Cross-posted from The American Prospect
Big Supreme Court cases tend to attract a large number of friend-of-court briefs from interested non-parties seeking to illuminate different aspects of the dispute. Unsurprisingly, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the term’s marquee tangle involving a conservative Christian baker’s refusal to prepare custom wedding cake for a same-sex couple, citing his deeply-held religious convictions, has prompted a huge outpouring, with nearly 100 amicus briefs filed, equally divided between the two sides.
Perhaps the most valuable of these—and well-deserving the Supreme Court’s attention—is the strikingly concise and clarifying brief filed in support of the couple, Charlie Craig and David Mullins, by some of the nation’s top First Amendment lawyers and scholars. Authored primarily by Walter Dellinger, the former acting-Solicitor General under President Bill Clinton, its signers include Floyd Abrams, the prominent First Amendment lawyer, and three former law school deans known for their strong free speech advocacy, Robert Post of Yale, Geoffrey Stone of University of Chicago Law, and Kathleen Sullivan of Stanford who is now in private practice.
The Dellinger brief packs a wallop in only 11 pages (most amicus briefs are at least twice that length) and not just because of the stars of constitutional law and advocacy behind it. This amicus brief is an impressive feat of sharp and accessible legal writing. It provides a simple, principled framework, consistent with applicable precedents, for analyzing and resolving an intense culture war dispute. The document rejects the call to carve some new exemption from anti-discrimination laws for businesses selling custom goods or services that may entail a certain measure of expression or artistry—the radical, rights-undermining line of argument advanced by lawyers for the baker, Jack Phillips, and his most important supporter, the Trump Justice Department.
The brief opens with a bold proclamation: “This is not a case about the expressive properties of baking.The Court does not need to decide here whether bakers are artists or food scientists. Artists who sell their creations to the public are, like other commercial actors, bound by variety of generally applicable laws, including laws that forbid businesses from refusing service on certain grounds.”
This sound approach notably differs from the one recommended to the justices by Eugene Volokh, another leading First Amendment scholar supporting the couple. Volokh would deny an out to civil rights compliance for bakers, whose creations are not “inherently expressive,” but not to others selling goods or services to the public, like wedding photographers and florists—inviting a free speech and equal rights patchwork disrespectful of minority rights and individual dignity.
“I think it’s the shortest brief I’ve ever written,” Dellinger told me. “But at the end of the day, the case is not as complicated as it may seem. Colorado’s prohibition on discriminating against gay individuals doesn’t require business owners to express any message except compliance with the law.”
Moreover, the Dellinger brief dismisses the false notion that the Colorado law conscripts artisans like the baker to promote a message they oppose. “[S]elling goods to all customers on equal footing no more inculpates the baker in the promotion of marriage equality than it allies the pro-segregation proprietor of a Dixie-themed barbecue restaurant with a message of racial mixing,” the brief observes, referencing Newman v. Piggie Park Enterprises, Inc., the seminal case rejecting the claim by a South Carolina “barbecue artist” that making him serve African Americans denied the free exercise of his religious beliefs and violated the First Amendment.
What matters, the brief stresses, is that Phillips “has agreed to sell to customers whatever expression may be inherent in a wedding cake,” and is “willing to sell that message, such as it is, in his public establishment.” Colorado’s Anti-Discrimination Act, which regulates business conduct, not speech, prohibits the denial of goods or services to the public “because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” Contrary to the common misperception fueled by supporters of the conservative Christian baker, Jack Phillips, the statute does not compel him to inscribe a cake with a unique message he has not produced and would not produce for another customer—say, ‘God Bless This Gay Wedding.’” Nothing in the Colorado statue would prevent a Jewish jeweler, or any other jeweler, from having a blanket policy against making swastika pendants.
For Dellinger and the other signatories the bottom line is Colorado business owners “have a First Amendment right to pick their message, but not to choose their customers based on sexual orientation.”
As to the baker’s assertion that by providing a beautiful custom cake he will be complicit in what he views as a sinful union and appear to endorse same-sex marriage, Dellinger and company argue that the same thing “might have been said by proprietors of segregated lunch counters who refused to serve potential customers based upon race,” and “is hardly a basis for holding the application of an antidiscrimination law unconstitutional.” The brief also expresses appropriate skepticism that any message the cake or event conveys would be attributed to the baker rather than the same-sex couple.
After the oral argument, Americans may have a better idea of which way Justice Anthony Kennedy, the “swing justice” whose vote is likely to decide the case, is leaning. We know already that granting business owners religious or conscience-based exemptions from anti-discrimination laws would deny services and dignity to same-sex couples and, inevitably, blow a hole in civil rights more broadly. The Dellinger brief offers help here, succinctly showing the way to higher ground.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.