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

No. 22-204

IN THE

Supreme Court of the United States

__________

MELISSA ELAINE KLEIN AND AARON WAYNE KLEIN,

Petitioners,

v.

OREGON BUREAU OF LABOR AND INDUSTRIES,

Respondent.

__________

On Petition for Writ of Certiorari

to the Oregon Court of Appeals

__________

BRIEF OF AMICUS CURIAE

ALABAMA CENTER FOR LAW AND LIBERTY

IN SUPPORT OF PETITIONERS

__________

MATTHEW J. CLARK

Counsel of Record

ALABAMA CENTER FOR LAW AND LIBERTY

2213 Morris Ave., Fl. 1

Birmingham, AL 35203

matt@alabamalawandliberty.org

256-530-0519

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

IDENTITY AND INTEREST OF AMICUS

CURIAE ....................................................................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 2

I.

The Founding Generation Would Have

Understood the Word “Religion” in 1791

to

Cover

Obeying

God’s Moral

Commandments as Understood by the

Various Christian Sects of America.................... 2

A. Examining the Creeds and Confessions

That Were Common in 1791............................. 6

1. The Confessions of the Established

Churches ...................................................... 6

a. Congregationalism ................................. 7

b. Anglicanism

and

Episcopalianism ..................................... 8

2. Churches with a Non-Established

but Substantial

Presence

in

America ...................................................... 10

a. Presbyterianism ................................... 10

b. Baptists................................................. 11

ii

c. Quakers ................................................ 11

3. Other Churches with a Notable

Presence in America .................................. 12

B. Analysis and Conclusion................................. 14

II.

The Free Speech Clause Protects the

Kleins’ Conduct.................................................. 16

A. Constitutionally Protected Speech

Includes

Wedding

Cake

Communications ............................................. 16

B. The government lacks authority here

to impede upon free speech ............................ 18

1. History of the First Amendment

and its importance ..................................... 18

2. Freedom of speech includes freedom

from government compelled speech .......... 19

3. Freedom of Speech has narrow

exceptions which do not apply here .......... 21

C. The State cannot regulate what does

not exist ........................................................... 22

D. Conclusion ....................................................... 23

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Page

Brown v. Entm't Merchs. Ass'n, 564 U.S. 786

(2011). .......................................................... 17, 20, 22

Cohen v. Cal., 403 U.S. 15 (1971).............................. 16

Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1 (2004).............................................................. 6

Employment Div. v. Smith, 494 U.S. 872

(1990) ......................................................................... 3

Fulton v. City of Philadelphia, 141 S. Ct. 1868

(2021) ..................................................................1, 3-4

Janus v. AFSCME, Council 31, 138 S. Ct.

2448 (2018). ....................................................... 16, 19

Kaplan v. California, 413 U.S. 115 (1973) ............... 17

Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm'n, 138 S. Ct. 1719 (2018) ................. 17

Matal v. Tam, 137 S. Ct. 1744 (2017). ...................... 19

Nat'l Fed'n of Indep. Bus. v. Sebelius, 567

U.S. 519 (2012)........................................................ 23

Nat'l Inst. of Family & Life Advocates v.

Becerra, 138 S. Ct. 2361 (2018) ...................20, 23-24

iv

Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 796

(1988) ......................................................17, 20, 23-24

Rumsfeld v. Forum for Academic &

Institutional Rights, Inc., 547 U.S. 47, 61

(2006). ..................................................................... 20

Sherbert v. Verner, 374 U.S. 398 (1963) ..................... 3

Thomas v. Review Bd., 450 U.S. 707 (1981) ............... 5

United States v. Grace, 461 U.S. 171 (1983)............. 22

United States v. Stevens, 559 U.S. 460

(2010) ............................................................18, 21-22

United States v. United Foods, 533 U.S. 405

(2001). ................................................................... 16

United States v. Windsor, 570 U.S. 744

(2013) .................................................................... 15

W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

624 (1943) .................................................... 16, 19, 24

Wooley v. Maynard, 430 U.S. 705 (1977) ............ 16, 19

Constitutions, Statutes, and Regulations

U.S. Const. amend. I ......................................... passim

v

Other Authority

Antonin Scalia, A Matter of Interpretation

(new ed. 2018)......................................................... 5

Articles of Religion (1801) ......................................... 10

The Articles of Religion in the Methodist

Church (2016).......................................................... 13

Catechism of the Catholic Church (1993) ................. 14

Creeds, Confessions, & Catechisms (Chad Van

Dixhoorn ed. Crossway 2022) ..............................7-14

History of the Episcopal Church, The

Episcopal

Church,

https://www.episcopalchurch.org/who-weare/history-episcopal-church/americanchurch (last visited Oct. 6, 2022).............................. 9

