Amicus Curiae Brief — Arlene's Flowers, Inc., dba Arlene's Flowers and Gifts, et al., Petitioners v. Washington, et al.

Supreme Court briefOct 15, 2019

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NO. 19-333

IN THE

Supreme Court of the United States

________________________

ARLENE’S FLOWERS, INC., D/B/A ARLENE’S

FLOWERS AND GIFTS, AND BARRONELLE

STUTZMAN,

Petitioners,

STATE OF WASHINGTON;

ROBERT INGERSOLL AND CURT FREED,

Respondents.

_________________

On Petition for Writ of Certiorari to the

Supreme Court of Washington

_________________

BRIEF OF CENTER FOR RELIGIOUS

EXPRESSION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

_________________

NATHAN W. KELLUM

Counsel of Record

CENTER FOR RELIGIOUS

EXPRESSION

699 Oakleaf Office Lane

Suite 107

Memphis, TN 38117

(901) 684-5485

nkellum@crelaw.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION

AND

SUMMARY

ARGUMENT ............................................................... 1

ARGUMENT ............................................................... 4

I. Following Masterpiece Cakeshop, Conflict

in Authority Persists on Whether the First

Amendment Prevents Non-Discrimination

and Public Accommodation Laws from

Compelling Expressive Works ......................... 4

A. Courts in New Mexico, Oregon, as well as

Washington,

Reject

Free

Speech

Protections for Business Operations when

Non-Discrimination

Public

Accommodations Laws are Invoked.............. 6

B. The Eighth Circuit, Arizona, and

Kentucky (to Some Degree) Support Free

Speech

Protections

for

Business

Operations when Non-Discrimination or

Public

Accommodations

Laws

are

Invoked......................................................... 15

II. This Case Presents an Ideal Vehicle for

this Court to Resolve the Ongoing Conflict ... 25

CONCLUSION .......................................................... 27

TABLE OF AUTHORITIES

Brush & Nib Studio, LC v. City of Phoenix,

418 P.3d 426 (Ariz. Ct. App. 2018)....................... 20

Brush & Nib Studio, LC,

No. CV-18-0176-PR, 2019 WL 4400328

(Ariz. Sept. 16, 2019) ...................................... 20, 21

Elane Photography, LLC v. Willock,

309 P.3d 53 (N.M. 2013) ................................ passim

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Boston, 515 U.S. 557 (1995) .............. passim

Klein v. Oregon Bureau of Labor & Indus.,

139 S. Ct. 2713 (2019) .......................................... 11

Klein v. Oregon Bureau of Labor & Indus.,

410 P.3d 1051 (2017) ................................ 11, 12, 21

Lexington Fayette Urban Cty. Human Rights

Comm’n v. Hands on Originals, Inc.,

No. 2015-CA-000745-MR, 2017 WL 2211381

(Ky. Ct. App. May 12, 2017) ........................... 23, 24

Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Commission, 138 S.Ct. 1719 (2018) .. passim

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974) .................................... 8, 17, 21

iii

Obergefell v. Hodges,

135 S.Ct. 2584 (2015) ................................... 1, 2, 12

Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n of

California, 475 U.S. 1 (1986) ........................... 9, 21

State v. Arlene's Flowers, Inc.,

441 P.3d 1203 (2019) ...................................... 14, 15

Telescope Media Grp. v. Lindsey,

271 F.Supp.3d 1090 (D. Minn. 2017) ................... 17

Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019) .................... 16, 17, 18

United States v. O'Brien,

391 U.S. 367 (1968) ........................................ 12, 17

W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .......................................... 8, 11

Wooley v. Maynard,

430 U.S. 705 (1977) .......................................... 8, 11

INTEREST OF AMICUS CURIAE

Amicus curiae Center for Religious Expression

(“CRE”) is a non-profit legal organization dedicated

to protecting religious expression, a fundamental

right that encompasses the freedom not to speak as

well as the freedom to speak, in accordance with

sincerely-held beliefs. 1 Since forming in 2012, CRE

has represented individuals and entities in various

courts in different parts of the country to defend

these liberties. The amicus has a significant interest

in this case due its conviction that no creative

professional should be forced by the government to

create and articulate a message she does not wish to

convey.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In Obergefell v. Hodges, this Court held samesex couples have a fundamental right to marry

“inherent in the concept of individual autonomy.” 2.

To allay fears about the ruling doing harm to

religious liberty, Justice Kennedy, on behalf of the

majority, stressed “that religions, and those who

adhere to religious doctrines, may continue to

In compliance with Supreme Court Rule 37.6, counsel for

amicus curiae represents that he authored this brief in its

entirety and neither the parties, nor their counsel, nor anyone

other than amicus and amicus counsel, made a monetary

contribution to fund the preparation or submission of this brief.

Also, pursuant to Supreme Court Rule 37.2, counsel for amicus

curiae represents that he received requisite timely consent

from counsel of record of all parties to file this brief.

