MASTERPIECE CAKESHOP, LTD.; AND JACK C. PHILLIPS,
CHARLIE CRAIG AND DAVID MULLINS; COLORADO CIVIL RIGHTS COMMISSION, Respondents.
BRIEF FOR RESPONDENTS CHARLIE CRAIG AND DAVID MULLINS
1. Whether the Free Speech Clause permits a business to discriminate in making sales to the public in violation of a regulation of commercial conduct that does not target speech?
2. Whether the Free Exercise Clause permits a business to discriminate in making sales to the public in violation of a state law that is neutral and generally applicable?
Five years ago, David Mullins and Charlie Craig were planning their wedding. When they visited Masterpiece Cakeshop (the "Bakery") to inquire about a cake for their reception, what should have been a happy occasion became a humiliating one. Before Mr. Mullins and Mr. Craig could even begin to discuss what kind of cake they would like, the Bakery's owner made clear that he would bake no cake for their wedding reception because he objects to same-sex unions. The Bakery has repeatedly refused to provide any baked goods-even cupcakes-for wedding receptions or commitment ceremonies of same-sex couples.
The Bakery's actions violated Colorado's Anti-Discrimination Act, a civil rights statute whose origins date to 1885. Like the public accommodation laws of nearly every state in the Union, the AntiDiscrimination Act bars businesses that are open to the public from refusing service based on certain aspects of a person's identity-including, in Colorado, their sexual orientation. While many citizens take for granted equal access to goods and services in the commercial marketplace, members of minority groups often cannot. For those who are lesbian, gay, bisexual, or transgender ("LGBT"), these laws ensure equal opportunity to participate in the "transactions and endeavors that constitute ordinary civic life in a free society." This Court has recognized our country's long and painful history of discrimination against LGBT people. Well into the twentieth century, gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.
There is no question that Colorado has the authority to prohibit discrimination in sales by businesses that choose to operate in the State. The Bakery argues, however, that because its cakes are "expressive," and because its owner objects to marriage for same-sex couples on religious grounds, the First Amendment exempts it from Colorado's requirement that all businesses treat heterosexual and LGBT customers equally. In essence, the Bakery seeks a constitutional right to hang a sign in its shop window proclaiming "Wedding Cakes for Heterosexuals Only."
This is not the first time a business open to the public has sought to avoid an anti-discrimination law by invoking the First Amendment. In every prior case, this Court has rejected such claims, whether framed as involving the freedom of expression, association, or religion. Discriminatory conduct by business entities "'has never been accorded affirmative constitutional protections.'"
While the particular facts of this case involve a bakery refusing to sell a cake for the wedding reception of a same-sex couple, the implications of the Bakery's (and the United States') arguments are not limited to sexual orientation discrimination or weddings. If the First Amendment bars a state from applying an anti-discrimination law to the sale of wedding cakes because they involve artistry, then bakeries could refuse to provide cakes for an interracial or interfaith couple's wedding, a Jewish boy's bar mitzvah, an African-American child's birthday, or a woman's business school graduation party. And, because it is possible to find some kernel of expression in almost every activity a person undertakes, a wide range of businesses could claim a First Amendment exemption from generally applicable regulations of commercial conduct. The Bakery's free exercise claim presents the same problem. There is no doubt that the Bakery owner's religious objections are sincere, but granting such a religious-based exemption would allow every business owner "to become a law unto himself."
As the Supreme Court of Nebraska explained in one of the earliest public accommodation decisions:
A barber, by opening a shop, and putting out his sign, thereby invites every orderly and well-behaved person who may desire his services to enter his shop during business hours. The statute will not permit him to say to one: "You are a slave, or a son of a slave; therefore I will not shave you."
To recognize either of the Bakery's asserted First Amendment objections would run counter to the basic principle, reflected in over a century of public accommodation laws, that all people, regardless of status, should be able to receive equal service in American commercial life.
STATEMENT OF THE CASE
A. Factual Background.
In 2012, Mr. Mullins and Mr. Craig decided to get married. It was not yet possible for them to marry in Colorado, where they lived, so they planned two events: a wedding ceremony in Massachusetts and a reception in Colorado at a later date. On the recommendation of their reception planner, Mr. Mullins and Mr. Craig visited the Bakery - a Colorado corporation that sells baked goods to the public at large-to discuss a cake for their Colorado event.
The couple and Mr. Craig's mother, Deborah Munn, sat down with Jack Phillips, the Bakery's owner. As soon as they explained that they were interested in buying a cake for their wedding reception, Mr. Phillips told the couple that, while the Bakery would sell baked goods to gay and lesbian customers for other purposes, it would not sell them baked goods for weddings. Because the Bakery refused to provide any cake, there was no discussion of what kind of cake the couple wanted.
