P:\00000 USSC\16-111 Amicus BOM (Klukowski)\16-111 Amici BOM (Klukowski).wpd

In the Supreme Court of the United StatesIn the Supreme Court of the United States

In the Supreme Court of the United States

MASTERPIECE CAKESHOP, LTD.; AND JACK C. PHILLIPS,

Petitioners,

COLORADO CIVIL RIGHTS COMMISSION;

HARLIE CRAIG; AND DAVID MULLINS,

Respondents.

On Writ of Certiorari to the

Court of Appeals of Colorado

BRIEF FOR AARON AND MELISSA KLEIN AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO. 16-111

KELLY J. SHACKELFORD

Counsel of Record

HIRAM S. SASSER, III

KENNETH A. KLUKOWSKI

STEPHANIE N. TAUB

FIRST L IBERTY I NSTITUTE

2001 West Plano Parkway

Suite 1600

Plano, Texas 75075

Telephone (972) 941-4444

Facsimile (972) 941-4457

[email protected]

Counsel for Amici Curiae

TYLER S MITH

TYLER SMITH & ASSOCS. P.C.

181 North Grant Street

Suite 212

Canby, Oregon 97013

HERBERT G. GREY

4800 SW Griffith Drive

Suite 320

Beaverton, Oregon 97005

(503) 641-4908

September 7, 2017

QUESTION PRESENTED

Whether applying Colorado’s public-accommodation

law to compel artists to create expression that violates

their sincerely held religious beliefs about marriage

violates the Free Speech or Free Exercise Clauses of

the First Amendment.

TABLE OF CONTENTS

QUESTION PRESENTED .................... i

TABLE OF AUTHORITIES .................. iii

INTEREST OF AMICI CURIAE ............... 1

SUMMARY OF ARGUMENT.................. 2

ARGUMENT ............................... 4

I. THE FIRST AMENDMENT PROTECTS THE RIGHT

NOT TO EXPRESS SUPPORT FOR SAME-SEX

MARRIAGE. .............................. 4

A. Weddings Are Expressive Ceremonies

Protected By The First Amendment........ 5

B. The First Amendment Protects The Right

Not To Be Compelled To Contribute To

Expressive Events. ..................... 8

C. Wedding Cakes Always Convey A Message

About The Wedding..................... 9

D. Colorado’s Enforcement Of Its Law

Unconstitutionally Discriminates Between

Viewpoints On Same-Sex Marriage. ...... 14

E. Other States Like Oregon Impose Additional

Restrictions on Speech. ................ 16

II. GOVERNMENT CANNOT FORCE CITIZENS TO

CHOOSE BETWEEN PRACTICING THEIR

PROFESSION OR VIOLATING THEIR CONSCIENCE.17

CONCLUSION ............................ 19

iii

TABLE OF AUTHORITIES

CASES

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

133 S. Ct. 2321 (2013) ..................... 9

Anderson v. City of Hermosa Beach,

621 F.3d 1051 (9th Cir. 2010) .............. 10

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) ...................... 10

Glickman v. Wileman Bros. & Elliott,

521 U.S. 457 (1997) ....................... 9

Hurley v. Irish-American Gay, Lesbian & Bisexual

Grp. of Bos.,

515 U.S. 557 (1995) .................. passim

Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) ....................... 9

Kaahumanu v. Hawaii,

682 F.3d 789 (9th Cir. 2012) .............. 2, 6

Kaplan v. California,

413 U.S. 115 (1973) ...................... 10

Klein v. Or. Bureau of Labor & Indus.,

No. CA A15899

(Or. Ct. App. argued Mar. 2, 2017) ......... 1, 5

Knox v. SEIU, Local 1000,

567 U.S. 298 (2012) ....................... 8

Loving v. Virginia,

388 U.S. 1 (1967) ....................... 6, 7

Matal v. Tam,

137 S. Ct. 1744 (2017) .................... 15

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) ................ passim

Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal.,

475 U.S. 1 (1986) ......................... 8

S. Or. Barter Fair v. Jackson Cnty.,

372 F.3d 1128 (9th Cir. 2004) ............... 7

Turner Broadcasting Sys., Inc. v. FCC,

512 U.S. 622 (1994) ....................... 7

United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000) ...................... 10

