Amicus Curiae Brief — Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 419 (2017) (No. 16-111)
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MASTERPIECE CAKESHOP, LTD., ET AL.,
PETITIONERS
v.
COLORADO CIVIL RIGHTS COMMISSION, ET
AL., RESPONDENTS
ON WRIT OF CERTIORARI TO THE
COLORADO COURT OF APPEALS
BRIEF OF AMICUS CURIAE DAVID BOYLE
IN SUPPORT OF NEITHER PARTY
David Boyle
Counsel of Record
P.O. Box 15143
Long Beach, CA 90815
dbo@boyleslaw org
(734) 904-6132
TABLE OF CONTENTS
TABLE OF AUTHORITIEG...............0.:sccccosccsseces IV
AMICUS CURIAE STATEMENT OF INTEREST... 1
SUMMARY OF ARGUMENT...............ccccccccccceceeeeseeee 2
Sins dilrchaati'secouaniceuapaecsd# seins vuarecisn uneesonss 4
[.
IT.
If],
iV.
OBERGEFELL HAS LEFT MUCH
CONFUSION IN ITS WAKE; OR, POSSIBLE
BURDENS OF IGNORING THE PAST........ A
PETITIONERS’ ARGUMENTS ABOUT
“EXPRESSIVE” OR “ARTISTIC” BEHAVIOR”
RE CAKES MAY EARN THEM RELIFF,
BUT ONLY LIMITED RELIFF.................... 8
A. What Precisely Is the Court Looking at
Here? The Cake, or Just Part(s) of It?
Or, “Where Is the Res?” ..........0..0. ccc cence 8
B. What Components of Petitioners’ Cakes,
Then, Might Really Be Expressive
IF GRANTED RELIEF, PETITIONERS
SHOULD RECEIVE REASONABLY
NARROW RELIEF, SO AS NOT
NKEDLESSLY TO IiURT RESPONDENTS
OR THOSE SIMILARLY SITUATED......... 16
“SODOMY” MAY DENOTE NOT ONLY
V.
VL.
VI.
i
SEXUAL ISSUES, BUT BROADER ISSUES
OF INJUSTICE AND EXCLUSION............17
“STATE CALVINISM” IS NOT SUCH A
GOOD IDEA FOR THE U.S...................4:. 21
WHAT RATIO DECIDIENDI MAY ALLOW
BUSINESSES TO AVOID SERVING
CERTAIN PEOPLE OUT OF CONSCIENCE,
BUT WON’T ALLOW THOSE BUSINESSES
TO DISCRIMINATE BY RACE OR OTITER
COMPLETELY IMMUTABLE
CHARACTERISTICS? THERE MAY BE
THE CASE OF SHLOMO SATMAR, WHO
REFUSES TO GIVE RELIGIOUS NAZIS A
WEDDING CARBE......000sscccsssccossccccceresvees 26
VIII. WHAT IF A BUSINESS TRIED TO DENY
IX.
SERVICE TO INTERFAITH, OR ANY-
FAITH, MARRIAGES? OR, “NO CAKE FOR
PU PEUIIINEE Uaistvctescctscsacesecsavennseveeiowsnestesanns 30
IN THE INSTANT CASE OR FUTURE
CASES, IT MAY BE WISE TO REQUIRE
TIIAT BUSINESSES PUBLICLY POST
THEIR POLICY OF REFUSING TO CATER
SAME-SEX WEDDINGS (OR OTHER
MATTERS), INSOFAR AS THEY MAY....33
ONE FAIR SOLUTION COULD INVOLVE
FINING PETITIONERS FOR THEIR
BURDEN ON RESPONDENTS, BUT
WITHOUT FORCING FUTURE
COMPLIANCE OR THREATENING
SHUTDOWN OR JAIL TIME............6.....35
XI. FINES SHOULD BE REASONABLE.......38
XI. IT SEEMS EXCESSIVE TO PUT
PETITIONERS IN JAIL IF THEY REFUSE
TO COMPLY WITH “RE-EDUCATING”
THEMSELVES, OR WITH SOME OTIIER
nn
(ANTECONCLUSION),.......00ccccccceccceceeececseceeee. 40
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TABLE OF AUTHORITIES
CASES
Burwell v. Lobby Lobby Stores, Inc., 134 8. Ct. 2751
SN sicic cua xnadanabanek ces bpaka weds nakencdacubess Sakon 1, 14, 17
Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272
SEE NS CI dvadccsnnnctunbavssiusesupsayewesces sus vege auee
Matal v. Tam, 137 S. Ct. 1744 (2017)............... 32-33
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)...passim
Petia- Rodriguez v. Colorado, 580 U.S. _
SUNT icy aacvcaldaccorcedeceusssas such ucseriacniebasds chdien 24, 25
CONSTITUTION
es MN CO a i co pdaudua denelaeidaudion passim
ee oe eT ce ei hunensecbbane aves 21
RULES
eS ro ee Pen aoa oo Me PAPA TRS Backs ln.l
OTHER AUTHORITIES
(The Internet links or cites below were last visited
September 6-7, 2017.)
W.H. Auden, September 1, 1939 (1939).............44:. 40
Randa)]l Balmer, Under Trump, evangelicals show
their true racist colors, L.A. Times, Aug. 23, 4:00
a.m., http://www.latimes.com/opinion/op-ed/la-oe-
balmer-evangelical-trump-racism-20170823-story.
i cicisincssicciencivitisacmasietesveumanascein ce aoa 19
Paula Cocozza, Fake off! Meet baking’s masters of
tllusion cakes, The Guardian, Aug. 31, 2017, 7:00
a.m., https://www.theguardian.com/lifcandstyle/
2017/aug/3 1/fake-off-meet-bakings-masters-of-
SEI so ovecos scycacsssn0sencevaesabeuaasanteeteaee 12-14
Excalibur Script (Orion Pictures 1981; John
Boorman, director), avatlable at http://www.
scifiscripts.com/scripts/excalibur.txt........ccceeees 10-11
Baa VAI a «cic c's ikocvscnccecsenvesccchecccesatsconente 18
First Amendment Defense Act, H.R. 2802, 114
Cotas. GAOEBD... cc. c0s0s0s Sahel nips and ung kkk 23
Chuck Hickey, Colorado Supreme Court won't hear
baker's appeal over same-sex wedding cakes, KDVR.
com, Apr. 25, 2016, 11:37 a.m., http://kdvr.com/2016/
04/25/colorado-supreme-court-wont-hear-bakers-
appeal-over-same-sex-wedding-cakes/.................. 15
William Hughes, New comic series reimagines
Snagglepuss as a gay 1950s playwright, AV News,
Jan. 31, 2017 4:56 p.m., http://news.avclub.com/new-
comic-series-reimagines-snagglepuss-as-a-gay-1950s-
BUEN 0 F Be cis sonnaes s=4+0vuus0ssnusuonaevagebdnusyeuveseaiel aan 8
vi
Elizabeth Kiefer, This Married Couple Just Won A
Major Victory For LGBT Rights, Refinery29, Aug.
