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 ai.,

Petitioners,

—V.-—

COLORADO CIVIL RIGHTS COMMISSION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

COLORADO COURT OF APPEALS

BRIEF OF AMICI CURIAE FORMER REPRESENTATIVE

TONY COELHO, NATIONAL FEDERATION OF THE BLIND,

NATIONAL ASSOCIATION OF THE DEAF, AMERICAN

COUNCIL OF THE BLIND, DISABILITY RIGHTS BAR

ASSOCIATION, DISABILITY RIGHTS ADVOCATES,

DISABILITY RIGHTS EDUCATION & DEFENSE FUND,

JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH

LAW, CIVIL RIGHTS EDUCATION & ENFORCEMENT

CENTER, ASSOCIATION OF LATE DEAFENED ADULTS,

AUTISTIC SELF ADVOCACY NETWORK IN SUPPORT OF

RESPONDENTS, URGING AFFIRMANCE

SANFORD JAY ROSEN

Counsel of Record

ROSEN BIEN GALVAN

& GRUNFELD LLP

50 Fremont Street,

Nineteenth Floor

San Francisco, California 94105

(415) 433-6830

srosen@rbgg.com

Attorney for Amici Curiae

TABLE OF CONTENTS

py.) ON He OR ty ty a |: ee

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

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

po og ee a Late tals eee eo ee

CREATION OF A CONSTITUTIONAL

PERSONAL SCRUPLES DEFENSE

TO ENFORCEMENT OF THE COLORADO

ANTIDISCRIMINATION ACT

JEOPARDIZES LEGISLATIVE

PROTECTIONS OF PERSONS WITH

SPUR OEE 6 6 coc sivcesivnarevncescesee

Petitioners’ Free Exercise Defense

Would Upset the Careful Balance

Civil Rights Laws Have Struck

Between First Amendment and

Equal Protection Rights ............

1. The Principal Sponsor of the

ADA Personally Faced Religiously

Based Discrimination Due to

SEW ROUNIIEN oi vis wa nenses ccceges

2. Accommodations for People with

@ 2)

Disabilities Have Been Wrongfully

Denied on the Basis of Religious

MUNN 3s vanvtuedecusveuscs 0s sees:

PAGE

B. Defendants Frequently Assert

Inappropriate Free Expression

Defenses to Disability Rights

GN Bic wiudcncapubesteudececdcecaneus 15

1. Some Defendants Have Argued

That Branding Is Free Expression

That Justifies Violating

Accessibility Requirements .... 15

2. Some Defendants Have Argued

That Refusal to Accommodate Is

Justified as First Amendment

Protected Academic Freedom .. 17

Il. HISTORY TEACHES THE IMPORTANCE

OF FULL ENFORCEMENT OF ANTI-

DISCRIMINATION LAWS IN THE FACE

OF EXPRESSIVE AND RELIGIOUS

FREEDOM DEFENSES AND

rR ay ener rae 20

EE cuir cae kaivesseeneaeeasee’ balances 23

APPENDIX OF STATEMENTS OF THE

eg ny SA | 2) gee la

TABLE OF AUTHORITIES

PAGE

Cases:

Bob Jones University v. United States,

eRe ee Cocky +b cvncestasceceves 20, 21

Bradford v. Prosoft, LLC,

No. 3:16-CV-00373-CRS-DW, 2017 WL

1458201 (W.D. Ky. Apr. 24, 2017)...... 14

Bragdon v. Abbott,

ee I EE ov vce uc vnnsccesesecne 14

Colorado Cross-Disability Coal. v.

Abercrombie & Fitch Co.,

765 F.3d 1205 (10th Cir. 2014) ......... 16

Colorado Cross-Disability Coal. v.

Abercrombie & Fitch Co.,

835 F. Supp. 2d 1077

Pi Ct ED ct cag bi ven vas hehe saecnens 15, 16

Cooper v. Aaron,

EE, 6 CR os wicdatcecesceceor sevice 17

Craig v. Masterpiece Cakeshop, Inc.,

370 P.3d 272 (Colo. App.

BB NRE ac lccucdpekidcrceccehssaees

Doe v. Deer Mountain Day Camp, Inc.,

682 F. Supp. 2d 324 (S.D.N.Y. 2010)... 14

EEOC v. Miss. Coll.,

636 F.34 477 (6th Cir. 1960) ........45.. 21

Employment Div., Dep’t of Human Res.

of Oregon v. Smith,

PU aos SO eee 5, 6

PAGE

Guckenberger v. Boston Univ.,

974 F. Supp. 106 (D. Mass.

Ss Ue isc Gs bees ss noparecnaskeves 17, 18

Heart of Atlanta Motel, Inc. v. United States,

ee a ccc teneecssccas tives 2

Lentini v. California Ctr. for the

Arts, Escondido,

370 F.3d 837 (9th Cir.2004)............. 13

Loving v. Virginia,

ie Se > eee 20

Obergefell v. Hodges,

fo ee | gst | ee toge are 2, 22

Palmer v. Thompson,

ee Si Se FEED 6608 doks eee ae lice 19

PGA Tour, Inc. v. Martin,

Sgn eo ee ee er 3

Redding v. Nova Se. Univ., Inc.,

165 F. Supp. 3d 1274

eS SE oer ao bie el ocad dy wees tis wks 18

Reynolds v. United States,

Si, EEE 3 oni so ccabiaduteruvens 6

Rumsfeld v. Forum for Acad. &

Institutional Rights, Inc.,

i SS ene eee 5

Sch, Dist. of Abington Twp., Pa. v. Schempp,

ee es I I ints osanesandesedes>- 6

PAGE

Stevens v. Optimum Health Institute,

810 F. Supp. 2d 1074 (S.D. Cal.

ED scene sscacssr eras seisun 11, 12, 18

Stormans, Inc. v. Selecky,

586 F.3d 1109 (9th Cir. 2009)........... 14

Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc.,

SE PT ove vc deasvicwdccusess 16

Statutes and Regulations:

42 U.S.C. § 12101, note (b)(1) and (5) ...... 1

GE Eee BF REED cddasediccccébede sores 1

PR RR ae 3

Seif © a 3 CROSS Sere Se Pe oe ee 1

ee Meats BIRD aah cei Sides siete cuesscesenee 19

Oe Sees Oe BEE (iv vaisix viv cn pases coegen. 15

Oe ae Se a ee 6

eG cea REED os Sik ddasersciescondassswans 19

Colo. Rev. Stat. § 24-34-601................. 2

Other Authorities:

135 Cong: Rec. $.10,800 (1989)

(statement of Sen. Simon)............... 13

56 Fed. Reg. 35544-35691 (Jul. 26, 1991).....6, 7

Alexander Bickel, The Least Dangerous Branch,

Yale University Press (1962) ........... 22

PAGE

Americans With Disabilities: 2010, Matthew

W. Brault, U.S. Census Bureau, Rep.

No. P7O-1391., Saker Deas oo ic cvedconteneso 1

August 30, 2016 letter from Rebecca B. Bond,

Disability Rights Section Chief,

Department of Justice to UC Berkeley

Chancellor Nicholas B. Dirks, et al.,

Le IO, DeGek BAe coe oe keess5seh sea 19

Charles L. Black, Jr., The Lawfulness of the

Segregation Decisions, 69 Yale Law

SOUrmeS CAE CLONE he we dc ssecnssesvenecius 21

Denver Judge: Abercrombie Brand Hollister

Violating Disabilities Act, The Colorado

Independent, Susan Greene,

ee TE, Se 6.55060 scadkovacie esas 16

Herbert Wechsler, Toward Neutral Principles

of Constitutional Law, 73 Harvard Law

Review 1, 34-36 (1969) .......cscccsccees 21

ee Ge 6 ov vcdtsscudacvices eee 7

Fe, we hey | Semen? Sete. 7

March 1, 2017 Statement of UC Berkeley

Vice Chancellor Cathy Koshland,

re Campus Message on Course Capture

Video, Podcast Changes .............-.0. 19

Minnesota's Muslim Cab Drivers Face

Crackdown, Reuters, Apr. 17, 2007 .... 13

PAGE

Pain and Suffering as Viewed by the Hindu

Religion, Sarah M. Whitman, MD, The

Journal of Pain, Vol. 8, No. 8

oS | 7

Peter David Blanck, Civil Rights, Learning

Disability, and Academic Standards, 2

Journal of Gender, Race, & Justice 33

oes coca sueescas secs 18

Robert Bork, Civil Rights—A Challenge,

New Republic, Aug. 31, 19638............ 22

S. 2345 to Establish a Clear and Comprehensive

Prohibition of Discrimination on the Basis

of Handicap: Joint Hearing Before the

Subcomm. on the Handicapped of the S.

Comm. on Labor & Human Res. & Subcomm.

on Select Ed. of the H. Comm. of Ed. &

Labor, 100th Cong. 11-12 (1988)

(statement of Rep. Coelho).............. 10

S.Rep.No.872, 88th Cong., 2d Sess.,

a CECE TG decccesvdccbavarecees 3

The Buddha Speaks the Sutra on Cause and

Effect in the Three Periods of Time,

Translated by the Buddhist Text

BO . PRCCEETET UTE ETT 7

Transcript of Oral Argument at 9:7-9,

Expressions Hair Design v. Schneiderman,

137 S. Ct. 1144 (15-1391) (question of

Es ee 15

INTEREST OF AMICI CURIAE'

Recognition of freedom of expression and

religion defenses to enforcement of civil rights

laws, such as those asserted by Petitioners, would

seriously weaken statutory and constitutional

protections of the rights of people with disabilities

to “equality of opportunity, full participation,

independent living, and economic self-sufficiency,”

the express goals of the Americans with

Disabilities Act (“ADA”). 42 U.S.C. § 12101(a)(7).

Over 56 million Americans—almost 20% of the

U.S. population—have a disability. Americans

With Disabilities: 2010, Matthew W. Brault, U.S.

Census Bureau, Rep. No. P70-131, July 2012.

It is not always obvious who constitutes a

person with a disability. Under federal law, people

entitled to disability civil rights protections

include individuals with physical or mental

impairments that substantially limit one or more

major life activities; individuals with a record or

history of such impairment; and individuals

regarded as having such impairment. See 42

U.S.C. § 12102. This definition “offers a broad

scope of protection,” and “should not demand

extensive analysis.” See 42 U.S.C. § 12101, note

(b)(1) and (5).

Amici Curiae are a principal author of the

Americans With Disabilities Act (“ADA”) and

leading disability rights organizations with

substantial expertise related to federal, state, and

‘ No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary

contribution to the preparation or submission of this brief. All

parties have consented in writing to the filing of this brief.

local disability rights law and disability rights

litigation.

Amici have expertise directly bearing on the

issues before the Court. The organizational Amici

and the lawyers and others who work with and for

them are on the front lines enforcing the ADA and

state and local laws, such as the Colorado Anti-

Discrimination Act (“CADA”). They frequently

encounter freedom of expression and religion

defenses to proper enforcement of these statutes.

Such beliefs, regardless of the sincerity with

which they are held, cannot be used as a shield for

discrimination in contravention of disability rights

entitlements. The cases discussed below are a

minor fraction of such instances, constituting just

those that have citable references.

The Statements of the twelve Amici are set

forth in the Appendix to this Brief.

SUMMARY OF ARGUMENT

In Obergefell v. Hodges, this Court secured

equal dignity for same-sex couples’. by

guaranteeing them their fundamental right to

marry. 135 S. Ct. 2584, 2603 (2015). Consistent

with the core of Obergefell, the CADA assures

LGBTQ people equal dignity by prohibiting

discrimination based on sexual orientation in and

by places of public accommodation. Colo. Rev.