135 S.Ct. 2584, 2599 (2015).

advocate with the upmost, sincere conviction that, by

divine precepts, same-sex marriage should not be

condoned.” 3 And, in recognizing some could oppose

same-sex marriage for other reasons as well, the

Court noted the inherent value of civil

“disagree[ment]” and continuing an “open and

searching debate” on this important social issue. 4

Notwithstanding this noble sentiment, the

Obergefell decision unwittingly pit the newlyarticulated sexual liberty against free speech and

free exercise of religion liberties. Proponents of

same-sex marriage presumed the right to marry

brings with it an attendant right to have others

contribute to the wedding ceremony. Shortly after

Obergefell, and even in anticipation of it, many

states and municipal authorities aggressively

applied

non-discrimination

and

public

accommodation laws to wedding vendors who sought

to avoid participation in same-sex wedding events,

effectively cutting short any “open and searching

debate” on the propriety of same-sex marriage,

demanding full and immediate agreement on the

matter.

Consequently, many creative professionals 5,

like Barronelle Stutzman, find themselves in the

Id. at 2607.

Id.

5 The term “creative professionals,” as used herein, refers to

those individuals who make a living through their expressive

creations. Whereas many occupations have some expressive

component to them, the occupations of “creative professionals”

are expressive in nature.

crosshairs of a political cause. Sincere individuals

who would rather not lend their creative talents to

an event they cannot condone as a matter of

conscience – choosing to turn down such jobs – are

facing criminal investigations, sanctions, fines, and

imprisonment. They are given a Hobson’s choice:

either forego their beliefs or their livelihood, because

they cannot have both.

The compelled expression in this context has

led to a substantial amount of litigation in the state

and federal court systems, with many cases going to

the highest appellate levels. This Court’s first

opportunity to address the question was last year in

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Commission, involving the forced speech of cake

artist Jack Phillips. 6 But the religious animus

exhibited by the state was so egregious and blatant,

this Court could hardly get past it, and did not rule

on the core free speech issue. 7

Without any binding precedent to follow,

lower courts have struggled to reconcile the

competing interests at stake. They have taken

divergent approaches to the issue, drawn opposite

conclusions, and have left no discernable path for a

consensus.

Amid this jurisprudential disarray, amicus

urges this Court to supply the requisite guidance.

Artistic expression, whether it involves the act of

crafting a wedding invitation, taking a photograph,

138 S.Ct. 1719 (2018).

Id. at 1723-24.

preparing an original cake, or designing a floral

arrangement,

constitutionally

protected

expression and should be treated that way. Such

expression should not be coerced just as it should not

be silenced. And though the same-sex wedding

context is currently the most pressing concern, it is

not so limited. All kinds of creative professionals

stand to suffer from undue compulsion unless and

until this Court weighs in on the matter.

Barronelle Stutzman’s petition presents this

Court with a perfect opportunity to uphold the

constitutional rights of creative professionals. We

respectfully ask this Court to take advantage.

ARGUMENT

Following Masterpiece Cakeshop, Conflict

in Authority Persists on Whether the First

Amendment Prevents Non-Discrimination

and Public Accommodation Laws from

Compelling Expressive Works

In Masterpiece Cakeshop,

this Court

considered the plight of a cake artist Jack Phillips

who declined to create an original wedding cake for a

same-sex union and found himself sued by the

State. 8 Phillips claimed a constitutional right to

decline the request. 9

On the other hand, the

Colorado Civil Rights Commission and ACLU urged

the rights of the same-sex couple to have a wedding

cake made for them by a baker who regularly bakes

138 S.Ct. at 1724, 1726.

Id. at 1726.

cakes for a living. 10 The free speech issue was

whether a custom-designed cake qualified as

protected speech that could not be compelled by

government’s application of a public accommodations

law. 11

At the outset of the Opinion, the Court

highlighted the tension between free expression

rights and the potential threat of community-wide

stigma against LGBTQ+ persons should the

constitutional argument stretch too far. 12 The Court

also mentioned difficulty in determining the

circumstances in which the making of a product

becomes speech. 13 But in lieu of tackling these

issues, the Court set them aside for another day,

ultimately ruling in favor of Phillips on the free

exercise question, finding a lack of religious

neutrality. 14

In a concurrence, Justice Thomas, joined by

Justice Gorsuch, wrote separately to address the free

speech claim, considering the issue too critical to

ignore. 15 These two justices opined that the free

speech claim supplied an independent basis for

ruling in favor of Phillips. 16 They explained the

First Amendment considers activity intended and

reasonably understood as communicative as

Id. at 1725-26.

Id. at 1726, 1728.

Id. at 1727.

Id. at 1723.

Id. at 1723-24.

Id. at 1740 (Thomas, J., concurring).

Id. at 1748.

protected speech – even if a “particularized message”

is not discernable. 17 The justices also reminded that

this Court has never held speech can lose its

expressive import just because it involves

compliance with an accommodations law. 18 And,

they warned the issue would persist without final

say-so from the Court. 19

The concurrence’s concerns were warranted.

