MASTERPIECE CAKESHOP, LTD.; AND JACK C. PHILLIPS,
CHARLIE CRAIG AND DAVID MULLINS; COLORADO CIVIL RIGHTS COMMISSION, Respondents.
BRIEF FOR PETITIONERS
Whether applying Colorado's public-accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
Jack Phillips's love for art and design began at an early age. Discovering that he could blend his skills as a pastry chef, sculptor, and painter, he spent nearly two decades in bakeries owned by others before opening Masterpiece Cakeshop twenty-four years ago. Long before television shows like Cake Boss and Ace of Cakes, Phillips carefully chose Masterpiece's name: it would not be just a bakery, but an art gallery of cakes. With this in mind, Phillips created a Masterpiece logo depicting an artist's paint palate with a paintbrush and whisk. And for over a decade, a large picture has hung in the shop depicting Phillips painting at an easel. Since long before this case arose, Phillips has been an artist using cake as his canvas with Masterpiece as his studio.
Phillips is also a man of deep religious faith whose beliefs guide his work. Those beliefs inspire him to love and serve people from all walks of life, but he can only create cakes that are consistent with the tenets of his faith. His decisions on whether to design a specific custom cake have never focused on who the customer is, but on what the custom cake will express or celebrate.
At issue here is whether Phillips may decline requests for wedding cakes that celebrate marriages in conflict with his religious beliefs. The First Amendment guarantees him that freedom because his wedding cakes, each one custom-made, are his artistic expression. Much like an artist sketching on canvas or a sculptor using clay, Phillips meticulously crafts each wedding cake through hours of sketching, sculpting, and hand painting. The cake, which serves as the iconic centerpiece of the marriage celebration, announces through Phillips's voice that a marriage has occurred and should be celebrated. The government can no more force Phillips to speak those messages with his lips than to express them through his art.
The Colorado Court of Appeals and the Commission have conceded that some cakes are artistic expression protected under the First Amendment. But Phillips's custom wedding cakes, they have told us, are not among them. Thus, the Commission ordered him either to create custom cakes that celebrate same-sex marriages or to stop designing wedding cakes altogether. But just as the Commission cannot compel Phillips's art, neither may the government suppress it. The Commission's order violates First Amendment freedoms at every turn.
The Commission's actions have also devastated Phillips and his family. By effectively forcing him to stop designing wedding cakes, the Commission stripped Phillips of roughly 40% of his family income, which caused him to lose most of his employees. As if this were not bad enough, the Commission also ordered Phillips to reeducate his remaining staff, nearly all of whom are his family members, by essentially teaching them that he was wrong to operate his business according to his faith. Moreover, the Commission imposed intrusive reporting requirements that force Phillips to give a running tally to the government detailing how he exercises his artistic discretion.
The Commission dismisses the First Amendment when it is most needed - to help people in a pluralistic society navigate through sincere differences on matters that touch the heart of the existing order. Marriage does just that, functioning as a "keystone of our social order" and holding a sacred place in the lives of many. The Commission must respect Phillips's freedom to part ways with the current majority view on marriage and to create his wedding cakes consistently with his "decent and honorable" religious beliefs. Instead, the Commission punished him, demeaned his beliefs, and marginalized his place in the community.
Equally important, a ruling against Phillips threatens the expressive freedom of all who create art or other speech for a living. Respondents Charlie Craig and David Mullins argued below that the Commission can force fine-art painters to create paintings celebrating ideas that they deem objectionable. It is difficult to imagine a view more at odds with the First Amendment and our nation's pluralistic values.
There is a better way - one that allows the Commission to ensure that businesses do not refuse to serve people simply because of who they are, but protects individuals like Phillips from being forced to create expression about marriage that violates their core convictions. The path to civility, progress, and freedom does not crush those who hold unpopular views, pushing them from the public square. It allows free citizens to determine for themselves the ideas and beliefs deserving of expression, consideration, and adherence. That is the path this Court should take; it is the only one consistent with the First Amendment.
