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

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Supreme Coun, US.

FILED

SEP 0 / 2017

No. 16-111 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Petitioners,

Vv.

COLORADO CIVIL RIGHTS

COMMISSION, ET. AL..,

Respondents.

On Writ of Certiorari to the

Colorado Court of Appeals

BRIEF OF AMICI CURIAE 83

FAMILY POLICY ORGANIZATIONS IN

SUPPORT OF PETITIONERS

DAVID FRENCH

Counsel of record

Senior Fellow

NATIONAL REVIEW INSTITUTE

215 Lexington Avenue

11% Floor

New York, New York 10016

(931) 446-7572

dfrench@nationalreview.com

QUESTION PRESENTED

Whether applying Colorado's public-

accommodation law to compel artists to create

expression that violates their sincerely held

rcligious beliefs about marriage violates the Free

Speech or Free Exercise Clauses of the First

Amendment.

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT .............0..:---2::eeeeseeeeeeee 2

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I. If Freedom of Conscience Can Survive the

World’s Worst War, It Should Survive the

rE caendionaamiauane 6

Il. Creative Professionals and Corporations

Consistently Exercise Their Rights under

Barnetie to Promote and Disassociate from

Specific Values and Messages. ....................--.-: 13

ill. To Undermine Barnette Is To Cruelly

Impoverish the Marketplace of Ideas. .............. 21

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TABLE OF AUTHORITIES

Cases:

Craig v. Masterpiece Cakeshop, Inc.,

370 P.3d 272 (Colo. App. 2015) .................... 17-18

Obergefell v. Hodges,

es SUE I i rricntiecetccsnccsimvniensacunewnes 12, 26

West Virginia State Board of Education v.

Barnette,

ee I ec bocnciceccrconnsenntecionechuatons passim

Other Authorities:

Accessories: 42mm Pride Edition Woven Nylon,

Apple, https://www.apple.com/ca/shop/

product/MQ4G2AM/A/42mm-pride-edition-

woven-nylon (last visited Sept. 5, 2017). .......... 23

Allyn Vannoy, Expanding the Size of the U.S.

Miltiary in World War II, Warfare History

Network (June 26, 2017),

http://warfarehistorynetwork.com/daily/wwii

/expanding-the-size-of-the-u-s-military-in-

SII 1 ciccrss-scapeidoreduinadiiboanibcedeuibeniececeh g

Anna Giaritelli, Grocery store refuses to bake Trump-

themed cake, Washington Examiner, Sept. 7,

2016, http://www-.washingtonexaminer.com/

grocery-store-refuses-to-bake-trump-themed-

ce RAS

Eric Bradner and Jeremy Diamond, Mike Pence:

‘Was I expecting this kind of backlash?

Heavens no.” CNN (Mar. 31, 2015)

http://edition.cnn.com/2015/03/3 1/politics/pe

nce-will-fix-religious-freedom-

DIN IIE isc cncsies ese ninsccnicssidsacronescnds 19

Libby Hill, Some cail it religious freedom, others

call it anti-gay. Here’s a look at the battle in

some states, L.A. ‘Times, Apr. 5, 2016,

http://www .latimes.com/entertainment/la-et-

states-antigay-battle-20 160325-snap-

I IIIT cs vxinvusccsnissccnitscsccssgeecsoowsseoese 19-20

Mehera Bonner, Here’s the Growing List of

Designers Who Refuse to Dress Melania

Trump, Maria Claire (Mar. 11, 2017),

http://www.marieclaire.com/fashion/news/g4

254/designers-who-wont-dress-mclania-

IL Spine secneninaveciperes cxccsecnceannssiccensyinies 15

MJ Lee, Walmart, Amazon, Sears, eBay to stop

selling Confederate flug merchandise, CNN

(June 24, 2015) http://edition.cnn.com/

2015/06/22/politics/confederatc-flag-

walmurt-south-carolina/index. html. ................. 20

IN ea et Ht ND cic ceniis carcconeusecseninassiudetaenitamens 22

Py Sa OD SicccdacctcticiaseSmsdssentubicnskasseans 22-23

Robin Givhan, Should designers dress Melania

and Ivanka? The question ts more complex

than it seems, Washington Post, Jan. 12,

2017, https:/Awww.washingtonpost.com/

news/arts-and-entertainment/wp/2017/01/

12/should-designers-dress-melania-and-

ivanka-the-question-is-more-complex-than-

it-seems/?hpid=hp_local-news_givhan-945

am%3Ahomepage%2F story &utm_term=-

SEE Fiteck ss casstniacate winner btccsdganistoneiin 14, 15

Stephen Daggett, Costs of Major U.S. Wars,

Congressional Research Service (June 24).