In the absence of a definitive ruling in Masterpiece

Cakeshop, the compelled speech issue has endured,

and festered, with a growing, steady stream of

conflicting and fractured opinions from state and

federal courts regarding whether, and to what

degree, the First Amendment can curb the

compulsion of creating expressive works under nondiscrimination and public accommodation laws.

Every filing invoking the issue only serves to deepen

the divide.

A. Courts in New Mexico, Oregon, as well as

Washington,

Reject

Free

Speech

Protections for Business Operations

when Non-Discrimination or Public

Accommodations Laws are Invoked

New Mexico: Elaine Huguenin

Elaine Huguenin is a professing Christian

who once ran a small photography business in New

Id. at 1742.

Id. at 1744-45.

Id. at 1748.

Mexico. 20 For Huguenin, photography was more

than aim and shoot; she liked to tell stories through

her craft. 21 But because of her faith, she could not,

in good conscience, take photographs telling the

story of same-sex unions. 22 She had no problem

photographing anyone falling under LGBTQ+

categories, and would gladly serve such customers

for other reasons, like a portrait photograph, for

instance. 23 She could not photograph events sending

a message promoting a same-sex civil union – for

anyone, including heterosexuals. 24

One day, Huguenin was contacted by Vanessa

Willock who asked Huguenin to photograph a samesex ceremony for her. 25 Huguenin declined, politely

informing that she could not photograph such events

due to her religious beliefs. 26 Dissatisfied with this

response, Willock filed a discrimination claim

against Huguenin, which worked its way to the New

Mexico Supreme Court. 27

New Mexico’s highest court held the refusal to

photograph a same-sex ceremony was invalid

discrimination against sexual orientation. 28

holding, the court discarded Huguenin’s free speech

Elane Photography, LLC v. Willock, 309 P.3d 53, 78 (N.M.

2013).

Id. at 63, 70.

Id. at 78.

Id. at 61.

Id.

Id. at 59.

Id. at 60.

Id.

Id. at 61-62.

rights, reasoning that because her photography was

for-hire, and part of business activity, it did not

classify as speech meriting First Amendment

protection. 29

The court reckoned that “[w]hile

photography may be expressive, the operation of a

photography business is not.” 30 A concurrence to the

decision added that the sacrifice of her conscience

was no more than “the price of citizenship.” 31

The court drew a number of deductions in

support of this holding. It concluded that general

compelled speech jurisprudence does not apply when

the law’s intent is to prevent discrimination in

business (as opposed to furthering the government’s

message), distinguishing W. Virginia State Bd. of

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

Maynard, 430 U.S. 705 (1977) on this basis. 32

Turning to whether the law impermissibly compelled

Huguenin to speak a third party’s message, the court

also held the protections outlined in Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Boston, 515

U.S. 557 (1995), did not apply to for-profit entities. 33

The state court determined that protection from

compelled inclusion of another’s message only

applies when the business creates messages

independent of their speech-for-hire, and thus, this

Court’s rulings in Miami Herald Publ’g Co. v.

Tornillo, 418 U.S. 241 (1974) and Pac. Gas & Elec.

Co. v. Pub. Utilities Comm’n of California, 475 U.S. 1

Id. at 68.

Id.

Id. at 80 (Bosson, J., concurring).

Id. at 64-65.

Id. at 65-66.

(1986) did not factor in either. 34 Further, the court

questioned whether the messaging through

photographs could be attributed to the photographer,

Huguenin, given that her photography services were

available for-hire to the public. 35

Essentially, in New Mexico, it’s all about the

money. The doctrine against compelled speech does

not apply to a for-profit public accommodation –

regardless of the expressive nature of the product or

service. The nature of a business as a business

categorically exempts otherwise expressive products

or services from being considered speech entitled to

First Amendment protection. And, as a result,

creative professionals may be compelled to create art

promoting objectionable messages about sexuality or

presumably, anything else, by virtue of their offering

services to the public for-profit.

Oregon: Melissa Klein

Melissa Klein is also a Christian, whose

artistic talent for designing and decorating cakes led

her to open a bakery called “Sweet Cakes by

Melissa.” 36

Much like Jack Phillips in the

Masterpiece Cakeshop case, Klein’s cake design and

decoration is an artistic endeavor, intended to create

Id. at 66-67.

Id. at 68-70.

36 Excerpts of Record to Pet’r’s Opening Brief, 373-76, ¶ 2, 3, 56. Klein v. Or. Bureau of Labor and Indus., CA A159899 (Or.

