Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission, No. 16-111 (U.S. Supreme Court).  Merits Brief of Respondents Charlie Craig and David Mullins, Submitted October 23, 2017.  

We were rejected out of hand, respondents assert. Respondents, the initial complainants in this clash between rights assured by civil rights statutes and the First Amendment to the U.S. Constitution, state they were denied a custom wedding cake by Colorado bakery Masterpiece Cakeshop before any design discussion was had, and offer that Mr. Phillips, the proprietor, had denied other same sex partners goods that were offered to others.  

This is not complex:  public accommodation means treating all equally in commerce. In their merits submission to the United States Supreme Court, Messrs. Craig and Mullins submit that this is a straightforward public accommodations law, to be applied uniformly to all merchants who open their doors in commerce, and this general and uniform law regulating public commerce is not susceptible of exceptions and exemptions.  No matter the proffered source in conscience, conduct, association, religion, or any other aspect of the First Amendment, courts have resoundingly rejected any invitation to extend affirmative constitutional protections to discriminatory behavior.  

“Expressive” exemptions are unworkable and undermine civil rights. The implications of the expression arguments are not limited to same sex marriage.  Adoption of petitioners’ position would open the door to denials of goods and service for any number of reasons, for almost all human activity involves some element of expression.  The parade of horribles — or more currently, perhaps, deplorables — could eviscerate the efficacy of the public accommodations statute.  

There is no compelled speech involved in complying with state anti-discrimination laws.  The state is not selecting or preferring a message by enforcing equality in the marketplace.

“It is so because I say it is so” contravenes foundational principles of democratic governance.  If a business were able to claim exemption from the anti-discrimination law of its own accord — even if sincere — such exceptions would permit an individual to become a law unto himself, an impossible result if our society is to be one of laws and not men.

The force of historic progress ought not be abandoned. Respondents fear that  the adoption of petitioners’ views would turn back the clock on more than one hundred years of commercial culture in which it has been accepted that a merchant who opens his doors to the public in commerce agrees to provide equal treatment to all.  

Where the public is invited to conduct business, the public is to be accommodated equally. This case involves a straightforward application of the law prohibiting discrimination in commerce.  Businesses whose doors are opened to the public are obliged to follow the public accommodations law.  This law draws no distinctions based on any message to be conveyed by refusal to serve. Whether religious, expressive, or simply hostile, the public accommodations law does not distinguish among messages, but requires that equal treatment be extended to all.  In ordinary commerce, the Constitution provides no guaranteed right to choose among customers, unconstrained by the state.  

There is no singling out of ‘speech’ or suppression of expression or viewpoints in the public accommodations law. The public accommodations law is a measure of general applicability that does not target speech:  deferential review is in order. Any speech impact resulting from application of the statute is incidental to the statute’s central purpose of eradicating discrimination.  Artists are not immune from anti-discrimination laws in selling their art.  Even if some element of expression is present, that presence will not transform the civil rights law regulating public accommodations into one regulating speech.  

When looking at regulation of conduct, judicial review must ask whether a regulation is intended to suppress expression.  If the government has not targeted expression particularly, a law may be enforced without running afoul of First Amendment guarantees.

Where the government has not sought to impose content or viewpoint based restrictions, strict scrutiny review is not applicable.  The anti-discrimination laws do not apply to topics, as petitioners argue, but to identity.  No content based restrictions are involved. Nor is viewpoint involved, respondents state, for discrimination is prohibited without reference to a vendors’ views.

The issue is who, not what.  Respondents Craig and Mullins say that the record contradicts Phillips’ assertion that he was concerned with what was to be celebrated, not with respondents status, because they are of the view that Philips objected to who would be using the cake.

A refusal to sell to anyone at all does not discriminate:  a refusal to sell to one what would be sold to another because of a protected characteristic is discrimination.

By any analyses necessary, the state anti-discrimination statute must be upheld. The law satisfies any test the Court may choose for its analysis:  the eradication of discrimination is a compelling state purpose: the law does not ask any more than is necessary to serve that end.

Unwieldy exceptions would do more harm than good. Creating “expressive” exceptions, as supported by petitioners, would precipitate nightmarish administrative burdens.  Discerning “expressive” and non-expressive activity would exhaust resources and undermine the effectiveness of the anti-discrimination laws.

Free Exercise is not threatened by general and neutral laws.  Neither last nor least, neutral and generally applicable laws such as the Colorado public accommodations law do not violate the Free Exercise Clause.

Combining bad claims will not produce a good claim. There is no legally synergistic effect to be had in combining asserted violations of the First Amendment.  A claim that is not colorable under the speech provisions of the First Amendment, when combined with a claim that is not colorable under the religion provisions of the First Amendment, results in two insufficient claims.  There is no basis in law or logic to suggest that a “hybrid” of two bad claims equals a good claim.

16-111 MCS_Craig and Mullins Merits Brief


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