14, 2015, 10:30 a.m., h tp://www.refinery29.com/
2015/08/92392/colorado-lgbt-rignhts-victory-
masterpiece-cakeshop..................-ceceeeee sence ceeeee oO
Christopher Knaus, Pelurc mesh victims disgusted at
suggestion of anal sex as solution, The Guardian,
Aug. 28, 2017, 8:05 a.m., https://www.theguardian.
com/australia-news/2017/aug/28/pelvic-mesh-victims
-disgusted-at-suggestion-of- sodomy-as-solution)...5-6
Led Zeppelin, Stairway to Heaven, on Led Zeppelin
Ss his is ck seathegacheenoeseereeeceseceusees 37
Bric |.oskota & Peter Gudaitis, The prosperity gospel
was not the only problem with Joel Osteen’s Harvey
response, Raw Story, 12:04 p.m., Sept. 4, 2017,
https://www .rawstory.com/2017/09/the-prosperity-
gospel-was-not-the-only-problem-with-jvel-osteens-
Te crisis Shadapessaccsen sienersoscoccceses sess 19
Inae Oh, Ruth Bader Ginsburg: America Is Ready to
Accept a Pro-Gay-Marriage SCOTUS Ruling, Mother
Jones, Feb. 12, 2015, 2:46 p.m., http:/Awww.
motherjones.com/politics/20 15/02/ruth-bader-
ginsburg-helieves-americans-are-ready-accept-
scotus-gay-Marriage-ruling/.........ccc sce secececeee veneees A
George Rede, Same-sex couple in Sweet Cakes
controversy should receive $125,000, hearings officer
says, The Oregonian/OregonLive, updated Apr. 27,
2015, 4:32 p.m., http://www.oregonlive.com/business/
Vil
index.ssf/2015/04/same-sex couple in sweet cakes.
Olivia Solon, Airbnb host who canceled reservation
using racist comment must pay $5,000, The
juardian, July 13, 2017, 1:00 p.m., https://www.
theguardian.com/technology/2017/jul/13/airbnb-
valifornia-racist-comment-penalty-asian-
SARE SEE Pe Sete ROY » PERERA pee ES 39
Antonio Spadaro & Marcelo Figueroa, Evangelical
Fundamentalism and Catholic Integralism: A
Surprising Ecumenism, La Civilta Cattolica
(undated, but c. July 13, 20)7), http://www.
laciviltacattolica.it/articolo/evangelical-
fundamentalism-and-catholic-integralism-in-the-
USA-U-SUFprising-ecuMeNISM/...............6.cccceeeeeeees 21-22
Twin Peaks; The Return, episode 18 (Showtime
television broadcast Sept. 3, 2017)..................4005 22
Klyse Wanshel, Pastor Warns Hurricanes Will Hit
Cities That Don't Repent ‘Sexual Perversion’,
Huffington Post, Sept. 1, 2017, 4:31 p.m., http://
www.huffingtonpost.com/entry/pastor-kevin-
swanson-houston-repent-sexual-perversion-
hurricane-harvey_us_59a97d74e4b0b5e530fe394d?
neid~inblnkushpmg00000009... .... 0... eee cece 19
Wikipedia, Snagglepuss, https://en.wikipedia.org/
wiki/Snagglepuss (as of 2:55 GMT, Sept. 3,
Du Uicchcedunncvaseucdbceduccdidedsseenteusdamncesmiamimanceatel 7-8
vill
William Butler Yeats, Among School Children, The
OE Cans wen tncdes nec dncnccddsenconeccccacntiscoetesecenie 15
AMICUS CURIAE STATEMENT OF INTEREST
The present amicus curiae, David Boyle
(hereinafter, “Amicus”),' has written the Court
previously about, inter alia, denial of expected
services by businesses for religious reasons, in
Burwell v. Hobby Lobby Stores, Inc., 1345S. Ct. 2751
(2014) (refusal of employers to offer employees
certain contraceptives, with religious rationale). So
he writes to assist in the instant case which also
involves denial of services under color of religion,
though with same-sex issues involved as well. An
epic clash of our times: religious rights versus gay
rights. Irresistible force, mect immovable object.
This case has difficult and troublesome aspects
(v.g.. the always-controversial topic of sodomy),
which may be why the Court “punted” it through an
epic nineteen distributions to conference. It almost
sounds like a parody instead of a real case: the idea
that parties are arguing about a wedding cake when
Houston is drowning, North Korea is threatening,
and white nationalists are murdering, seems a little
surreal. Yet, there are important matters here
(religious freedom, speech freedom, obligations of
businesses, equal protection) that deserve serious
attention, and maybe deserve a serious solution that
does not favor either sect of parties to excess.
| No party or its counsel wrote or helped write thus brief, or
gave money for the brief, see S. Ct. R. 37. Blanket permission to
write briefs is filed with the Court, except fram respondents
Charlie Craig and David Mullins, who e-mailed Amicus
permission.
The late Princess Diana of Wales, whose 20‘
anniversary of passing recently occurred, made it
her business in later life to reach oul to neglected or
oppressed groups of people, such as AIDS patients or
landmine victims. In that spirit, one hopes the Court
finds ways to respect both religious people and same.
sex-affectionate people, both of whom have been
oppressed in various ways throughout history.
SUMMARY OF ARGUMENT
The time after Obergefell v. Hodges, 1355. Ct.
2584 (2015), has been confusing and frightening for
many people of a traditional, or even quasi-
traditional, bent. The Court may want to consider
the shock and desperation of variuus religious, or
other, people vis-d-vis same-sex-related issues.
The Court should carefully consider just how the
“decorutive” bleeds into the “expressive”, as it
scrutinizes the various physical layers of the cake
(interior, frosting, words or symbols), and what the
difference between “art” and “food” 1s.
Petitioners should likely receive the relicf they
seek, but to the narrowest extent reasonably
possible, lest Respondents or similarly-situated
people needlessly suffer, and lest separation of
church and state, and the balance of power between
businesses and consumers, be needlessly violated.
Perhaps Respondents should also receive some
increment of relief.
The issue of “sodomy” is germane here not only
hecause of the traditional definition (same-sex
sexual relations), but also because of a broader
definition, including any needless meanness,
parochiality, or exclusion. Both definitions have
resonance.
Petitioners’, and others’, religious rights are
important, but so are individuals’ rights not to be
oppressed by putatively religious cntitics or
structures, e.g., if America had a sub silentio state
Calvinism, or other oppressive regime, as the
unnamed default setting for how the society is run.
Giving Petitioners freedom to avoid supporting
same-sex weddings need not mean giving businesses
freedom to discriminate racially, especially
considering recent case law.
If Petitioners are denied their freedom, then, say,
a Holocaust survivor might have to make a cake for
Nazis following white-supremacist religious ideas.
This is unpleasant.
Too, the freedom of a Christian not to make a
cake for a Satanist wedding, might allow other
freedoms people may find more offensive. But part of
freedom may be the right to offend.
Petitioner should ideally have given notice of his
desire not to serve same-sex couples, by posting his
policy on the outside of his store, or by similar
means. This might have avoided an unwelcome
surprise for Respondents.
One workable solution to the case could involve
fining Petitioners and using the money to
compensate Respondents for damages, but relieving
Petitioners from re-education, being shut down, or
jail time for noncomphiance. Everyone would be left
free, and externalities would be compensated.
If Petitioners cannot be given relief from fines,
then they should be fined in only a fair amount,
which may be much smaller than some other bakers
in similar situations have bern fined so far.
Jail tame for Petitioners for following their
consciences, sounds oppressive and abusive.
Finally, the Court should be courtly and show
vrace and kindness to everyone, given the chance for
an extreme, unbalanced Court opinion to create
social strife and inequity.
ARGUMENT
Il. OBERGEFELL HAS LEFT MUCH
CONFUSION IN ITS WAKE; OR, POSSIBLE
BURDENS OF IGNORING THE PAST
The deciding of Obergefell, supra at 2, in favor of
same-sex couples’ rights occasioned much joy to such
couples, and to their allies. Llowever, things have not
been without controversy or even bloodshed since
then.