Stat. § 24-34-6011. Like its federal counterpart

Title II of the Civil Rights Act of 1964, the

CADA regulates economic conduct, with

“[t}he fundamental object .. . to vindicate ‘the

deprivation of personal dignity that surely

accompanies denials of equal access to public

establishments.” Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 250 (1964) (quoting

S.Rep.No.872, 88th Cong., 2d Sess., at 16-17).

In this case, a baker and his bakery seek a

federal constitutional exception to this state

antidiscrimination law that will allow the

business, an undisputed place of public

accommodation, to discriminate in the provision of

its goods and services on the basis of sexual

orientation. Antidiscrimination laws protect

members of numerous historically excluded

groups. If created, this defense will infect all

antidiscrimination laws in our country and will

have terrible consequences for all such protected

groups, including people with disabilities.

Amici are dedicated to vindication of the

dignity of individuals with disabilities through

actions seeking to ensure and improve the rights

of such individuals to full and equal participation

in all aspects of our society. In the ADA, Congress

provided a “broad mandate” meant “to remedy

widespread discrimination against disabled

individuals.” PGA Tour, Inc. v. Martin, 532 U.S.

661, 674 (2001). The express purpose is “to provide

clear, strong, consistent, enforceable standards

addressing discrimination against individuals

with disabilities.” 42 U.S.C. § 12101(b)(2)

(emphasis added). State and local laws, like the

CADA, also protect people from discrimination on

the basis of disability, as well as sexual

orientation, race, and other invidious

classifications.

The baker’s proposed exceptions to public

accommodation laws would jeopardize the ADA’s

promise of consistent and enforceable standards,

and allow an individual’s professed scruples to

supersede the rights of historically disadvantaged

people to full participation in this nation’s

economic and commercial life.

Here Amici marshal examples of First

Amendment defenses already raised by opponents

of full enforcement of the ADA, and past attempts

to trammel!l constitutional and legal protections of

blacks, women, and members’ of other

constitutionally protected classes.

ARGUMENT

I. CREATION OF A CONSTITUTIONAL

PERSONAL SCRUPLES DEFENSE TO

ENFORCEMENT OF THE COLORADO

ANTIDISCRIMINATION ACT

JEOPARDIZES LEGISLATIVE

PROTECTIONS OF PERSONS

WITH DISABILITIES.

Antidiscrimination laws are enacted and

enforced to vindicate the freedom and human

dignity of historically oppressed, discretely

identifiable groups. Court-created exceptions of

the type proposed by Petitioners would riddle our

antidiscrimination protections with holes and

erect significant procedural barriers’ to

enforcement of these important rights, even where

such defenses lack merit.

The Colorado Court of Appeals correctly

rejected Petitioners’ arguments for a religious

liberty or free speech exception to the CADA. The

Court of Appeals found that the baker and his

bakery were not entitled to a religious exemption

from the law, because the “CADA is a neutral law

of general applicability,” not one that

discriminates on the basis of religion. Craig v.

Masterpiece Cakeshop, Inc., 370 P.3d 272, 288

(Colo. App. Aug. 13, 2015). It also correctly held

that the CADA did not compel Petitioners to

convey any particular message by and through his

cakes, and that the commercial nature of the

transaction reduced the likelihood that any

reasonable observer would believe that the baker

supported the message, if any, expressed in its

finished product. Jd. at 286-87.

This last point is one of critical importance.

This Court has held that, when determining

whether conduct is sufficiently expressive to

trigger First Amendment protections, a reasonable

observer should be presumed to “appreciate the

difference” between speech that is endorsed by the

speaker and speech that is merely “legally

required.” Rumsfeld v. Forum for Acad. &

Institutional Rights, Inc., 547 U.S. 47, 65 (2006).

All legally required conduct can be reframed

as a compelled message of agreement with the

underlying policy that is being served. But this

Court has warned against this unnerving

proposition. See id.; Employment Div., Dep’t of

Human Res. of Oregon v. Smith, 494 U.S. 872, 878

(1990) (“It is no more necessary to regard the

collection of a general tax, for example, as

‘prohibiting the free exercise [of religion]’ by those

citizens who believe support of organized

government to be sinful, than it is to regard the

same tax as ‘abridging the freedom .. . of the

press’ of those publishing companies that must

pay the tax as a condition of staying in

business.”).

A. Petitioners’ Free Exercise Defense

Would Upset the Careful Balance

Civil Rights Laws Have Struck

Between First Amendment and

Equal Protection Rights.

“The free exercise of religion means, first and

foremost, the right to believe and profess

whatever religious doctrine one desires.” Jd. at

877. And surely religious leaders have been at the

forefront of advancing civil rights for centuries.

But the United States is “a country whose people

came from the four quarters of the earth and

brought with them a diversity of religious

opinion.” Sch. Dist. of Abington Twp., Pa. v.

Schempp, 374 U.S. 203, 214 (1963). Religious

pluralism is an asset to our democracy, but civil

society requires a strong line between an

individual’s civic responsibilities under the law

and the individual’s personal religious beliefs and

practices. To make the “professed doctrines of

religious belief superior to the law of the land [is]

in effect to permit every citizen to become a law

unto himself. Government could exist only in

name under such circumstances.” Reynolds uv.

United States, 98 U.S. 145, 167 (1878).

Congress struck a balance in Title III of the

ADA by exempting from coverage “religious

entities or entities controlled by religious

organizations, including places of worship.” See 42

U.S.C. § 12187; 56 Fed. Reg. 35544-35691 (Jul. 26,

1991) (describing the religious organization

exemption as “very broad” and stating that “even

when a religious organization carries out

activities that would otherwise make it a public

accommodation, the religious organization is

exempt from ADA coverage”). “The test is whether

the church or other religious organization

operates the public accommodation.” I7d.

Petitioners’ free exercise exemption would upend

this balance, and allow any individual business

owner to assert their beliefs as a defense to their

economic conduct in the public square.