Holy Bible................................................................... 15

John Eidsmoe, Historical and Theological

Foundations of Law 1253 (2011) .............7, 11, 13-14

Michael W. McConnell, The Origins and

Historical Understanding of Free Exercise

of Religion, 103 Harv. L. Rev. 1409

(1989) ...................................................... 3, 6, 10, 13

Phillip Hamburger, A Constitutional Right of

Religious Exemption: An Historical

Perspective, 60 Geo. Wash. L. Rev. 915

(1992) ...................................................................... 3

vi

Savoy Declaration (1658) ............................................ 8

The Augsburg Confession of 1530 (1530) .................. 13

The Confession of the Society of Friends

(1675) .................................................................... 12

The London Baptist Confession (1689) ..................... 11

The Thirty-Nine Articles of Religion (1571)...........9-10

The Westminster Confession of Faith...............7, 10-11

1

IDENTITY AND INTEREST OF AMICUS

CURIAE1

Amicus Curiae Alabama Center for Law and

Liberty (“ACLL”) is a nonprofit public-interest firm

based in Birmingham, Alabama, dedicated to the

defense of limited government, free markets, and

strong families. Believing that religious liberty and

free speech is a cornerstones of limited government

and individual liberties, ACLL believes that the First

Amendment requires a judgment in favor of

Petitioners in the present case.

SUMMARY OF THE ARGUMENT

Scholars and Justices of this Court have debated

extensively whether the Free Exercise Clause protects

one’s right to a religious exemption from neutral and

generally applicable laws. In Fulton v. City of

Philadelphia, Justices Barrett and Kavanaugh found

the historical record as to this issue largely silent but

the textual argument compelling. Thus, ACLL takes a

more nuanced approach to the debate here, arguing

that the relevant question is whether the founding

Pursuant to Rule 37.2, all parties were given ten days’

notice of intent to file this brief and have consented to its filing.

Pursuant to Rule 37.6, no party or party's counsel authored this

brief in whole or in part, or contributed money that was intended

to fund its preparation or submission; and no person other than

the amicus curiae, its members, or its counsel, contributed money

that was intended to fund the preparation or submission of this

brief.

1

2

generation would have understood the words “free

exercise of religion” to protect the Kleins’ conduct. This

analysis, in turn, focuses on what the word “religion”

encompassed. To answer this question, ACLL

examines the confessions and creeds that were

common in 1791 in America and finds that all of them

required Christians to obey God’s moral law. Since

that law, at least as it was understood by the Christian

Americans of 1791, requires the Kleins to abstain from

endorsing same-sex marriage, their conduct is

protected by the First Amendment.

If the Free Exercise Clause alone is not enough to

answer the inquiry, then basic Free Speech principles

should answer it. The history and basic principles of

Free Speech overwhelmingly compel the conclusion

that the government may not force people to praise a

message with which they disagree. Artistic expression

in creating a custom wedding cake is a form of such

speech. Therefore, the Free Speech Clause protects the

Kleins’ conduct.

ARGUMENT

I.

The Founding Generation Would Have

Understood the Word “Religion” in 1791 to

Cover

Obeying

God’s

Moral

Commandments as Understood by the

Various Christian Sects of America

The First and Fourteenth Amendments to the

Constitution

prohibit

the

government

from

3

“prohibiting the free exercise” of religion. U.S. Const.

amends. I, XIV. Scholars have thoroughly debated

whether the original meaning of the Free Exercise

Clause granted accommodations from valid and

neutral laws of general applicability or not. Compare

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103 Harv.

L. Rev. 1409 (1989) (arguing that, generally, it does),

with Phillip Hamburger, A Constitutional Right of

Religious Exemption: An Historical Perspective, 60

Geo. Wash. L. Rev. 915 (1992) (arguing that it does

not). This Court has been on both sides of that issue

during its history. Compare Sherbert v. Verner, 374

U.S. 398, 403 (1963) (subjecting laws that infringe on

free exercise to the compelling-interest test) with

Employment Div. v. Smith, 494 U.S. 872, 879 (1990)

(holding that a religious belief does not excuse an

individual of complying with a valid and neutral law

of general applicability).