United States v. United Foods,

533 U.S. 405 (2001) ....................... 9

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................... 5, 8, 9

Wooley v. Maynard,

430 U.S. 705 (1977) ..................... 8, 9

STATUTES

R. REV. STAT. § 659A.403 .................. 4, 5

OR. REV. STAT. § 659A.409 ................... 16

OTHER AUTHORITIES

Rachel Gross with Douglas Laycock, Gay Rights &

Religious Freedom: Can We Find Common

Ground?, M

OMENT MAGAZINE (June 30, 2014),

http://www.momentmag.com/gay-rights-

religious-freedom-common-ground/.......... 19

Betty Hallock, Inauguration 2013: The Big Cakes of

the Inaugural Balls, L.A.

TIMES (Jan. 21, 2013),

http://articles.latimes.com/2013/jan/21/news/la-

dd-inauguration-2013-big-cakes-at-inaugural-

balls-20130121. ......................... 13

Andrew Koppelman, Gay Rights, Religious

Accommodations, and the Purposes of

Antidiscrimination Law, 88

S. CAL. L. REV. 619

(2015) ................................. 18

Petitioners’ Brief, Excerpt of Record, Klein v. Or.

Bureau of Labor & Indus., No. CA A15899

(Or. Ct. App. Apr. 25, 2016) .......... 11, 13, 14

Transcript of Record, Klein v. Or. Bureau of Labor

& Indus., No. CA A15899 (Or. Ct. App. argued

Mar. 2, 2017) ........................ 12, 13

U.S. SENTENCING GUIDELINES MANUAL ......... 18

Howard M. Wasserman, Symbolic Counter-Speech,

12 WM. & MARY BILL RTS. J. 367 (2004) ....... 5

Curtis M. Wong, Duff Goldman, ‘Ace Of Cakes’

Chef, Offers To Bake Rejected Lesbian Couple’s

Wedding Cake For Free, HUFFINGTON POST (Feb.

4, 2013, 5:00 PM), http://www.huffington

post.com/2013/02/04/duff-goldman-gay-wedding-

cake-offer-oregon-lesbians_n_2617583.html . . 13

INTEREST OF AMICI CURIAE

In 2007, Amici Curiae Aaron and Melissa Klein and

their family opened a storefront bakery in Gresham,

Oregon, called “Sweet Cakes by Melissa.” Six years

later, after they declined to create a custom-designed

cake celebrating a same-sex wedding because their

sincere religious beliefs prohibit them from doing so,

the Oregon Bureau of Labor and Industries imposed a

financially devastating penalty of $135,000 against the

Kleins and imposed a gag order forbidding them from

discussing their views on standing for their faith in this

situation.

The penalty forced the Kleins to shut down

their family bakery, which they had worked for years

to build. The Kleins appealed the decision to the

Oregon Court of Appeals, where their case is currently

awaiting decision.

This Court’s decision in Masterpiece Cakeshop v.

Colorado Civil Rights Commission will determine

whether the government can force individuals like

Aaron and Melissa to choose between practicing their

All parties have consented to the filing of this brief, either by

blanket consent filed with the Clerk or individual consent to amici.

No party’s counsel authored this brief in whole or in part, and no

person or entity other than amici or their counsel made a

monetary contribution intended to fund its preparation or

submission.

This $135,000 financial exaction was actually styled as monetary

damages for declining to bake a wedding cake and the emotional

toll that the declination allegedly had upon the same-sex couple in

question.

Klein v. Or. Bureau of Labor & Indus., No. CA A15899 (Or. Ct.

App. argued Mar. 2, 2017).

livelihoods and violating their consciences. Because

the First Amendment does not permit the government

to force such a choice upon individuals like the Kleins,

the judgment should be reversed.

SUMMARY OF ARGUMENT

A marriage is of “transcendent importance” to a

couple: it creates a permanent bond that brings

together two people, their families, and the

surrounding community. Obergefell v. Hodges, 135 S.