For example, Justice Ruth Bader Ginsburg once
opined that “it would ‘not take a large adjustment’
for people to eventually come around on the issue [of
same-sex marriage]”, Inae Oh, Ruth Bader Ginsburg:
America ls Ready to Accept a Pro-Gay-Marriage
SCOTUS Ruling, Mother Jones, Feb. 12, 2015, 2:46
p.m., http://www. motherjones.com/polities/2015/02/
ruth-bader-ginsburg-belicves-americans-are-ready-
uccept-scotus-gay-marriage-ruling/ (internal citation
omitted). Unfortunately, what really happened after
Obergefell is, among other things, the tragie June
2016 massacre of 49 clubgoers at the Pulse gay
nightclub in Orlando, Florida. There has also been
the election of Donald J. Trump us President, which
might not have happened but for the backlash from
voters who wanted to change the membership of the
present Court, and maybe to overturn Obergefell.
Might it have heen wiser, then, to have let the
States make democratic decisions about same-sex
marriage? Maybe, or mayhe not, depending on one's
point of view; still, a slower pace of change might
have avoided certain problems.
One point of confusion from Obergefell is Justice
Anthony Kennedy’s statement, “Only in more recent
years have psychiatrists and others recognized that
sexual orientation is ... a normal expression of
human sexuality’, slip op. at 8. What exactly does
“normal”, td., mean? Does it mean statistically
normal in the sense that it frequently occurs? Or
morally normal, e.g., implying that all parents
should tell their children (along with schoolteachers
reinforcing the lesson), “Sodomy and dating people of
your own sex are good things, you should enjoy them
and ignore outdated taboos”? Or physically normal,
e.g., that sodomy is as fertile, safe, and
uncontroversial as heterosexual sex relations?
As for the latter point: of course, sodomy is
completely infertile and has some documented
tendency to spread AIDS and other diseases, sadly
enough. And as for “controversy”, see, e.g.,
Christopher Knaus, Pelvic mesh victims disgusted at
6
suggestion of anal sex as solution, The Guardian,
Aug. 28, 2017, 8:05 a.m., https://www.thceguardian.
com/australia-news/2017/aug/28/pelvic-mesh-
victims-disgusted-at-suggestion-of-sodumy-as-
solution,
Australian victims of faulty pelvic
mesh implants have expressed disgus!
at doctors’ suggestions of anal
intercourse as a solution to their ruined
sex lives.
“My husband and I were given
advice [about] sexual activity,” one
woman suid. “We were gobsmacked.
The whole sexual deviation thing ts
supposed to make the pain and
complications from mesh go away. | find
this type of advice disgusting.”
“Our vaginas have been abused by
mesh and now doctors are suggesting
our anus be abused. Despicable! Only a
misogynist could think this way,”
[another woman] said.
Id. So if the Obergefell Court was trying to norm
sodomy for everybody: not everyone wants to be
“normed”, it seems, see Vaginal Mesh Article, supra.
(Sodomy is certainly not “fungible” with, or
indistinguishable from, other forms of sexual
contact.) A lesson to ponder.
Since the Court's Obergefell decision seemed, to
many Americans, to violate thousands of years of
religious and other tradition about what a marriage
really is, there has much to-do. Part of the to-do is
that various vendors have resisted, for religious or
ethical reasons, catcring to same-sex weddings; Just
as Petitioners, of course, are resisting cake-making
for Respondents.
If there is ever genuine, inarguably cruel bigotry
in society, c.g., a restaurant refusing to serve
African-Americans simply because of skin color, that
is inexcusable. However, in context, maybe
Petitioners are not that bad a sort of person, and are
not evincing that malicious variety of bigotry.
Indeed, Petitioners reportedly have no prohlem with
serving gay people in other contexts besides same-
sex Marriage.
Individuals do have some right of resistance
against social trends. And much of the culture is
seemingly pushing hard these days to spread
laudatory images of LGBT life, with which not
everybody might agree. For example, there 1s the
Hanna-Barbera cartoon character Snagglepuss, a
lisping, theatrical pink mountain lion who says
things like “Heavens to Murgatroyd!” and “Exit,
stage left!”, and has long been a gay icon. Wikipedia,
Snagglepuss, https://en.wikipedia.org/wiki/
Snagglepuss (as of 2:55 GMT, Sept. 3, 2017).
Id. However, the cffete feline has now recently been
portrayed as an actual homosexual, see William
Hughes, New comic series reimagines Snagglepuss as
a gay 1950s playwright, AV News, Jan. 31, 2017 4:56
p-m., http://news.avclub.com/new-comic-series-
reimagines-snagglepuss-as-a-gay-1950s-1798257072.
Even if the world is turning gayer, some people may
want to stop and get off, including Petitioners. If
they want to fight (or change, or just survive) the
future, they may have some First Amendment right
to do so. Thus, their resistance to a wedding cake for
Respondents.
II. PETITIONERS’ ARGUMENTS ABOUT
“EXPRESSIVE” OR “ARTISTIC” BEHAVIOR”
RE CAKES MAY EARN THEM RELIEF, BUT
ONLY LIMITED RELIEF
A. What Precisely Is the Court Looking at
Here? The Cake, or Just Part(s) of It?
Or, “Where Is the Res?”
About that cake: one source of confusion in the
instant case is the scope of what is heing looked at.
Petitioners cluim that the cake is “expressive
artistry’: well, does that include all of the cake”?
What if it were an unadorned yellow cake with no
frosting?
Otherwise put, “Where, or what, is the res?” Res
is being used in a broad sense here: this is not an “in
rem” proceeding, and nubody 1s suing the cake itself.
Amicus is just using the term “res” to foreground the
idea of trying to understand precisely what physical
object, or objects, are the matter of discussion herc.
Otherwise, we may all be confused.
Just as there may be various “tiers of scrutiny” in
the law, then,
Scrutiny Levels (simplified verston)
L. Strict scrutiny :
2. Intermediate scrutiny Paar
3. Rational basis
there may be various layers of scrutiny of what a
cake means or comprises:
Cake Scrutiny Levels (Layers)
1. Expressive/decorative (e.g., words, figurines, Ff
symbols, or designs)
2. Frosting or other surface of the cake (e.g., candies
without any expressive design, but possibly
decorative along with tasting good)
10
3. The mass of the cake itself, including any
filling/intcrior, which would be invisible (covered up)
Level 1 of “Cake Scrutiny’ is literally the topmost
layer: words on top of the frosting, ete. Level 3 1s
obviously the bottommost, or even interior, layer or
space of the cake. What is perhaps most interesting
is Level 2: whut exactly is the difference between
“expressive” and “decorative”, for example?
Words on the cake saying, “GO]) WANTS
EVERYONE TO ENTER A GAY MARRIAGE” would
clearly be sending an expressive message. But what
about merely decorative design, say, little flowers
etched in the frosting, or candies designed to look
like roses or rainbows? Would those be expressive (in
particular, endorsing same-sex marriage), or merely
decorative, and expressing no message about samc-
sex weddings?
Otherwise put: is the whole cake the res, or arc
just the Reese’s Pieces or other candies, words, or
other ubjects on top and sides of the cake, the res? or
just some of the objects atop the cake??
B. What Components of Petitioners’ Cakes,
Then, Might Really Be Expressive Behavior
Re Same-Sex Weddings?
So, there is some difficulty here. —-There 1s an
interesting, and here relevant, part of the script
(albeit unused in the film) of John Boorman’s
Excalibur (Orion Pictures 1981), available at
http://www.scifiscripts.com/scripts/excalibur.txt.
King Arthur is dispensing justice in his hall, see id.
