Amicus Curiae Brief — Catharine Miller, et al., Petitioners v. Civil Rights Department

Supreme Court briefSep 29, 2025

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No. 25-233

In the Supreme Court of the United States

CATHARINE MILLER, ET AL., Petitioners

CIVIL RIGHTS DEPARTMENT

On Petition of Writ of Certiorari to

the Court of Appeal of California,

Fifth Appellate Division

BRIEF OF AMICUS CURIAE

PROTECT THE FIRST FOUNDATION

IN SUPPORT OF PETITIONERS

GENE C. SCHAERR

Counsel of Record

JOSHUA J. PRINCE

SCHAERR | JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

SEPTEMBER 29, 2025

TABLE OF CONTENTS

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

INTRODUCTION, SUMMARY, AND

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

STATEMENT .............................................................. 2

ADDITIONAL REASONS FOR GRANTING

THE PETITION ....................................................... 3

Review is necessary to reaffirm that the

First Amendment protects unpopular

speech. ................................................................ 3

A. First Amendment protections are

broad and essential to public debate

and include unpopular and hurtful

speech. .......................................................... 4

B. Even public accommodations laws

must give way to the First

Amendment’s protections of

unpopular speech......................................... 5

II. Review is also necessary to remind

courts that the First Amendment applies

even when the speaker receives

compensation. .................................................... 6

A. A person does not forfeit her First

Amendment rights when she offers

speech for pay. ............................................. 7

B. States may not deprive a person of

her First Amendment rights in

exchange for the right to do business. ........ 8

CONCLUSION ............................................................ 9

TABLE OF AUTHORITIES

Cases

Page(s)

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ........................................... 1, 3-7

Citizens United v. FEC,

558 U.S. 310 (2010) .............................................. 7, 9

Janus v. American Fed’n of State, Cnty.,

Mun. Emps., 585 U.S. 878 (2018) ............................ 6

Koontz v. St. Johns River Water Mgmt. Dist.,

570 U.S. 595 (2013) .................................................. 9

Masterpiece Cakeshop v. Colorado

C.R. Comm’n, 584 U.S. 617 (2018) .......................... 8

NAACP v. Button,

371 U.S. 415 (1963) .................................................. 4

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................. 4, 5

Perry v. Sindermann,

408 U.S. 593 (1972) .................................................. 9

Regan v. Taxation With Representation

of Wash., 461 U.S. 540 (1983) .................................. 9

Riley v. National Fed’n of the Blind

of N.C., Inc., 487 U.S. 781 (1988) ............................ 7

Texas v. Johnson,

491 U.S. 397 (1989) .................................................. 3

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000) .................................................. 6

iii

Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) .................................................. 7

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

319 U.S. 624 (1943) .............................................. 5, 7

Constitutional Provisions

U.S. Const. amend. I ................................................... 4

U.S. Const. art. VI ....................................................... 6

INTRODUCTION, SUMMARY, AND

INTEREST OF AMICUS CURIAE 1

The First Amendment protects “[a]ll manner of

speech,” including an artist’s “original, customized”

creations. 303 Creative LLC v. Elenis, 600 U.S. 570,

587 (2023) (internal citation omitted) (collecting

cases). And its protections stand even if—and perhaps

especially when—the government does not “find the

speaker’s message sympathetic.” Id. at 602. Despite

these clear protections, the decision below held that

Petitioner Cathy Miller, a baker who created custom

wedding cakes in “service to God,” App.8a, violated

California law when, as compelled by her sincerely

held religious beliefs, she declined to bake a custom

cake for a same-sex couple’s wedding, App.4a-5a. As

Miller persuasively demonstrates throughout her

petition, that decision cannot be squared with this

Court’s free-speech or free-exercise precedents and

should be reviewed and reversed.