Ct. 2584, 2594 (2015). The wedding is the

quintessential expression of that important union. A

couple’s wedding is therefore an intrinsically

expressive event—conveying “important messages

about the couple, their beliefs, and their relationship to

each other and to their community.” Kaahumanu v.

Hawaii, 682 F.3d 789, 799 (9th Cir. 2012). Each aspect

of and participant in this event contributes to that

message: the venue, the celebrant, the music, the

flowers, the photography—and the wedding cake.

Participating in a wedding—even by mere

attendance—is an expressive message communicating

support and approval for a marriage, a message that is

squarely protected by the First Amendment. Indeed,

those who support same-sex marriage plainly

understand this, as they proudly attend, support, and

contribute their talents to same-sex wedding

ceremonies.

But this freedom extends both ways. Those who

support same-sex marriage hold an unquestioned First

Amendment right to support those weddings, whether

by attending, performing wedding ceremonies, or

plying their craft in support of such a marriage—such

as the bakers who design a cake celebrating the union

of a same-sex couple. But those who oppose same-sex

marriage enjoy equal First Amendment rights not to

express such support, even when such support is

recharacterized as an anodyne “public

accommodations” law. The First Amendment entitles

Jack Phillips, like every other American, to refrain

from supporting same-sex marriages per his “decent

and honorable” beliefs, Obergefell, 135 S. Ct. at 2602,

and this Court’s compelled-speech doctrine holds that

Colorado’s efforts to compel Phillips’s support violates

the First Amendment in a fundamental way. But no

less a violation is Colorado’s persistent viewpoint

discrimination between those who support same-sex

marriage, like several Colorado bakers permitted to

refuse orders designed to oppose same-sex marriages,

and Phillips, who wishes the same latitude to refuse

orders that support them.

This brief focuses on the importance of the right

that Jack Phillips holds along with millions of

Americans: the right not to be compelled by force of

law to abandon his decent and honorable belief

opposing same-sex marriage. If permitted to stand, the

coercive exercise of authoritarian power below

threatens to quash dissent not only on debates

regarding marriage, but also on all hotly contested

issues of public concern. Without the power to dissent,

millions of Americans could be put to the intolerable

choice of forfeiting their professional lives or betraying

their consciences. The First Amendment does not

tolerate the government’s putting anyone to such a

choice.

Amici know just how intolerable it is. Oregon’s

imposition of a financially devastating $135,000 fine

under the auspices of “damages” due to the mental and

emotional distress felt by a same-sex couple

—plus a

gag order—for Aaron and Melissa’s refusal to create a

custom-designed wedding cake for a same-sex marriage

ceremony forced them to close their family-owned

business. Amici therefore also focus in this brief on the

human cost when the government arrogates to itself

the power to suppress dissenting ideas.

ARGUMENT

I. T

HE FIRST AMENDMENT PROTECTS THE RIGHT

NOT TO EXPRESS SUPPORT FOR SAME-SEX

MARRIAGE.

A wedding cake communicates a First-Amendment-

protected message of support for a wedding because

everything in a wedding, including attendance,

communicates a protected message. Few aspects of life

are so thoroughly ritualized and so uniquely expressive

as a wedding, where one cannot participate in any

manner without sending a message—typically of

support and celebration. Phillips and amici seek the

First Amendment protection that anyone would enjoy

in any other context: the right not to communicate

such a message against their will. Colorado seeks to

compel participation in same-sex weddings, and thus to

compel a message of support for same-sex marriage.

The First Amendment denies Colorado the power to

coerce such support. Likewise, the Constitution

protects Aaron and Melissa Klein, bakers in Oregon

who are being prosecuted by Oregon for allegedly

violating the State’s public-accommodation law, OR.

See supra note 2.

REV. STAT. § 659A.403.

The Kleins’ case was argued

before the Oregon Court of Appeals on March 2, 2017,

and is awaiting a decision from that court.

A. Weddings Are Expressive Ceremonies

Protected By The First Amendment.

A wedding is an expressive event, with nearly every

component suffused with centuries of tradition and the

participants’ place in that tradition. Each detail—from

the venue, to the garments, to the celebrant, to the

cake—contributes to the wedding’s message, both in

support for the happy couple and in relation to

centuries of tradition. Every aspect of a wedding

contains symbolic significance, and thus each

component, itself a symbolic expression, is protected by

the First Amendment.