Ct. App. Apr. 25, 2016), available at https://firstliberty.org/wpcontent/uploads/2017/02/SM16-04-25-Klein-Opening-brief-andER-FILE-STAMPED-COPY.pdf.

edible art with a message promoting and celebrating

the event for which the cake is made. 37 Conducting

her business, she gladly served anyone, regardless of

sexual or gender status. 38 But her religious faith

limited the messages she could commemorate via

cake designs. 39 And, on this basis, she refused to

create original cakes celebrating divorce, or

containing profanity. 40

In early 2013, a customer for whom Klein had

previously designed a wedding cake requested Sweet

Cakes design a cake, this time, for a same-sex

wedding. 41 Her husband (Aaron) declined because it

would require them to artistically promote same-sex

marriage through a wedding cake, in conflict with

their faith. 42 As a result, the bride-to-be filed a

complaint with the State of Oregon’s Bureau of

Labor and Industries (BOLI), alleging sexual

orientation discrimination. And, in finding the

Kleins guilty, BOLI imposed a fine of $135,000 and

prohibited them from mentioning their desire to run

their business according to their faith. 43 Klein was

forced to shut down the Sweet Cakes business. 44

37 Id. at 374-76, ¶¶ 3, 6.

38 Id. at 376-77, ¶ 7.

39 Id. at 373-76, ¶¶ 2, 4, 6.

40 Id. at 376, ¶ 6.

41 Id. at 368-69, ¶¶ 7-8.

42 Id. at 369, ¶ 8.

43 Id. at 46-47.

44 Id. at 377, ¶ 9.

Klein contested the judgment, but the Oregon

Court of Appeals ruled against her in 2017.45

Following the Oregon Supreme Court’s denial of

review, Klein petitioned to this Court, which

vacated and remanded to the Oregon Court of

Appeals to reconsider in light of the Masterpiece

Cakeshop ruling. 46 The parties have since submitted

supplemental briefing to the court of appeals

addressing the issue of religious hostility and await

ruling. However, foreshadowing the outcome, the

state court has already rejected Klein’s compelled

speech arguments. 47

The Court of Appeals conceived that Hurley

and the protection it affords against compelled

speech are not relevant, applying only to the

“peculiar” situation where anti-discrimination law

was applied to what it perceived as an abnormal

activity (there a parade), not to an undisputed public

accommodation like Klein’s business. 48

Like New Mexico, the Oregon Court of

Appeals distinguished Barnette and Wooley because

the message compelled was not that of the

government’s. 49 But, in recognizing that Klein’s

cake design was expressive and being compelled, the

Klein v. Oregon Bureau of Labor & Indus., 410 P.3d 1051,

1068 (Or. Ct. App. 2017).

Klein v. Oregon Bureau of Labor & Indus., 139 S. Ct. 2713

(2019).

Klein v. Oregon Bureau of Labor & Indus., 410 P.3d at 52543.

Id. at 1068

Id. at 1067-68.

court considered what standard of scrutiny applied. 50

It concluded that, although regulation of “pure

speech” (which it exemplified as “sculptures,”

“paintings”

and

other

media

“experienced

predominantly as expression”)

requires strict

scrutiny, regulation of Klein’s cakes did not,

believing the activity was part expressive and part

conduct, warranting the lesser scrutiny specified in

United States v. O'Brien, 391 U.S. 367 (1968). 51 The

court suggested that strict scrutiny might apply if

Klein had declined to author a particular message on

the cake requested. 52 As it was, applying the

O’Brien scrutiny, the court held the compulsion was

justified to prevent the dignitary harms to same-sex

couples identified by this Court in Obergefell. 53

Akin to New Mexico, in Oregon, if cake artists

and other creative professionals refuse to create and

sale artwork due to a disagreement with an implicit

celebratory message, they are unable to claim First

Amendment protection.

Washington: Barronelle Stutzman

Barronelle Stutzman is a floral design artist

and owner of Arlene’s Flowers, a flower shop in

Washington state. 54 Analogous to photography and

cake artistry, floral design is an art form in the

wedding industry, requiring skill and artistic

Id. at 1069-70.

Id. at 1069-71.

Id. at 1072.

Id. at 1073-74.

Pet’r’s App. to Pet. for Cert. at 376a.

judgment, as the florist selects flowers of a

particular type and color to generate the mood and

message of the event for which they are chosen. 55

Learning this skill from her mother at a young age,

Stutzman has honed floral artistry and personal

style in plying her trade over the years. 56 And with

wedding floral arrangements in particular, she uses

a significant degree of artistic talent and judgment,

contemplating an original arrangement of flowers

that celebrates a specific union in a unique way. 57

Stutzman is a Christian as well, whose

religious beliefs inform her that she must honor God

with every decision she makes, including how to best

operate her business. 58 Her religiously-based belief

that marriage is between one man and one woman

prohibits her from participating in same-sex

weddings, especially through her artistic floral

design talents. 59 Her faith also informs that she is

to love and respect her neighbor, and so mindful, she

has gladly employed and served anyone regardless of

race, religion, sex, or sexual orientation. 60

One such example of Stutzman’s service is

Respondent Rob Ingersoll, and her care for him for

nine years, with full knowledge that he is gay and in

a same-sex relationship with Respondent Curt

Id. at 377a-378a.

Id. at 376a-378a.

Id. a t 380a-385a.

Id. at 376a.

Id. at 387a.

Id. at 379a-380a, 386a.