Last year, in Fulton v. City of Philadelphia, the

Justices of this Court were asked to overrule Smith. A

majority declined to do so, finding that Smith was

sufficient to resolve the case at hand. Fulton v. City of

Philadelphia, 141 S. Ct. 1868, 1876-77 (2021).

Justices Alito, Thomas, and Gorsuch argued

thoroughly that the Free Exercise Clause generally

excuses religious exercise from complying with

neutral and generally applicable laws except when the

public peace and safety are threatened. Id. at 1901

(Alito, J., concurring in judgment). Justices Barrett

and Kavanaugh found the textual and structural

4

arguments compelling that the Free Exercise Clause

had to be more than simply a nondiscrimination

provision. Id. at 1882 (Barrett, J., concurring).

However, they also found “the historical record more

silent than supportive on the question whether the

founding generation understood the First Amendment

to require religious exemptions from generally

applicable laws in at least some circumstances.” Id.

(emphasis added).

As to this matter, ACLL respectfully submits that

the historical analysis in Fulton may have been

focused on the wrong question. Instead of surveying

history to answer the specific question that Justice

Barrett flagged, ACLL respectfully submits that

history should be consulted to answer another

question: what did that generation consider “religion”

to be? Since that is what is in the Constitution, that

needs to be the focus of the inquiry. If the Kleins’

conduct would have fallen within what a reasonable

person in 1791 would have considered to be the “free

exercise of religion,” then Respondent’s case collapses.

While providing a comprehensive explanation of

all that was considered “religion” in 1791 may be too

exhaustive for this brief,2 ACLL believes it can

provide one helpful source to consider: the creeds and

confessions of the major religions in America in 1791.

2 Cf. Fulton, 142 S. Ct. at 1895 (Alito., J., concurring) (noting

that there might be difficulty denoting the “outer bounds” of the

term but arguing that the exercise in that case was clearly

religious).

5

This certainly does not set a ceiling on what “free

exercise of religion” protects, but it does provide a

floor. For instance, we can debate today whether

freedom of the press applies to the internet, but no

reasonable person from 1791 would have questioned

whether it applied to printing presses. We can debate

whether the Second Amendment applies to AR-15’s

and the like, but no reasonable person would have

questioned whether it applied to muskets. So in the

same way, if ACLL can demonstrate that the Kleins

are seeking to exercise their religion here in

accordance with well-established religious beliefs

from 1791, then there should be absolutely no

question as to whether the words, as interpreted

according by their original meaning, protect the

Kleins’ right to decline to design a custom cake for a

same-sex wedding.

To be clear, ACLL is not asking this Court to decide

what the theologically correct position is on whether

the Kleins should bake the cake or not. “Courts are not

arbiters of scriptural interpretation.” Thomas v.

Review Bd., 450 U.S. 707, 716 (1981). Rather, this

exercise is more sociological than theological in

nature, asking only what “intelligent and informed

people of the time … display[ed] how the text of the

Constitution was originally understood.” Antonin

Scalia, A Matter of Interpretation 38 (new ed. 2018). If

the people of America in 1791 would have been

acquainted with the tenants of the major faiths in the

Country and knew that a near uniformity among them

providing that conduct like the Kleins was religious

6

exercise, then the Free Exercise Clause protects their

conduct.

A. Examining the Creeds and Confessions

That Were Common in 1791

It is beyond reasonable dispute that the dominant

religion in America in 1791 was Christianity. The

Christian population of that era was overwhelmingly

(but not exclusively) Protestant. As such, when people

in 1791 thought about the word “religion,” they were

probably thinking, at least, about what all of these

Protestant confessions and doctrines had in common.

Thus, while reproducing all of the confessions of the

churches that had a major presence in America in

1791 would be too tedious, ACLL will examine the

confessions of those churches to determine whether

they said anything about whether their religion

required them to obey God’s moral commands. If so,

then the exercise of religion would have included

carrying out those commands.

1. The Confessions of the Established

Churches

As Justice Thomas has observed, at least six of the

states had established religions at the time the Bill of

Rights was ratified. Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 50 (2004) (Thomas, J., concurring

in judgment) (citing McConnell, supra, at 1437). The

four New England states all had Congregationalist

establishments. McConnell, supra, at 1437.