The First Amendment protects not only speech, but

symbols, for “symbolism is a[n] . . . effective way of

communicating ideas.” W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 632 (1943). An object, service,

event, action, or graphical representation becomes a

symbol precisely when it is well associated with one or

a handful of meanings, and thus is associated with one

or more ideas. Howard M. Wasserman, Symbolic

Counter-Speech, 12 WM. & MARY BILL RTS. J. 367,

390–91 (2004). The American flag is a symbol of the

Although this is a civil legal action initiated by a regulatory

agency, Oregon refers to such a legal action as a prosecution, and

its coercive character bears some of the punitive aspects typically

seen in a criminal proceeding.

See generally Klein v. Or. Bureau of Labor & Indus., No. CA

A15899 (Or. Ct. App. argued Mar. 2, 2017).

United States; red roses are a symbol of romantic love;

a Latin cross is a symbol of the Christian faith. Each

is associated with a corresponding idea; the use of each

is protected by the First Amendment.

So too with weddings. Aside from its role in

enabling the fundamental right to marry, Loving v.

Virginia, 388 U.S. 1, 12 (1967), a wedding is itself a

symbol fully protected by the First Amendment. A

wedding “offer[s] symbolic recognition” of a couple’s

union, Obergefell, 135 S. Ct. at 2601, where “a couple

vows to support each other,” while “society pledge[s] to

support the couple.” Ibid. Any wedding thus

“convey[s] important messages about the couple, their

beliefs, and their relationship to each other and to their

community.” Kaahumanu, 682 F.3d at 799.

Secular couples frequently “marr[y] in non-religious

ceremonies that reflect their beliefs and personal

commitments,” and religious couples likewise “express

their religious commitments and values in their

wedding ceremony.” Id. A wedding held outdoors can

mean something different than a wedding in a church,

which can differ from a wedding at City Hall. A couple

expresses a different meaning in being married by a

priest than by a judge or by a friend. A rainbow flag

wedding cake expresses a different meaning than a

three-tiered traditional white wedding cake. The

symbols inherent in a wedding are nearly endless, and

each is protected expression under the First

Amendment. Id.

In this, weddings are akin to—though even more

expressive than—many other religious ceremonies, or

even parades. See Hurley v. Irish-American Gay,

Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 568

(1995) (describing participation in parade as inherently

expressive); S. Or. Barter Fair v. Jackson Cnty., 372

F.3d 1128, 1135 (9th Cir. 2004) (observing that

“religious ceremonies” are expressive). Just as parades

are not merely groups of people “march[ing] from here

to there,” Hurley, 515 U.S. at 568, weddings are not

merely assemblies of guests, food, and statements. See

Obergefell, 135 S. Ct. at 2593 (noting that marriage can

“define and express [a couple’s] identity”). Each is fully

protected by the First Amendment, among other rights.

See Loving, 388 U.S. at 12.

In short, a wedding, like other concerted ceremonial

expressions, is at minimum expressive activity,

participation in which is protected by the First

Amendment. These concerted activities enjoy the same

protection as the expressive activities of individuals.

After all, “a private speaker does not forfeit

constitutional protection simply by combining

multifarious voices, or by failing to edit their themes to

isolate an exact message as the exclusive subject

matter of the speech.” Hurley, 515 U.S. at 569. Nor is

it of any moment that the participants’ activities are

typically directed by the couple; the transmission of the

couple’s message is, in any event, protected First

Amendment activity, Turner Broadcasting Sys., Inc. v.

FCC, 512 U.S. 622, 636 (1994), and the decision to

participate in the wedding is, standing alone, a

protected, expressive act. Hurley, 515 U.S. at 569–70.

No less than a parade, a wedding combines multiple

communicative expressions into a single expressive

ceremony: both the ceremony, witnessed by all, and

each component, provided by one, are protected First

Amendment expressions.

B. The First Amendment Protects The Right

Not To Be Compelled To Contribute To

Expressive Events.