Freed. 61 But when Ingersoll asked Stutzman to

create arrangements for his wedding, she could

participate in the event because of her faith and

candidly advised him of her concern (in lieu of

making up some other reason). 62 She remained

willing to provide custom arrangements to Ingersoll

or anyone else for other events, and to provide raw

materials, even if they were to be used for same-sex

weddings, but she could not – as a matter of

conscience – create floral art for the event herself. 63

Nevertheless, the Washington Supreme Court

mandates

Stutzman

create

custom

floral

arrangements for same-sex weddings or face dire

consequences. 64 Refusal to provide custom floral

arrangement celebrating a same-sex wedding is

deemed discrimination on the basis of sexual

The court opined that

orientation status. 65

Stutzman’s artistic custom floral arrangements did

not qualify as speech on the notion that the activity

is “not ‘speech’ in a literal sense [it] is thus properly

characterized as conduct” 66 and Stutzman’s

“conduct”

was

not

sufficiently

“inherently

expressive” to qualify as expression. Agreeing with

the rationale of Elane Photography, the court also

held Hurley protections did not apply because

Id. at 385a-386a.

Id. at 386a-389a

Id. at 389a-390a.

State v. Arlene's Flowers, Inc., 441 P.3d 1203, 1224, 1237

(2019).

Id. at 1221-22.

Id. at 1225. One wonders whether non-verbal abstract

paintings could qualify as speech under this rubric.

Id. at 1226.

Stutzman’s business is an ordinary public

accommodation. 68

Hence, the court held that

Washington’s compulsion of Stutzman’s custom

floral arrangements did not implicate any degree of

free speech scrutiny. 69

Like Oregon, Washington state presumes

business activity with expressive services does not

amount to speech entitled to protection. And like

New Mexico, the focus of the analysis was on the

context of a business, belittling the expressive and

artistic nature of the products and services.

In New Mexico, Oregon, and Washington

State, creative professionals are compelled to

produce art even though it promotes disagreeable

ideas. These states have all but decided that

compelled speech protections do not exist when

requiring for-profit businesses to comply with nondiscrimination or public accommodation laws.

B. The Eighth Circuit, Arizona, and

Kentucky (to Some Degree) Support Free

Speech

Protections

for

Business

Operations when Non-Discrimination or

Public

Accommodations

Laws

are

Invoked

Eighth Circuit: Carl Larsen and Angel Larsen

Carl and Angel Larsen are Christians who put

their faith and conviction about marriage at the

Id. at 1226-27.

Id. at 1228.

center of their lives. 70 Concerned by the current

cultural narrative about marriage, they feel

religiously compelled to advocate for a biblicallybased view of marriage through their video and film

production company, Telescope Media Group. 71

Through their films, the Larsens seek to honor Jesus

Christ by telling video stories extolling the values of

traditional marriage. 72

But, in applying state law, Minnesota officials

have publicly declared that creative professionals

like the Larsens who decline to promote same-sex

marriage will be punished. 73 To wit, if the Larsens

produce a film celebrating a traditional marriage,

they must make films celebrating same-sex

marriages, or face civil fines, treble damages,

punitive damages up to $25,000 per year, and up to

90 days in jail. 74 In fact, in making such films,

Minnesota commanded filmmakers to “depict sameand opposite-sex weddings in an equally ‘positive’

light.” 75

Fearing sanctions, the Larsens filed a lawsuit

in federal court to regain their free speech rights.

Subjecting the law to intermediate scrutiny, the

district court held that the restriction was justified

to prevent discrimination and the stigma associated

70 Verified Compl., ¶¶ 72-74, Telescope Media Group v. Lindsey,

No. 16-cv-04094 (D. Minn. filed December 6, 2016), ECF No. 1.

71 Id. at ¶¶ 1, 113-16, 122, 237-240.

72 Id. at ¶¶ 83, 87-88, 93, 122-25.

73 Id. at ¶¶ 60-65.

74 Id. at ¶¶ 12-14, 157, 161-63.

Telescope Media Grp. v. Lucero, 936 F.3d 740, 748-49 (8th

Cir. 2019).

with it, and therefore dismissed the Larsens free

speech claims. 76

However, by a 2-1 decision, the U.S. Court of

Appeals for the Eighth Circuit reversed. 77 The

appellate court held that the Larson’s creation of

wedding films is inherently speech, involving artistic

talent and editorial judgment, and that their

operation as a for-profit business makes it no less

so. 78 The court rejected Minnesota’s argument that

regulating Larsen’s expression was mere conduct,

explaining that “what matters” is that the ultimate

product, videos, are “medi[a] for the communication

of ideas.” 79 The court also rejected Minnesota’s

argument that the O’Brien standard scrutiny applied

based on the mixture of speech and non-speech

elements. 80

The Eighth Circuit further recognized

Minnesota’s application of the law as compelled

speech under Hurley and Tornillo, forcing the

Larsens to create films as “positive” about same-sex

marriage as opposite-sex marriage. 81 The court

therefore applied strict scrutiny, finding the law’s

application unconstitutional, commenting that as

important as anti-discrimination laws are, they

cannot effectively “‘declar[e] [another’s] speech itself

Telescope Media Grp. v. Lindsey, 271 F.Supp.3d 1090, 111516, 1128 (D. Minn. 2017).