11
A fat man who sells ale complains that a thin man
has the annoying habit of not buying the ale, but just
smelling its odor, “leanfing] over the barrel and
sucking its vapors”, id. The King asks the thin man
to give him three shillings, the price of the ale; the
man sadly complies. Then,
Arthur tosses them in the air and lets
them fall on a metal plate. He hands
them back to the Thin Man, who 1s
totully confused now, as is everybody
else.
ARTHUR
For the smell of your ale, the
jingle of his coins.
The knights roar with laughter and the
Fat Man and the Thin Man look ut each
other in astonishment.
Id. The ale versus the smell. Fascinating.
Somewhat similarly, and as partially discussed
with the “cake scrutiny layers” diagram supra: we
may be able to separate the cake itself, the actual
food—which is not decoration, it is edible—from uny
decoration or expression, edible or not, on it: rainbow
ribbons (whether cloth or candy) put on top of the
frosting; little plastic figurines of two men in
wedding gear; actual words printed on the cake, ¢-¢.,
“Gay Marriage Is Wonderful!”; etc.
(Amicus is repeating some ideas slightly, but that
is useful for emphasis at times.)
But Petitioners would seem to disagree, and claim
that the whole cake, indivisibly—and the making of
12
the cake, or refusal to make the cake—., 1s an
“expressive object” deserving full First Amendment
protection. ...Is this valid, though?
On the one hand: Amicus suspects that it risks
straining belief to claim that the cake itself, and its
taste, comprise expressive behavior. If that were
true, then some bigot who refused to serve certain
minorities at his restaurant could claim that he is
willing to serve some food, c.g., slop, to them, but
that to make food that is delicious, tastes very good,
is “artistic expression”, and thus his failure to serve
them certain foods is protected under the First
Amendment.
Sometimes food may he expression, e.g., when a
protestor throws a pie into a politician's face.
Otherwise, maybe food is not really expression. Even
food that looks good, wedding-cake style.
By contrast with mere food, which can be tasty
but expressively inert: let’s look at some real
expression, or at least artistic decoration, in cakery:
see Paula Cocozza, Fake uff! Meet baking’s masters of
illusion cakes, The Guardian, Aug. 31, 2017, 7:00
a.m., https:/Awww.theguardian.com/lifeandstyle/
2017/aug/3 l/fake-off-meet-bakings-masters-of-
illusion-cakes,
Illusion cakes — cakes that look hke
something they are not — must have
seemed the perfect trick to divert the
eye from The Great British Bake Offs
own recasting. ... Illusion is a
burgeoning area of baking, although its
practitioners prefer to think of their
14
Too, that photograph is definite expressive
content about marriage: showing images-in-cake of
the two lovebirds, with the poignant (Gif punny)
message, “Till Death Do Us Part”, expressing love,
faith, and mutual commitment, even despite the
visible (and maybe risible?) horrors of decapitation
(''!). Would every cake that Petitioners might sell
Respondents rise (or sink...) to that level? The Court
shouldn’t lose its head(s) over this issue, but should
ponder it carefully.
At this point, one wonders if Petitioners should do
themselves a favor and drop the “artistic expression”
claim, at least for the cake itself and any unadorned,
unlettered sections of frosting, which may “express”
precisely nothing. If, instead, they simply claimed,
as did the religious parties in Hobby Lobby, supra at
1, that they do not want to assist in an activity that
they think is sinful, that might be more forthright
and successful than some “expressive freedom”
claim.
...On the other hand, though, and trying to be
fair: the fact that Petitioners’ wedding cakes cost
hundreds of dollars might signal that they are not
just some cheap cake bought for eating at some
grocery store or run-of-the-mill bakery, but rather, a
fairly expensive and even “artistic” construction. The
base cake underneath the outer layers might just be
food; but arguably, the consumers are largely paying
for the top, visible layers, instead of just paying for
what is underneath.
(Or does that all create “class issues”, in that an
“artiste” who charges hundreds of dollars to make a
16
lil. IF GRANTED RELIEF, PETITIONERS
SHOULD RECEIVE REASONABLY NARROW
RELIEF, SO AS NOT NEEDLESSLY TO
HURT RESPONDENTS OR THOSE
SIMILARLY SITUATED
If the Court finds Petitioners’ arguments worthy
re artistic/expressive issues, or just on religious
conscience in general, the Court could grant various
types of relief. It could give Petitioners full relief as
they ask; or it could give them relief only on
induhitably expressive elements (e.g., relicf from
printing “THE LORD BLESSES SAME-SEX
MARRIAGE AND SODOMY?” on the cake), or it
could allow a fine but hmit the amount of it (see
infra Section XI), ete. The larger the relief, though,
the more risk that Respondents’ rights and dignities,
or those of people situated similarly to Respondents,
might get trampled on needlessly.
Even those who do not endorse Obergefell, may
still have to admit that it is the law of the land, with
all that that implies. ‘Thus, Respondents may have to
receive more respect than certain people might like
to give them.
The Court can be creative and conscientious here,
naturally. For example, if it does grant full relief, it
could mix that with the obligation for all future
bakers (or other foodstuff makers) to post on the
outside of their stores in advance, that they refuse to
serve same-sex weddings; or if local laws do not
allow them to do that, then at least posting, either
in-store or on the Internet, what disclaimers or
relevant information they can—e.g., that the State
requires them not to deny service to gays—, to give
17
some reasonable warning to potential chents. (See
infra Section IX, discussing this issue)
One problem that makes it more difficult to give
full and untrammeled relief to Petitioners, is the
externalities, the damaging bayyaye, their aclions
cause. In Hobby Lobby, by contrast, there may have
been largely some paperwork involved, and using
accommodations which non-profit corporations were
allowed, see id., so that there were arguably few
serious externalities. But in the instant case, some
externalities include the hurt which Respondents
claim, that their dignity was insulted as being
treated us less than that of upposite-sex marrying
partners’, along with the need to go find someone
else to make the cake, with the time and energy that
entailed.
Given the externalitics, it is appropriatc Lo
discuss some broader issucs, even controversial ones,
re sodomy, church-state relations and balance,
hypucrisy or bad judgment, and other factors. They
may not seem to directly affect the case, but they
might show how certain forms of relief may or may
not be appropriate, given the present real-life social
situation we all live in. (There will follow some
extended commentary on sex and religion: not all
people may enjoy it, but their patience is
appreciated.)
IV. “SODOMY” MAY DENOTE NOT ONLY
SEXUAL ISSUES, BUT BROADER ISSUES OF
INJUSTICE AND EXCLUSION
First off: sodomy is traditionally taken to mean
the kinds of sexual relations common between sume-
18
sex sexual partners: largely genital/anal, oral/
genital, and maybe oral/anal (with some limited
genital/genital, anal/anal, and even oral/oral
possibilities), to put it rather frankly. We may call
that all “Sodomy Type 1”. However, since some
people are so quick to criticize homosexuals as “those
terrible sodomites”, maybe they need to take a log
out of their own eyes before criticizing the speck (or
log) in others’.
Indeed, Sodom may have other associations
besides certain body-part connections. See Ezekiel
16:49-50, “Now this was the sin of your sister Sodom:
She and her daughters were arrogant, overfed and
unconcerned; they did not help the poor and needy.
They were haughty and did detestable things before
me.” Id. This is what might be called “Sodomy Type
2”, not focused on sexual sin as much us on greed,
cruelty, and treating people as inferiors.
The second type of sodomy muy be even more
dangerous than the first, in some instances. For
example, if an Administration were reluctant to
admit refugees to this country, that could be
considered the second type of sodomy, und could end
up with getting those refugees killed, massacred in
their own countries. (Which might get Americans
killed, eventually, if America gets bad press over its
refusal to admit refugees.)