The First Amendment does not merely protect those

who speak. It equally protects the right not to speak.

Barnette, 319 U.S. at 642. If those who support same-

sex marriage engage in protected First Amendment

expressions by attending, celebrating, and providing

services for same-sex marriages, those who elect not to

do so enjoy the same First Amendment right not to

communicate these messages. Colorado and similar

States seek to compel this message of support—and

thus to compel speech in violation of the First

Amendment.

The Free Speech Clause’s core protection against

compelled speech guarantees that government may not

require individuals like Phillips or amici to “affirm in

one breath that which they deny in the next.” Pac. Gas

& Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1, 16

(1986) (plurality opinion). Thus the government cannot

“compel the endorsement of ideas that it approves,”

Knox v. SEIU, Local 1000, 567 U.S. 298, 309 (2012), or

require individuals to repeat the government’s message

or symbolically express it, through art, public

demonstration, or otherwise. Hurley, 515 U.S. at 569.

These rights are most vital when “individuals” wish

“to hold a point of view different from the majority and

to refuse to foster . . . an idea they find morally

objectionable.” Wooley v. Maynard, 430 U.S. 705, 715

(1977). This guarantee protects not only personal

liberty, but also personal integrity. Every individual is

entitled to his own “freedom of mind” and to “avoid

becoming a courier” for communicating speech that

conflicts with her moral, political, or religious beliefs.

Id. at 714, 717.

It likewise promotes the “open and

searching debate” through which citizens attempt to

convince each other of their positions on sensitive social

issues such as same-sex marriage. Obergefell, 135 S.

Ct. at 2607. The First Amendment’s prohibition on

compelled speech is therefore the obverse of its

prohibition on banning speech: the government may

not compel speech that it cannot prohibit. United

Foods, 533 U.S. at 410–11. If government cannot

prohibit expressive contributions to weddings, it cannot

demand them either. Barnette, 319 U.S. at 642. The

First Amendment guarantees “that each person should

decide for himself or herself the ideas and beliefs

deserving of expression, consideration, and adherence.”

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

133 S. Ct. 2321, 2327 (2013).

C. Wedding Cakes Always Convey A Message

About The Wedding.

Even if weddings were somehow less symbolic than,

say, parades, requiring bakers to make cakes for

weddings to which they are opposed undoubtedly

compels bakers’ symbolic speech. The First

Amendment protects as speech a variety of visual and

audial media well beyond the written or spoken word.

Hurley, 515 U.S. at 569. It protects all “pictures,

The First Amendment right to silence is so vital that this Court

has concluded that the First Amendment prohibits requiring even

financial contributions to speech with which a speaker disagrees.

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557–58 (2005);

United States v. United Foods, 533 U.S. 405, 411, 413 (2001) (citing

Glickman v. Wileman Bros. & Elliott, 521 U.S. 457, 471 (1997)).

paintings, drawings, and engravings,” Kaplan v.

California, 413 U.S. 115, 119 (1973), along with all

auditory expressions, whether typically understood as

music, and whether accompanied by lyrics or not,

Hurley, 515 U.S. at 569. The Free Speech Clause

protects even video games. Brown v. Entm’t Merchs.

Ass’n, 564 U.S. 786, 790 (2011). “[E]sthetic and moral

judgments” about what qualifies as “art and literature

. . . are for the individual to make, not for the

Government to decree.” United States v. Playboy

Entm’t Grp., Inc., 529 U.S. 803, 818 (2000).

Custom-designed wedding cakes are individualized

creations, typically made through consultation between

the couple and the baker, who creates the cake to

express the vision and message that the couple wishes

to convey, along with the baker’s own perceptions and

expressions of support for the couple and their

wedding. This collaborative creative activity is akin to

a commissioned artwork, where both client and artist

are engaged in expressive activity. Anderson v. City of

Hermosa Beach, 621 F.3d 1051, 1062 (9th Cir. 2010).

While both “contribute to the creative process,” in

which “the customer has [the] ultimate control over

which design she wants,” and the artist “provide[s] a

service,” the result is no less an expression by the

creator, “because there is no dispute that the

[commissioned artist] applies his creative talents as

well.” Ibid.