Most places of worship have been aggressive

leaders in inclusion, despite this statutory

exemption, and Amici do not question the

commitment to inclusion of the overwhelming

majority of people of faith. At the same time,

many faiths have at least some citable, scriptural

basis for shunning people with disabilities. See,

e.g., Leviticus 21:17-20 (“[NJone of your

descendants who has a defect may come near to

offer the food of his God.”); Pain and Suffering as

Viewed by the Hindu Religion, Sarah M. Whitman,

MD, The Journal of Pain, Vol. 8, No. 8 (Aug.

2007), at 607-13; The Buddha Speaks the Sutra on

Cause and Effect in the Three Periods of Time,

Translated by the Buddhist Text Translation

Society (“The blind of this world bear a heavy

burden for past failure to tell the way clearly to

travelers.”); Koran 6:39 (“Those who reject our

Signs are deaf and dumb, - in the midst of

darkness profound.”). Because courts do not

inquire into the sincerity of professed religious

beliefs, Petitioners’ free exercise exception would

create a plausible defense, which in many

instances would swallow enforcement of the ADA

and similar state and local laws.

1. The Principal Sponsor of

the ADA Personally Faced

Religiously Based Discrimination

Due to His Disability.

In 1988, United States Representative

Anthony Coelho of California introduced

H.R.4498, the House version of the Americans

with Disabilities Act. Rep. Coelho, who has

epilepsy, testified in support of the bill’s passage

about his own experiences with religiously

motivated discrimination on the basis of his

disability.

As a young man, I developed seizures,

later diagnosed as epilepsy. For many

years, for 5 years, as I had my seizures on

a regular basis, | did not know what they

were. I went to every doctor that you

could think of. I also went to three witch

doctors, because I was’ supposedly

possessed by the devil. My Republican

colleagues think I am, but others believed

. Oe ees

In my senior year [of college} .... l

decided I wanted to become a Catholic

priest. As I graduated with honors, I then

had a physical exam in order to enter the

seminary. The physical exam pointed out

that the seizures I’d been having for 5

years meant that | had epilepsy.

I always remember very well what

happened, in that I walked to the doctor’s

office from my car, sat in the doctor’s

office, was told about my epilepsy, walked

back to my car, got back in my car and

drove back to my fraternity house and I

was the same exact person. But only in

my own mind because the world around

me changed.

My doctor had to notify the legal

authorities of my epilepsy. My church was

notified and immediately I was not able to

become a Catholic priest, because my

church did not, at the time, permit

epileptics to be priests. My driver’s license

was taken away, my insurance was taken

away. Every job application has the word

epilepsy on it and I marked it, because |

was not going to lie. And I couldn't get a

job.

My parents refused to accept my

epilepsy. I became suicidal and drunk by

noon. ...I1 had not changed as a person.

The only reason is that [the] world around

me had changed. The light had been

turned off, the light of opportunity, the

light of hope....

I’m here today, serving in the capacity

that I serve, because some _ people

believe{d]. Not because my government

protected me, not because my government

protected my basic civil rights.

I am a major advocate of this bill

because I want to make sure that other

young people, as [they’re] looking for

hope, as they believe that the system

should work for them, have that hope,

have that opportunity. ...

That is what this bill is all about; 36

million Americans deciding it is time for

us to stand up for ourselves, to make a

difference, to say we want our basic civil

rights also. We deserve it.

Give us an opportunity to do what we

can do, do not keep telling us what we

cannot do.

S. 2345 to Establish a Clear and Comprehensive

Prohibition of Discrimination on the Basis of

Handicap: Joint Hearing Before the Subcomm. on

the Handicapped of the S. Comm. on Labor &

Human Res. & Subcomm. on Select Ed. of the H.

Comm. of Ed. & Labor, 100th Cong. 11-12 (1988)

(statement of Rep. Coelho).

Representative Coelho referenced the Canon

Law (Codex luris Canonici), promulgated in 1917,

which was the classification of laws and

jurisprudence that governed the Roman Catholic

Church until its reorganization in 1983. It forbade

to be ordained “those who are or were epileptics

either not quite in their right mind or possessed

by the Evil One,” hence Representative Coelho’s

reference to the belief that he was “possessed by

the devil.” In the revised Code of Canon Law,

promulgated in 1983, reference to physical

disability and the connection between possession

by evil and epilepsy were removed, and replaced

by a prohibition on “insanity or other psychic

defect,” evaluation of which is to be done by

experts.

Representative Coelho’s experience illustrates

two key points. First, the framers of the ADA

sought to remedy discrimination against persons

with disabilities, including religiously motivated

discrimination. Hence, Petitioners’ position risks

promoting to constitutionally protected status the

very attitudinal barriers and prejudices that

Congress enacted the ADA to remedy. The

disapproval of groups of people that underlies

discriminatory treatment commonly derives from

or is supported by religious beliefs, as in the case

of the baker here.

Second, it demonstrates that religious beliefs,

and the views of religious organizations, can and

do change with developing social and cultura]

norms. The transient nature of religious

prejudices against persons with disabilities

counsels in favor of applying disability rights

protections without exception for such beliefs.

2. Accommodations for People

with Disabilities Have Been

Wrongfully Denied on the

Basis of Religious Belief.

In practice, disability discrimination is often

motivated by sincere religious belief. Amici

through litigation, client contact, and personal

experience have encountered examples of

discriminatory conduct against persons with

disabilities framed as a compulsion of religious

conviction.

In Stevens v. Optimum Health Institute, 810

F. Supp. 2d 1074 (S.D. Cal. Aug. 24, 2011), a blind

woman brought an action against a non-profit,

religious organization which operated a holistic

health program, alleging it violated California

State disability rights protections—the Unruh

Civil Rights Act and Disabled Persons Act—by

denying her services in a place of public

accommodation because of her disability. Plaintiff

sought to attend the institute either with her

service dog, or unaccompanied with the aid of her

cane. Jd. at 1081. The Institute refused as to both.