Also, with the hitting of Houston by Hurricane
Harvey, a refusal to show kindness to flood victims
chimes with the Bible on Sodomy Type 2. (One notes
that “prosperity preacher” Joel Osteen has been
savagely criticized for his church’s late lack of
19
response to the disaster, see, e.g., Brie Loskota &
Peter Gudailis, The prosperity gospel was not the
only problem with Joel Osteen’s Harvey response,
Raw Story, 12:04 p.m., Sept. 4, 2017, https://www.
rawstory.com/2017/09/the-prosperity-gospel-was-not-
the-only-problem-with-joel-osteens-harvey-
response/.)
See also, e.g., Elyse Wanshel, Pastor Warns
Hurricanes Will Hit Cities That Don't Repent ‘Sexual
Perversion’, Huffington Post, Sept. 1, 2017, 4:31 p.m.,,
http://www. huffingtonpost.com/entry/pastor-kevin-
swanson-houston-repent-sexual-perversion-
hurricane-harvey_us_59a97d74e4b0b5e530fe394d?
ncid=inbIlnkushpmg00000009 (pastor makes
unsubstantiable clamms); Randall Balmer, Under
Trump, evangelicals show their true racist colors,
L.A. Times, Aug. 23, 4:00 a.m., http://www.latimes.
com/opinion/op-ed/la-oe-balmer-evangelical-trump-
racism-20170823-story.htm! (“The deafening silence
from leaders of the religious right in the wake of the
nco-Nazi violence in Charlottesville, Va., points to an
even larger one, which places racism at the very
heart of the movement.”)
Also, why do Christian preachers who condemn
homosexuals as “sodomites”, whether employing the
word “sodomite” or not, tend to forget completely
that there are likely many more heterosexuals these
days committing sodomy than homosexuals? just
judging from the sheer difference in number between
“straights” and gays, and the massive prevalence of
sodomy these days?
This hypocrisy is reminiscent of the Pharisees,
who self-righteously condemned (certain selected)
20
others, while turning a blind eye to the sins of
themselves and their cronies. (Indeed, from an
objective point of view, an elderly gay couple who get
married, but then stay chaste—they may be too old
and tired to have sex, say—may be objectively less
sinful than some young “conservative” or
“evangelical” heterosexual couple who are reguiarly
committing sodomy till the cows come home—and
maybe with the blessing or deliberate silence of their
“pastor” who doesn’t want to jeopardize financial
contributions from his flock by criticizing his
congregation.)
True, under the First Amendment, people’s
beliefs do not need to be coherent, logical, or
consistent to receive protection. If, say, someone's
professed “god” is a talking watermelon from
Neptune which, invisibly and silently, is perpetually
revolving around the top of Mount Everest, beyond
human detection or pruof, the law still protects this
palpably absurd belief. (Though, as for “proving a
negative”: if said watermelon really were silent and
invisible, how could you prove it’s not there?)
But context still matters, to an extent. If one's
absurd beliefs or actions cause externalities to
others, absurdity can be a problem. In that vein,
while Petitioners may deserve some relief, they do
not deserve so much relief that it would be unfair to
Respondents, or that it would fall in with the plans
or sentiments of those who seck to misuse religion to
their uncthical advantage, see infra Section V.
Again, it may be wise for the Court to give
Petitioners the narrowest relief reasonably possible,
21
so as not to violate the spirit of the Establishment
Clause, equal protection, or other legal provisions.
This Court is not here to decide who is sinning or
not; but the discussion of sin and hypocrisy, and
sodomy type 1 versus type 2, helps add depth to the
discussion. And the Court, while respecting
Petitioners’ desire not to be involved with Sodomy
Type 1, should not give them so broad relief that
Sodomy ‘Type 2 occurs, whereby self-righteousness
and exclusion unnecessarily hold sway.
V. “STATE CALVINISM” IS NOT SUCH A
GOOD IDEA FOR THE U.S.
Indeed, while America formally has no state
religion, some recent political developments almust
seem as if a soft “state Calvinism” is developing in
the United States. Muslim bans; transgender bans
which go beyond a fair consideration of issues bike
bathroom privacy; immigrant bans: all that “federal
big government” is considered laudable by figures in
the current Administration. But if you are a business
owner, one of the “elect”: suddenly, you are virtually
an oppressed saint who has to be rescued from the
horror of being regulated by government. And the
instant case is in that vein, since it seeks ways for
businesses to avoid treating people equally.
See, e.g., Antonio Spadaro & Marcelo Figueroa,
Evangelical Fundamentalism and Catholic
Integralism: A Surprising Ecumenism, La Civilta
Cattolica (undated, but c. July 13, 2017), http://
www.laciviltacattolica.it/articolo/evangelical-
fundamentalism-and-catholic-inteygralism-in-the-
usa-a-Surprising-ccumenism/,
22
Today President Trump steers the fight
against u wider, generic collective
entity of the “bud” or even the “very
bad.” . .
A third element, together with
Manichaeism and the prosperity gospel,
is a particular form of proclamation of
the defense of “religious liberty.”. . .
_... There is a well-defined world of
ecumenical convergence between
sectors that are paradoxically
competitors when it comes to
confessional belonging. This meeting
over shared objectives happens around
such themes as abortion, same-sex
marriage ....
_,. The word “ecumenism” transforms
into a paradox, into an “ecumenism of
hate.” . .
Id. It is bad to forget the past, but reactionary
attempts to return to the past can be bad too. For
example, in the final episode of Twin Peaks: The
Return (Showtime television broadcast Sept. 3, 2017)
see id., an FBI agent travels back in time to prevent
a young woman’s murder, but arguably makes
everything worse by doing sv. This offers a lesson in
not trying hubristically to defy time, e.g., treating
minorities as they were treated in the bad old days.
One flagrant problem, following the above
observations about turning a blind eye to various
religious or pseudo-religious hypocrisies, is typified
23
in the Orwellian-toned “First Amendment Defense
Act”, a bill, H.R. 2802, 114% Cong. (2015), which has
not become law. This interesting uticmpt at
legislation gives businesses, see id., the right to
avoid federal punishment for acting on beliefs re
game-sex marriage or extramarital sex: a sort of
mora] gerrymandecring—at a time when the Court is
considering gerrymandering—that could make
certain sexual groups second-class citizens. (And,
when did the First Amendment center on denial of
services to people because of their sexual behavior’)
So what are the parameters here, if taking
negative actions re same-sex marriage is somewhat
undefined by “FADA”? .., Let us imagine that two
“religious” restaurant owners, Rosa Beef and
Charles Roast, have a prospective customer, Frenda
Gaze. Gaze conversationally notes to Beef, whe 1s
taking her order, “I'll have a bucon cheeseburger. I’m
going to the wedding of my two girlfriends later, und
[ don’t know if I'll make it without some food!”
Beef walks over to her partner, who is at the cash
register, and says, “Iley Chuck, that lady’s gonna go
to some lesbian wedding. Under FADA, we dun’t
have to support anything related to same-sexes
marriages! Che Feds can’t touch us!” Roast then calls
out to Gaze, “Sorry, we're decent god-fearin’
Christians and don’t wanna do anything which could
support any two-gal weddin’.”
Beef escorts the disheartened Gaze out the door
(if the State has no protections for Gaze’s rights).
Since there are no other food sources for a long
distance, Gaze becomes weak and disoriented and
crashes her cur, suffering substantial injuries, and
also missing the wedding.
