Masterpiece Cake, et al. v. Colorado Civil Rights Commission, et al., No. 16-111 (U.S. Supreme Court)  Oral argument scheduled for December 5, 2017.

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Petitioners have availed themselves of a final opportunity to refute respondents’ points by filing a reply memorandum with the Court. Petitioners’ arguments are outlined below.

◘ Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) establishes that generally applicable public accommodations laws that compel speech violate the Free Speech Clause, and that the right to autonomous speech is enjoyed by businesses.  

◘ Speech protections are not dependent on for-profit or non-profit status.

◘ Masterpiece Cake’s position is more grave than that in Hurley.   Hurley determined that public accommodations laws cannot be used to force inclusion of others’ speech. Masterpiece Cake must create the speech.

◘ The FAIR case relied upon by respondents is not on point.  The FAIR decision found unobjectionable a law school’s’ non-expressive provision of access to rooms:  no compelled speech was required.  (The “FAIR” decision is more formally Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006).)

◘ Hurley distinguished status and message and the same is true for petitioners here, notwithstanding respondents’ allegations to the contrary.

◘ Petitioners dispute respondents characterization of this case as one of denial of service, stating that respondents specified that they wanted a wedding cake and had pictures they wanted to discuss.

◘ Permitting conscience exceptions to public accommodations laws will promote tolerance, where by contrast rigid expansion of public accommodations laws to the detriment of persons of faith, will work to promote strife.

◘ The perceptions of third parties, which may be relevant in property access cases, cannot be the test of whether speech is compelled.  The speech compulsion by itself alters a message.  Even if third party perceptions were relevant, those third party perceptions would confirm petitioners’ position that wedding cakes are particularly for weddings, announcing and celebrating them.

◘ Strict scrutiny analysis applies to this case.  Respondents’ dismissal of this point and reliance on cases not involving material First Amendment freedoms are unhelpful.

◘ The Court has not recognized “dignitary harm” as a compelling interest and should not do so here, where the recognition of dignitary harm to respondents would then move the dignitary harm suffered to petitioners.

◘ The breadth of the public accommodations law, applicable to all sellers, cannot be said to be sufficiently tailored.  The punishment of those without discriminatory animus demonstrates this.

◘ The Commission Against Discrimination observation that pro-gay, offensive, or other messages may be declined defeats the state’s position, making punishment of Masterpiece Cake and Phillips needless.

◘ Respondents’ resistance to focusing on compelled speech because it would require judicial discernment of speech and non-speech is a benefit of the First Amendment, and such distinctions are made by the courts frequently.  Contrary to respondents’ arguments, the compelled speech doctrine does not apply unless there is an objected to message. Moreover, the compelled speech doctrine cannot be applied where exclusions are selectively applied, nor does the compelled speech doctrine apply to goods already made and offered for sale, as no speech is present.

◘ Petitioners challenge respondents’ position that no compelled speech protections attach to expressive conduct.  It is not true that the laws apply only where selective service concerning the same goods is involved.  The position that if a message is offered to one group it must be offered to all would produce unsupportable results and would permit unacceptable erosion of autonomy and freedom of conscience.

◘ Expressive freedom cannot only exist “at the mercy of” public accommodations laws.

◘ Respondents’ assertion that generally applicable commercial laws never violate the First Amendment is false.  Where conduct is communicative, strict scrutiny applies. The issue is whether the law has a content based purpose.  Consideration is given to a law’s purpose and effect.

◘ Content based compulsion exists where a law requires a speaker to make speech that the speaker otherwise would not.

◘ Content based compulsion may be found where speech is prompted by prior speech.

◘ The state demands that Phillips make statements he otherwise would not.

◘ By conceding that the statute would not compel production of messages never expressed in the past and would not be expressed for anyone, respondents concede that the statute is content based as applied.

◘ The statute applies because — and perhaps only because — a protected classification is involved.

◘ Symbolic speech (expressive conduct) analysis and intermediate scrutiny does not apply here, as pure expression, the creation of the wedding cake itself, is involved.

◘ The state’s application of its public accommodations statute directly relates to suppressing free expression. The claimed “dignitary harm” is that of the “likely communicative impact” of a determination to not create the cake:  this means that speech interests are central here.

◘ The Commission Against Discrimination did not fault persons who refused to create products that opposed same sex marriage.

◘ Permitting some refusals but not petitioners’ destroys the neutral and general applicability principles that might permit an incidental burden on the Free Exercise of religion.

◘ The state’s selective application of the public accommodation law with focus on religion likewise negates neutrality.  The state has fashioned a religious test excluding some religious observers from an industry.  This imposes a particular disability because of religion in violation of the Free Exercise Clause.

16-111 Masterpiece Cakeshop Petitioners’ Reply Brief