Id. The Court granted summary judgment for

plaintiff finding that defendant violated both

California laws by refusing to permit her to attend

the institute with her cane. /d. at 1100.

With regard to her request for a service dog

accommodation, the Health Institute took the

position that allowing the animal would violate

the program’s religious sanctity. In a declaration

filed as part of the summary judgment

proceedings, Defendant Nees, the Ecclesiastical

Superior of the program’s parent religious

organization stated:

The grounds of OHI are sacred. In order

to maintain a pure environment for

healing and worship, OHI cannot—and

does not—welcome animals... . [I]n the

eyes of the Church, based upon the

teachings of the Old Testament, OHI’s

grounds are sacred but animals are not. .

.. Allowing animals into the grounds is

antithetical to the promotion of a safe,

healing environment at the Institute,

particularly for people who have animal

phobias or allergies....

In my role as Ecclesiastical Superior, I

determined that even a remote chance of

Plaintiff, attending OHI without a sighted

companion, needing assistance in the

unfamiliar environment of OHI or during

the OHI program, posed an unacceptable

risk of disrupting the spiritual path of

others in attendance.

Id. at 1081.

The court granted summary judgment for

plaintiff as to accessing the program

unaccompanied with the use of her cane, but held

that a genuine dispute of material fact existed as

to the effect of the presence of plaintiff's service

dog on the free association rights of the program

ond religious organization. Jd. at 1094-95. This

despite settled law that a service dog is a required

accommodation in most circumstances. See Lentini

v. California Ctr. for the Arts, Escondido, 370 F.3d

837, 845 (9th Cir.2004); 135 Cong. Rec. 5.10,800

(1989) (statement of Sen. Simon) (“|a] person with

a disability and his... [service] animal function

as a unit” such that separating the two generally

“lis] discriminatory under the [ADA]”).

The belief that dogs are religiously unclean or

otherwise to be avoided is not a belief unique to

the defendants in Stevens. Individuals who rely on

service dogs are routinely denied service by stores

and other public accommodations, including taxis

and rideshare services. Blind or low-vision

individuals disproportionately rely on these

services for transportation, but frequently

encounter denials because of the presence of a

service animal. Such denials are sometimes

religiously motivated. See, e.g., Minnesota’s

Muslim Cab Drivers Face Crackdown, Reuters,

Apr. 17, 2007 (detailing large number of Muslim

taxi drivers in the area of the Minneapolis-St.

Paul International Airport who refused to

transport dogs because they are unclean),

available at: https://www.reuters.com/article/us-

muslims-taxis/minnesotas-muslim-cab-drivers-

face-crackdown-idUSN1633289220070417.

Some have used religious beliefs to justify

discrimination against persons infected with HIV,

see Stormans, Inc. v. Selecky, 586 F.3d 1109, 1118

n.7 (9th Cir. 2009), and refusing service to a

person because of HIV/AIDS status violates the

ADA. See Bragdon v. Abbott, 524 U.S. 624, 641

(1998) (recognizing clear congressional intent to

prohibit discrimination based on HIV status, and

holding that asymptomatic HIV infection is a

disability under the ADA). Yet cases still abound

where religious scruples have been asserted as a

defense to providing service to HIV-infected

people. In Selecky, asserting religious objections,

pharmacists unsuccessfully challenged a

Washington law prohibiting pharmacies from

refusing to deliver lawfully prescribed or approved

medicines. 586 F.3d at 1116 & n.7. If Petitioners’

free exercise defense were accepted, it would take

very little for such defenses to be asserted perhaps

successfully against disability rights claims to

access public accommodations and delivery of

health services. Cf. also Doe v. Deer Mountain Day

Camp, Inc., 682 F. Supp. 2d 324, 331 (S.D.N.Y.

2010) (plaintiff's claim that defendant basketball

camp discriminated against him--in denying him

admission to the camp—on the basis of his HIV+

status, in violation of ADA and NY law, was

defended on the basis of pseudo-science about the

danger of HIV and its transmissibility); Bradford

v. Prosoft, LLC, No. 3:16-CV-00373-CRS-DW, 2017

WL 1458201, at *1 (W.D. Ky. Apr. 24, 2017)

(plaintiff, a transgender man, brought suit against

his former employer under the Family Medical

Leave Act, Title I of the ADA, and Title VII of the

Civil Rights Act of 1964 because, after he was

outed as being transgender, his employer refused

him time off for necessary disability-related

surgery and fired him).

B. Defendants Frequently Assert

Inappropriate Free Expression

Defenses to Disability Rights Claims.

Defendants in the private sector often attempt

to recast their economic conduct as protected free

expression. While “all business activity takes

place through speech” on some level, this Court

has never placed purely transactional conduct on

the same level as core protected speech. See

Transcript of Oral Argument at 9:7-9, Expressions

Hair Design v. Schneiderman, 137 S. Ct. 1144 (15-

1391) (question of Breyer, J.).

1. Some Defendants Have Argued

That Branding Is Free Expression

That Justifies Violating

Accessibility Requirements.

The ADA and similar state and local laws

generally require new construction to be “readily

accessible.” See 42 U.S.C. § 12183(a)(1). This has

not stopped recalcitrant merchants from engaging

in branding-motivated design choices that exclude

people with mobility disabilities.

In Colorado Cross-Disability Coal. v.

Abercrombie & Fitch Co., defendants operated the

surf-lifestyle clothing brand Hollister, which

installed in its stores “a raised porch-like platform

... two steps above ground level,” which was “not

accessible to people in wheelchairs,” to evoke the

ambience of a surf shack. 835 F. Supp. 2d 1077,

1078 (D. Colo. 2011). As a teen-targeting brand

Hollister is “all about hot lifeguards and beautiful

beaches. .. . [When] Denver policy analyst Farrar

was nudged by her 12-year-old daughter to wade

into the retail ‘fantasy of Southern California’...

