a same-sex couple, or vice versa. Or it might at-
tempt to bar a freelance graphic designer who agrees to
design fliers for the upcoming meetings of a Jewish af-
finity group from declining to do so for a neo-Nazi group
or the Westboro Baptist Church. 3 So long as the artist
3
Whether Colorados public accommodations law protects such
groups depends on how Colorado courts construe the term creed,
as used in Colo. Rev. Stat. 24-34-601(2)(a). Regulations promul-
gated by the Colorado Civil Rights Commission give that term a
broad meaning, encompassing all aspects of religious beliefs, obser-
vances or practices, as well as sincerely-held moral and ethical be-
liefs, though not political beliefs. Colo. Code Regs. 708-1:10.2(H)
18
4
Although the court of appeals did not consider any specific de-
sign on this record, see Pet. App. 34a-35a, it appears that Colorado
law would require Phillips, in some circumstances, to decorate a
cake with particular words or symbols that he finds objectionable.
To be sure, the court suggested that Phillips could permissibly de-
cline to inscribe a message that he would not write on any cake
e.g., God blesses same-sex marriages. See id. at 20a n.8 (noting
that a bakery may refuse service based on the nature of the re-
quested message). But if Phillips would write the message on an
opposite-sex couples cakee.g., God blesses this marriagethen
25
671 F.3d 1052, 1078 (9th Cir. 2012), vacated and re-
manded sub nom. Hollingsworth v. Perry, 133 S. Ct.
2652 (2013). Typically, a couple exchanges these sym-
bols in a ritual that signifies and celebrates their com-
mitment to each other. Given that context, a jewelry
designer who creates custom wedding rings for a couple
could be fairly characterized as an active participant in
the wedding celebration, as he creates and enables a
key symbolic element of the ceremony.
A custom wedding cake is similarly significant.
Since antiquity, weddings customarily have been cele-
brated with a special cake. Carol Wilson, Wedding
Cake: A Slice of History, 5 Gastronomica: The J. of
Critical Food Stud. 69, 69 (Spring 2005). Although the
wedding cake appears at a celebratory reception rather
than at the formal ceremony, it remains an iconic sym-
bol of the overall wedding celebration. According to one
sociologist, the wedding cake is possibly the ultimate
sacrament for our secular culture. Collins ST14.
Like wedding rings, and unlike most other products
present at a wedding, a wedding cake is used in a ritual
that signifies and celebrates the beginning of a mar-
riagenamely, the ceremony in which the newlyweds
cut the cake together and sometimes feed it to each
other. This cake-cutting ceremony has become one of
the clearest and most essential rites of marrying in
modern times, and also one of the most potentially
meaningful. Charsley 116-117. By completing their
first joint task in life, the couple marks and celebrates
the beginning of their marriage. Id. at 117. Craig and
Mullinss wedding celebration was no exception: Pho-
tographs of their cake-cutting ceremony capture the
28
5
Consistent with the recognizable nature of the cake-cutting cer-
emony, some courts have observed that the ritual occurred in the
course of evaluating whether a marriage existed between two peo-
ple. See, e.g., Garrison v. Garrison, 460 A.2d 945, 946 (Conn. 1983)
(Following the formal ceremony, the parties had a reception which
included the traditional cutting of a wedding cake.); Ramlakan v.
Kawall, No. A-2451-13T2, 2016 WL 2859456, at *1 (N.J. Super. Ct.
App. Div. May 17, 2016) (per curiam) (Plaintiff introduced a copy
of the wedding invitation and photographs of * * * the parties cut-
ting a large wedding cake.); Black v. Hall, No. 94113, 2010 WL
3814586, at *4 (Ohio Ct. App. Sept. 30, 2010) (Photographs of the
couples wedding reception were introduced that showed them cer-
emonially cutting and sharing wedding cake and dancing.).
29
the courier for such message); Pacific Gas & Elec. Co.,
475 U.S. at 15 (government cannot force individual or
entity to assist in disseminating [a favored] speakers
message).
2. The application of Colorados public accommodations
law in this case does not satisfy heightened scrutiny
Because the court of appeals concluded that there
was no protected expression at stake in this case, it did
not address whether the application of Colorados pub-
lic accommodations law to petitioners satisfies height-
ened scrutiny. See Pet. App. 36a. This Courts decision
in Hurley confirms that it does not.
In Hurley, Massachusetts asserted the same inter-
est present here: ensur[ing] by statute for gays and
lesbians desiring to make use of public accommodations
* * * that accepting the usual terms of service, they will
not be turned away merely on the proprietors exercise
of personal preference. 515 U.S. at 578. The Court
held that that interest does not permit a State to compel
individuals to modify the content of their expression to
whatever extent beneficiaries of the law choose to alter
it with messages of their own. Ibid.; cf. Dale, 530 U.S.
at 657 (noting that the Court had upheld the application
of public accommodations laws only when doing so
would not materially interfere with the ideas that the
organization sought to express). Where a law trenches
on First Amendment rights in the manner that Colo-
rados public accommodations law does here, it similarly
cannot survive heightened scrutiny. See Dale, 530 U.S.
at 657-659; see also Barnette, 319 U.S. at 642 (striking
down regulation that invade[d] the sphere of intellect
32
6
Because the application of Colorados public accommodations
law to petitioners violates the Free Speech Clause, the United
States does not address the parties arguments regarding the Free
Exercise Clause.
34
CONCLUSION
The judgment of the Court of Appeals of Colorado
should be reversed.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney
General
JOHN M. GORE
Acting Assistant Attorney
General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
MORGAN L. GOODSPEED
Assistant to the Solicitor
General
ERIC TREENE
Special Counsel
BRINTON LUCAS
Counsel to the Assistant
Attorney General
LOWELL V. STURGILL JR.
Attorney
SEPTEMBER 2017