2010), https://fus.org/sgp/crs/natsec/RS22926

Susanna Kim, Walmart apologizes for making

ISIS cake for man denied Confederate Flag

design, ABC News (June 29, 2015),

http://abenews.go.com/Business/walmart-

apologizes-making-isis-cake-man-denied-

confederate/story?7id=321038721 0000... cccceceeee eee 16

Ted Johnson, Disney, Marvel to Boycott Georgia

if Religious Liberty Bill is Passed, Variety,

Mar. 23, 2016, http://variety.com/2016/biz/

news/disney-marvel-boycott-georgia-anti-

Ee SI I isin sstncerscntccbdstoberecninaseresedse: 19

Timothy Cook, CEO, Apple, Address at the

Newseum’s 2017 Free Expression Awards

Ceremony (April 18, 2017) (transcript and

video available at https://www.c-

span.org/video/?427 127-1/newseum-presents

-2017-free-expression-awards). .................6. 24-25

Tommy Tomlinson, How the NFL Helped Kill

Arizona's Anti-Gay Rights Bill, Forbes, Feb.

27, 2014, https://www.forbes.com/sites/

tommytomlinson/2014/02/27/arizona-gay-

rights-and-the-super-bow]/#41dd14155214¢c. .....19

Va. Bakery creates stir online with Confederate

flag cake, ABC7 WJLA News (July 10, 2015),

http://wjla.com/news/iocal/va-bakery-creates-

stir-online-with-confederate-flag-cake-

BE, poiciicctcdulercanueasarascidauntnchbeetisesdssiereixics 16-17

INTEREST OF AMICI CURIAF!

The 33 family policy councils and policy alliances

listed below each work within their respective states

to preserve religious liberty and rights of conscience

from state overreach and government intrusion. They

are nonprofits who advocate for the nation’s first

liberty — religious freedom — in courts, legislatures,

governors mansions, and in the court of public

opinion. They are vitally concerned that the decision

of the court below undermines a constitutional

firewall against compelled speech and will drive from

the marketplace creative professionals who dissent

from state-mandated orthodoxy on matters of

“politics, nationalism, religion, or other matters of

opinion.” The complete lst follows:

Alaska Family Council, California Family Counczl,

Colorado Family Action, Family’ Institute’ of

Connecticut, Delaware Family Policy Council, Florida

Family Policy Council, Hawau Family Forum, Family

Policy Alliance of Idaho, The FAMILY LEADER,

Family Policy Alliance of Kansas, The Kentucky

Family Foundation, Louisiana Family Forum,

Christian Civic league of Maine, Massachusetts

Family Institute, Minnesota Family Council,

! Petiteners and Respondent Colorado Civil Rights

Commission have submitted blanket consents to the filing of

amicus bmefs in this case. Both are reflected on the Court's

docket. Amici have obtained consent to file this brief from

counsel for Respondents Charlie Craig and David Mullins. Ameri

state that no counse! for a party authored this brief in whole or

in part, and no person other than the amici or their counsel made

any monetary contribution intended to fund the preparation or

submission of this brief.

Montana Family Foundation, Nebraska Family

Alliance, Cornerstone Action, New Jersey Family

Policy Council, New Yorkers For Constitutional

Freedoms, North Carolina Family Polhey Council,

Family Policy Alliance of North Dakota, Citizens for

Community Values, Pennsylvania Family Council,

Palmetto Family Alliance, Family Heritage Alliance,

Family Action Council of Tennessee, Texas Values,

The Family Foundation of Virginia, Family Policy

Institute of Washington, The Family Policy Couneil of

West Virginia, Wisconsin Family Council, and Family

Policy Alliance.

SUMMARY OF ARGUMENT

“Your wedding cake is lovely. Who made it?”

Words like those have launched countless

relationships between baker and patron — a union of

two parties who cooperate together to create a unique

form of expression to honor the lifelong union of

marriage.

One doesn't have to be an expert in the wedding

industry to recognize the extraordinary care,

attention to detail, and artistry that is poured into the

wedding cake, indeed into all of the trappings of the

modern marriage. The cake has to be just so. The

flowers have to he perfect. The photography is like a

film production, preserving in virtual space the story

of one of the most significant days of any man or

woman's lile.

Who can doubt the creativity of the best artists in

the wedding business? Moreover, who can doubt the

significance of the marriage act itself? Sacramental in

Catholicism, sacred in Protestantism, holy in

religions the world over, and precious beyond words

for the nation’s secular citizens, the marriage

ceremony isn’t just the dry and formalistic signing of

a civil contract but rather a signal moment in a

human life.

Critically, while it is vitally important for all

participants, it does not mean the same things for

each of them. For Mormons, for example, a marriage

is an eternal bond, sealing man and woman together

in this life and the next. For most orthodox

Christians, it’s a once-in-a-lifetime bond, so that any

subsequent marriages are inherently morally suspect

unless there are specific, defined grounds for divorce

or annulment.

To participate in a lawful, righteous marriage —

however that is defined — is a cause for joy and

celebration. For many, however, participation in an

unlawful, unrighteous marriage is a cause for sorrow

and even dread. Sin, after all, can carry with it eternal

consequences.

It is for this reason, among others, that the state

cannot, must not, compel any individual to participate

in a wedding ceremony. To wo so is an imposition on

the human conscience every bit as grotesque and

intrusive as a requirement that an _ individual

blaspheme their own faith or pledge loyalty to a

nation above their god. To do so ts quite literally to

compel the speech of the artist, to force them to

cooperate in a vital act of expression, one with

immense moral consequences.