When a baker creates a custom cake for a wedding,

she necessarily communicates a message of support for

that wedding. The Kleins’ faith teaches that God

instituted marriage as the sacred union of one man and

one woman that mirrors the union between Jesus

Christ and his church on earth. Petitioners’ Brief,

Excerpt of Record (“E.R.”) 365–67, 373–76, Klein, No.

CA A15899 (Or. Ct. App. Apr. 25, 2016). Consistent

with their sincerely held religious beliefs, the Kleins do

not believe that other types of interpersonal unions are

marriages, and they believe it is sinful to celebrate

them as such. Ibid. Indeed, the Kleins created

wedding cakes, in part, because they wanted to support

celebrations of what their millennia-old faith views as

sacred unions between one man and one woman. Ibid.

So too with bakers who support same-sex marriage

and likewise understand that wedding cakes

communicate a clear, identifiable message of support

for same-sex marriage. For example, when the Kleins

declined to create a cake to support a same-sex

wedding, several bakers stepped in to do so. They

described themselves as artists and expressed deep

pride in their ability to contribute a powerful symbol to

the couple’s same-sex wedding. One baker, Laura

Widener, created an intricate, multiple tiered, peacock-

themed cake for the wedding. Id. at E.R. 18–19. The

peacock’s feathers streamed down each tier, flaring out

wider as they reached the cake’s foundation; Widener

hand-made and hand-painted each individual peacock

feather. Ibid.

Widener testified about her experience as a witness

for the Oregon Bureau of Labor and Industries in its

proceedings against the Kleins—highlighting her

understanding that her contribution as a baker and

artist significantly contributed to the wedding in an

expressive manner:

Q. So you felt that your cake was part of the

celebration?

A. Oh, yeah.

Q. It was a big part of the celebration?

A. Any cake is. It’s either—when someone is

designing their wedding, it’s dress and then

cake. So, yeah, it’s a big part in any wedding

celebration.

Expressing her pride in her expression of support

for the same-sex couple, she continued:

Cakes are an artistic expression for me. And, as

an artist, you want to be able to share that with

the public and the community. And this was one

of my artistic creations, and I wanted to share it

with the public.

Widener affirmed that she has publicly discussed

her belief in the message of same-sex weddings and

that she was proud to be a part of the celebration:

It’s all about the love and commitment these two

people share. They want to declare that

commitment in the company of their friends and

family, and I’m proud that my cake will be a

part of that celebration.

Transcript of Record 595:1–7, Klein, No. CA A15899 (emphases

added).

Id. at 594:7–10.

Id. at 594:15–25 (affirming that she had previously given this

quote in an article).

A celebrity baker also contributed another cake to

the couple in lieu of a traditional groom’s cake. The

“edible art” cake maker Duff Goldman, known for his

Food Network television show Ace of Cakes,

has

designed and created cakes for numerous high-profile

events, including President Barack Obama’s Second

Inauguration.

He created a cake that mirrored an

Irish fairy tree tattoo born by one member of the

couple.

And he explained that his creation of the cake

stemmed from his longstanding support of same-sex

marriage, and his belief—which the Kleins do not

share—that same-sex marriage is no different from “a

straight couple getting married”: “Two people who

pledge to spend the rest of their lives together, that’s

cool. Doesn’t matter who they are, if they are both girls

or both guys.”

When accepting Goldman’s offer to

design a second cake, the couple expressed their

gratitude to “both bakeries for being a part of making

[their] wedding date incredibly special.” Petitioners’

Brief, supra, E.R. 22. Both the baker and the couple

understood that Goldman’s cake was an expressive

Petitioners’ Brief, supra, E.R. 22, App. 497.

Betty Hallock, Inauguration 2013: The Big Cakes of the

Inaugural Balls, L.A.

TIMES (Jan. 21, 2013),

http://articles.latimes.com/2013/jan/21/news/la-dd-inauguration-

2013-big-cakes-at-inaugural-balls-20130121.

Transcript of Record, supra, 356:4–16.

