Amicus Curiae Brief — Melissa Elaine Klein, et vir, Petitioners v. Oregon Bureau of Labor and Industries

No. 18-547

IN THE

___________

MELISSA ELAINE KLEIN AND AARON WAYNE KLEIN,

PETITIONERS,

V.

OREGON BUREAU OF LABOR AND INDUSTRIES,

RESPONDENT.

___________

On Petition for a Writ of Certiorari to the

Oregon Court of Appeals

__________

BRIEF FOR THE CATO INSTITUTE AND

COMMITTEE FOR JUSTICE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

__________

Curt Levey

Ilya Shapiro

THE COMMITTEE FOR JUSTICE

Counsel of Record

1629 K Street, N.W., Suite 300 CATO INSTITUTE

Washington, D.C. 20006

1000 Mass. Ave. N.W.

(202) 270-7748

Washington, D.C. 20001

clevey@committeeforjustice.org (202) 842-0200

ishapiro@cato.org

November 26, 2018

i

QUESTIONS PRESENTED

1. Whether the creation and sale of custom wedding

cakes constitute artistic expression.

2. Whether Oregon violated the Free Speech and Free

Exercise Clauses of the First Amendment by compelling the Kleins to design and create a custom

wedding cake to celebrate a same-sex wedding, in

violation of their sincerely held religious beliefs.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT............................... 2

ARGUMENT ................................................................ 5

I.

Baking Custom Wedding Cakes Constitutes

Artistic Expression That Is Protected by the

First Amendment .................................................. 5

II. The Court Must Clarify the Extent to Which

States May Compel People to Participate in

Ceremonies to Which They Object ....................... 9

CONCLUSION .......................................................... 13

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Cohen v. California, 403 U.S. 15 (1971)...................... 5

Erie v. Pap’s A.M., 529 U.S. 277 (2000) ...................... 5

First Covenant Church v. City of Seattle,

840 P.2d 174 (Wash. 1992) .................................... 11

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557 (1995) ............ 5-6, 12

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) .. 8

Masterpiece Cakeshop, Inc. v. Colo. Civil Rights

Comm’n, 138 S. Ct. 1719 (2018) .......................... 1, 2

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .............. 1

Ortiz v. New Mexico, 749 P.2d 80, 82 (N.M. 1988) ... 11

Rumsfeld v. FAIR, 547 U.S. 47, 62 (2004) .................. 6

Schad v. Borough of Mount Ephraim,

452 U.S. 61 (1981) .................................................... 8

Se. Promotions Ltd. v. Conrad, 420 U.S. 546 (1975) .. 8

Stromberg v. California, 283 U.S. 359 (1931)............. 5

Texas v. Johnson, 491 U.S. 397 (1989)........................ 5

Tinker v. Des Moines Indep. Community School

District, 393 U.S. 503 (1969).................................... 5

United States v. O’Brien, 391 U.S. 367 (1968) ............ 5

Virginia v. Black, 538 U.S. 343 (2003)........................ 5

Walker v. Tex. Div., Sons of Confed. Veterans, Inc.,

135 S. Ct. 2239 (2015) ............................................ 11

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ... 8

iv

W. Va. State Board of Education v. Barnette,

319 U.S. 624 (1943) ........................................ 4, 9, 11

Wooley v. Maynard, 430 U.S. 705 (1977) .... 4, 9, 10, 11

Other Authorities

Aleksandr Solzhenitsyn, Live Not by Lies, Wash.

Post, Feb. 18, 1974 ................................................. 10

Aleksandr Solzhenitsyn, The Gulag Archipelago

(1973) ...................................................................... 10

Course Catalogue, French Pastry School,

http://bit.ly/2wjfBQW ............................................ 6-7

Sharon Naylor, Wedding Cake Prices: 20 Ways to

Save Big, Huffington Post........................................ 7

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation dedicated to advancing individual

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies promotes the principles of limited constitutional government that are the foundation of liberty. To those ends,

Cato conducts conferences and publishes books, studies, and the annual Cato Supreme Court Review.

The Committee for Justice (CFJ) is a nonprofit,

nonpartisan organization dedicated to promoting the

rule of law, the Constitution’s limits on the power of

government, and its guarantees of individual liberty

including Americans’ First Amendment right to both

speak freely and be free from coercion to express views

they do not share. CFJ understands that the vitality of

the First Amendment is best measured by the protection it affords to people whose sincere beliefs have been

marginalized by the government, as is the case for

Americans who believe that endorsing same-sex marriage is at odds with their religious faith.

