In their first brief to the court on the merits of their case, David Mullins and Charlie Craig warn that creating a loophole for religious business owners to sidestep Colorado’s anti-discrimination law could blow a hole in civil rights protections in general.
A gay couple and state officials in Colorado asked the Supreme Court on Monday to uphold a judgment against a Christian baker who refused to sell a custom wedding cake in 2012, warning that creating a loophole for religious people to sidestep Colorado’s anti-discrimination law could have far-reaching consequences that diminish rights of other minorities.
“Whether wedding cakes are artistic expression is not the issue here,” the couple’s lawyers wrote in a brief filed Monday. “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.”
It marked the first time David Mullins and Charlie Craig fleshed out the merits of their arguments to the Supreme Court in their case, which began five years ago in a Denver suburb and has snowballed to become the nation’s foremost dispute between same-sex couples and religious objectors.
The couple’s attorneys at the ACLU were responding to claims made by Jack Phillips, owner of Masterpiece Cakeshop, who is being represented by lawyers at the Alliance Defending Freedom with support from the Trump administration’s Justice Department.
The Colorado Civil Rights Commission, another party in the case, also filed a brief on Monday to defend the state’s civil rights law, warning that granting leeway to “expressive” businesses is a slippery slope.
“For example, a family portrait studio could enforce a ‘No Mexicans’ policy,” the state lawyers write. “A banquet hall could refuse to host events for Jewish people.”
“The First Amendment does not privilege the expressive rights of some businesses above the expressive rights of others when it comes to selling goods and services to the public,” says Colorado’s brief.
Likewise, the couple says that both Phillips and Justice Department’s arguments to protect free expression are “boundless in practice.”
“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,” lawyers for the couple write. “Numerous other businesses could claim exemptions from anti-discrimination laws and other regulations of commercial conduct.”
Phillips and his backers have said providing wedding-related services to same-sex couples amounts to participating in the ceremonies, thereby violating First Amendment rights to religious exercise and free speech.
But in their brief on Monday, lawyers for the couple dismiss that line of thinking, saying the Supreme Court has never cut down a civil rights law like that.
“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,” the brief filed on Monday states.
The case dates back to July 2012, when Craig and Mullins attempted to order a custom wedding cake from Masterpiece Cakeshop in Lakewood, Colorado, but Phillips declined, saying that it would violate his religious beliefs.
“I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings,” court records say Phillips told the men.
The couple filed a complaint with the Colorado Civil Rights Commission, which found in 2014 that Phillips ran afoul of a state law banning discrimination on the basis of sexual orientation. The commission ordered Phillips to train his staff to follow the law and submit quarterly compliance reports. A Colorado appeals court upheld the ruling, saying the Colorado Anti-Discrimination Act prohibits a business open to the public “from picking and choosing customers based on their sexual orientation.”
The court added the law “does not impose burdens on religious conduct not imposed on secular conduct.”
But in Phillips’s brief to the Supreme Court, which agreed in June to hear his appeal, he argues Colorado’s nondiscrimination law targets those who oppose same-sex marriage, thereby limiting their First Amendment rights to free exercise and free expression. Given that the law infringes on certain people of faith, the baker’s lawyers argue the state government must have a compelling reason for the law and tailor it narrowly. They say the law fails that test.
Phillips leans heavily on Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, a 1995 Supreme Court decision that found a parade could exclude an LGBT group.
In responding on Monday, lawyers for Mullins and Craig note the parade decision isn’t germane because it “applied not to commercial conduct, but to a private, expressive parade.”
The couple’s lawyers go on to counter the baker’s claim that the nondiscrimination law must meet a higher standard, known as strict scrutiny, by saying the law is applied neutrally — not to any particular expression or type of speech. But even so, they cite a raft of Supreme Court decisions upholding civil rights laws over concerns about free expression or free exercise. Among them, the high court found in 1984 a law firm couldn’t deny a promotion to a woman, even though the firm engaged in expressive conduct, and in 1983 that a religious university couldn’t ban students from interracial relationships.
“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,” lawyers for the couples write. “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.”
Written by Dominic Holden