Monday, October 16, 2017

Review of Masterpiece Cakeshop's Supreme Court Brief

Every Supreme Court season I “review” briefs filed in some of the term’s most high profile cases. Today, I’m looking at the Petitioners’ Brief in Masterpiece Cakeshop, a dispute over provisions of Colorado’s Anti-Discrimination Act. Masterpiece Cakeshop and its owner, Jack Phillips, were found to have violated Colorado’s Anti-Discrimination Act after Phillips refused to make a wedding cake for a same-sex couple, Charlie Craig and David Mullins. After legal wrangling before Colorado agencies, the Colorado Court of Appeals rejected Phillips’s free-speech and free-exercise arguments and upheld the decision of the Colorado Civil Rights Division’s ALJ.

The Introduction

Jack Phillips
Courtesy of Alliance Defending Freedom
The authors use the introduction to explain that Phillips is an artist, and “cakes a[re] his canvas: He “blend[s] his skill as a pastry chef, sculptor, and painter” to “meticulously craft[ ] each wedding cake through hours of sketching, sculpting, and hand-painting.” Because, the authors claim, “[t]he cake, which serves as the iconic centerpiece of the marriage celebration, announces through Phillips’s voice that a marriage has occurred and should be celebrated,” Phillips cannot be forced to create cakes that are “[in]consistent with the tenets of his faith.”

The lower tribunals’ holdings, they argue, “threaten[ ] the expressive freedom of all who create art or other speech for a living.” The authors’ introduction quickly and succinctly provides the reader with the salient facts and arguments to follow.

The Statement of the Case

The authors use descriptors to divide the statement of the case:

  • Phillips’s Work as a Cake Artist
  • Phillips’s Wedding Cakes
  • Phillips’s Faith
  • Craig and Mullins’s Request

These descriptors are helpful in pulling together what might otherwise feel like disjointed information. Outlining Phillips’ work and his faith before discussing the event that led to the litigation works well and provides the foundation for the reader to understand why Phillips rejected the request to bake a cake for Craig and Mullins’s wedding and why, the authors believe, doing so was his First Amendment right—that is, because cake-baking is a form of artistic expression.

I love the authors’ explanation of the history of wedding cakes. Most people probably don’t think of wedding cakes as art and likely don’t see them as “integral” to wedding celebrations. Not so, say the authors:

The tradition of creating special cakes for weddings dates as far back as Roman times. The wedding cake developed not as an integral part of a meal but as a festive or celebratory” component of the newlyweds’ union. In modern Western culture, the wedding cake has become the iconic centerpiece of the celebration . . . . A wedding without it would be a wedding without protocol, a rite without confirmation.”

Wedding cakes are inseparable from the nearly ubiquitous cake-cutting ritual that accompanies them. Guests gather around as the couple cuts the cake together and feeds it to each other—their “first joint action” as newlyweds. It is a celebratory performance, which itself is infused with rich symbolism and meaning, and which has the specially designed cake at its center.

Masterpiece Cakeshop logo highlighted in its Petitioners' Brief

The authors also include a photograph of some of Phillips’ cakes, showing that “[e]ach one is a custom-made, elaborately designed, intricately constructed, and typically tiered masterpiece.”

My only gripe with the Statement of the Case is its duplicativeness. Some parts of the statement mirror information already provided in the introduction. For example:

Intro: With this in mind, Phillips created a Masterpiece logo depicting an artist’s paint palate with a paintbrush and whisk.

Statement: Even Masterpiece’s logo, which features an artist’s paint palate with a paintbrush and whisk, reflects Phillips’s artistic approach.

Intro: By effectively forcing him to stop designing wedding cakes, the Commission stripped Phillips of roughly 40% of his family income . . . .

Statement: Before the Commission forced him to stop, custom wedding cakes accounted for approximately 40% of Phillips’s business.

Intro: [Phillips] spent nearly two decades in bakeries owned by others before opening Masterpiece Cakeshop twenty-four years ago.

Statement: He and his wife own their own family business, Masterpiece Cakeshop, where for the last twenty-four years Phillips has made custom cakes . . . .

Including Helpful Tidbits

Mullins and Craig
Courtesy of Denver Post
Sometimes, facts that don’t initially appear material can sway readers. The authors include some of these facts that are helpful to their client’s position. For example, consider this information, falling in the “no harm, no foul” category: even though Phillips’ refused to design a cake for them, Craig and Mullins eventually got their cake and ate it too.

Another local cake artist offered to design a free wedding cake for Craig and Mullins, an offer they accepted. Craig and Mullins then married in Massachusetts (because same-sex marriage was not licensed in Colorado at the time), and they had a multi-tiered, rainbow-layered wedding cake at their reception in Colorado. Following wedding customs, they cut the cake together and fed it to each other in celebration of their union.

Building Credibility

The authors also note, many times throughout the brief, that Phillips does not discriminate based on who people are but on the intended use for the items he bakes, thus attempting to gain credibility for their client and his position:

  • His decisions on whether to design a specific custom cake have never focused on who the customer is, but on what the custom cake will express or celebrate.

  • Phillips gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations.

  • Phillips politely explained [to Craig and Mullins] that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them.

  • Over the years, Phillips has declined other requests to design custom wedding cakes that celebrate same-sex marriages, all the while affirming his willingness to create other cakes for LGBT customers.

  • Phillips told Craig and Mullins that he would create birthday cakes, shower cakes, or any other cakes for them  . . . . 

  • This Court’s compelled-speech doctrine forbids the Commission from demanding that artists design custom expression that conveys ideas they deem objectionable. Thus, a cake artist who serves all people, like Phillips does, cannot be forced to create wedding cakes that celebrate marriages at odds with his faith.

  • Phillips did not categorically refuse to serve Craig and Mullins; he only declined to create a custom wedding cake that would celebrate their marriage, while offering to sell them any other items in his store or to design for them something for another occasion.

  • The Commission’s attempts to end dignitary harms by punishing business owners who serve all people but decline to express all messages is vastly underinclusive and thus not narrowly tailored.

They reinforce their narrative that Phillips is a “good guy” who is simply following the tenets of his faith rather than someone who refuses to bake cakes for same-sex persons because he fundamentally dislikes them.

The Roadmap

I encourage brief writers to follow the newspaper maxim: tell ‘em what you’re going to tell ‘em, tell ‘em, then tell ‘em what you told ‘em. The authors include an excellent roadmap in Section I of the argument, outlining the four-part free-speech analysis:

Phillips’s free-speech analysis proceeds in four parts. First, the Free Speech Clause applies because Phillips’s custom wedding cakes are his artistic expression. Second, this Court’s compelled-speech doctrine forbids the Commission from ordering Phillips to express or celebrate what he cannot in good conscience support. Third, no less than strict scrutiny applies because not only has the Commission sought to compel Phillips’s artistic expression, it has discriminated based on both content and viewpoint. Finally, as Part III demonstrates, the Commission cannot satisfy its heavy burden under strict scrutiny.

You can find the Masterpiece Cakeshop brief here, courtesy of SCOTUSblog. Oral argument is scheduled for December 5, 2017.

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