The lower court’s failure to recognize the clear

First Amendment implications of punishing Miller for

refusing to speak contrary to her beliefs is particularly

troubling to amicus Protect the First Foundation

(“PT1”), a nonprofit, nonpartisan organization that

advocates for protecting First Amendment rights in all

applicable areas of law. PT1 agrees with Miller that

this Court’s review is needed to restore conformity

1 This brief was not authored in whole or in part by counsel for

any party and no person or entity other than amicus curiae or its

counsel has made a monetary contribution toward the brief’s

preparation or submission. Counsel of record for all parties

received timely notice of amicus’ intent to file this brief.

with controlling

precedent.

free-speech

and

free-exercise

PT1 writes separately to expand on two speechrelated points that got little attention in the lower

court. First, review is necessary because the decision

below ignores that the First Amendment protects

speech like Miller’s, even if unpopular and even when

that speech conflicts with a state’s publicaccommodations laws. And second, PT1 shows that

First Amendment protections do not yield just because

a person sells her speech for profit. To prevent the

harms to expressive businesses that will otherwise

flow from the Court of Appeal’s flawed application of

this Court’s precedents, the petition should be granted

and the decision below reversed.

STATEMENT

Cathy Miller owns Tastries Bakery, a bakery that

makes ready-to-eat and custom-made baked goods for

celebrations. App.377a-378a, App.358a, App.387a390a, App.403a. All wedding cakes are custom made.

App.392a. As a devout Christian, Miller only accepts

orders that align with her religious belief that

marriage must be “between a man and a woman[.]”

App.386a, App.394a.

When Mirena and Eileen Rodriguez-Del Rio, a

lesbian couple, visited Tastries seeking a wedding

cake, App.366a, Miller refused to make a cake for their

wedding because of her “deeply held religious

convictions.” App.401a. But she referred the couple to

a nearby bakery that would fulfill their order.

App.400a-401a, App.343a. The couple responded by

posting negative comments about Tastries on social

media, resulting in hundreds of hateful messages and

threats. App.303a-306a, App.381a. Following this

targeted abuse campaign, Tastries temporarily closed

its doors. App.381a.

Unsatisfied with attacking Tastries in the court of

public opinion, the Rodriguez-Del Rios complained

about the bakery to the California Civil Rights

Department, ultimately leading to a trial after which

Tastries prevailed on free speech grounds. App.316a319a, App.109a-111a, App.140a-148a. The Court of

Appeal reversed, rejecting Tastries’ defense that

forcing Miller to bake a custom wedding cake would

require her to further a message with which she

disagreed and—in the process—violate her deeply

held religious beliefs. App.62a, App.75a, App.78a.

ADDITIONAL REASONS FOR

GRANTING THE PETITION

Review is necessary to reaffirm that the

First Amendment protects unpopular

speech.

This case presents the Court with yet another

needed opportunity to reaffirm the Nation’s “enduring

commitment to protecting the speech rights of all

comers, no matter how controversial—or even

repugnant—many may find the message at hand.” 303

Creative, 600 U.S. at 600-601. For decades, this Court

has repeatedly reaffirmed the First Amendment’s

“bedrock principle * * * that the government may not

prohibit the expression of an idea simply because

society finds the idea * * * offensive or disagreeable.”

Texas v. Johnson, 491 U.S. 397, 414 (1989) (collecting

cases). Rather, the First Amendment means what it

says: There can be “no law,” not even a law designed

to prevent what society has deemed unlawful

discrimination, “abridging the freedom of speech.”

U.S. Const. amend. I. The California courts departed

from this bedrock principle, and the Court’s review is

necessary to reaffirm it.

A. First Amendment protections are broad

and essential to public debate and

include unpopular and hurtful speech.

This court has long held that the essential

“freedom of expression upon public questions is

secured by the First Amendment.” New York Times

Co. v. Sullivan, 376 U.S. 254, 269 (1964). Indeed, the

First Amendment reflects the “profound national

commitment,” etched in constitutional ink, to keep

“debate on public issues * * * uninhibited, robust, and

wide-open.” Id. at 270. That protection stands

“without regard to the * * * truth, popularity, or social

utility of the ideas and beliefs which are offered.”