Curtis M. Wong, Duff Goldman, ‘Ace Of Cakes’ Chef, Offers To

Bake Rejected Lesbian Couple’s Wedding Cake For Free,

UFFINGTON P OST (Feb. 4, 2013, 5:00 PM),

http://www.huffingtonpost.com/2013/02/04/duff-goldman-gay-

wedding-cake-offer-oregon-lesbians_n_2617583.html.

creation—precisely the sort of material protected by

the First Amendment, regardless of its medium.

Indeed, one reason the Kleins started designing

wedding cakes was to celebrate the gift of marriage as

the union of one man and one woman, as their faith

teaches them. Id. at 367, 375. Melissa Klein often

prays that God will bless the couple and their

marriage. Ibid. The Kleins understand that their

contributions are an important part of celebrating what

their faith views as a spiritual union—and while the

Kleins will serve all comers, they cannot in good

conscience produce messages of support for weddings

that contradict their religious beliefs. The government

cannot make them, if the First Amendment is to have

any meaning. Just as the government cannot prohibit

Goldman and Widener from creating cakes expressing

their support of same-sex marriage, it cannot require

Aaron and Melissa Klein—or Jack Phillips—to do so,

either. The First Amendment protects the right of Duff

Goldman and Laura Widener to create cakes that

express support for same-sex weddings—just as it

protects the right of the Kleins and Jack Phillips not to

create cakes that express such support. The

government may not make persons choose between

their deeply held beliefs and their livelihoods, no

matter how it styles the attempt.

D. Colorado’s Enforcement Of Its Law

Unconstitutionally Discriminates Between

Viewpoints On Same-Sex Marriage.

The Free Speech Clause entitles individuals to

communicate or to refrain from communicating

messages concerning same-sex marriage with which

they disagree—but in Colorado, as in many States with

similar laws, those free-speech rights are selectively

enforced. That is, in Colorado, while opponents of

same-sex marriage are compelled to express support for

same-sex weddings, supporters are permitted to decline

similar requests for messages opposing same-sex

marriages. Even if the government could force

speakers to accept messages from all sides, it cannot

pick favorites in doing so. This, too, violates the Free

Speech clause.

As Colorado has conceded, Brief in Opposition at 11,

its law excepts works containing “specific designs or

messages that are offensive” to the producer. Relying

on this exception, Colorado permits bakers to refuse

orders from customers who ask them to create cakes

opposing same-sex marriage. Pet. App. 305a, 314a,

323–24a. But Colorado prohibits bakers from refusing

orders from customers who ask them to create cakes

supporting same-sex marriage—even though doing so

would violate their core religious beliefs. Colorado’s

position can only be that opposing same-sex marriage

is offensive, while supporting it is not. But Colorado is

no more entitled to decide what is offensive than the

Patent and Trademark Office, as the First Amendment

applies with equal force to each. Matal v. Tam, 137 S.

Ct. 1744, 1764 (2017).

There cannot be an “open and searching debate” if

a State may deem one side’s beliefs offensive. Far from

enabling frank and honest exchanges, Colorado’s

approach hardens hearts and steels resolve—and

engages in invidious discrimination between

viewpoints that the First Amendment prohibits.

E. Other States Like Oregon Impose

Additional Restrictions on Speech.

Although Jack Phillips has thankfully not had to

deal with additional forms of restriction on his free-

speech rights, Aaron and Melissa Klein have learned

that other States can be far more aggressive in

penalizing speech on marriage that does not accord

with the State-imposed orthodoxy. In addition to the

$135,000 penalty recast as “damages,” Oregon further

punished the Kleins for discussing their religious faith

on radio, and imposed a “gag order” on Aaron and

Melissa not to publicly discuss their views regarding

marriage in the future.

During the government’s prosecution of their case,

the Kleins were invited to participate in an interview

on a Christian radio show to share their ordeal. Aaron

and Melissa discussed their personal religious faith

during this interview, and explained why it led them to

decline to customize a wedding cake celebrating a

same-sex marriage. See Petitioners’ Brief, supra, at

14–15 (collecting various record entries). Consistent

with their representations on that radio show, when

Aaron and Melissa were forced to shutter their small

family business, they posted a note encouraging

customers and neighbors that Aaron and Melissa’s

religious faith was enduring through this difficult time,

that the “fight is not over,” and they would “continue to

stand strong” in their religious beliefs. Id. at 15–16

(citing record entries).