Consequently, at issue in this case is nothing less

than perhaps this Court's most enduring and potent

constitutional! clarion call, issued in the depths of the

worst war this world has ever seen, that “[i]f there is

any fixed star 1n our constitutional constellation, it is

that no official, high or petty, can prescribe what shall

be orthodox in politics, nationalism, religion, or other

matters of opinion, or force citizens to confess by word

or act their faith therein.” W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 642 (1943).

It is this call that has for generations helped

preserve the American conscience, limited the reach

of American government, and cultivated the robust

diversity of Amcrican expression. It is this call that

has clearly and plainly stated that the state bears the

most difficult of all burdens to justify overcoming the

human w)!l, imposing itself on the human conscience,

and forcing human beings to express things that they

do not believe. If war could not justify such an action,

can a peacetime change in sexual mores?

The facts in this case are simple and painfully

clear. A baker has determined that he must not,

consistent with the tenets of his faith, use his artistic

talents to design and bake a cake that would celebrate

the union of a man and a man. For this bakcr, a same-

sex union is not a marriage at all, and to participate

in eelebrating an unrighteous union would render

him culpable before God.

He does not refuse to serve gay customers. Ile

only refuses to use his talents to culebrate or transmit

messages that he finds morally objectionable. He

applies the same standards to customers gay and

straight, white and black. No person, of any identity,

should compel him to speak. The transaction between

artist and customer should be what tradition and the

Constitution dictate, a match between a patron and a

willing creator.

As this brief will demonstrate, artists

instinctively understand that they are not and should

be not. be automatons, with their creative energics at

the employ of the highest or first bidder, regardless of

the message. Liberties forged in the worst days of the

deadliest war should easily survive the easy days of a

long peace.

This brief will relate stories of artists who refused

to reproduce Bible verses they found objectionable,

design clothing for politicians they dislike, or to

recreate flags of American enemies. But it will also go

beyond, illustrating how corpvurutions now view the

decision to do business itself as a political act,

granting or withholding economic opportunity on the

basis of the rights of conscience of their leaders,

employees, and shurcholders. In each case, the artist,

the CEO, and shareholder are exercising the right

guaranteed by Barnette, to be free of any obligation

express support for a cause they despise.

This Court decided Barnette in 4 moment of

ultimate national crisis, before the tide had fully

turned in a war not just for national survival but for

the survival of liberty itself. It allowed boys and girls

to opt out of a pledge of national loyalty, a pledge that

simply declared that we were in this great struggle

together, united as one nation. It allowed people of

faith to shock the conscience and wound the dignity of

their friends and neighbors by standing apart from

the prevailing national will.

Surely, if this Court can decide Barnette when a

nation’s very survival is at stake, it can reaffirm its

central principle when rights of conscience collide

with hurt feelings and personal convenience. The

choice isn’t between cakes or conscience. Same-sex

couples enjoy an abundance of options, and in this

very case the patrons easily found an alternative

buker. Instead, reaffirming Barnette means our

citizens can enjoy cakes and conscience. Let the

patron find a willing creator, and let the unwilling

artist keep his conscience clean,

ARGUMENT

I. If Freedom of Conscience Can Survive the

World’s Worst War, It Should Survive the

Sexual Revolution.

Follow modern American political rhetoric, and

one will find that hyperbole, cxaggeration, and

gutlrage are the order of the day. Seemingly every

week our nation confronts a new “constitutional

crisis” or “existential threat.” But we should be clear,

not every cry of “wolf” is false. There are true

emergencies. There really are times when a nation

stares into the abyss.

Even amateur students of history can think of our

nation’s most perilous moments. There’s August 29,

1776, when General George Washington narrowly

escaped the destruction of the young Continental

Army when it slipped out of William Howe's grasp

after defeat at the Battle of Long Island. Who can

forget July 3, 1863, Pickett’s Charge, and the high-

wuter mark of the Confederacy. The Battle of

Gettysburg hung in the balance, and with it

arguably — the fate of the Union itself.

But there are other, later dates — like December

7, 1941, and the days and wecks that followed.

American arms faced historic defeat after historic

defeat. The bulk of the surface striking power of the

Pacific Fleet was immobilized in the smoking ruin of

Pearl Harbor. Japanese air, naval, and ground forces

struck Amcrican possessions abroad with impunity,

inflicting staggering defeat after staggering defeat.

Hitler's submarines roamed the Atlantic at will,

inflicting terrible losses and slowly strangling our

English allies. Hope was in short supply.

January 7, 1942, marked the beginning of the

Bataan Campaign, arguably the lowest point for

American arms in the history of our nation. American

and Philippine forces, under the command of Douglas

MacArthur made a fighting retreat to the Bataan

Peninsula on the island of Luzon. There, more than

100,000 allied forces stood against the invading

Japanese. Over the next three months, they were

ground into the dust, and when defeat finally came, it

was capped off with the humiliating, deadly Bataan

Death March — a moment that lives in its own unique

infamy.