7

Maryland, South Carolina, and Georgia did as well,

and those establishments tended to be more like the

Church of England. See id.; 3 John Eidsmoe,

Historical and Theological Foundations of Law 1253,

1259, and 1327-28 (2011). Thus, at the very least,

representatives from New England and the three

Southern colonies listed above would not have likely

voted for the new Constitution unless they believed

that it protected the tenants of those faiths. Thus,

ACLL will begin its examination with the confessions

of those two denominations.

a. Congregationalism

The Westminster Confession of Faith, written 1646

during the English Civil War, “became the dominant

confession

of

Reformed

Christianity.”

The

Westminster Confession of Faith: Introduction 181, in

Creeds, Confessions, & Catechisms (Chad Van

Dixhoorn ed. Crossway 2022) (hereinafter “Van

Dixhoorn”). This confession became the prototype for

the Congregationalist, Baptist, and Methodist

confessions that followed later. Id.

The leading Congregationalist confession was

called The Savoy Declaration. Written in Savoy,

England, in 1658, this Declaration was meant to

reflect what the Congregationalist faith believed.

Chapter 19, entitled, “Of the Law of God,” reflected

what they believed God required of them when it came

8

to His law. Savoy Declaration, ch. 19. (1658).3 This

Chapter held that “God gave to Adam a law of

universal obedience” that bound “him and all his

posterity to personal, entire, and perpetual

obedience.” Id. at para. 1. This law was eventually

given by God to Moses in the Ten Commandments. Id.

at para. 2. The “sundry judicial laws” continued in

their “general equity” to be “still of moral use.” Id.

para. 3. Even in the New Testament era, the Savoy

Declaration held that “[t]he moral law doth for ever

bind all … to the obedience thereof … neither doth

Christ in the gospel any way dissolve, but much

strengthen this obligation.” Id. para. 5. Despite the

fact that the Congregationalists believed they were

saved by grace instead of works of the law, the

precepts of the moral law were still a “rule of life,

informing them of the will of God, and their duty, it

directs and binds them to walk accordingly.” Id. para.

6. Thus, the Congregationalists very much believed

they were obligated to obey God’s moral law.

b. Anglicanism and Episcopalianism

When the Church of England broke away from the

Church of Rome, it initially drafted 42 articles of

religion for the new church, but it eventually settled

on 39. The Thirty-Nine Articles of Religion:

Introduction 113 in Van Dixhoorn, supra. In

Available

at

http://apostles-creed.org/wpcontent/uploads/2014/07/the-savoy-declaration-of-faith-andorder-1658.pdf.

3

9

attempting to wrestle with the question of whether

the Old Testament Law was binding on a New

Testament Christian, the Articles of Religion took a

position similar to the Savoy Declaration:

Although the Law given from God by Moses,

as touching Ceremonies and Rites, do not bind

Christian men, nor the Civil precepts thereof

ought of necessity to be received in any

commonwealth; yet notwithstanding, no

Christian man whatsoever is free from the

obedience of the Commandments which are

called Moral.

The Thirty-Nine Articles of Religion art. VII

(1571).

After the American Revolution, those who had

adhered to the Church of England in this Country

wanted to keep the faith without having to answer to

the English government. Thus, in 1789, the

Episcopalian Church was formed in Philadelphia “to

unify all Episcopalians in the United States into a

single national church.” History of the Episcopal

Church,

The

Episcopal

Church,

https://www.episcopalchurch.org/who-we-are/historyepiscopal-church/american-church (last visited Oct. 6,

2022). In 1801, the Episcopal Church also adopted 39

Articles of Religion. Article 7 of the Episcopal

Confession was identical in all material respects to

10

Article 7 of the Anglican Confession. See Articles of

Religion, art. VII (1801).4

Thus, just as the Congregationalists of New

England believed they were bound by their religion to

keep the moral commandments of God, so did the

Anglicans/Episcopalians of the South.

2. Churches with a Non-established but

Substantial Presence in America

There were many other churches in America that

had a substantial enough presence to make a

difference but not enough to receive the status of

government-established. Those churches included the

Presbyterians, Baptists, and Quakers. As Professor

McConnell

has

noted,

these

evangelical

denominations,

especially

Baptists

and

Presbyterians, led the charge for religious freedom in

America against the Anglican and Congregationalist

establishments. McConnell, supra, at 1437.

a. Presbyterianism

As discussed above under the Congregationalist

model, The Westminster Confession of Faith was

written in 1646 in the midst of the English Civil War

and became the standard for Reformed Christianity.