STATEMENT OF THE CASE
A. Factual Background
1. Phillips's Work as a Cake Artist. After discovering his artistic talents in high-school art class, Phillips has spent the last forty years honing the craft of elaborate custom cake design. He and his wife own their own family business, Masterpiece Cakeshop, where for the last twenty-four years Phillips has made custom cakes and developed a reputation for his exceptional designs. Phillips opened Masterpiece to gain greater artistic freedom, better integrate his faith and work, and provide employment for his family and others in the community.
Phillips approaches cake design as an art form. He creates his custom cakes by using several fine-art skills such as sketching, sculpting, and painting. Even Masterpiece's logo, which features an artist's paint palate with a paintbrush and whisk, reflects Phillips's artistic approach. All who enter his shop are greeted by a drawing of Phillips sketching himself at an easel.
2. Phillips's Wedding Cakes. Throughout the years, Phillips has focused his custom work on wedding cakes. Before the Commission forced him to stop, custom wedding cakes accounted for approximately 40% of Phillips's business.'
The tradition of creating special cakes for weddings dates as far back as Roman times. The wedding cake developed "not as an integral part of a meal but as a festive or celebratory" component of the newlyweds' union. In modern Western culture, the wedding cake has become the iconic centerpiece of the celebration. It is "a veritable institution. A wedding without it would be a wedding without protocol, a rite without confirmation."
Wedding cakes are inseparable from the nearly ubiquitous cake-cutting ritual that accompanies them. Guests gather around as the couple cuts the cake together and feeds it to each other-their "first joint action" as newlyweds. It is a celebratory performance, which itself is infused with rich symbolism and meaning, and which has the specially designed cake at its center.
The modern wedding cake is a highly distinctive structure and a widely meaningful element of western culture that serves as a marker for weddings. It is a piece of custom-made art, which typically costs between $400 and $800. Wedding cakes are an artistic medium through which cake designers speak using their expertise and artistry.
Phillips's wedding cakes fit squarely within this genre. Each one is a custom-made, elaborately designed, intricately constructed, and typically tiered masterpiece. No matter their precise markings or decorations, the cakes tell all who see them that a wedding has occurred, a marriage has begun, and the couple should be celebrated.
Phillips specially crafts every wedding cake he creates. Before designing it, he meets with the couple to learn their desires, personalities, preferences, and wedding details. Then he sketches the design on paper (often multiple times), sculpts it into shape, creates ornamental and symbolic details to place on it, and decorates it using artistic techniques like hand-painting, air-brushing, and sculpting.
Phillips's artwork serves as a focal point of the marriage celebration and, through it, his expression is present there. Also, Phillips himself is present when he delivers and sets up the cake, and sometimes interacts with the couple's family and friends, Many who have seen Phillips's work at a wedding have later commissioned him to create a custom cake for them.
3. Phillips's Faith. Phillips is a Christian who strives to honor God in all aspects of his life, including how he treats people and runs his business. Phillips closes Masterpiece on Sundays so that he and his employees can attend religious services. And because of his faith, he pays his employees above the market rate and helps them with financial and personal needs outside of work.
Phillips gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations. But he cannot design custom cakes that express ideas or celebrate events at odds with his religious beliefs. For example, Phillips will not design cakes that celebrate Halloween; express anti-family themes (such as a cake glorifying divorce); contain hateful, vulgar, or profane messages or promote atheism, racism, or indecency. These limitations on Phillips's custom work have no bearing on his premade baked items, which he sells to everyone, no questions asked.
As core tenets of his faith, Phillips believes that marriage is a sacred union between one man and one woman, and that it represents the relationship of Jesus Christ and His Church. The wedding signifies that the "two have become one flesh" and that no one should separate "what God has joined together." Regardless of whether Phillips's wedding clients plan an overtly religious event, he believes that all weddings are sacred and that they create an inherently religious relationship. Because weddings and marriage have such religious significance to Phillips, he would consider it sacrilegious to express through his art an idea about marriage that conflicts with his religious beliefs. For this reason, he will not design custom cakes that celebrate any form of marriage other than between a husband and a wife.