These were dark times. Casualty counts were

staggering, and rumors of Japancse invasion caused

immense fear on the west coast. In Europe, Hitler's

empire was arguably at its apogee. Britain still stood,

but Nazi Germany dominated Western Europe,

Eastern Europe, and a vast swathe of the Soviet

Union. The Soviets had yet to inflict their staggering

defeat on the Wehrmacht at Stalingrad. The fute of

the world hung in the balance.

Thus, is ii any wonder that on January 9, 1942,

the West Virginia Board of Education adopted a

resolution declaring that a salute to the flag be “a

regular part of the program of activities in the publie

schools?” Barnette, 319 U.S. at 626. The Board

required a “stiff-arm” salute, with the student raising

his or her right hand, palm up, and repeating the

Pledge of Allegiance. Failure to do so was an act of

“insubordination” that could lead to expulsion. Jd. at

628-629.

And why not? The nation was rallying for war:

“All recruiting records of the nation’s armed forces

were shattered ... as thousands of men attempted to

enlist for combat duty in the Army, Navy, Marine

Corps or Coast Guard,” reported the New York Times

on Dec. 10, 1941. At the height of the Second World

War, fully 37.5 percent of total national gross

domestic product was dedicated to the war effort, an

amount more than triple that dedicated to the Civil

War and more than double that dedicated to World

War I2 On July 1, 1939, the Army’s strength was

limited to 174,000 men. By the end of 19465,

2 Stephen Daggett, Costs of Major U.S. Wars, Congressional

Research Service (June 29, 2010),

https://fas .org/sgp/crs/natsce/KS22926 pdf.

approximately 16 million Americans had served

under arms.*

With fathers marching off to war and the nation

preparing for a level of loss and sacrifice not seen

since the Civil War, Americans craved tangible

evidence that we were all in this together. What

would sons and daughters of soldiers think if their

classmates didn’t stand heside them? When students

sat down, didn’t that mean they'd refuse the call if and

when it came time to take their own turn in the line

of battle? If there was ever a compelling need for

pational unity, wasn’t it in January 1942? Surcly, the

overwhelming weight of popular opinion was

decidedly against any who might object.

It is in this most intense atmosphere that this

Court issued one of its most stirring calls not for

ideological uniformity, but —- critically -— for

constitutional fidelity. Just before the famous “fixed

star” statement quoted in the introduction above,

Justice Jackson — writing for a six-Justice majority —

wrote words every bit as meaningful and just as

applicable to the present dispute:

Nevertheless, we apply the limitations of the

Constitution with no fear that freedom to be

intellectually and spiritually diverse or even

contrary will disintegrate the social

organization. To believe that patriotism will

not flourish if patriotic ceremonies are

3 Allyn Vannoy, Expanding the Size of the U.S. Military in

World War II, Warfare Histwry Network @June 26, 2017),

http://warfarehistorynetwork .com/daily/wwiV/expanding-the-

size-of-the-u-s-military-in-world-war-ii/.

voluntary and spontaneous, instead of a

compulsory routine, is to make an

unflattering estimate of the appeal of our

institutions to free minds. We can have

intellectual individualism and the rich

cultural diversities that we owe to exceptional

minds only at the price of occasional

eccentricity and abnormal attitudes. When

they are so harmless to others or to the State

as those we deal with here, the price is not too

great. But freedom to differ is not limited to

things that do not matter much. That would

be a mere shadow of freedom. The test of its

substance is the right to differ as to things

that touch the heart of the existing order.

319 U.S. at 641-642.

Note the key words: “[The] freedom to differ is not

limited to things that do not matter much.” Nationa!

unity matters in war. Marriage matters to the vast

majority of men and women. The test of the substance

of the First Amendment is “the right to differ as to

things that touch the heart of the existing order.” In

other words, are we free to disagree even when

matters are important? Are we free to disagree even

when lives are at stake?

Emerging from the Barnette precedent isn't a

narrow ruling that no man can be required to pledge

allegiance to the flag, but rather a far more swecping

precedent — one that has resonated so strongly that it

has laid down a nearly iron-clad principle: The

government may not compel speech in support of even

the most virtuous and well-meaning of causes.

In Barnette, those who argued fur the compulsory

pledge quoted Abraham Lancoln, “Must a government

of necessity be too strong for the liberties of ils people,

or too weak to maintain its own existence?” Jd. at 636.

Yet even in time of war, the Court held that to be a

false choice. Justice Jackson wisely wrote,

“Government of limited power need not be anemic

government. Assurance that rights are secure tends

to diminish fear and jealousy of strong government,

and, by making us [ce] safe to live under it, makes for

its better support.” Jd.

When threats to our national existence pale in

comparison to the age of Barnette, the Colorado Civil

Rights Commission oddly argues that government

should be even stronger than it was when the danger

of disunity was defeat. Now the “danger” isn’t

disunity un the face of a vicious enemy but rather

disappointment in the face of a reluctant artist. The

“danger” is merely a slightly longer Google search as

a patron finds a willing baker. For the sake of

preventing these few tears is the Court willing to

overturn one of its greatest precedents?

