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
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| Jack Phillips Courtesy of Alliance Defending Freedom https://www.adflegal.org/detailspages/case-details/ masterpiece-cakeshop-v.-craig |
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 www.masterpiececakes.com |
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 http://www.denverpost.com/2015/07/07/ bakers-refusal-to-make-wedding-cake- for-gay-couple-gets-court-hearing/ |
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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