24
True, this nightmare scenario might not
happen—but then again, il, or something similar,
might. If the Court wants such horrible scenarios to
happen, then it should rule for Petitioners in such an
overbroad way that husinesses have carte blanche to
discriminate as much as they like, on flimsy
grounds. But the Court doesn’t want that, of course.
VI. WHAT RATIO DECIDIENDI MAY ALLOW
BUSINESSES TO AVOID SERVING CERTAIN
PEOPLE OUT OF CONSCIENCE, BUT WON’T
ALLOW THOSE BUSINESSES TO
DISCRIMINATE BY RACE OR OTHER
COMPLETELY IMMUTABLE
CHARACTERISTICS? THERE MAY BE ONE
On that note, re the “nightmare scenario” supra:
many people may worry that if Petitioners are
allowed not to serve Respondents, then businesses
could use that precedent not to serve minority
couples, or interracial couples, or mixed-religion
(differing-faith) couples, or couples of a religion the
businessperson despises. Is there some magic
method, though, that would allow freedom of
conscience to businesspeople like Petitioners, but not
let them employ race discrimination or other forms
of discrimination that people find particularly
odious?
One case noting that “race is special” is Peria-
Rodriguez v. Colorado, 580 U.S. ___ (2017). While
the “no-impeachment” rule for juries is often
considered sacred, the Court has recently held that
racial animus is so vile that it allows an exception to
the “no-impeachment” rule, see td. passim. Other
cases may have similar commentary about the
special noxiousness of racial bias; but Pena-
Rodriguez alone nicely supports the idea that one
could completely ban race discrimination by
business, but in matters rcluting to moral or sexual!
issues, there might be more freedom of conscience for
businesses.
(Is there a sexual or sexual-orientation bias
exception to the no-impeachment rule yet? If not,
does that make the Court outdated and bigoted; or
does it just acknowledge the special poisonousness of
racial bias? Perhaps the latter is correct.)
Maybe other completely immutable
characteristics, such as one’s birth sex or congenital
disabilities (although taking into account, if needed,
the difficulties that disabilities can sometimes
cause), can also serve as barricrs to “freedom of
conscience” for husinesses who might want to avoid
service to people on the basis of such characteristics.
But for other scenarios, more leeway could be given,
as shall be explored below.
Amicus 1s concerned that if Petitioners receive no
relief, that could endanger other cases of conscience.
For example, what is there is a Jewish baker who is
called upon to cater a Nazi event? or even worse,
make a cake for a Nazi wedding with a big swastika
on top of it? What protection could there be, if any,
for a baker in that situation who wishes to avoid
making the swastika cake?
Of course, someone could say, “Well, if it’s a hate
group, the baker can have an exception.” But how do
you define a hate group? What if the wedding was
not of Nazis, but instead, a wedding of Hindus or
26
Buddhists, who also requested a swastika cake,
albeit not in a Nazi context? But what if the baker is
so personally repulsed by the swastika and its
symbolism, that he feels obliged to avoid baking any
swastika on any cake??
Or, one may argue that being a Nazi is not a
congenital inheritance like one’s racial or birth-sex
identity, so that Nazis have so special legal
protection. But what if the Nazis are not only Nazi
but also belong to a white-supremacist church that
claims God has ordered them to be white
supremacists? Now they could try to claim religious
protection, and claim that they are victims of
religious discrimination because the Jewish baker
doesn’t make the swastika cake, or any cake at all,
fur them, due to their religious beliefs.
Vil. THE CASE OF SHLOMO SATMAR, WHO
REFUSES TO GIVE RELIGIOUS
NAZIS A WEDDING CAKE
Following those ideas: let us imagine that Shlomo
Satmar, an elderly Holocaust survivor and baker—a
“cake artist”, in fact—, is paid a visit by Dirk Hisler,
« proud member of Odin’s Nordic Sons, a group
which is not only Nazi and white-supremacist but
also practices ancient Norse religion (or a
modernized version of it), and uses that as a
justification for their Nazi beliefs, believing that
Odin just loves white people more than other people.
Hisler says, “Well, well. Shlomie, you're just the
right guy to make us a cake for a white-folks’
wedding we're having at our Odin’s Nordic Sons
27
religious convention. Make it a WHITE cake! Haw
haw!! And...put a great big beautiful swastika on it!”
Satmar: “I don't think so. In this country, I don’t
have to express any ideas | don't want to! No
swastika! Good-bye.”
Hisler: “Well, aren't you clever. O.k., then just
make us that white cake with no lettcrs on it; and
decorate it beautifully, Mr. Famous Cake Artist. We
have a human right to eat. And even to have a
beautiful cake with lotsa pretty white swirls and
white roses in the frosting. Don’t discriminate, bro!!!
On a human level, many of us would say that it
would be wrong to force Satmar to give Hisler any
cake at all, swastika or no swastika. After all, he is a
Ilolocaust survivor, and white supremacists are
horrible. And they could get the cake somewhere
else.
But what is a principled way to let Satmar off the
hook? Under the theory of the court below, the poor
man might have to give them a cake, even a
beautifully decorated one, although he would not
have to put a swastika or other Nazi symbology on
the cake.
(And principle is key here. One cannot just rely
on, say, there being a judge who with a wink and a
nudge finds some way to get Satmar off scott-free, or
there being a good-hearted jury who disregard the
law to help a sympathetic defendant. A logical
principle is a better way to handle things.)
This is part of what is at stake in the instant
case. If Phillips has to give a beautiful cake to Craig
and Mullins, then why couldn’t Satmar also be
forced to give a beautiful cake to Hisler?
28
Some people would say, “Too bad, Satmar chose to
be in business. And it’s just a cake.” But what if
they're wrong? What if there is a right to avoid any
involvement, “artistic”, “expressive”, or whatever,
with actions you find morally repulsive, and maybe
even a direct (or indirect) attack on your way of life?
So even those who say, “Phillips is a horrible
bigot, make him suffer”, might want to think about
the Shlomo Satmars of the world. Even aliowing
Phillips to do a (putatively) “horrible thing”, by
refusing to make Respondents a wedding cake,
might be the price to pay for making sure that the
Satmars don't have to make a cake for Odin's Nordic
Sons.
... A further point is the color of the cake. Could
Satmar aay, “Since they’re white supremacists, |
shouldn't have to make a white cake, since that is
meant to celebrate whiteness?” Or is he
exaggerating”?
On a similar note: word is that Respondents
eventually got a rainbow wedding cake. Could
Petitioners, or those similarly situated, say, “Since
they're gays getting married, I shouldn't have to
make a rainbow cake, since that is meant to
celebrate gayness.”? Or, could they at least say,
“Well, even if you force me to make a cake in
rainbow colors—-which are just colors, after all—, |
refuse to put them into the shape of an actual
rainbow, or the shape of a gay pride flag, because
that is definitely an expressive endorsement of
gayness, sodumy, and gay marriage.”? Would that be
legitimate, or not?
30
to use their “religion” as un excuse to discriminate or
have “expressive freedom” not to make a cake.)
VIII. WHAT IF A BUSINESS TRIED TO DENY
SERVICE TO INTERFAITH, OR ANY-FAITH,
MARRIAGES? OR, “NO CAKE
FOR SATANISTS”?
A possible objection to the model above in Section
VII, is that it could be used to deny a wedding cake
to interfaith marriages, or marriages of onc
particular faith that a particular baker hates.
Amicus finds it horrific for a business to deny service
because of consumers’ faith; but what about outlier
instances?