And make no mistake, a ruling against

Masterpiece Cukeshop would gut Barnette. To create

works of culinary art, a good baker engages in very

real physical, expressive acts, creating expression

every bit as meaningful as a salute to the flag. Even

the drawing or placing of two men or two women

together on a cake expresses something deep and

profound about the meaning of marriage itself.

In fact, in this very case, the wedding cake that

the gay couple ultimately chose featured a rainbow

theme that unmistakably and quite particularly

honored their gay union — the very thing that

Masterpiece Cakeshop was most unwilling to

celebrate. The cake in this case carried with it a

custom message — one that made its own statement

about the institution of marriage.

Just two years ago in Obergefell v. Hodges, Justice

Kennedy wrote at great length about the meaning and

importance of marriage, memorably declaring:

From their beginning to their most recent

page, the annals of human history reveal the

transcendent importance of marriage. The

lifelong union of a man and a woman always

has promised nobility and dignity to all

persons, without regard to their station in life.

Marriage is sacred to those who live by their

religions and offers unique fulfillment to

those who find meaning in the secular realm.

Its dynamic allows two people to find a life

that could not. be found alone, for a marriage

becomes greater than just the two persons.

Rising from the most basic human needs,

marriage is essential to our most profound

hopes and aspirations.

135 S. Ct. 2584, 2593-94 (2015).

When an artist creates a cake to celebrate a

marriage, then, he is creating a work of art dedicated

in its own way to the “transcendent importance” of the

union of his patrons. Must he be required, however, to

dedicate himself to honoring all marriages the state

deems lawful? Must he delegate the determinations of

his faith and his conscience to state officials who now

purport to re-define what is to him a holy and sacred

covenant?

In fact, if one doubts that designing a cake or

providing artistic services of any kind to meaningful

and important events isn’t an expressive act, then

how dves one answer the actions of many other bakers

and artists in similar circumstances? How does one

answer some of America’s largest corporations —

entities that use their considerable economic power to

influence public debate? From the smallest business

to the largest multinational corporations, the

decision-makers know their actions are cxpressive,

and they make decisions accordingly. It is to their

choices that we now turn.

(Il. Creative Professionals and Corporations

Consistently Exercise Their Rights under

Barnette to Promote and Disassociate from

Specific Values and Messages.

It is self-evidently truc that our nation is

enduring not just a period of polarization but also of

information saturation. Citizens are keenly aware of

the political implications of their actions, and news of

political statements spread with greater speed than

ever before. Indeed, given the urgency of American

political discourse, citizens often demand to know

where their favorite companies stand on the great

issues of the day. They seek to enlist those companies

in political crusades, to shift and shape public debate.

This is true regardless of whether the corporate

expression itself makes a specific statement (like a

Confederate Flag or a product containing a slogan or

explicit message) or whether the decision to do

business ts the statement.

Creative professionals in the fashion industry

have refused to provide service for persons espousing

political views which they find repugnant. The

justifications they offer confirm that they sce both

their business transactions and their creative work as

bearers of political and moral messages.

For example, shortly after the electiun of Donald

Trump, a number of fashion designers (artists, to be

sure) declared that they would, under no

circumstances, “dress” Melania or Ivanka Trump —

this despite the fact that dresses themselves rarely (if

ever) contain a political or cultural message as

explicit as the rainbow cake the gay couple ultimately

chose in this case. Merely doing business with the

Trumps was an intolerable notion to creative

professionals who abhorred the Trump family’s

political methods and messages.

In an open letter rejecting the idea of working

with the Trumps, designer Sophie Theallet said, “We

value our artistic freedom, and always humbly seek

to contribute to a more humane, conscious, and

ethical way to create in this world.” She said, “As an

independent fashion brand, we consider our voice an

expression of our artistic and philosophical ideas.”*

4 Robin Givhan, Should designers dress Melania and

Ivanka? The question is more complex than it seems, Washington

Post, Jan. 12, 2017, https:/;www.washingtonpost.com/news/arts-

and-entertainment/wp/20 17/0 1/1 2/should-designers-dress-

melania-and-ivanka-the-question-is-more-complex-than-it-

And another designer, Naeem Khan, asserted: “A

designer is an artist, and should have the choice of

who they want to dress or not.”®

In reporting un the designer choices, the

Washington Post’s Robin Givhan explained well how

artists view their work:

Like other creative individuals, Theallet

sees fashion as a way of expressing her views

about beauty and the way women are

perceived in society. Fashion is her tool for

communicating her world vision. In the same

way that a poct’s words or a musician's lyrics

are a deeply personal reflection of the person

who wrote them, a fashion designer's work

can be equally as intimate. In many ways, it’s

why we are drawn to them. We feel a one-to-

one connection.

Givhan, supra n. 4.

This is precisely true. Men and women are drawn

to creative professionals because of that connection,

but that connection does not make the creative

professional the servant of the patron or of the state.

The creative professional need not facilitate and

celebrate the patron’s message. These fashion

seems/?hpid=hp_local-news_givhan-945am%3Ahomepage%

2Fstory&utm_term=.e4613ea57c4l.