In particular, it became the standard confession for

Available at

us/articles-of-religion.

4

https://www.episcopalchurch.org/about-

11

the Presbyterian Church. In 1788, American

Presbyterians adopted it as their own with minor

exceptions. The Westminster Confession of Faith:

Introduction 182 in Van Dixhoorn, supra. But as to

what the Confession said about the Law of God, the

confession was identical in all material respects to The

Savoy Declaration, discussed above. See The

Westminster Confession of Faith ch. XIX (1644) in Van

Dixhoorn, supra, at 212-14.

b. Baptists

The earliest Baptist Confession was written in

1644, but the Second London Baptist Confession

(which is commonly called “The London Baptist

Confession”) was written in 1677 and formally

adopted in 1689. The London Baptist Confession:

Introduction 237, in Van Dixhoorn, supra. This

confession was based on The Westminster Confession

of Faith and The Savoy Declaration with adjustments

being made for the particulars of the Baptist faith.

Chapter 19, “Of the Law of God,” is material to The

Savory Declaration and The Westminster Confession

of Faith in all material respects. The London Baptist

Confession Ch. 19 (1689), in Van Dixhoorn, supra, at

268-70.

c. Quakers

As the Court knows, William Penn was a Quaker

and was originally granted a charter that covered

Pennsylvania, New Jersey, and Delaware. 3 Eidsmoe,

12

supra, at 1330-40. Penn, of course, chose to use his

power not to enforce the Quaker faith upon

nonadherents but rather as a haven for religious

freedom. See id. at 1332-36. Nevertheless, Quakers

had a substantial presence, at least in Pennsylvania

and New Jersey, id. at 1330, 1339, but were also

elsewhere throughout the colonies.

The official confession of the Quakers was the 1675

Confession of the Society of Friends. According to the

Eighth Proposition of this confession, freedom in

Christ was not the freedom to sin “but to be free from

actual sinning and transgressing the law of God[.]”

The Confession of the Society of Friends prop. XIII

(1675). 5 Though this confession is not as clear as the

others on the parts of the Law that are still binding, it

does reflect the proposition that Christians are

religiously obligated to obey the Law of God.

3. Other Churches with

Presence in America

a

Notable

There were other churches in America that may

not have had as strong of a presence in America in

1791 as the aforementioned but should still be noted,

since the Founding Generation would have

undoubtedly been aware of their existence and

probably would have been aware of their tenants.

5Available

at

https://biblehub.com/library/schaff/the_creeds_of_the_evangelica

l_protestant_churches/the_confession_of_the_society.htm

13

Shortly before the First Amendment was ratified,

the Methodist Episcopal Church was small but on the

rise in America. In 1784, this church, under the

leadership of John Wesley, adopted the Twenty-Five

Articles of Religion. Article VI resembled the Article

VII of the Anglican Thirty-Nine Articles of Religion in

all material respects. See The Articles of Religion in

the Methodist Church art. VI (2016).6

Lutherans had enough presence in America where

Professor McConnell gives them credit with Baptists

and Presbyterians for being part of the evangelical

force that drove the First Amendment. McConnell,

supra, at 1439. Because the focus of The Augsburg

Confession of 1530 was focused so heavily on

defending the doctrine of justification by faith alone,

this confession did not discuss obedience to the moral

law as much as the others, but it did affirm that “it is

necessary to do the good works commanded by God,

because of God’s will.” The Augsburg Confession of

1530 art. VI (1530), in Van Dixhoorn, supra, at 37.

But Lutheranism had a huge impact on all

Protestant sects by Luther’s three uses of the Law:

civil (which is instructive for civil governments),

ceremonial (or theological, our tutor to lead us to

Christ), and moral (or didactic, which “is sometimes

called the rule by which we govern our lives.”). 3

Eidsmoe, supra, at 980-81. The idea that the moral

Available at https://www.umc.org/en/content/articles-ofreligion.

6

14

law is still binding on Christians even if the

ceremonial and civil laws are not is a theme reflected

in every confession examined herein.

The Dutch Reformed Church was also active in

America, and it was originally the official church of

New York. 3 Eidsmoe, supra, at 1342. The confession

of this church was called The Canons of Dort. These

canons held that assurance of salvation in Christ was

no excuse for failing to obey God’s commandments.

