Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission, et al., No. 16-111 (U.S. Supreme Court).  Brief of Respondent Colorado Civil Rights Commission filed October 23, 2017.

Respondent Colorado Civil Rights Commission proceeds point-by-point through the arguments presented by Masterpiece Cakeshop, delivering what the state must sense is a knockout punch to petitioners’ position:  there is no need to discern the parameters of Mr. Phillips’ First Amendment interests, because discrimination enjoys no First Amendment protection.  

It may be that the state, through its civil rights agency, intends that “discrimination” join other established ills that fall outside First Amendment guarantees.  These include obscenity, fighting words, true threats, fraudulent misrepresentation, defamation, and incitement to lawless  behavior.  It will be interesting to observe whether, in this case, “discrimination” will be elevated to a place within the speech anti-Pantheon.

Shaping the Issue:  Itself a Matter of Contention. The parties before the Supreme Court are not in agreement about what kind of case this is.  Mr. Phillips argues that the Constitution guarantees him rights of conscience which would prevent the state for compelling him to provide a custom product to a same sex couple where doing so would violate his beliefs.  The state characterizes the case as one of simple denial of service.  Such denials of service based on membership in a protected class is prohibited under state anti-discrimination law.

A Less than Flattering Portrayal of Petitioners.  While acknowledging Phillips’ beliefs, the Colorado Civil Rights Commission is unsparing in its view of Phillips’and his enterprise, likening his conduct to that of twentieth century restaurant owners who denied to some the opportunity to eat at their lunch owners.  The notion that a Free Exercise exception to the power of the state to administer its anti-discrimination laws might be found is “frivolous.”  

Exceptions and Exemptions Would Erode Civil Rights Protections. The Colorado Civil Rights Commission argues that the Supreme Court’s agreement with Phillip’s arguments would undermine the protections of civil rights laws.  Particularly as there exists no belief-based requirement concerning compelled speech, agreement with Phillips would mean any merchant could except itself from the law on this basis. Recognition of a belief-based exemption would similarly lead to poor results, with self-designations against whatever group a merchant might wish to predominate over the important goal of eradicating discrimination.  

The Commercial Market Place is “Come One, Come All,” Without Exceptions. Although there is no agreement on how the issues before the Court are to be shaped, the Colorado Civil Rights Commission is unmistakably straightforward in its view of the public accommodations statute it is charged with enforcing:  a merchant who opens his doors to the public must serve all equally.  The First Amendment provides no shield against this mandate.

Respondent’s Brief on the Merits

The Colorado Civil Rights Commission’s’ brief makes the following points:

Background and Procedural History

Colorado has historically prohibited discrimination in public accommodations, specifically extending statutory protections to “sexual orientation” in 2007 and 2008,  

Respondents Craig and Mullins’ encounter with Phillips and Masterpiece Cakeshop was a denial of service.  Phillips dispute this, asserting that he offered goods to the couple as he would to other customers, but declined to provide a custom-made product for religious reasons.

Craig and Mullins complained to the Colorado Civil Rights Division.  Its investigation was referred to the Colorado Civil Rights Commission (CCRC)..  Following a hearing at which there was no dispute as to material fact, an administrative law judge (ALJ) found Phillips violated the state’s public accommodations act by denying service.  The CCRC rejected Phillips’ compelled speech argument because all wedding cake service was denied.  

The ALJ rejected Phillips’ Free Exercise claim, finding the public accommodations law to be one of general applicability, which Phillips is not free to ignore.

The CCRC adopted the ALJ decision, which was affirmed by the Colorado Court of Appeals.  The Court of Appeals found that Phillips refused service before any discussion of specifications.  No compelled speech or violation of religious protections were to be found.  The order to serve all if any were to be served was affirmed, along with direction to Phillips to educate himself and his staff and to account to the state about his sales.


Colorado’s anti-discrimination laws, including its public accommodation law, prohibit discrimination against protected groups in commercial conduct:  there is no First Amendment interest involved.

Supreme Court cases holding First Amendment protections extend to public accommodations laws concerned the non-commercial activities of private organizations.

”Compelled speech” concepts do not apply to this case.  “Compelled speech” concerns government demands upon private individuals or entities to be conduits of government messages, or the grant of government preference to a private forum.

If any expression is involved here, it is incidental to the state’s goal of eliminating discrimination, deserving deferential review, not strict scrutiny or any other standard.

The state’s civil rights act is a law of general applicability which cannot be shown to target religious matters.  No “hybrid rights” theory is needed nor is any such concept desirable.

Even if strict scrutiny analysis were found to apply here, its standards are met.  Public accommodations laws are narrowly tailored to serve the compelling government interest in eliminating harmful discrimination.

16-111 Masterpiece Cakeshop_CCRC Merits Brief

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