5 Mehera Bonner, Here's the Growing List of Designers Who

Refuse to Dress Melania Trump, Maria Claire (Mar. 11, 2017),

http://www. marieclaire com/fashion/news/g4254/designers-who-

wont-dress-melania-trump/?slide=10.

designers rightly see their creative work as

expressing support for pohtical and moral beliefs.

They also testify how dearly they hold the right te

choose the patrons with whem they will enter into

business relationships in accordance with the

uncoerced dictates of their consciences. While any

given American may find Theallet’s protest

overwrought, it is unthinkable that the state should

have the power to override her declaration of

conscience.

But acts of conscience aren't hmuited to fashion

designers. Stories are legion of bakers refusing to

design and bake custom cakes containing messages

they find offensive. For example, a Louisiana

Walmart made headlines for refusing to crall a

Confederate battle flag cake featuring the words

“heritage, not hate” — but then mistakenly designed

an ISIS flag cake at the same customer's request.

Walmart apologized, claiming that its bakers didn't

know the requested design was an ISIS flag.*®

Not all bakeries operate in ideological lockstep. In

2015, an ABC News affiliate reported on u bakery

that asserted if would be happy to design Confederate

Flag cakes, but it would not bake an ISIS cake. The

Fredericksburg, Virginia, bakery posted a picture of a

Confederate Flag cake and then wrote underneath

the post, “We post many special orders, and will

6 Susanna Kim, Walmart apologizes for making ISIS cake

for man denied Confederate flag design, ABC News (June 29,

2015), http.//abenews.go.com/Business/walmart-apologizes-

making-isis-cake-man-denied-confederate/story 7id-32 103721.

continue to do so. No, we will not do ISIS or Nazi

cookie cakes, so don’t be ridiculous.”?

Bakeries can get political as well. In September

2016, the Washington Examiner reporicd that an

Alberison’s grocerv store refused to bake a Donald

Trump-themed cake. After a public outery (but not a

lawsuit!), the chain apologized, claiming that the

refusal was due to a misunderstanding of copyright

law. Albertson’s offered to create for the customer the

cake she wanted, but by then she had done exactly

what a free markct allows — she'd found another

baker.*

In fact, the cuurt below also noted multiple

incidents where other bakers made their own

expressive statements. It distinguished Masterpiece

Cakeshop from three incidents where bakeries

refused to design cakes with religious messages

denouncing same-sex marriage and same-sex

relationships. In an oddly-urgued attempt to

distinguish the cases, the Court wrote, “The Division

found that the bakeries did not refuse the patron’s

request because of his creed, but rather because of the

offensive nature of the requested message.” Craig v.

Masterpiece Cakeshop, Inc. 370 P.3d 272, 282 n.8

(Celo. App. 2015). The Court continued, “Importantly,

’ Va. Bakery creates stir online with Confederate flag cake,

ABC7 WJLA News (July 10, 2015),

http-//wjla.com/news/local/va-bakery-creates-stir-online-with-

confederate-flag-cake- 115430.

* Anna Ciaritelli, Grocery store refuses to bake Trump-

themed cake, Washington Examiner, Sept. 7, 2016,

http://www.washingtonexaminer com/grocery-store- refuses -to-

bake-trump-themed-cake/article/2601212.

there was no evidence that the bakeries based their

decisions on the patron’s religion, and evidence had

established that all three regularly created cakes with

Christian themes.” Jd.

Kollow the “logic.” The refusal of a religious

customer's request for a religious message is not

discrimination on the basis of religion in part because

the baker has helped convey other religious messages

from other religious customers. Yet refusing a gay

customer's request for a message celebrating gay

marriage is sexual-orientation discrimination vven

though the baker has helped other gay customers

convey other messages. That's not a legal principle.

It’s classic, results-oriented jurisprudence.

In fact, if one applied the same judicial reasoning

to the cases mentioned above, it’s easy to see how une

could shoehorn virtually any refusal to express a

message into an act of status-based discrimination

prohibited by expansive public accommodation

statutes. Women (a_ protected class) are

disproportionately affected by a designer’s refusal to

design new dresses. White Americans (a protected

class) are disproportionately affected by a refusal to

bake Confederate Flag cakes. Christians (again, a

protected class) are disproporticnately affected by

refusals to print “offensive” Bible verses.

The court below called Masterpiece Cakeshop’s

decision not to bake a cake for a same-sex wedding

conduct “so clesely correlated with the status that it

is engaged in exclusively or predominantly by persons

who have that particular status.” /d. at 281. Yet isn’t

that true for each of the categories of refusal outlined

ubove?

But each of these refusals — like the refusals of

Masterpiece Cakeshop to bake the cake at issue in

this case — is small-scale compared to the immensely

consequential actions of large politically-active

corporations. The politicization of corporate action is

toy common to list all of the consequential examples,

but if one wants to focus on action implicating the

rights of protected classes (people of faith) consider

the overwhelmingly negative corporate response to

state efforts to expand protection for religious liberty.