Farrar’s wheelchair couldn’t make it up the steps

of the store.” Denver Judge: Abercrombie Brand

Hollister Violating Disabilities Act, The Colorado

Independent, Susan Greene, May 16, 2013,

available at: http://www.coloradoindependent.com/

127705/denver-judge-abercrombie-brand-hollister-

violating-disabilities-act. Farrar’s frustration at

the store’s inaccessible front stairway became a

nationwide class action against 248 Hollister

stores, garnering the support of the U.S. Justice

Department, which characterized the store’s

inaccessible entrances as built in plain violation of

the ADA’s accessibility requirements, with the

effect of pushing people in wheelchairs to enter

the store separately from the side. Jd.

The district court enjoined the defendants to

remove their inaccessible platform display, noting

that “Defendants have unnecessarily created a

design for their brand that excludes people using

wheelchairs from full enjoyment of the aesthetic

for that brand. The steps to the center entrance

are a legally unacceptable piece of that branding

and violate Title III of the ADA.” Id. at 1083,

vacated on statutory grounds by Colorado Cross

Disability Coal. v. Abercrombie & Fitch Co., 765

F.3d 1205 (10th Cir. 2014). See Virginia State Bd.

of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 781 (1976) (warning of

“elevat[ing] commercial intercourse between a

seller hawking his wares and a buyer seeking to

strike a bargain to the same plane as has been

previously reserved for the free marketplace of

ideas” (Rehnquist, J., dissenting)); cf. Pet. Br. 1, 5

(describing Petitioners’ business logo in support of

argument that Petitioners’ cakes are expressive).

2. Some Defendants Have Argued

That Refusal to Accommodate

Is Justified as First Amendment

Protected Academic Freedom.

Refusal of disability accommodation on the

basis of academic freedom implicates different

concerns from the purely transactional world of

commercial branding. The right to full and equal

access to education is of paramount importance to

the ADA’s concerns, and _ shares obvious

commonalities with “[t]he process of ending

unconstitutional exclusion of pupils from the

common school system.” Cooper v. Aaron, 358 U.S.

1, 25 (1958) (Frankfurter, J., concurring). And yet,

in this critical sphere of integration, the disability

community continues to face _ significant

resistance.

In the late 90s at Boston University, incoming

Provost Jon Westling gutted a well-functioning

learning disabilities support services program,

and a class action suit ensued to roll back his

policy changes and ensure continued reasonable

accommodations for 480 enrolled students with

learning disabilities, principally dyslexia and

ADD/ADHD. The district court found violations of

the ADA and Article 114 of the Massachusetts

Constitution, which provides a broad guarantee of

freedom from public and private discrimination on

the basis of disability. Guckenberger v. Boston

Univ., 974 F. Supp. 106, 117 (D. Mass. Aug. 15,

1997).

While he was dismantling BU’s disability

services program, Provost Westling made a series

of public statements, in which he accused learning

disability advocates of fashioning fictitious

impairments, and argued that “the learning

disability movement is a great mortuary for the

ethics of hard work, individual responsibility, and

pursuit of excellence, and also for genuinely

humane social order.” /d. at 118. The Court noted

that Westling was motivated both by “a genuine

concern for academic standards” and by

“uninformed stereotypes” about students with

learning disabilities. Jd. at 149. It faulted BU for

its failure to “dispassionately determine” whether

the requested accommodations would “change the

essential academic standards of its liberal arts

curriculum.” Jd. If Petitioners prevail on their

First Amendment expressive freedom defense, it

would militate against courts’ carefully

scrutinizing such administrative decisions. When

considering the reasonableness of requested

academic accommodations, courts must “study the

assumptions underlying academic programs,” and

not merely defer to “attitudinal biases about the

abilities of people with learning disabilities,”

cloaked in First Amendment academic freedom.

See Peter David Blanck, Civil Rights, Learning

Disability, and Academic Standards, 2 Journal of

Gender, Race, & Justice 33, 53 (1998); see also

Redding v. Nova Se. Univ., Inc., 165 F. Supp. 3d

1274, 1297 (S.D. Fla. 2016) (“A determination of

whether an accommodation is related to a

disability involves no academic judgment and

judicial review of such a decision does not offend

principles of academic freedom. [Defendant]

cannot immunize all of its decisions from review

by waving the flag of deference merely because it

is an academic institution.”).

A recent DOJ investigation into the

accessibility of UC Berkeley's publicly available,

free. online audio and video content resulted in

findings that the program violated Title II’s

mandate that no individual by reason of her

disability may be excluded from participation in or

be denied the benefits of services, programs, or

activities of a public entity. See 42 U.S.C. § 12132;

28 C.F.R. § 35.130(a). UC Berkeley’s online

content lacked captions and audio descriptions,

documents were not appropriately formatted, and

websites, materials, and other portals were

similarly not accessible, obstructing participation

for individuals with hearing, vision, or manual

disabilities. See Aug. 30, 2016 letter from Rebecca

B. Bond, Disability Rights Section Chief,

Department of Justice to UC Berkeley Chancellor

Nicholas B. Dirks, et al., DJ No. 204-11-309,

available at: https://www.ada.gov/briefs/uc_berkley

_lof.pdf.

Rather than commit resources to correcting

these shortcomings, UC Berkeley responded by

taking all of content offline. See Mar. 1, 2017

Statement of UC Berkeley Vice Chancellor Cathy

Koshland, re Campus Message on Course Capture

Video, Podcast Changes, available at: http://news.

berkeley.edu/2017/03/01/course-capture/. The

result is a public deprivation reminiscent of the

City of Jackson’s closure of all public pools when

faced with court-ordered integration. See Palmer

v. Thompson, 403 U.S. 217, 225, 254 (1971)

(noting City’s argument that integrated “pools

could not be operated safely or economically on an

integrated basis.” (White, J., dissenting)). Under

Petitioners’ expanded free expression theory, UC

Berkeley may have simply refused to correct its

unequal provision of content, framing each

requested accommodation as an infringement of

academic freedom.