For example, lct us say that Goodie Twoshoes, a
highly virtuous Christian (or other traditional
religion) baker finds that Darkhon Vlad, the leader
of Ye Foule Olde Coven of Satan, a devil-
worshippers’ group, has sidled into her store, black
cape dragying behind him.
“What ho, Christian lass!” Vlad intones, “Thou
shalt make me a cake for my upcoming Satanic
wedding! Be sure to put a beautiful baphomet [an
upside-down pentagram: a satanic symbol] on it, and
the words, ‘ALL MUST WORSHIP THE PRINCE OF
DARKNESS"
MU HA HA HAA"!”
Twoshoces politely declines, pointing out that she
might burn in Hell for eternity if she makes such a
cake for the sinister ceremony.
Vlad: “Well, it'd be good company down there!”
Then, he paws his oily sideburns and says, “At least,
you must make me a black and red cake, that looks
31
like the burning landscape of Hell! HA HA HA
HAAA!"!!”, as lightning flares in the window behind
him.
There are largely the same issues here as with
the “Odin’s Nordic Sons” scenario supra. Should
Goodie have to make the Satanists any wedding cake
at all? If she makes one, dues it have to be black and
red? or are such colors, in the given situation,
inherently “expressive’—i.e., allowing the baker to
refuse using those colors—in that they resemble the
volcanoes of Hell, even if Ms. Twoshocs refuses to
artistically sculpt the cake so that it actually looks
like the doomed peaks and valleys of Hell?
And if we allow her to avoid making the cake (or
some “expressive” version of the cake) fur Vlad, then,
since the Constitution doesn’t allow the State to
favor or disfavor a particular religion, could we
easily prevent someone from refusing to cater an
interfaith, or whatever-faith (or even atheist/
agnostic) wedding’ Part of freedom is that 1t may
allow people to do vile things, in order that people
may have freedom to do good things, too.
Again, some might say, “Too bad, she’s in a
licensed business, she has to make the cake.” But is
that true? And even if she is obliged to make the
cake for the Byronic baddie, should she be fined
massively, re-educated, shut down, or jailed for
refusal to make it? Excessive punishment doesn't
sound right.
Instinctively, it seems that businesses should
have some way to opt out of particular actions that
seem abominable to them, except for absolute no-go
32
zones like race. (One can debate about the difference
between “status” and “conduct” endlessly, of course,
vis-a-vis mere group membership, e.g., being a
Satanist who wants a cookie just like a Christian
might, versus what that group might actually do,
e.g., being a Satanist who wants to practice a
Satanic ceremony, as opposed to just buying and
eating a cookie like anyone else.)
What if, say, polygamy is legalized—not an
impossible thing—, and bakers arc forced to bake for
polygamous weddings? Where does it end?
The theories in Sections VI-VIII may not satisfy
everybody; but they might help bridge some of the
gap between
a. discrimination because of race, and
b. “discrimination” against events celebrating
polygamy or other particular sexual activity.
if what the Court said in Obergefell is correct,
that “Many who deem same-sex marriage to be
wrong reach that conclusion based on decent and
honorable religious or philosophical premises, and
neither they nor their beliefs are disparaged here’,
slip op. at 19 (Kennedy, J.), then that bolsters the
instincts of many of us, that “a” supra, is always
wrong, while “b” might be allowed under some,
possibly limited, circumstances.
Is there any other way the difference between “a’
and “b” supra can be justified legally and rationally?
Onc way to do so springs from Matal v. Tam, 137
S. Ct. 1744 (2017). Amicus respectfully wonders if
that case may not have heen rightly decided by the
33
Court; people could now get a federal trademark for
an Anne Frank dartboard, or a dartboard utilizing
the “n-word” in a horrific racist fashion. Do bigots
and haters really deserve federal trademurks?
But Matal, supra, is what it is, and if people can
express themselves so hatefully, then,
constitutionally, there is seemingly more latitude for
what Amicus has described, i.e., room for business
owners not to serve people if they think they are
going to go to Hell for participating in activities that
bother their consciences.
Of course, if businesses do something really
outrageous, like refusing to serve weddings in any of
the traditional religions, a requirement by the Court
that they post a prior disclaimer or other notice of
their prejudices, should likely help get them
boycotted bankrupted and, anyway, duc to the
ensuing bad publicity. We now discuss disclaimers.
Ix. IN THE INSTANT CASE OR FUTURE
CASES, IT MAY BE WISE TO REQUIRE
THAT BUSINESSES PUBLICLY POST
THEIR POLICY OF REFUSING TO
CATER SAME-SEX WEDDINGS (OR OTHER
MATTERS), INSOFAR AS THEY MAY
Respondents had the unpleasant surprise of
learning from Masterpiece Cakcshop that that
business would refuse to provide a cake for their
same-sex wedding...and it was a surprise because
the Cakeshop apparently did not make any public
posting of that policy. Why wasn’t there one?
True, Colorado might forbid Phillips putting a
sign at the front of his store, saying, “WE DO NOT
34
CATER TO SAME-SEX WEDDINGS". However,
some States might not forbid such a posting. If
businesspeople had the courage of their convictions,
they should likely put up such a sign, publicly. This
would express their feelings of conscience, and also
give warning to people similarly situated to
Respondents, so they would not be shocked or
dejected by having to hear in private, that they
would not be getting a wedding cake.
Even bigots, in a sick way, have shown “candor”
by putting signs in their windows, “NO [IRISH OR
BLACKS NEED APPLY”, “WOMEN NOT
WELCOME AT THIS BAR’, “HINDUS GO HOME’,
etc. Especially if Phillips’s sentiments are less
disgusting than some of those just mentioned, then
what prevented him from publicly airing them in
writing, in some way, shape, or form?
So if Phillips is fined, perhaps his lack of notice to
Respondents might be part of that. Or, if he is given
a pass because the Court had not decided on that
policy before now, then the Court could make that a
future requirement, that those businesses who wish
to avoid fines must first publicly post, as much as
they are allowed to do, their intended exclusions
against, or their objections to the State forcing them
to be inclusive towards, various sectors of the public,
same-sex spouses or otherwise. See Craig v.
Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App.
2015),
However, CADA does not prevent
Masterpiece from posting a disclaimer
in the store or on the Internet
35
indicating that the provision of its
services ducs not constitute an
endorsement or approval of conduct
protected by CADA. Masterpiece could
also post or otherwise disseminate a
message indicating that CADA requires
it not to discriminate on the basis of
sexual orientation and other protected
characteristics. ...
Id. ut 288 (Tauhman, J.) (citation omitted).
X. ONE FAIR SOLUTION COULD INVOLVE
FINING PETITIONERS FOR THEIR BURDEN
ON RESPONDENTS, BUT WITHOUT FORCING
FUTURE COMPLIANCE OR THREATENING
SHUTDOWN OR JAIL TIME
Disclaimers aside: so what is to be done about the
main problem? Is the Court caught between Seylia
and Charybdis? I.c., must it cither rule that:
Petitioners’ putative rights must be violated, and
Petitioners must be fined, forced to “re-educate”
their employees, and maybe shut down or even jailed
for non-compliance? or, on the other hand, must the
Court rule that Respondents’ putative rights must be
violated, and that bakers have carte blanche to
refuse service and thus to make gay spouses-to-be go
hunting for another bakery? (And in some regions of
the Nation, what if no nearby baker is willing to
make the cake?)
Fortunately, all that might be a false dichotomy.
What if, instead, if the Court feels that Phillips has
to be punished in some way: what abdvout simply
fining him? The fine could go not just to the
36
government, but also to Respondents (which might
mean raising the amount of the fine... maybe
including the price of a cake bought elsewhere”): a
sort of fixed-number “liquidated damages’, maybe.