The National Football League’s corporate threat

to move the Super Bow! was instrumental in

persuading then-Arizona governor Jan Brewer to veto

a state Religious Freedom Restoration Act.? When

Georgia considered its own Religious Freedom

Restoration Act, Walt Disney placed immense

pressure on the state, threatening to pull filming from

its Pinewood Studios outside Atlanta.'® And these

examples pale in comparison to the multi-corporation

offensive waged against the state of Indiana when it

passed its own religious liberty bill.'! A Los Angeles

2 Tommy Tomlinson, How the Ni'L Helped Kill Arizona’s

Anti-Gay Rights Bill, Forbes, Feb. 27, 2014,

https://www .forbes.com/sites/tommytomlinson/20 1 4/02/27/arizo

na-gay-rights-and-the-super-bowl/#1dd 144552 14c.

10 Ted Johnson, Disney, Marvel io Boycott Georgia uf

Religious Liberty Bill ts Passed, Variety, Mar. 23, 2016,

http://variety.com/20 16/bi2/news/disney-marvel-boycott-georgia-

anti-gay-bill-1201737405/.

\' Eric Bradner and Jeremy Diamond, Mike Pence: ‘Was I

expecting this kind of backlash? Heavens no.,’ CNN (Mar. 31,

Times roundup of the state-by-state battles over

religious liberty includes some of America’s most well-

known and powerful corporations. Each of these

corporations used their corporate voice to advance

their corporate values.*?

It’s important to note that in each of these

examples, the corporate imposition was far less than

the imposition on Masterpiece Cakeshop. Opening a

facility or filming a movie in a state is not the same

thing as creating a picce of art that actually expresses

a point of view the artist abhors. In fact, the company

could use the facility or the movie to express

opposition to the state’s policies. Here, Masterpiece

Cakeshop would be part of the very cxpression it

opposes.

A better analogy — though still not nearly as

intrusive because it does not involve the actual

creation of the art itself — is to the corporate effort in

the aftermath of the Charleston, South Carolina,

church massacre to ban the sale of objects featuring

the Confederate Flag. Walmart, Sears, eBay and

many other vendors removed not just flags from their

shelves, but also products that featured flag designs.!s

2015) http://edition.cnn.com/20 15/03/3 1/politics/pence-will-fix-

religious-freedom-legislation/index.html.

12 Libby Hill, Some cali it religious freedom, others call it

anti-gay. Here's a look at the battle in some states, L.A. Times,

Apr. 5, 2016, http://www.latimes.com/entertainment/a-et-

states-antigay-battle-20160325-snap-htmistory. html#.

13 MJ Lee, Walmart, Amazon, Sears, eBay iv stop selling

Confederate flag merchandise, CNN (QWJune 24, 2015)

http://edition.cnn.com/20 16/06/22/politics/confederate-flag-

walmart-south-carolina/index.html.

A law requiring these entittes to stock items that send

a repugnant message would be blatantly

unconstitutional. How much more unacceptable

would be a law requiring these vendors to create the

items they despise?

The creative professionals profiled above,

including the creative professionals at Masterpiece

Cukeshop, are engaged in conduct remarkably similar

to the conduct of the stalwart Jehovah's Witnesses in

Barnetie. When asked by others if they would

participate in an act of expression they abhor, these

creative professionals say no. They understand

reality. They understand that no one would think that

Melania Trump designs her own dresses, that

eustomers create their own custom cakes, or that

married couples make the beautiful claborate

confections that stand as the centerpiece of a wedding

reception. They understand that the expression

involved is thus joint expression with their patrons.

They are lending their unique talents to acts secular

and sacred. Doing so must be their choice.

1ll.To Undermine Barnette Is To Cruelly

Impoverish the Marketplace of Ideas.

For if these acts of creation are undertaken, not

by choice, but by compulsion, do not imagine that the

baker will be merely passively complying with the

law. The patron-artist relationship is not like a

gumball machine that mechanically dispenses a

product when payment is inserted. Quite the

contrary, artistic work done at the behest of others

involves the investment of the artist's mind and

imagination in the expression of ideas suggested by a

patron who has commissioned the artwork. This 1s,

indeed, the major reason why artists § arc

commissioned by patrons in the first place. We need

not agree with those who say that all commercialized

artwork is “prostitution” to understand why they

speak that way. Artistic work involves the whole

person — mind, body, and soul. The use of the artist's

creative talents must be undertaken willingly, or it is

a violation of his integrity.

For this reason, there is something particularly

crue] about coerced artistic expression, which was

recognized even in ancient times. Indeed, the

Psalmist gives voice to the suffering of the artist

under duress:

By the rivers of Babylon, there we sat down,

yea, we wept, when we remembered Zion. We

hanged our harps upon the willows in the

midst thereof. For there they that carried us

away captive required of us a song; and they

that wasted us required of us mirth, saying,

Sing us one of the songs of Zion.

Psalm 137:1-3 (KJV).

The psalmist also viscerally describes the feeling

of inner revulsion the artist feels at the idea of

employing his artistic talents under coercion:

If 1 forget thee, O Jerusalem, Iet my right

hand forget her cunning. If I do not remember

thee, let my tongue cleave to the roof of my

mouth. ...

Psalm 137:5-6 (KJV).