Il. HISTORY TEACHES THE IMPORTANCE

OF FULL ENFORCEMENT OF ANTI-

DISCRIMINATION LAWS IN THE FACE

OF EXPRESSIVE AND RELIGIOUS

FREEDOM DEFENSES AND

ASSERTIONS.

Religious defenses to claims of racial

discrimination were once common. In Loving uv.

Virginia, this Court noted the words of the

Virginia trial court judge in which the action

originated: “Almighty God created the races white,

black, yellow, malay and red, and he placed them

on separate continents. And but for the

interference with his arrangement there would be

no cause for such marriages. The fact that he

separated the races shows that he did not intend

for the races to mix.” 388 U.S. 1, 3 (1967). The

Court roundly rejected this as a justification for

discrimination. Id. at 7.

In Bob Jones University v. United States, a

private university challenged the Internal

Revenue Service’s revocation of its tax exempt

status for its racially discriminatory admissions

policy. 461 U.S. 574, 580 (1983). The university

asserted that its policy was based on a genuine

belief that the Bible forbids interracial dating and

marriage, and that it was therefore protected by

the Free Exercise Clause. Jd. at 622. The Court

found that the government had a fundamental,

overriding interest in eradicating racial

discrimination in education which substantially

yutweighed the burden on the petitioners’ free

exercise of religion. Jd. at 605; see also EEOC v.

Miss. Coll., 626 F.2d 477, 488 (5th Cir. 1980)

(*[T]he government has a compelling interest in

eradicating discrimination in all forms.”).

In his 1959 essay Toward Neutral Principles

of Constitutional Law, Herbert Wechsler wrote

that the constitutional battle over racial

segregation was really a battle between conflicting

associational rights, between those who did and

those who did not want to associate with members

of another race. Herbert Wechsler, Toward

Neutral Principles of Constitutional Law, 73

Harvard Law Review 1, 34-35 (1959). In response,

Charles Black, who was born and raised in Texas

and knew Jim Crow first hand, got to the heart of

the matter. He lamented that “simplicity is out of

fashion.” Charles L. Black, Jr., The Lawfulness of

the Segregation Decisions, 69 Yale Law Journal

421 (1960). Counter to Wechsler, Black argued

that where a group is barred from the common life

of the community, the law must take notice in

name and in application. Jd. at 423.

So too Alexander Bickel replied to Wechsler:

“What, on the score of generality and neutrality, is

wrong with the principle that a legislative choice

in favor of a freedom not to associate is forbidden,

when the consequence of such a choice is to place

one of the groups of which our society is

constituted in a position of permanent,

humiliating inferiority; when the consequence

beyond that is to foster in the whites, by authority

of the state, self-damaging and potentially violent

feelings of racial superiority—feeling that, as

Lincoln knew, find easy transference from Negroes

to other groups as their particular objects?”

Alexander Bickel, The Least Dangerous Branch,

Yale University Press (1962), at 57.

A position similar to Wechsler’s was later

bandied as Congress debated the Civil Rights Act

of 1964. Robert Bork wrote in the New Republic

that the Act’s guarantee of equal access to public

accommodations regardless of race would infringe

the free association rights of those who viewed

integration as an evil. Robert Bork, Civil Rights—

A Challenge, New Republic, Aug. 31, 1963, at 21.

“The danger is that justifiable abhorrence of racial

discrimination will result in legislation by which

the morals of the majority are self-righteously

imposed upon a minority,” which he called “a

principle of unsurpassed ugliness.” Jd. at 22. The

Supreme Court’s decision in Heart of Atlanta

Motel resolved the question against Bork’s

position, and in favor of governmental authority to

protect the citizenry from private discrimination.

While Wechsler protested the Brown decision

in part because he preferred for societal problems

to be solved by legislatures, not courts, the anti-

discrimination protections at risk in this case are

not the product of judicial creation. The Colorado

legislature made a valid determination that a

person’s being LGBTQ, or having a disability, is

not an acceptable reason to deny equal treatment

in public places, services, and goods.

As the Court recognized in Obergefell v.

Hodges, sexual orientation discrimination is a

constitutional wrong, just as racial discrimination

is a constitutional wrong. 135 S. Ct. at 2599. In

dicta the Court noted that the First Amendment

protects an individual’s right to hold anti-same

sex marriage views. That insight does not render

the government powerless to _ prohibit

discrimination against LGBTQ people by a

commercial business open to the public when it

claims a First Amendment exemption.

CONCLUSION

Consistent with this Court’s longstanding

approach to civi) rights protections, and informed

by our nation’s history of discrimination against

persons with disabilities and other discrete

minorities, the Court should affirm the judgment

of the Colorado Court of Appeals and confirm that

our nation’s civil rights laws are not subject to a

constitutional exception based on the scruples of

a defendant.

DATED: October 30, 2017

Respectfully submitted,

SANFORD JAY ROSEN,

Counsel of Record

ROSEN BIEN GALVAN

& GRUNFELD LLP

50 Fremont Street,

Nineteenth Floor

San Francisco, California 94105

(415) 433-6830

srosen@rbgg.com

APPENDIX

APPENDIX OF STATEMENTS OF

THE INDIVIDUAL AMICI

Former U.S. Representative Anthony

(“Tony”) Coetho represented California’s 15th

District in the U.S. House of Representatives from

1979 until 1991. Mr. Coelho has epilepsy. When

he was in his twenties, Mr, Coelho faced disability

discrimination from the Catholic church, which at

the time viewed epilepsy as a sign of demonic

possession. Mr. Coelho subsequently became a

vigorous advocate for disability rights, and was

the principal sponsor of the Americans with

Disabilities Act. Mr. Coelho believes that if

adopted, Petitioners’ defenses to enforcement of

the CADA will cut back drastically on the promise

of the ADA.