The next morning, Ms. Munn called the Bakery to ask Mr. Phillips why he had refused to sell her son a cake. Mr. Phillips said that the Bakery's policy of refusing to provide baked goods for weddings of same-sex couples was based on his Christian religious beliefs.
Mr. Mullins and Mr. Craig were not the first same-sex couple the Bakery had turned away. In fact, it had refused service to at least five other same-sex couples who sought baked goods for their wedding receptions or commitment ceremonies. One of those couples had asked about placing an order for cupcakes, but when the Bakery representative learned that the cupcakes were for their commitment ceremony, the Bakery refused. Mr. Phillips told another couple that "he is not willing to make a cake for a same-sex commitment ceremony, just as he would not be willing to make a pedophile cake."
B. Colorado Anti-Discrimination Act.
"For well over 100 years, Colorado has prohibited discrimination by businesses that offer goods and services to the public." Colorado was among the first states to codify the common law duty not to "refuse, without good reason, to serve a customer." The earliest predecessor to the Anti-Discrimination Act, entitled "An Act To Protect All Citizens in Their Civil Rights," became law in 1885. It guaranteed all citizens the "full and equal enjoyment" of places of public accommodation regardless of race, color, or previous condition of servitude.
In the mid-20th century, Colorado, like many states, expanded the types of businesses covered by the statute. Today, the Anti-Discrimination Act defines "place of public accommodation" to include, as relevant here, "any place of business engaged in any sales to the public and . . . any business offering wholesale or retail sales to the public." It specifically exempts churches, synagogues, mosques, or other places principally used for religious purposes.
In 2008, Colorado added sexual orientation to disability, race, creed, color, sex, marital status, national origin, and ancestry as an expressly prohibited basis for refusing service. The purpose of the amendment was to cure the particular history of discrimination against LGBT people in Colorado so that they might "live in dignity" and "die in dignity" in the State.
Twenty other states and the District of Columbia likewise expressly prohibit places of public accommodation from discriminating on the basis of sexual orientation. Many more, as well as the federal government, prohibit discrimination by places of public accommodation based on characteristics such as race, religion, national origin, and disability.
Mr. Mullins and Mr. Craig filed charges of discrimination with the Colorado Civil Rights Division ("Division"), alleging that the Bakery had denied them full and equal enjoyment of a place of public accommodation because of their sexual orientation.
After an investigation, the Division made several factual findings. It found that the Bakery had turned away the couple because they wanted to order a cake for their wedding reception, that the Bakery had a "standard business practice" of refusing to sell "wedding cakes to same-sex couples," and that it had turned away five or six couples in the past for that reason. The Division also found that the Bakery provides baked goods, including wedding cakes, to the public and that it did not claim to be a business principally operated for religious purposes. Based on these findings, the Division concluded there was probable cause to believe that the Bakery had discriminated against Mr. Mullins and Mr. Craig because of their sexual orientation.
After attempts to settle the charges were unsuccessful, the Colorado Civil Rights Commission ("Commission") filed formal complaints against the Bakery with the Colorado Office of Administrative Courts. Mr. Mullins and Mr. Craig intervened.
The Administrative Law Judge ("ALJ") granted summary judgment against the Bakery, finding that it had discriminated against Mr. Mullins and Mr. Craig because of their sexual orientation in violation of the Anti-Discrimination Act. The ALJ rejected the Bakery's contention that it did not discriminate on the basis of sexual orientation because it was willing to sell baked goods to LGBT people for other occasions. The ALJ reasoned that "if the Bakery's argument was correct, it would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner's bias against interracial marriage." The ALJ also concluded that the First Amendment did not authorize the Bakery to discriminate in sales to the general public.
The Bakery appealed to the Commission. After a public hearing, the Commission adopted the ALJ's opinion in full. The Commission issued a remedial order directing the Bakery to "cease and desist from discriminating against Mr. Mullins and Mr. Craig and other same-sex couples by refusing to sell them wedding cakes or any product the Bakery would sell to heterosexual couples." To ensure compliance with this remedy, the order also directed the Bakery to train its staff regarding the Anti-Discrimination Act's requirements and to provide quarterly compliance reports to the Commission for two years.
The Colorado Court of Appeals unanimously affirmed. It found that the Bakery discriminated because of sexual orientation under state law and rejected the Bakery's defense that it did not discriminate because it was willing "to sell birthday cakes, cookies, and other non-wedding cake products to gay and lesbian customers." It reasoned that even assuming the Bakery would sell other products for other events to LGBT people, the Anti-Discrimination Act required it to offer them any goods and services that it "otherwise offers to the general public."