He would rather lose his ability to play the lyre,

lose his ability to sing, than employ his skill for the

schadenfreude of those who hate the city that he

loves. A simular situation is at work in this case: The

vwner of Masterpiece Cakeshop would rather go out

of business than be forced to use his skill to celebrate

homosexual marriage. Shall the State of Colorado

hecome the agent of this compulsion?

It might be objected that a cake-baker is not

Michelangelo; a cake is not a painting; it is a

pedestrian, edible, commercial product. Such an

objection would be quite misguided. The request to

design this cake was made in the context of a hercely

contested cultural struggle, m which everyday

commercial merchandise has been turned into means

of communicating support for one side or the other.

For instance, Apple sells a rainbow watch band for its

Apple Watch. Is this product only expressive of the

wearer's views? Apple does not think so. It advertises

the product with these words:

Apple is proud to support LGBTQ advocacy

organizations working to bring about positive

change, including GLSEN, PFLAG and The

Trevor Project in the US. and ILGA

internationally. '*

If a rainbow watch band is an expression of

advocacy for political and moral “change,” then so is a

‘4 Accessories: 42mm Pride Edition Woven Nylon, Apple.

https://www_apple.com/ca/shop/p roduc/MQ4G2AM/A/42mm-

pride-edition-woven-nylon (Jast visited Sept. 5, 2017).

cake decorated with a similar motif, The only

difference is that Apple’s expression of support for

LGBTQ advocacy is freely created and freely offered,

while Masterpiece Cakeshop’s would be under duress

and legal coercion. Apple rightly understands that

corporations have First Amendment rights, and that

they should be free to use them to advocate positions

in accordance with the dictates of their corporate

consciences. Apple’s CEO Tim Cook explains:

It’s no accident that these freedoms are

enshrined and protected in the First

Amendment. They’re the foundation of so

many of our rights, which means we all have

a stake and a role in defending them. This is

a responsibility that Apple takes very

seriously. I see our work to fulfill this

responsibility as twofold. First, we work to

defend these freedoms by enabling people

around the world to speak up. And second, we

do it by speaking up ourselves, because

companies can and should have values. We

have a perspective on major public issues, and

we are prepared to take a stand for things

that we deeply believe in... a company is not

some faceless, shapeless thing that exists

apart from society. A company is a collection

of human beings, and part of the fabric of our

society. A company like ours has a culture, it

has values, and it has a voice. Apple has

spoken out, and will continue to speak out, for

what we believe as a company. And the

positions we take will continue to guide our

actions. Su we will continue to speak up for

environmental protection. We will continue to

stand up for inclusion and diversity in all

facets of life. And we will continuc to stand up

for human rights, including the right to

privacy.!>

Apple understands it has a First Amendment

right as a corporation to participate [reely in the

shaping of pubhe opinion, and it does this by choosing

which opinions it will express via the designs of its

products and its publicly announced partnerships.

The large corporations go even farther. Not only

will they not create products that send unacceptable

messages, they won't do business in places that

promulgate (to them) unacceptable laws. There is no

serious effort to call into legal question their ability to

do business where they choose to do business (nor

should there be), yet the constitutional imposition of

such a law would be fur smaller than the

constitutional impvusition on Masterpiece Cakeshop.

In this case, the state is demanding that a baker not

only do business with a certain patron, it’s demanding

that he create and speak the patron’s message. How

could Colorado prevail and Barnette — and indeed,

expressive freedom itself — survive?

C USI

If the state of Colorado prevails in this case,

fundamental First Amendment rights have become

18 Timothy Cook, CEO, Apple, Address at the Newseum's

2017 Free Expression Awards Ceremony (April 18, 2017)

(transcript and video available at htips://www.c-

span.org/video/?427 127-1/newseum-presents-2017-free-

expression-awards).

fragile indeed. They survived world war and the

pressure for national unification in the face of an

existential threat. Can they survive the sexual

revolution and the modern pressure for ideological

uniformity? That is what this Court will decide.

It is important to remember that this Court has

clearly distinguished the constitutional right to

marry from any legal obligation to adopt the state's

view about the nature of marriage. Writing for the

majority in Obergefell, Justice Kennedy was clear:

Finally, it must be emphasized that religions,

and those who adhere to religious doctrines,

may continue to advocate with utmost.

sincere conviction that, by divine precepts,

same-sex marriage should not be condoned.

The First Amendment ensurcs that religious

organizations and persons are given proper

protection as they seek to teach the principles

that are so fulfilling and so central to their

hives and faiths, and to their own deep

aspirations to continue the family structure

they have long revered.

135 S. Ct. at 2607.

This is the language that preserves the First

Amendment. This is the language that preserves

Barnette. The owners of Masterpiece Cakeshop are

religious persons who are not willing to violate “the

principles that are so fulfilling and so central to their

lives and faiths.” Or, to put it another way, they are

not willing to let any Colorado official, high or petty,

“prescribe what shall be orthodox” regarding the

institution of marriage “or force citizens to confess hy

word or act their faith therein.”

May that star remain fixed in our constitutional

constellation. The judgment of the court below must

be reversed.

Respectfully submitted,