NAACP v. Button, 371 U.S. 415, 444-445 (1963). Even

“misguided, or even hurtful” speech furthering

“unattractive” ideas is constitutionally protected. 303

Creative, 600 U.S. at 603 (citations omitted).

This means that, occasionally, the First

Amendment will successfully be invoked even amid

“vehement, caustic, and sometimes unpleasantly

sharp attacks.” New York Times, 376 U.S. at 270.

Other times, it will protect “speakers whose motives

others may find misinformed or offensive.” 303

Creative, 600 U.S. at 595. To the First Amendment,

such considerations are of no constitutional moment:

The Amendment’s “protections belong to all.” Ibid.

These basic principles mean that Miller’s

religiously motivated commitment to traditional

marriage—however she decides to express that

commitment—is protected. As far as the First

Amendment goes, her religious viewpoints are just as

valuable to the “uninhibited, robust, and wide-open”

debate guaranteed by the First Amendment, New York

Times, 376 U.S. at 270, as the views on the other side

of the marriage debate—even though Miller’s beliefs

are clearly offensive to some. 2 Whatever offense her

views bring, there can be no question that they are

matters of high importance “as to things that touch the

heart of the existing order.” West Virginia State Bd. of

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

First Amendment ensures that such views can be

expressed without government recourse.

B. Even public accommodations laws must

give way to the First Amendment’s

protections of unpopular speech.

Nor does the calculus change when states like

California deem certain messages and views unsavory

and seek to exclude them from the market.

This Court has held that “public accommodations

statutes can sweep too broadly” and that “no public

accommodations law is immune from the demands of

the Constitution.” 303 Creative, 600 U.S. at 592. Nor,

2 Within

hours of Miller’s declining to make a cake for the

Rodriguez-Del Rio family, for example, the family posted a review

branding Miller “a bigot.” App.304a. And not much later, almost

as a fulfillment of prophecy, she began to be “treated as such” by

California for the sole crime of “cling[ing] to old beliefs.”

Obergefell v. Hodges, 576 U.S. 644, 741 (2015) (Alito, J.,

dissenting).

under this Court’s precedents, can there be any

question about “which must prevail” when “public

accommodations law and the Constitution collide.”

Ibid. (citing U.S. Const. art. VI, cl. 2). In the face of any

conflict, the First Amendment prevails. Ibid.

In other words, properly construed, the First

Amendment protects Miller’s speech even if that

speech

would

otherwise

violate

public

accommodations mandate. That conclusion reflects

the basic truth that any “moral judgments” related to

the offensiveness of Miller’s speech “are for the

individual to make, not for the Government to decree.”

United States v. Playboy Ent. Grp., Inc., 529 U.S. 803,

818 (2000).

The decision below departed from these clear

principles by allowing California law to silence Miller’s

rejection of same-sex marriage, effectively removing

that view from public debate precisely because it

deviated from what California considered a “matter[]

of profound value and concern to the public.” Janus v.

American Fed’n of State, Cnty., Mun. Emps., 585 U.S.

878, 914 (2018) (cleaned up). Because the First

Amendment does not allow that dangerous outcome,

this Court should prevent it by reviewing and

reversing the Court of Appeal’s decision.

II. Review is also necessary to remind courts

that the First Amendment applies even

when the speaker receives compensation.

Another reason for review is to clarify that the

First Amendment does not yield just because a person

has decided to enter the economic marketplace. This

Court has made clear that the First Amendment

protects even “speech for pay.” 303 Creative, 600 U.S.

at 594. This principle is so well established that, even

50 years ago, the Court recognized it as “beyond

serious dispute.” Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council, Inc., 425 U.S.