Telescope Media Grp., 936 F.3d at 747.

Id. at 750-51.

Id. at 752 (citation omitted).

Id. at 756-57.

Id. at 752-54.

to be [a] public accommodation’ or grant ‘protected

individuals ... the right to participate in [another’s]

speech,’” as Minnesota was doing. 82

The Eighth Circuit, as reflected here with the

Larsens, centers on the expressive nature of the

product or service itself, unconcerned that such

speech is conveyed through the services of a forprofit business. Accordingly, creative professionals

in this circuit are assured that their artistic

endeavors are valued and strongly protected against

compelled speech, regardless of whether they

expressed in the conduct of commercial enterprise.

Arizona: Joanna Duka & Breanna Koski

Christians Joanna Duka and Breanna Koski

create and sell art together as part of a for-profit

business they call Brush & Nib Studio. 83 Using their

God-given talents in calligraphy and hand-painting,

they create custom artwork (in the form of

invitations, décor, and more) designed to celebrate

the particular wedding or other special event for

The process is

which they are tasked. 84

collaborative, involving Duka and Koski consulting

Id. at 754-56 (quoting Hurley, 515 U.S. at 572-73) (alteration

in Telescope Media Grp.).

83 Second Am. Verified Compl., ¶¶ 10-15, Brush & Nib Studio,

LC v. City of Phoenix, No. CV2016-052251 (Super. Ct. Ariz.

Filed

September

2016),

available

https://adflegal.blob.core.windows.net/mainsitenew/docs/default-source/documents/legal-documents/brush-nibstudio-v.-city-of-phoenix/brush-nib-studio-v-city-of-phoenix--second-amended-verified-complaint.pdf?sfvrsn=921d31be_4.

84 Id. at ¶¶ 11, 16, 26.

with clients and each other, and exercising artistic

judgment to determine the colors, tone, and style

that best commemorate the event. 85

Their commercial efforts in creating these

products are informed by scripture in the bible. 86

Specifically, their religious beliefs define the

standards of goodness, truth, and beauty they

employ in their artwork. 87 And, their biblicallygrounded belief that marriage is the union between

one man and one woman directs the content and

motifs they use in creating wedding-related artwork,

like wedding invitations. 88 Though they gladly serve

any person, there are messages Duka and Koski are

unwilling to produce in their custom art, including

that which would promote same-sex weddings. 89

Duka’s and Koski’s convictions about

marriage placed them at odds with a Phoenix law

requiring them to promote a view of marriage

contrary to their religious beliefs. 90 Their refusal to

literally paint same-sex marriage in the same

positive light as opposite-sex marriage subjects them

to fines of up to $2,500 and up to six months in jail,

for every day they would be out of compliance with

the law. 91

85 Id. at ¶¶ 19-25, 32-44.

86 Id. at ¶¶ 59-60, 67-69.

87 Id. at ¶¶ 61-63.

88 Id. at ¶¶ 67, 128.

Id. at ¶¶ 67, 69-70, 76-78.

90 Id. at ¶¶ 99-100, 111.

91 Id. at ¶ 109.

Left with no other recourse, Duka and Koski

filed a lawsuit to enjoin the law, but the Arizona

trial court and the court of appeals both ruled

against them, holding that, despite the obviously

expressive nature of writing and painting words,

“their creation of design-to-order merchandise” was

mere conduct that could be compelled to prevent

stigma to same-sex couples. 92

In a 4-3 decision, the Arizona Supreme Court

reversed. 93 The court confirmed that Duka’s and

Koski’s custom wedding invitations, as well as the

process of creating them, constitute pure speech, and

are not conduct, though the custom works are sold

for-profit. 94 The court rejected the argument that

Duka’s and Koski’s custom artwork was not their

speech on account of the public’s inability to discern

an articulable message, observing that an articulable

message is not necessary for pure speech, especially

artwork. 95 The court likewise rejected the argument

that Duka’s and Koski’s decision not to create

artwork promoting same-sex weddings was

discriminatory conduct based on its impact on samesex couples. 96

Relying on Hurley, the Arizona Supreme

Court held that the application of Phoenix’s law to

Brush & Nib Studio, LC v. City of Phoenix, 418 P.3d 426, 439

(Ariz. Ct. App. 2018).

Brush & Nib Studio, LC, No. CV-18-0176-PR, 2019 WL

4400328, at *33 (Ariz. Sept. 16, 2019).

Id. at *13-*19.

Id. at *12-*13, *18.

Id. at *17.

compel speech necessarily turned on the content of

speech, because it “compels them to write

celebratory messages with which they disagree, such

as ‘come celebrate the wedding of Jim and Jim.’” 97

The court held the compulsion of speech could not

satisfy this standard, considering that a regulation

of speech is not narrowly tailored to an ordinance

designed to regulate conduct. 98 The court rejected

the argument that Hurley did not apply to for-profit

public accommodations, noting the core principle

was autonomy of speech, not speaker identity, as

shown in this Court’s decisions in Tornillo and Pac.