4. Craig and Mullins's Request. In July 2012, Charlie Craig and David Mullins visited Masterpiece with Craig's mother, Deborah Munn. At the time, Colorado did not recognize same-sex marriages.
Craig and Mullins were browsing a photo album of Phillips's custom-design work, when Phillips sat down with them at his consultation table. After Phillips greeted the two men, they explained that they wanted him to create a cake for their wedding. Phillips politely explained that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them. Craig, Mullins, and Munn expressed their displeasure and left the shop.
Munn called Phillips the next day and asked why he declined their request. Phillips explained that it was because of his religious beliefs about marriage, and he also told her that Colorado did not recognize same-sex marriages. Over the years, Phillips has declined other requests to design custom wedding cakes that celebrate same-sex marriages, all the while affirming his willingness to create other cakes for LGBT customers.
After Craig and Mullins posted online that Phillips declined their wedding-cake request, people picketed and boycotted Masterpiece. Another local cake artist offered to design a free wedding cake for Craig and Mullins, an offer they accepted. Craig and Mullins then married in Massachusetts (because same-sex marriage was not licensed in Colorado at the time), and they had a multi-tiered, rainbow-layered wedding cake at their reception in Colorado. Following wedding customs, they cut the cake together and fed it to each other in celebration of their union.
B. Procedural Background
1. Division Proceedings. Craig and Mullins filed formal charges with the Colorado Civil Rights Division ("the Division") - the state agency responsible for enforcing the Colorado Anti-Discrimination Act ("CADA")-alleging that Phillips engaged in sexual-orientation discrimination. In March 2013, the Division issued a probable-cause determination against Phillips, explaining that even though Phillips told Craig and Mullins that he would "create birthday cakes, shower cakes, or any other cakes for them," his decision not to custom design "a cake for a same-sex wedding" violated CADA.
The Division issued a notice of hearing and formal complaint indicating that a proceeding would be held before an Administrative Law Judge (ALJ). After the ALJ granted Craig and Mullins's motion to intervene, the parties filed cross-motions for summary judgment, which the ALJ resolved through a written decision against Phillips.
The ALJ regarded "as a distinction without a difference" Phillips's argument that he declined Craig and Mullins's request not because of their status as gay men, but because he could not in good conscience create a wedding cake that celebrates their marriage. Based on this, the ALJ held that Phillips violated CADA.
The ALJ then rejected Phillips's free-speech defense even though the ALJ's decision recognized that the First Amendment applies to non-verbal "mediums of expression such as art." Free-speech protection, in the ALJ's view, hinged on whether a particularized "message or symbol" is part of a cake's design. Where a message or symbol is "offensive," the ALJ determined, a cake artist has a "free speech right to refuse" it. Thus, according to the ALJ, an African American cake designer could refuse to create a cake with a white-supremacist message for the Aryan Nations church, and an Islamic cake artist could turn down a religious group's request for a cake denigrating the Quran. But because Craig and Mullins did not specify whether they wanted words or designs on their wedding cake, the ALJ explained that Phillips had "no free speech right" to decline their request. The ALJ also analyzed and dismissed Phillips's free-exercise defense.
2. Commission Proceedings. Phillips appealed to the Colorado Civil Rights Commission – an agency composed of seven members. The Commission issued a final order adopting the ALJ's ruling on the same day that the commissioners deliberated about the case. That order requires Phillips to (1) design wedding cakes that celebrate same-sex marriages if he creates cakes that celebrate opposite-sex marriages, (2) reeducate his staff (which includes his family members) on CADA compliance, and (3) submit quarterly compliance reports for two years describing all orders that he declines and the reasons for the denial.