748, 761 (1976). Equally well settled—indeed

“rudimentary”—is a state’s inability to compel a

speaker to forfeit her free speech rights in exchange

for the right to do business in the state. Citizens

United v. FEC, 558 U.S. 310, 351 (2010) (citation

omitted).

A. A person does not forfeit her First

Amendment rights when she offers

speech for pay.

For decades, the Court has recognized “that a

speaker’s rights are not lost merely because

compensation is received” for the simple reason that

“a speaker is no less a speaker because he or she is

paid to speak.” Riley v. National Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 801 (1988). And, of course,

speech itself remains protected, “even though it is

carried in a form that is ‘sold’ for profit.” Virginia State

Bd. of Pharmacy, 425 U.S. at 761 (citations omitted).

No one, for example, could seriously suggest that

books, motion pictures, or religious literature lack

constitutional protections just because they can be

bought. Ibid. (collecting cases). So established was this

doctrine that, by the time 303 Creative was decided,

this Court could confidently say that its precedents

make clear that a person does not “shed their First

Amendment protections by employing the corporate

form to disseminate their speech.” 600 U.S. at 594.

There is no principled reason to conclude that

what is good for the book is not also good for the cake.

Wedding cakes, including those for sale, can express

messages. Masterpiece Cakeshop v. Colorado C.R.

Comm’n, 584 U.S. 617, 625, 633 (2018). Indeed, their

entire purpose “is to mark the beginning of a new

marriage and to celebrate the couple.” Id. at 659

(Thomas, J., joined by Gorsuch, J., concurring in part

and concurring in the judgment). And they “do, in fact,

communicate this message.” Ibid. That was true in

Masterpiece Cakeshop, as Justices Thomas and

Gorsuch recognized, and it is true here.

This case gives the full Court a needed opportunity

to recognize—together with those Justices—that the

“creation of custom wedding cakes is expressive.” Id.

at 660. It should take the opportunity. Forcing bakers

with religious objections to same-sex weddings to

make wedding cakes for those weddings requires them

to “acknowledge that same-sex weddings are

‘weddings’ and suggest they should be celebrated—the

precise message” their faith forbids. Id. at 660-661. In

failing to recognize that reality, the lower court

allowed California to unconstitutionally punish Miller

for her decision not to accept payment for expressing a

message with which she disagrees.

B. States may not deprive a person of her

First Amendment rights in exchange for

the right to do business.

In the process of clarifying that speech for pay is

protected, the Court should also reiterate that, when

a state offers “special advantages” to corporations,

including the right to take on the corporate form, it

“cannot exact as the price of those special advantages

the forfeiture of First Amendment rights.” Citizens

United, 558 U.S. at 351 (citation omitted). Indeed, the

Court has said “in a variety of contexts” that ‘“the

government may not deny a benefit to a person

because he exercises a constitutional right.’” Koontz v.

St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604

(2013)

(quoting

Regan

Taxation

With

Representation of Wash., 461 U.S. 540, 545 (1983)).

Properly applied, that unconstitutional-conditions

doctrine forbids California from predicating Miller’s

ability to conduct business on her willingness to act or

speak contrary to her sincerely held religious beliefs.

The decision below departs from this principle too by

forcing Miller—on pain of ruinous civil liability—to

abandon her beliefs and right to speak if she wants to

engage in expressive baking in California. Because the

lower court condoned that outcome, this Court’s

review is necessary to clarify that a state’s power to

regulate businesses does not allow it to predicate the

right to operate a business on a person’s willingness to

forfeit their right to speak out on contested issues—

even when the person opts to exercise that right by

refusing to speak altogether. E.g., Perry v.

Sindermann, 408 U.S. 593, 597 (1972).

CONCLUSION

The petition should be granted to reiterate the

right to decline to speak the government’s preferred

message by those who, like Miller, engage in

expressive—but at times unpopular—activities for

money.

Respectfully submitted,