Gas & Elec. Co.. 99

Addressing how other courts have ruled in

similar cases, the court explicitly rejected the

rationale of Elane Photography. 100 The court also

distinguished Washington’s reasoning in this case as

well as that espoused in the Klein case on the basis

that they “arguably implicated the expressive

conduct doctrine” because they involved cakes and

floral arrangements rather than words and

paintings. 101

Like the Eighth Circuit, Arizona rejected the

notion that the for-profit sale of products and

services necessarily renders them “conduct” or

anything less than pure speech, subject to full

protection against compulsion. This led Arizona to

Id. at 20.

Id. at *21-*22.

Id. at *21.

100

Id. at 22-23.

101

Id. at *23.

recognize that the use of non-discrimination laws to

compel the creation of pure speech compels the

content of speech itself. Even so, it is uncertain as to

what degree non-verbal artistic endeavors (like

Stutzman’s) are protected from compulsion in

Arizona.

Kentucky: Blaine Adamson

Blaine Adamson is a Christian too, as well as

the managing owner of Hands-On Originals, a

printing company in Lexington, Kentucky. 102

Adamson’s work involves graphic design of words

and images printed on shirts and other promotional

materials, employing a certain degree of artistic

talent to promote particular messages. 103 Adamson’s

faith drives him to conduct his life – including his

business – in a way that honors God, making him

accountable to God for the messages he prints. 104 He

is willing to serve any customer, but his faith does

not permit him to print certain messages. 105

In March of 2012, Adamson was asked to print

shirts promoting the annual pride festival hosted by

the Gay and Lesbian Services Organization

102 Affidavit of Blaine Adamson, ¶¶ 2-3, 15, Lexington-Fayette

Urban County Human Rights Commission v. Hands On

Originals, Inc., HRC No. 03-12-3135, (Apr. 9, 2014), available

https://adflegal.blob.core.windows.net/web-contentdev/docs/default-source/documents/case-documents/baker-v.hands-on-originals/affidavit-in-support-of-summaryjudgment.pdf?sfvrsn=6.

103 Id. at ¶¶ 6-11.

104 Id. at ¶¶ 15-18, 26-27.

105 Id. at ¶¶ 30, 33, 49-50.

(“GLSO”). 106 Adamson declined the job because he

could not promote the message specified on the shirt

and the message of the event generally. 107 Adamson

offered to refer GLSO to another printer but they

were not interested and soon filed a complaint of

sexual orientation discrimination against Adamson

with the county Human Rights Commission. 108

Finding Adamson guilty, the Commission ordered

him to print the message on shirts for GLSO against

his will. 109

Adamson appealed this decision, and

Kentucky courts have so far ruled in Adamson’s

favor, with the court of appeals being the most

recent to rule on the issue. 110

The court of appeals’ decision, however, was

badly fractured, with each of the three judges filing a

separate opinion, leaving some ambiguity as to

where exactly the law lies in Kentucky. Though

Chief Judge Kramer occasionally mentioned certain

principles

that

echoed

compelled

speech

106 Id. at ¶¶ 34, 38, 43-44.

107 Id. at ¶¶ 43-44.

108 Id. at ¶ 47.

109 Lexington-Fayette Urban County Human Rights Commission

v. Hands On Originals, Inc., HRC No. 03-12-3135, at 16 (Oct. 6,

2014), available at https://adflegal.blob.core.windows.net/webcontent-dev/docs/default-source/documents/casedocuments/baker-v.-hands-on-originals/hands-on-originals-vlexington-fayette-urban-county-human-rights-commission--hearing-examiner-s-recommended-ruling.pdf?sfvrsn=14.

110

Lexington Fayette Urban Cty. Human Rights Comm’n v.

Hands on Originals, Inc., No. 2015-CA-000745-MR, 2017 WL

2211381, at *6-7 (Ky. Ct. App. May 12, 2017).

jurisprudence, his opinion relied primarily on

statutory interpretation, reasoning that Adamson

did not violate the law on the premise that

discrimination against a particular message is not

discrimination against any person, under the

ordinance. 111 As such, his opinion did not make

clear whether an application would violate free

speech. 112 Judge Lambert, by contrast, held that

application of the law to Adamson’s decision would

violate the Free Exercise clause and federal and

state religious freedom restoration acts. 113 And

Judge Taylor, in dissent, rejected Adamson’s free

speech and free exercise claims, arguing that

refusing to print shirts that promote an LGBTQ+

pride festival is necessarily discrimination against

LGBTQ+ persons. 114

Following the appellate decision, the

Kentucky Supreme Court accepted review of the

case, and a decision is pending. So, although

Kentucky’s current rationale, as reflected by the

intermediary appellate court, is harmonious with the

principles confirmed by the Eighth Circuit and

Arizona, it is unclear how Kentucky courts will

ultimately rule on the free speech argument, and to

what degree speech by creative professionals will be

protected.

This case, like all others dealing with this hot

topic, demonstrate that the Court’s involvement is

Id. at *5-*7.

Id.