The court also concluded that application of the Anti-Discrimination Act did not infringe the Bakery's freedom of speech or free exercise of religion. As to the free speech claim, the court held that requiring the Bakery not to discriminate against potential customers did not require it to convey any message of support for same-sex marriage. It noted that the Bakery was "free to disassociate itself from its customer's viewpoints" by, for example, "posting a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement."
The court also rejected the Bakery's free exercise claim, reasoning that the Anti-Discrimination Act is a neutral law of general applicability and, as a result, is subject to rational basis review. The court easily concluded that the Anti-Discrimination Act satisfies that standard because it "prevents the economic and social balkanization prevalent when businesses decide to serve only their own 'kind.'"
The Colorado Supreme Court denied review.
SUMMARY OF ARGUMENT
I. This case involves the straightforward application of a standard public accommodation law. The Anti-Discrimination Act applies to businesses that choose to serve the public at large and requires that once they offer a product, they not refuse service based on enumerated personal characteristics, including race, religion, and sexual orientation. It is equivalent to anti-discrimination statutes this Court has upheld repeatedly against challenges rooted in First Amendment rights of expression, association, and religion.
II. Whether wedding cakes are artistic expression is not the issue here. The question, rather, is whether the Constitution grants businesses open to the public the right to violate laws against discrimination in the commercial marketplace if the business happens to sell an artistic product. Under this Court's precedent, the answer to that question is no.
The State's prohibition against discrimination in the sale of goods and services to the public is a regulation of commercial conduct that affects expression only incidentally. This Court has uniformly rejected First Amendment defenses to discrimination lodged by commercial entities that provide expressive goods or services, including law firms and private schools, with minimal scrutiny. Businesses, the court has held, have "no constitutional right ... to discriminate."
Even outside the commercial setting, when a government regulation of conduct incidentally affects expression, the Court has applied at most deferential scrutiny, and has uniformly upheld regulations under that standard.
The Bakery's attempt to invoke strict scrutiny by arguing that the Anti-Discrimination Act is content- and viewpoint- based fails. The AntiDiscrimination Act prohibits discrimination in sales without regard to the content of any particular product or service, and Colorado has applied it in a content- and viewpoint-neutral manner.
The Bakery's compelled speech argument likewise does not trigger strict scrutiny. The Anti-Discrimination Act does not compel the Bakery to speak any state-selected message or host any state-selected speaker. Hurley, the case on which the Bakery and the United States principally rely, has no application here: The law in Hurley was applied not to commercial conduct, but to a private, expressive parade. The law's "peculiar application" did not regulate conduct with only an incidental effect on expression, but directly regulated nothing but expression-the content of the private parade's message. The application of the Anti-Discrimination Act, by contrast, is entirely routine, regulates the conduct of commercial sales, and is content-neutral.
The Anti-Discrimination Act's application to the Bakery is constitutional. Neither the Bakery nor the United States even argues that the law fails either form of scrutiny. The Anti-Discrimination Act furthers the State's substantial interest in eradicating discrimination, an interest that is "unrelated to the suppression of expression," and that interest would be achieved less effectively if expressive businesses were allowed to discriminate. Indeed, the Anti-Discrimination Act would survive even strict scrutiny, because it is precisely tailored to serve not just an important, but a compelling government interest in ending discrimination by commercial establishments open to the public.
The Bakery's (and the United States') attempts to limit their requested exemptions to "expressive" products and "expressive" events are unsupported in this record, foreclosed by precedent, and boundless in practice. Either requested exemption would mean bakeries could refuse to provide not just wedding cakes for gay couples, interracial couples, or interfaith couples, but birthday cakes for African-American families, graduation cakes for women, and cupcakes for a Catholic family celebrating a First Communion. And both theories would mean that numerous other businesses could claim exemptions from antidiscrimination laws and other regulations of commercial conduct. For the same reasons that the Court has declined to interpret the Free Exercise Clause to make every man "a law unto himself," this Court should decline the Bakery's and the United States' invitation to achieve the same result under the Free Speech Clause.
III. The Bakery's free exercise claim likewise fails. The Bakery does not even attempt to argue that the Anti-Discrimination Act is not valid or neutral on its face, and its as-applied challenge rests largely on the same failed arguments it offers in support of its free speech claim.
The Anti-Discrimination Act is also generally applicable. An anti-discrimination law that governs all retail businesses open to the public does not target religious exercise.
The Bakery's assertion that strict scrutiny is required because it asserts a "hybrid" free exercise/free speech claim lacks any support in precedent or reason. An otherwise unsuccessful free exercise claim cannot avoid rational basis review simply by being paired with an otherwise unsuccessful free speech claim.
The Colorado Court of Appeals' decision affirming the Commission's order should be affirmed.