3. Colorado Court of Appeals. Phillips appealed the Commission's order to the Colorado Court of Appeals, and that court affirmed. As an initial matter, the court accepted that Phillips declined Craig and Mullins's request "'because of his opposition to same-sex marriage, not because of his opposition to their sexual orientation." Nonetheless, the court reasoned that CADA requires no "showing of 'animus'" against individuals, and held that Phillips violated the statute by declining "to create a wedding cake for Craig and Mullins' same-sex wedding celebration,"
The court then rejected Phillips's free-speech defense, holding that he "does not convey a message supporting same-sex marriages merely by abiding by the law," because "a reasonable observer would understand that his compliance with the law is not a reflection of his own beliefs," The court distinguished three other cases, decided while this one was pending-in which the Commission found no religious discrimination when cake designers declined a religious man's requests to create custom cakes with religious messages criticizing same-sex marriage or same-sex relationships. The court explained that those "bakeries did not refuse the patron's request because of his creed, but rather because of the offensive nature of the requested message." Phillips's speech-based reasoning - his desire not to create custom cakes that celebrate marriages in conflict with his faith-was grounded on his religious "opposition to same-sex marriage," which the court deemed unlawful.
The court then rejected Phillips's free-exercise arguments. It held that "CADA is generally applicable, notwithstanding its exemptions," because a law "is generally applicable so long as it does not regulate only religiously motivated conduct." Moreover, CADA is neutral, the court concluded, because it "forbids all discrimination based on sexual orientation regardless of its motivation." The court also dismissed Phillips's hybrid-rights argument because even if that theory exists, "it would not apply here" since "the Commission's order does not implicate Phillips's freedom of expression."
The court held that "states have a compelling interest in eliminating sexual-orientation discrimination" and explained "that statutes like CADA further that interest," by (1) avoiding "adverse economic effects" and (2) "ensuring that the goods and services provided by public accommodations are available to all of the state's citizens."
4. Colorado Supreme Court. Phillips sought but was denied review in the Colorado Supreme Court. This Court then granted Phillips's petition for writ of certiorari on June 26, 2017.
SUMMARY OF ARGUMENT
Phillips serves all people, but cannot convey all ideas or celebrate all events. He seeks to live his life, pursue his profession, and craft his art consistently with his religious identity. The First Amendment guarantees him that freedom.
The Free Speech Clause protects more than words. Phillips's custom wedding cakes, which he intricately and artistically forms with his own hands for the purpose of celebrating his clients' marriages are his protected expression. Each of them declaring to all onlookers that the couple is now joined in marriage and that this is an occasion for jubilation. His custom cakes necessarily express ideas about marriage and the couple, and as a result, they are entitled to full constitutional protection.
This Court's compelled-speech doctrine forbids the Commission from demanding that artists design custom expression that conveys ideas they deem objectionable. Thus, a cake artist who serves all people, like Phillips does, cannot be forced to create wedding cakes that celebrate marriages at odds with his faith. Dismissing that governing authority, the Commission violated the "individual dignity and choice" that the First Amendment promises to artists.
The Free Exercise Clause also forbids the Commission from applying CADA to target Phillips and likeminded believers for punishment. Cake artists who support same-sex marriage may refuse requests to oppose it. But Phillips may not decline requests to support it. Such a one-sided application of CADA under which people of faith who share Phillips's beliefs always lose, defies the requirements of neutrality and general applicability. Moreover, the Commission has not only ordered Phillips to participate in celebrating what he regards as a religious event, it has forced him to do so through is expression. This confluence of free-exercise and free-speech rights forms a strong hybrid-rights claim, which subjects the Commission's actions to strict scrutiny review.
The Commission's application of CADA in this case cannot withstand the rigors of strict scrutiny. While the Commission has an interest in ensuring that businesses are open to all people, it has no legitimate, let alone compelling-interest in forcing artists to express ideas that they consider objectionable. Much less does the Commission have a compelling interest in mandating that people of faith celebrate what they consider to be sacred events. Moreover, the Commission's actions are not narrowly tailored because Respondents have not even shown that protecting Phillips's First Amendment rights would undercut the interests they seek to achieve. Because strict scrutiny is not satisfied, the Commission violated Phillips's freedom under both the Free Speech and Free Exercise Clauses.
Hanging in the balance is more than Phillips's freedom to ply his craft without forfeiting his conscience. At stake is his and all like-minded believers' freedom to live out their religious identity in the public square. The First Amendment promises them that basic liberty.
Plaintiffs ask this Court to bar Defendants from enforcing Colorado's public accommodation law so that they can discriminate against same-sex couples on the basis of their religious beliefs.