This case concerns amici because it implicates the

First Amendment’s protection against compelled expressive activity, as well as the distinction between

public and private actors. Note that Cato is the only

organization in the entire country to have filed in support of petitioners in both Obergefell v. Hodges, 135 S.

Ct. 2584 (2015), and Masterpiece Cakeshop, Inc. v.

Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

1 Rule 37 statement: All parties lodged blanket consent to the

filing of amicus briefs. No counsel for any party authored any of

this brief; amici alone funded its preparation and submission. All

parties were given timely notice of amici’s intention to file.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case involves the use of state power to coerce

individuals into violating their sincerely held religious

beliefs. The petitioners here, Melissa and Aaron Klein

were forced to close their bakery because they refused

to make a custom cake for a same-sex wedding. Oregon

is applying the full weight of governmental authority

under the mistaken notion that relinquishing First

Amendment rights is the cost of doing business. But

individuals aren’t agents of the state and can’t be

forced to convey messages with which they disagree.

The facts surrounding this case echo the Court’s decision earlier this year in Masterpiece Cakeshop, Inc.

v. Colo. Civil Rights Comm’n, where another baker

had to choose between freely expressing his beliefs and

operating his business. 138 S. Ct. 1719 (2018). The

Kleins owned and operated a cake shop, Sweetcakes

by Melissa, until 2013, when this litigation forced

them to close it. Cert. Pet. at 3. As practicing Christians, the Kleins ran their shop according to the same

values they follow in all other aspects of their lives. Id.

at 4. Celebration of traditional marriage was central

to the spirit and mission of Sweetcakes by Melissa. Id.

The controversy that led to this petition began

when Rachel Cryer asked Aaron Klein to design a custom cake for her wedding to her same-sex partner,

Laurel Bowman. Id. at 5. Two years earlier, the Kleins

had sold the couple—who they knew were gay—a wedding cake for the marriage of Cryer’s mother (to a

man). Id. Because their faith recognizes marriage as

only between a man and a woman, Aaron apologized

and politely told Rachel that they could not accommodate her request. Id. Rachel and her mother left the

3

shop, but Rachel’s mother returned to confront Aaron

about his wife’s beliefs. Id. After a theological debate

in which Aaron quoted Leviticus, Rachel’s mother misquoted Aaron, telling Rachel that he had called her an

abomination. Id. at 5-6. The couple, outraged, filed a

complaint with the Bureau of Labor and Industries

(BOLI) against the Kleins, alleging discrimination

based on their sexual orientation. Id. at 7.

Soon after, BOLI filed charges against the Kleins

for violating Oregon’s public accommodations law. Id.

An administrative law judge (ALJ) granted summary

judgment for BOLI. Id. at 8. He awarded Rachel

$75,000 for “emotional, mental, and physical suffering.” Id. Despite his determination that Laurel’s testimony lacked credibility, the ALJ awarded her $60,000.

Id. In all, the judge determined that the Kleins’ refusal

to abandon their values should cost them $135,000.

The Oregon court of appeals, when reviewing the

ALJ’s ruling, erroneously claimed that baking a wedding cake is not “entitled to the same level of constitutional protection as pure speech or traditional forms of

artistic expression.” Id. at 10. Further, the court misinterpreted expression itself: “the expressive character

of a thing must turn not only on how it is subjectively

perceived by its maker, but also on how it will be perceived and experienced by others.” Id. at 11.

But cake design, like sculpture or painting, is a

form of artistic expression protected by the First

Amendment. Sculpting with fondant is as creative as

sculpting with clay. Painting with buttercream is as

expressive as painting with oils. By mandating that

the Kleins create a custom cake in celebration of a

same-sex wedding, the Oregon court has effectively

4

undermined this Court’s declaration that speech compulsions are just as unconstitutional as speech restrictions. See Wooley v. Maynard, 430 U.S. 705, 715

(1977) (holding that even “the passive act of carrying

the state motto on a license plate . . . . ‘invades the

sphere of intellect and spirit which it is the purpose of

the First Amendment to our Constitution to reserve

from all official control.’”) (quoting W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 642 (1943)).

Wooley also provides an important limiting principle to this constitutional protection: Although wedding

(and other) vendors who produce and sell expressive

works must be free to accept or reject particular jobs,

this right does not apply to those who do not engage in

protected speech. This Court can rule in favor of the

Kleins on free speech grounds without blocking the enforcement of antidiscrimination law against caterers,

hotels, limousine service operators, and the like.