The Canons of Dort: The Fifth Main Point of Doctrine

art. XIII, in Van Dixhoorn, supra, at 172.

Finally, Catholicism had a presence in America at

the time of the First Amendment’s ratification. While

Catholics came in larger numbers in the Nineteenth

Century, they had a presence here before that.

Despite its many points of theological difference with

Protestantism, Catholicism agreed that Christians

were morally bound to obey God’s laws, especially as

found in the Ten Commandments. See generally

Catechism of the Catholic Church Part III, § 2 (1993). 7

B. Analysis and Conclusion

Thus, every single Christian sect in America in

1791 held that Christianity required its adherents to

obey God’s moral law and commandments. As the

Bible teaches and as Christians of all sects believed

Available

https://www.vatican.va/archive/ENG0015/_INDEX.HTM.

7

at

15

for thousands of years, God created marriage between

a man and a woman in the beginning. See Genesis

2:18-24. When the Law came later, God explicitly

prohibited adultery. Exodus 20:14. He also taught

that sexual relationships between two people of the

same sex were immoral, even calling it an

abomination. Leviticus 18:22. When Jesus came, he

drew on Genesis to teach that God created sex for a

man and a woman in marriage. See Matthew 19:3-9.

The Apostle Paul likewise condemned heterosexual

and homosexual activity outside of one man and onewoman marriage. Romans 1:24-28.

As Justice Alito has correctly observed, no serious

argument can be made that same-sex marriage is

deeply rooted in this Nation’s history and tradition,

since no country in the world legalized it until 2000.

United States v. Windsor, 570 U.S. 744 (2013) (Alito,

J., dissenting). Thus, if we examined the historical

record for evidence of what the founding generation

thought of the clash between gay rights and religious

freedom, we would not find much, since that issue had

not yet arisen. However, what we would find is

overwhelming evidence that Christians were bound to

obey God’s moral law. Since that law, at least as

understood by the Christians of the founding

generation, required them to abstain from sexual

activities that God declared immoral, they would have

had no problem concluding that the Kleins’ decision to

abstain from using their artistic talents to celebrate a

same-sex wedding was undoubtedly protected

religious exercise.

16

II. The Free Speech Clause Protects the Kleins’

Conduct

A. Constitutionally

protected

speech

includes wedding cake communications

“Congress shall make no law...abridging freedom

of speech.” U.S. Const., amend. I. The United States

Supreme Court has repeatedly confirmed that the

protected “speech” under the First Amendment

extends beyond mere spoken words and, based on

judicial precedent set by this Court, custom wedding

cakes should fall under the First Amendment’s

protection of speech.

The Court has previously held many forms of

speech as constitutionally protected under the First

Amendment including: verbage on a shirt in Cohen v.

Cal., 403 U.S. 15, 18 (1971); compelling a payment of

union subsidies in United States v. United Foods, 533

U.S. 405, 411 (2001) and Janus v. AFSCME, Council

31, 138 S. Ct. 2448, 2484 (2018); and covering a state

motto on a license plate in Wooley v. Maynard, 430

U.S. 705, 714 (1977). Further,“[s]ymbolism[, such as

saluting a flag,] is a . . . way of communicating ideas,”

and compelling such communication “transcends

constitutional limitations on the[ state’s] power.” W.

Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632

& 642 (1943). Additionally, “pictures, films, paintings,

drawings, and engravings, both oral utterance and the

17

printed word have First Amendment protection.”

Kaplan v. California, 413 U.S. 115, 119-120 (1973).

Most recently the Supreme Court held in

Masterpiece Cakeshop that, under the First

Amendment, “the religious and philosophical

objections to gay marriage are protected views.”

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights

Comm'n, 138 S. Ct. 1719, 1727 (2018). For new

mediums of communication that have yet to be

specifically addressed, such as custom wedding cakes,

“the basic principles of freedom of speech . . . do not

vary.” Brown v. Entm't Merchs. Ass'n, 564 U.S. 786,

790 (2011) (quoting Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 503 (1952)). Upon consideration, the

nature of the speech at issue is to be taken as a whole,

not in part. Riley v. Nat'l Fed'n of Blind, 487 U.S. 781,

796 (1988). Based on this Court’s judicial precedent,

which has held that words on a shirt, paying union

subsidies, covering a state license plate, paintings,

drawings, and saluting a flag all classify as “speech,”

it follows that the definition of speech would also

include a custom wedding cake that “as a whole”

would convey a celebration of gay marriage; the State

compelling such communication should be held as

unconstitutional.