The National Federation of the Blind

(“NFB”), the oldest and largest national

organization of blind persons, is a non-profit

corporation headquartered in Baltimore,

Maryland. It has affiliates in all 50 states,

Washington, D.C., and Puerto Rico. NFB and its

affiliates are recognized by the public, Congress,

executive agencies of state and federal

governments, and the courts as a collective and

representative voice on behalf of blind Americans

and their families. NFB advocates on behalf of

blind people on a broad range of issues, including

transportation, education, employment, and

technology. The ultimate purpose of NFB is the

complete integration of the blind into society on a

basis of equality. This objective includes the

removal of legal, economic, and_ social

discrimination.

The National Association of the Deaf

(“NAD”) is the oldest national civil rights

organization in the United States, and the

premier civil rights organization of, by, and for

deaf and hard-of-hearing individuals in the

country. NAD’s membership includes over 7,000

individuals and over 100 associations from all fifty

states and Washington, D.C. NAD’s mission is to

preserve, protect, and promote the civil, human,

and linguistic rights of the 48 million deaf and

hard-of-hearing people in the United States. To

accomplish this goal, NAD advocates for deaf and

hard-of-hearing Americans on a broad range of

issues including communications, technology,

employment, education, and healthcare. NAD has

participated in federal and state courts as counsel

or amicus to protect the rights of deaf and hard-of-

hearing Americans. Adoption of Petitioner’s

defenses to the application of the CADA would

seriously hamper pursuit of NAD’s mission.

The American Council of the Blind

(“ACB”), founded in 1961, is a _ grassroots

organization comprised primarily of individuals

who are blind or who have low vision. For over

half a century, ACB has advocated for the civil

rights of and equal opportunities for persons with

vision impairments. Special education, services for

seniors with vision loss, employment programs,

and discrimination in public accommodations,

including violations of the rights of guide dog

handlers are just a few of the areas in which the

council advocates. ACB believes that if adopted,

Petitioners’ defenses would severely undermine

the ADA and similar state laws. Taxi drivers,

restaurants, hotels and other types of businesses

could elect to base discrimination against guide

dog users on religious or free speech grounds.

Private schools and colleges could refuse to allow

service animals on their campuses. Thus, ACB is

extremely interested in ensuring that First

Amendment rights are not found to form a legal

basis for businesses to violate the legal rights of

persons with disabilities.

The Disability Rights Bar Association

(“DRBA”) is a network of attorneys who

specialize in disability civil rights law. Two core

purposes of DRBA are to advance and enforce the

rights of people with disabilities in all spheres of

life through the use of litigation and other legal

advocacy strategies, and to disseminate

information regarding disability law and

advocacy. DRBA enters cases as amicus to support

cases that enforce and promote the rights of

people with disabilities. Its members, who are on

the front lines enforcing disability rights, are

concerned that the exceptions to the CADA

advocated by Petitioners will seriously limit

enforcement of statutes protecting people with

disabilities.

Disability Rights Advocates (“DRA”) is a

non-profit legal center dedicated to ensuring

dignity, equality, and opportunity for people with

all types of disabilities, and to securing their civil

rights. DRA represents people with the full

spectrum of disabilities in complex, system-

changing, class action cases. To further its

mission, DRA believes that the rights of people

with disabilities to participate in society will be

seriously eroded if this Court adopts Petitioners’

proposed constitutional exceptions to civil rights

laws based on personal scruples.

The Disability Rights Education &

Defense Fund (“DP EDF”), based in Berkeley,

California, is a national non-profit law and policy

center dedicated to protecting and advancing the

civil rights of people with disabilities. Founded in

1979 by people with disabilities and parents of

children with disabilities, DREDF pursues its

mission through education, advocacy, and law

reform efforts. DREDF is nationally recognized for

its expertise in the interpretation of federal

disability civil rights laws, and has participated as

amicus in numerous high court matters involving

those laws.

The Judge David L. Bazelon Center for

Mental Health Law is a national non-profit legal

advocacy organization founded in 1972 to advance

the rights of individuals with mental disabilities.

The Bazelon Center uses litigation, public policy

advocacy, education, and training to advocate for

laws and policies that ensure equal opportunities

for people with mental illness or intellectual

disability in all aspects of their lives, including

the opportunity to participate fully in their

communities. The Bazelon Center has participated

as amicus in numerous cases involving the rights

of people with disabilities heard by this Court.

The Civil Rights Education and

Enforcement Center (“CREEC”) is a national

non-profit membership organization whose

mission is to defend human and civil rights

secured by law, including laws prohibiting

discrimination on the basis of disability. CREEC’s

efforts to defend human and civil rights extend to

all walks of life, including ensuring that people

with disabilities have full and equal access to

places of public accommodation. CREEC lawyers

have extensive experience in the enforcement of

Title {Il of the Americans with Disabilities Act

(“ADA”) similar state and local laws. On the front

lines of enforcing the protections of disabled

people they encounter defenses like those asserted

by Petitioners, CREEC believes rejecting them is

essential to ful) and appropriate enforcement of

the CADA and comparable statutes.

The Association of Late Deafened Adults

(*ALDA”) is an association of deafened people.

ALDA is7 dedicated to supporting the

empowerment of deafened people through building

community and advocacy. ALDA pursues legal

advocacy, including entering as amicus in federal

cases, to advance and protect the rights of

deafened people. If Petitioners’ arguments are

accepted, ALDA’s constituency will be at risk.

The Autistic Self Advocacy Network

(“ASAN”) is a 501(c){3) non-profit organization

run by and for autistic people. ASAN advocates to

improve opportunity for, and the lives of,

Americans with autism, and to ensure that the

voices of autistic people are heard in policy

debates in government and across society. ASAN's

advocacy includes providing information to the

public about autism and disability rights, and

working to enforce the rights of autistic people to

equal opportunity at school, at work, and

throughout society. ASAN believes that rejecting

Petitioners’ defenses to full enforcement of the

CADA are essential to its mission.

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.