The Oregon court’s decision raises two important

questions: one about the definition of expression itself,

and another about government control over expression. Those concerns were not fully resolved in Masterpiece Cakeshop due to the anti-religious animus of the

enforcement agency, but this case presents the Court

a clean vehicle for addressing these issues.

The Court has an opportunity here to clarify

whether expression such as cake-baking is protected

by the First Amendment. It should also define the limits of state-compelled expression when someone is

forced to participate in ceremonies that violate their

religious beliefs.

5

ARGUMENT

I. Baking Custom Wedding Cakes Constitutes

Artistic Expression That Is Protected by the

First Amendment

This Court has long held that the First Amendment’s protection of free expression encompasses far

more than mere spoken or written word, and in fact

covers a broad range of artistic expression and symbolic activities. See Stromberg v. California, 283 U.S.

359 (1931) (holding that California’s ban on displaying

red flags could not be justified as an attempt to prevent

anarchist or communist violence); Tinker v. Des

Moines Indep. Cmty. Schl. Dist., 393 U.S. 503 (1969)

(protecting the right of high school students to wear

black armbands to protest the Vietnam War); Cohen v.

California, 403 U.S. 15 (1971) (overturning a disturbing-the-peace conviction for wearing a jacket with the

phrase “Fuck the Draft” inside a courthouse); Texas v.

Johnson, 491 U.S. 397 (1989) (holding that laws prohibiting desecration of the American flag violate the

First Amendment); Virginia v. Black, 538 U.S. 343

(2003) (holding that even the racially charged act of

burning a cross, without additional evidence of intent

to intimidate, constitutes protected symbolic speech).2

Art is speech, regardless of whether it actually expresses any important ideas—or even any perceptibly

coherent idea at all. Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston—which upheld

2 Even cases upholding restrictions on symbolic speech, such as

United States v. O’Brien, 391 U.S. 367 (1968) (burning draft

cards) or Erie v. Pap’s A.M., 529 U.S. 277 (2000) (nude erotic dancing), have acknowledged the expressive content of the restricted

speech and merely outlined relatively narrow contexts in which

the state interest can outweigh the First Amendment interest.

6

the right of parade organizers not to allow a gay-rights

group to march because they did not want to endorse

its message—even went so far as to say that the paintsplatter art of Jackson Pollock, atonal music of Arnold

Schoenberg, and nonsense words of Lewis Carroll’s

Jabberwocky poem are “unquestionably shielded” by

the First Amendment. 515 U.S. 557, 569 (1995).

While not all conduct that may arguably contain

expressive content is protected by the First Amendment, see Rumsfeld v. FAIR, 547 U.S. 47, 62 (2004)

(“Compelling a law school that sends scheduling emails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to

pledge allegiance, or forcing a Jehovah’s Witness to

display the motto ‘Live Free or Die,’ and it trivializes

the freedom protected in Barnette and Wooley to suggest that it is.”), custom cake-making fits easily within

the protection described in Hurley and elsewhere.

As the petitioners here argue, cake-baking and design are artistic expression. Cert. Pet. at 12. Numerous

schools throughout the world offer classes focused on

mastering the delicate techniques necessary to shape

cakes into works of art. Some, such as the French Pastry School and the Institute of Culinary Education, offer extensive cake-decorating programs lasting hundreds of hours and teaching everything from specific

techniques for sculpting fondant to academic theories

of color and design. In the French Pastry School’s 16week professional certification program, for example,

students take classes on baking and pastry theory,

cake-baking and construction, and advanced decorating techniques, including “elaborate gumpaste work,

detailed piping techniques, French buttercream frost-

7

ing, making rolled fondant from scratch and rolled fondant cake covering, chocolate decorations specifically

tailored for cakes, pastillage and pressed sugar accents, pulled and blown sugar flowers and ribbons,

mold making methods, airbrushing skills, figurine

modeling and 3-D sculpted cakes.” Course Catalogue,

French Pastry School, http://bit.ly/2wjfBQW.

Those who buy wedding cakes are also keenly

aware of the artistic work that goes into the process—

and are willing to pay for it. In some major cities the

price tag can easily turn out to be over a thousand dollars. Sharon Naylor, Wedding Cake Prices: 20 Ways to

Save Big, Huffington Post, http://bit.ly/2wjy0xg. Customers are willing to pay significant sums not because

a wedding cake’s ingredients are themselves particularly valuable or unique, but because of the vision, creativity, and artistic skill involved. If the purpose of a

wedding cake were simply to feed guests, couples

would all buy sheet cakes at the local supermarket.