18

B. The government lacks authority here to

impede upon free speech

1. History of the First Amendment and its

importance

“The very purpose of the First Amendment is to

foreclose public authority from assuming a

guardianship of the public mind through regulating

the press, speech, and religion.” Thomas v. Collins,

323 U.S. 516, 545 (1945) (Jackson, J. concurring). The

First Amendment exists to restrain the government

from infringing upon an individual’s right to freedom

of speech. This Court has admitted that “the benefits

of [the First Amendment’s] restrictions on the

Government outweigh the costs.” United States v.

Stevens, 559 U.S. 460, 461 (2010). Speech “is essential

to our democratic form of government,” see, e.g.,

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), “and

it furthers the search for truth,” see, e.g., Thornhill v.

Alabama, 310 U.S. 88, 95 (1940). Additionally,

religion played a factor in the composition of the First

Amendment. “[I]n Anglo-American history, . . .

government suppression of speech has so commonly

been directed precisely at religious speech that a freespeech clause without religion would be Hamlet

without the prince.” Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407, 2421 (2022) (quoting Capitol Square

Review and Advisory Bd. v. Pinette, 515 U. S. 753, 760

(1995)).

19

Since the ratification of the Bill of Rights, the

Supreme Court has held that the government cannot

“regulate speech in ways that favor some viewpoints

or ideas at the expense of others.” Matal v. Tam, 137

S. Ct. 1744, 1757 (2017) (quoting Lamb’s Chapel v.

Center Moriches Union Free School Dist., 508 U.S.

384, 394 (1993)). The government cannot determine

whether one individual’s speech is worthy of

protection while the other is not. “The First

Amendment protects [both] the right of individuals to

hold a point of view different from the majority[,] and

to refuse to foster . . . an idea they find morally

objectionable.” Wooley, 430 U.S. at 715.

2. Freedom of speech includes freedom

from government compelled speech

In addition to the First Amendment’s freedom of

speech restricting the State from restricting certain

speech, it also restricts the State from compelling

speech. “When speech is compelled . . . individuals are

coerced into betraying their convictions.” Janus, 138

S. Ct. at 2464. This Court has “held time and again

that freedom of speech ‘includes both the right to

speak freely and the right to refrain from speaking at

all.’” Id. at 2463 (quoting Wooley, 430 U.S. at 714). “[A]

law commanding “involuntary affirmation” of

objected-to beliefs would require “even more

immediate and urgent grounds” than a law

demanding silence. Id. at 2464 (quoting Barnette, 319

U.S. at 633). Forcing an individual to convey a

20

message they do not want to convey is an abuse of the

constitutional power of the State.

“[F]reedom of speech prohibits the government

from telling people what they must say” through any

form of speech - other than the narrow list of

exceptions the Supreme Court has permitted.

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47, 61 (2006). Certain speech

that an individual chooses to refrain from based on

their moral reservations, cannot then be compelled by

the government. An individual cannot be forced into a

form of speech when they exercise their freedom under

the First Amendment to resort to silence - to not

saying anything at all.

Moral reservations are also not left up to judgment

by the State. “[E]sthetic and moral judgments about

art and literature . . . are for the individual to make,

not for the Government to decree, even with the

mandate or approval of a majority.” Brown, 564 U.S.

at 790 (quoting United States v. Playboy

Entertainment Group, Inc., 529 U.S. 803, 818 (2000)).

Speech cannot be sacrificed for efficiency. See Nat'l

Inst. of Family & Life Advocates v. Becerra, 138 S. Ct.

2361, 2376 (2018) (“NIFLA”) (quoting Riley, 487 U.S.

at 795). Public opinion does not determine how

someone chooses to exercise their First Amendment

right to free speech, but their own moral judgment

guides that choice which is not to be restricted by the

government.

21

3. Freedom of Speech has narrow

exceptions which do not apply here

The government’s limited authority over

controlling speech does not extend to the case here.

“[T]he First Amendment's free speech guarantee does

not extend only to categories of speech that survive an

ad hoc balancing of relative social costs and benefits.”