In response, Oregon declared that Aaron and

Melissa had violated O

R. REV. STAT. § 659A.409, a

statute that prohibits businesses from advertising

discriminatory messages to the public. This violation

of what is essentially a signing and commercial

advertising regulatory statute became the basis for a

gag order. In response to the radio interview and note

expressing the Kleins’ sincerely held religious beliefs,

Oregon enjoined Aaron and Melissa from expressing

such religious beliefs in the future, ruling that such

statements are the functional equivalent of a business’s

advertising to the public its intent to engage in illegal

discrimination in the future. Petitioners’ Brief, supra,

at 16 (citing record entries).

The First Amendment does not allow the

government to impose additional financial penalties for

sharing religious beliefs, or to enjoin American citizens

from speaking to the media about those beliefs.

II. GOVERNMENT CANNOT FORCE CITIZENS TO

CHOOSE BETWEEN PRACTICING THEIR

PROFESSION OR VIOLATING THEIR CONSCIENCE.

The risks to professionals from compelled-

expression laws like Oregon’s and Colorado’s are not

hypothetical. The Kleins, who hold “decent and

honorable” views about marriage, Obergefell, 135 S. Ct.

at 2602, have already been driven out of the

marketplace. Amici urge the Court to hold that the

First Amendment prevents government from imposing

fines and penalties—whether characterized as

“damages” or any other term—designed to exclude

people with “decent and honorable beliefs” from public

economic life—or the public square altogether.

Amici Aaron and Melissa Klein were penalized

$135,000 for a single instance of declining to express

support for a same-sex wedding—a ruinous financial

penalty that destroyed a family business which had

taken years to build. For context, federal crimes

punishable with a maximum similar financial

exaction—though forthrightly denominated as fines or

penalties, rather than “damages” from a sense of

personal offense and affront—under the U.S.

SENTENCING GUIDELINES MANUAL include reckless

involuntary manslaughter, id. § 2A1.4(a)(2)(A),

statutory rape, id. § 2A3.2(a), and domestic violence,

id. § 2A6.2(a). The Kleins’ penalty dwarfs those

permitted for other serious federal crimes, such as

aggravated assault, id. § 2A2.2(a), perjury, id.

§ 2J1.3(a), or tax evasion resulting in a tax loss of

$100,000, id. § 2T4.1(F). States such as Oregon and

Colorado are thus punishing conscientious dissenters

as serious felons—an approach that is anathema to the

values the Free Speech Clause protects and defends.

Advocates of same-sex marriage have also

recognized the high cost of forcing individuals to choose

between violating their conscience or practicing their

profession. For example, Andrew Koppelman has

acknowledged that “the human costs of refusing

accommodation[s]” to religious objectors “are serious.”

Andrew Koppelman, Gay Rights, Religious

Accommodations, and the Purposes of

Antidiscrimination Law, 88 S. CAL. L. REV. 619, 652–53

(2015). As Koppelman concludes, the burden “of being

refused service, even if one counts the stress, is less

than the burden on” religious objectors like the Kleins

“of going out of business.” Id. at 645.

Similarly, Douglas Laycock has written that while

“same-sex couples have a right to marry, and to as

grand a wedding as they desire, they do not have to

force religious believers in traditional marriage to host

the wedding or cater the reception.”

He argues that

small, family-owned wedding vendors should have this

right. But Colorado, Oregon, and various other States

will not grant even this modest accommodation as a

sign of tolerance for longstanding, mainstream

religious beliefs of which the State disapproves. This

Court should not ignore the human cost when

government steps in to stigmatize dissent and force

religious objectors to choose between their beliefs and

their livelihoods.

CONCLUSION

The judgment of the Court of Appeals of Colorado

should be reversed.

Rachel Gross with Douglas Laycock, Gay Rights & Religious

Freedom: Can We Find Common Ground?, M

OMENT MAGAZINE

(June 30, 2014), http://www.momentmag.com/gay-rights-religious-

freedom-common-ground/.

Respectfully submitted,