Design and artistry are thus central to the value of a

commissioned wedding cake.

Melissa Klein puts a great deal of artistic energy

into creating wedding cakes, and each cake involves an

individualized process. She does not create mere “off

the shelf” wedding cakes. Pet. App. B at 42. Instead,

she meets with each engaged couple and spends hours

sketching and designing a personalized cake, incorporating “the couple’s preferences, styles, and wedding

theme” as a “blueprint for the finished cake.” Cert. Pet.

at 3-4. She forms an artistic vision, fine-tuned for each

set of customers, and creates something special just for

them, to commemorate their wedding day. To deny

that Melissa’s sketches, designs, and completed cakes

are art is to deny the very nature of expression.

8

The Oregon Court of Appeals erroneously reasoned

that public perception is of primary importance in determining whether conduct is expressive, and that “the

Kleins have not raised a nonspeculative possibility

that anyone attending the wedding will impute [the

wedding cake’s celebratory] message to the Kleins.” Id.

at 12. This runs counter to the Court’s decision in Hurley: “A message need not be narrow, or succinctly articulable” to be considered expression. 515 U.S. at

569. If a message does not even need to be articulable,

the public’s perception of the message is irrelevant to

its expressive nature. The Kleins’ art should be defined

by the creativity and thoughtfulness that goes into it,

not by the public’s subjective interpretations.

The Court has a chance here to clarify that expression such as cake-baking is protected under the First

Amendment. In the past, it has identified numerous

forms of art as speech. See, e.g., Ward v. Rock Against

Racism, 491 U.S. 781, 790–91 (1989) (music without

words); Schad v. Borough of Mount Ephraim, 452 U.S.

61, 65–66 (1981) (dance); Se. Promotions Ltd. v. Conrad, 420 U.S. 546, 557–58 (1975) (theater); Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 502–03 (1952)

(movies). Despite the rationales of the Oregon state

court, baking wedding cakes—an explicitly artistic activity—fits in far better with those protected art forms

than, say, a decision not to allow military recruiters at

a law school like in Rumsfeld v. FAIR.

9

II. The Court Must Clarify the Extent to Which

States May Compel People to Participate in

Ceremonies to Which They Object

In addition to defining what exactly qualifies as expression worthy of First Amendment protection, the

second core legal question here is whether the compelled-speech doctrine applies to the refusals of forhire professionals to engage in artistic expression that

they believe would constitute a personal endorsement

of same-sex marriage. The lower court case mistakenly

said that it does not; amicus urges this Court to set the

record straight.

More than 70 years ago, in Barnette, the Court established that people could not be forced to promote a

message they disagree with, even if that message is

saluting the flag or saying the Pledge of Allegiance. “If

there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to

confess by word or act their faith therein.” 319 U.S. at

642 (1943). In other words, when the government endorses a principle, even one as fundamental as patriotism, people cannot be compelled to support or convey

it. The Court has numerous times reaffirmed that the

First Amendment prohibits both compelled speech and

speech restrictions: “The right to speak and the right

to refrain from speaking are complementary components of the broader concept of ‘individual freedom of

mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977)

(quoting Barnette, 319 U.S. at 637).

This understanding of “individual freedom of mind”

makes considerable sense. Democracy and liberty rely

10

on citizens’ ability to preserve their integrity as speakers, thinkers, and creators—their sense that their expression, including the expression that they “foster,”

and the expression for which they act as “courier[s],”

is consistent with their beliefs. Thus, freedom of conscience is perhaps the most precious liberty in a liberal, democratic society. It forms a foundation on

which the dignity of the individual rests.

In the dark days of Soviet repression, Solzhenitsyn

implored his fellow citizens to “live not by lies”: to refuse to endorse speech they believed false. Aleksandr

Solzhenitsyn, Live Not by Lies, Wash. Post, Feb. 18,

1974, at A26. An individual must never “write, sign or

print in any way a single phrase which in his opinion

distorts the truth,” never “take into hand nor raise into

the air a poster or slogan which he does not completely

accept,” and never “depict, foster or broadcast a single

idea which he can see is false or a distortion of the

truth, whether it be in painting, sculpture, photography, technical science or music.” Id. Solzhenitsyn

noted that Soviet domination of conscience extended

even to—and some would say especially to—religion.

As he put it, “You can pray freely. But just so God

alone can hear.” Solzhenitsyn, The Gulag Archipelago

37 (1973) (quoting Tanya Khodkevich, who received

ten years in prison for writing those two sentences).