This would perform several tasks:
a. Petitioners would be punished;
b. Petitioners would be made to compensate
Respondents for lost time, energy, and money spent
in having to go find another baker;
c. Any “dignitary harm” to Respondents would be
compensated, at least in part;
d. With a fixed amount of damages, there would be
predictability, and the need for trial or excessive
administrative involvement would be avoided.
The middle points supra, “bh” and “c”, deal with
the externalities Petitioners ladle out on
Respondents (lost resources, emotional hurt), so that
Petitioners would be forced to spend money to place
Respondents in roughly the place they were before
the refusal to make the wedding cake.
But, since Petitioners’ conscience rights and
dignity are also important: the Court might not
allow the State to excessively fine Petitioners, nor to
force them to re-educate their employees, nor to shut
down, nor to go to jail. (The State could encourage re-
education, und provide ample resources for doing so;
but re-education would not be mandatory, but
rather, precatory, in that there would be no penalty
for non-compliance by Petitioners.)
37
Critics could sneer and call this the “Led Zeppelin
solution”: i.e., that Petitioners would be “buying a
stairway to heaven”, Led Zeppelin, Stairway to
Heaven, on Led Zeppelin IV (Atlantic 1971), by being
allowed to “buy” the right of conscience (“buy” it by
paying fines) not to make a cake for Respondents,
without any further punishment. But would that be
such a terrible thing?
Under that rubric, Petitioners would be punished
and have to pay some damages to Respondents, but
Petitioners would still he allowed to practice their
faith and business the way they want to—with the
proviso that every time they refuse service to people
like Respondents, they must pay a fine (and maybe
incur community ill-will or boycotts).
Some refusal of service is so odious that society
cannot tolerate it; most notably, refusal of service
because of race or color, two harmless and
immutable characteristics, and considering the
background of slavery and “Jim Crow” in the
Nation’s history. But: remember Shlomo Satmar.
The most that Satmar should be punished, if at
all, for his refusal to make a “white” cake (or maybe
even a darker-colored one) for Odin’s Nordic Sons,
should be a relatively small fine and damages, if
any. He could pay the fine and move on with his hfe,
and the Nordic Sons, as vile as they are, could move
on with their lives, and even slightly richer (sadly
enough) due to Satmar’s refusal to make them a
cake.
And similarly, then, with the instant case. If
Respondents want to massively fine, re-educate,
38
shut. down, or jail Phillips and his store and workers:
maybe that goes a little too far. Especially since the
same coercive tools could be used aguinst Shlomo
Satmar, or similarly-situated people. oes America
want that result? Does the Court?
No jail, no mandatory re-education, no denial of
people's freedoms, no lack of monetary compensation
for externalities forced on people. Amicus is not sure
there are very many problems with this legal and
intellectual mode}. And if a solution solves problems,
maybe it could be adopted.
Admittedly, one issue with having the damages
be fixed is that, say, an organized effort—sometimes
known as a “conspiracy"—could be made to bankrupt
Petitioners or other bakeries, c.g., by having a “flash
mob” of a thousand people all go to the bakery,
demand a wedding cake for a same-sex marriage, get
refused, and then get 500 times the damage amount
(1000 people divided by two, since there'd be 500
couples denied service). Perhaps there should be
judicial discretion to “impose a reasonable fine”,
which would let the judge lower the fine, mayb> to
nothing, in case of such a “cake conspiracy” to
bankrupt a baker.
XI. FINES SHOULD BR REASONABLE
Amicus has already implied that fines for
Petitioners should not be great. In a similar case to
the instant one, in Oregon, bakers Sweet Cakes by
Melissa, refusing to make a cake for a same-sex
marriage, were fined a whopping $135,000, see
George Rede, Same-sex couple in Sweet Cakes
controversy should recetve $135,000, hearings officer
39
says, The Oregonian/OregonLive, updated Apr. 27,
2015, 4:32 p.m., http:/Awww.oregonlive.com/business/
index.ss{/2015/04/same-sex_couple_in_ sweet_cakes.
html. But is that too much money?
See, by contrast, Olivia Solon, Atrbnb host who
canceled reservation using racist comment must pay
$5,000, The Guardian, July 13, 2017, 1:00 p.m.,
https://www.theguardian.com/technology/2017/jul/
13/airbnb-california-racist-comment-penalty-asian-
american: “An Airbnb host who canceled a woman's
reservation using a racist remark has been ordered
to pay $5,000 in damages for racial discrimination
and take a course in Asian American studies.” /d.
That situation involves the horror of racism, and
canceling a pre-made reservation, thus violating
reliance interests. But the fine is only $5000,
compared to the $135,000 fine mentioned supra for
just not making a cake for somebody.
Apparently, then, a fine for not making a wedding
cake for a gay couple walking in off the street should
perhaps be less than $5000—maybe far less.
(Although if Petitioners are not required to take a
course or otherwise re-educate themselves, perhaps
the fine could be raised, lest the burden on
Petitioners be made too light.) While Respondents
may have had their dignity violated, Petitioners
might feel their own dignity violated if they had to
renounce ther religious values and make the cake.
XII. IT SEEMS EXCESSIVE TO PUT
PETITIONERS IN JAIL IF THEY REFUSE TO
COMPLY WITH “RE-EDUCATING”
THEMSELVES, OR WITH SOME
40
OTHER COMMANDS
Amicus has already mentioned that jailing
Petitioners might be a bad idea; but he repeats it
here for the sake or reinforcement. Would people
consider jailing Shlomo Satmar for refusing to give a
cake, “expressive” or otherwise, to Odin's Nordic
Sons? Many people would be quite uncomfortable
with that. We might also be uncomfortable, then,
with putting Petitioners behind bars for following
their conscienccs.
xk * *
“We must love one another or dic.’ W.H. Auden,
September 1, 19329 (1939). On that note: Amicus
almost feels like he is writing two briefs in onc here.
On one hand, he 1s trying to defend Petitioners’
legitimate legal rights and dignities, if any; on the
other, he is, though withvuut endorsing same-sex
marriage in any way, trying to defend Respondents’
legitimate legal rights and dignities, if any. (If
Respondents are morally wrong—or Petitioners. for
that matter—, they can answer to God in the
afterlife: but on Earth, under America’s current
laws, they may have some protection for their
claims.) Civil coexistence and even mutual love, even
despite disagreements, is better than mutual hate.
Amicus refers once again to Princess Diana, as he
did earlier. Just as that dearly missed member of
royalty showed courtly kindness and grace, this
Court can do similarly. Courts can be courtly.
Part of that is finding ways not to cause too much
misery to decent people. Jack Phillips doesn’t seem
41
like a monster. He is willing to serve LGBT people in
various contexts. He is worried about peril to his
immortal soul. He deserves a chance.
But so do Charlie Craig and David Mullins. They
believe their love, now protected by Obergefell,
deserves respect, and that they should have the
same rights at business establishments that others
have. They deserve a chance too.
If the Court can create a better, kinder, more
“courtly” solution than Amicus has offered, excellent.
Amicus can only try. But when the country is flying
apart into polarized fragments, it could really use a
decision from the Court that considers everyone's
points of view and maybe brings people together,
with suitable justice for all, instead of causing more
social fracturing and misery for the Nation.
CONCLUSION
The Court should consider what will uphold the
dignity of both sets of parties; and Amicus humbly
thanks the Court for its time and consideration.
September 7, 2017 Respectfully submitted,
David Boyle
Counsel of Record
P.O. Box 15143
Long Beach, CA 90815
ibo@boyleslaw.org
(734) 904-6132
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.