113

Id. at *8 (Lambert, J., concurring).

114

Id. at *9-*10.

111

112

necessary to resolve the continual conflict

implicating crucial First Amendment rights. 115

II.

This Case Presents an Ideal Vehicle for

this Court to Resolve the Ongoing Conflict

In light of diametrically opposed opinions and

resultant uncertainty as to whether and to what

degree the First Amendment protects expressive

works from compulsion under non-discrimination

and public accommodation laws, Barronelle

Stutzman’s case presents an ideal vehicle for this

115

Aside from the conflicts demonstrated in published

decisions, the lack of clarity on the issues causes lingering

problems for creative professionals. Indeed, not even Jack

Phillips – despite the Supreme Court victory he obtained in

Masterpiece Cakeshop – can avoid difficulty. His ordeal is far

from over. On June 26, 2017, the day this Court granted

certiorari in Phillips’ prior case, transgender attorney Autumn

Scardina called Phillips and Masterpiece Cakeshop and asked

them to make a transition celebration cake, specifically

required to be blue on the outside and pink on the inside to

mark Scardina’s male to female gender transition. Compl., ¶¶

13-19, Autumn Scardina v. Masterpiece Cakeshop, Inc., No.

2019CV32214 (Dist. Ct. Colo. Filed June 5, 2019), available at

http://www.adfmedia.org/files/MasterpieceScardinaComplaint.p

df. Because Phillips declined to make this particular cake, once

again, due to his religious beliefs, Scardina filed charges with

the Colorado Civil Rights Commission, which brought new

charges against Phillips about 3 weeks after this Court ruled in

Phillips’ favor. Id. at ¶¶ 20, 23-25. The Commission eventually

agreed to drop the charges. Id. at 28-29. But, Scardina then

filed suit against Phillips, alleging that Phillips’ refusal to

custom-design a cake that is specially designed to send a

message celebratory of a gender transition constitutes illegal

discrimination based on transgender status. Id. at 1-4. This

case is still ongoing.

Court to step in and clean up the mess, providing

sorely-needed guidance on a multitude of issues.

Specifically, this petition, should the Court

accept it, would give opportunity to clarify whether,

and under what circumstances, a creative

professional’s

for-profit

creation

custom

commissioned works constitutes protected speech.

In making this determination, the courts have

employed differing criteria with various conclusions.

Courts have considered whether the business

activity constitutes “pure speech” (Eighth Circuit,

Arizona, and presumably Kentucky), expressive

conduct (Oregon), or pure conduct (New Mexico and

Washington). In making this determination, they

also have varied opinions on the proper focus,

whether it be the operation of the business as a forprofit entity (New Mexico, Oregon, and Washington)

or the nature of the product or service (Eighth

Circuit, Arizona, and Kentucky).

The courts have additionally considered, and

come to sundry conclusions about, whether the

activity must convey an articulable message, and

whose message is really at issue (the artist’s or the

customer’s), and whether there must be a showing

that the public would likely attribute the message to

the artist to receive protection. These clashing

approaches and analyses have led to conflicting and

contrary results on how to determine if artistic

expression in the marketplace is protected speech or

unprotected conduct.

This brings us to Barronelle Stutzman, whose

petition supplies a unique chance to resolve these

issues in one fell swoop. Letting the decision of the

Washington Supreme Court stand without comment

will surely doom courts who will continue to

hopelessly flounder over which art is expressive

enough to warrant protection in the for-profit

context.

Also, as an additional benefit, this case offers

the Court a situation free from the possibility of

invidious discrimination against same-sex couples as

such. Stutzman gladly served Ingersoll for nine

years knowing he was in a same-sex relationship,

and remains willing to do so, eliminating any

suggestion that Stutzman’s claims are a

smokescreen for animus against status. 116 Stutzman

refuses only participation in a specific event (samesex weddings) regardless of any customer’s sexual

status.

And, finally, this case is suitable for merits

decision because the Washington Supreme Court

found no overt animosity against religion on the part

of the adjudicatory bodies reviewing the case,

presenting a cleaner avenue for answering the free

speech question than the Masterpiece Cakeshop case.

CONCLUSION

The many cases discussed herein illustrate

the jurisprudential chaos taking place in the void of

116

Pet’r’s App. to Pet. for Cert. at 386a-390a.

a decisive and binding ruling on the propriety of free

speech defenses with claims made under nondiscrimination and public accommodation laws.

Courts are uncertain on how to rule and, as a result,

creative professionals are uncertain on how to act.

Clarity from this Court is required. In Masterpiece

Cakeshop, this Court reserved these issues for

another day and that day has come.

For these reasons, and those specified in

Petitioners’ brief, this Court should grant certiorari

to take up this case and resolve these important and

timely issues.

Respectfully Submitted,

NATHAN W. KELLUM

Counsel of Record

CENTER FOR RELIGIOUS

EXPRESSION

699 Oakleaf Office Lane

Suite 107

Memphis, TN 38117

(901) 684-5485

nkellum@crelaw.org

Counsel for Amicus

Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.