Stevens, 559 U.S. at 460-461. Freedom of speech

extends to all speech, excluding the few narrow

exceptions of unprotected speech. Several unprotected

categories of speech have been accepted by the Court,

and those categories of speech are “well-defined and

narrowly limited classes.” Id. at 468-469 (2010) (citing

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572

(1942)). Historically, unprotected categories of speech

have often been found by the Court to have “such

slight social value as a step to truth that any benefit

that may be derived from them is clearly outweighed

by the social interest in order and morality.” Stevens,

559 U.S. at 470 (using R.A.V. v. St. Paul, 505 U.S. 377,

383 (1992) (quoting Chaplinsky, 315 U.S. at 572).

These constitutional restrictions on speech include

“obscenity, defamation, fraud, incitement, and speech

integral to criminal conduct;” none of which would

apply to a custom wedding cake creation. Id. at 460.

The Court has on at least two occasions declined to

create another exception to the free speech doctrine,

and they made it clear that it would take something

“‘intrinsically related’ to the underlying abuse” to

allow for another exception. Id. at 471 (citing New

22

York v. Ferber, 458 U.S. 747, 761 (1982) which held

that a New York statute prohibiting the distribution

of child pornography was constitutionally valid). The

Court declined an exception for violent video games

because the California law “abridge[d] the First

Amendment rights of young people.” Brown, 564 U.S.

at 805. The Court also refused to decide whether

depictions of animal cruelty would be constitutional,

but held the statute banning them to be overly broad

for purposes of the First Amendment. Stevens, 559

U.S. at 482.

“[T]he government's ability to permissibly restrict

expressive conduct is very limited.” United States v.

Grace, 461 U.S. 171, 177 (1983). The Court stated that

“[o]ur decisions in Ferber and other cases cannot be

taken as establishing a freewheeling authority to

declare new categories of speech outside the scope of

the First Amendment.” Stevens, 559 U.S. at 472. The

exceptions to the First Amendment are explicitly

stated as obscenity, defamation, fraud, incitement,

and speech integral to criminal conduct - and it is

important that the government does not grow in its

authority to limit speech through setting a new

precedent that conveying a message, such as a

wedding cake design, may be limited by the State.

C. The State cannot regulate what does not

exist

Finally, the government cannot regulate speech

that does not exist. This assumption parallels the rule

23

from the NFIB v. Sebelius case where this Court

stated that “an individual mandate forc[ing]

individuals into commerce precisely because they

elected to refrain from commercial activity. . . . is a law

[that] cannot be sustained under a clause authorizing

Congress to “‘regulate Commerce.’” Nat'l Fed'n of

Indep. Bus. v. Sebelius, 567 U.S. 519, 558 (2012).

Similarly, here the State would be forcing someone to

violate their own religious beliefs and morals to create

and convey a message through a custom wedding

cake; thus taking away their ability to remain silent

and refrain from conveying any message at all.

“Mandating speech that a speaker would not

otherwise make necessarily alters the content of the

speech.” Riley, 487 U.S. at 795. The state cannot make

someone exercise their freedom of speech in a specific

way. There are other means of obtaining a custom

wedding cake without the baker taking part in

unwanted speech, and without making the baker

agree to convey a message against their moral beliefs.

See NIFLA, 138 S. Ct. at 2376.

D. Conclusion

The issue here is not a prohibition of speech, but

rather the State compelling an individual to convey a

certain message on a wedding cake for a homosexual

couple when the message goes against the moral and

religious beliefs of the baker. This Court has held on

numerous occasions that the freedom of speech under

24

the First Amendment protects the right to say nothing

at all.

“By compelling individuals to speak a particular

message, such notices ‘alte[r] the content of [their]

speech.’” NIFLA, 138 S. Ct. at 2371 (quoting Riley, 487

U.S. at 795). The ability to be spiritually diverse exists

through the application of Constitutional rights,

therefore, the differing opinions and moral beliefs are

meant to exist in our society. Barnette, 319 U.S. at

641-642. If the Court compels a baker to conform to

the messages they convey to the popular opinion, then

both the diversity of thought in this country and the

freedom of speech under the First Amendment will

cease to exist.

CONCLUSION

This Court should grant certiorari and hold that

the Free Exercise Clause and Free Speech Clause

protect the Kleins’ conduct.

Respectfully submitted,

MATTHEW J. CLARK*

*Counsel of Record

ALABAMA CENTER FOR LAW

AND LIBERTY

2213 Morris Ave., Fl. 1

Birmingham, AL 35203

matt@alabamalawand

liberty.org

25

256-510-1828

Counsel for Amicus Curiae

October 7, 2022