People whose consciences require them to refuse to

distribute certain messages are constitutionally protected. “[T]he right of freedom of thought protected by

the First Amendment against state action includes

both the right to speak freely and to refrain from

speaking at all.” Wooley, 430 U.S. at 714. In Wooley, a

family objected to having to display the state motto on

11

their state-issued license plates and sought the freedom not to display it. Id. at 707–08, 715. Surely, no

observer would have understood the motto—printed

by the government on government-provided and government-mandated license plates—as the driver’s own

words or sentiments. See Walker v. Tex. Div., Sons of

Confederate Veterans, Inc., 135 S. Ct. 2239, 2253

(2015). Yet the Court nonetheless held for the family.

Wooley, 430 U.S. at 717.

The Court reasoned that a person’s “individual

freedom of mind” protects the “First Amendment right

to avoid becoming the courier” for the communication

of speech that they do not wish to communicate. Id. at

714, 717. People have the “right to decline to foster . .

. concepts” with which they disagree, even when the

government is merely requiring them to display a slogan on a state-issued license plate. Id. at 714.

Even “the passive act of carrying the state motto on

a license plate,” id. at 715, may not be compelled, because such compulsion “‘invades the sphere of intellect

and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official

control.’” Id. (quoting Barnette, 319 U.S. at 642). Forcing drivers to display the motto made them “an instrument for fostering public adherence to an ideological

point of view [they] find[] unacceptable.” Id. This reasoning applies regardless of the slogan’s content. See,

e.g., First Covenant Church v. City of Seattle, 840 P.2d

174, 193 (Wash. 1992) (Utter, J., concurring) (landmarks designation violated church’s “freedom to express [itself] through the architecture of its church facilities”); see also Ortiz v. New Mexico, 749 P.2d 80, 82

(N.M. 1988) (Wooley protects drivers from displaying

the non-ideological slogan “Land of Enchantment”).

12

Likewise, in Hurley, the Court found that a sponsor

of a St. Patrick’s Day parade did not have to include a

group of gay, lesbian, and bisexual Irish-Americans,

disregarding a state public-accommodations law. 515

U.S. 557 (1995). The parade itself was deemed to be “a

form of expression,” and compelled inclusion of the

group would have forced the sponsor to bear a message—that the group’s sexual orientation “merits celebration.” Id. at 568, 574.

If the freedom from being forced to serve as a conduit for objectionable ideas extends to even the sort of

passive act at issue in Wooley, or simple inclusion in

Hurley, it must also apply to the compelled creation of

expressive art at issue here. Forcing the Kleins to create artistry in celebration of same-sex marriage violates core First Amendment rights even more than allowing a group into a parade, or the imposition of a

license plate with a quote hardly anyone could mistake

as the driver’s own personal opinion.

As discussed in Part I, supra, baking cakes—especially for weddings—is an artistic endeavor where individual artists go to painstaking efforts to express

both a celebratory feeling and the unique tastes and

characteristics of the couple getting married. The

Kleins would not only be a conduit of a message in this

context; they would be the creators of that message.

Simply stated, the government here is mandating,

by law, that people produce art that violates their conscience and betrays their faith. This compulsion is just

as unconstitutional as would be a ban on the creation

of art that expresses unpopular opinions. The Kleins

are being forced to participate in ceremonies they disagree with and endorse views they find objectionable—

on the dubious reasoning that only those who agree

13

with the state as to the nature of marriage are entitled

to operate small businesses that help celebrate weddings. The fact that the state of Oregon promulgates

its policy so to combat discrimination against same-sex

couples—a goal amicus freely acknowledges is a noble

one—is irrelevant, because the government cannot

pursue such a goal by violating the First Amendment.

The First Amendment does not allow state governments to compel either the creation or dissemination

of speech. Given that making wedding cakes is a form

of artistic expression protected as strongly as literal

speech, the opinion below is contrary to both the Constitution and this Court’s longstanding precedent.

CONCLUSION

The substantive issues that were at play in Masterpiece Cakeshop remain unsettled. This case provides

an excellent opportunity for the Court to clarify that

people’s First Amendment rights do not disappear

when they open a business. For the foregoing reasons,

and those stated by the petitioners, the Court should

grant the petition for a writ of certiorari.

Respectfully submitted,

Curt Levey

COMMITTEE FOR JUSTICE

1629 K St., N.W.,

Suite 300

Washington, D.C. 20006

(202) 270-7748

clevey@

committeeforjustice.org

November 26, 2018

Ilya Shapiro

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org