# Amicus Curiae Brief — Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 419 (2017) (No. 16-111)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

| RECORD aires ATE
AND : No. 16-111 FILED

BRIEFS = =A

Supreme Court of the 21 Hoesen:

> <--> —_—_——

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

I.

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

A.

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:

11

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

ii

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.,

or

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

lv

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

1

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.

2

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.

3

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

4

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

5

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.”).

6

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

7

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.

8

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

9

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

10

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

11

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

12

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.

13

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.

14

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

15

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

16

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

17

(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).

18

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

19

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

20

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

21

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

22

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

23

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

la

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.

2a

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

3a

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.

4a

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

5a

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0693%3A038. Public record. Not legal advice.