In its brief in opposition presented in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the National ACLU and its Colorado affiliate argued against the First Amendment free-speech claim raised in the case. In a brief prepared by Leslie Cooper (Counsel of Record) and Ria Tabacco Mar, Joshua Block, James D. Esseks, Louise Melling, Steven R. Shapiro, Mark Silverstein, and Sara Neel (all of the ACLU), they argued:
Importance of Facts: Respondents David Mullins and Charler Craig “expressed interest in buying a cake for ‘our wedding.’ . . . Phillips refused to serve them, explaining that the Company had a policy of refusing to sell baked goods for weddings of same-sex couples. . . . Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake. Phillips was unwilling to make any cake for the wedding because they were a same-sex couple, and therefore any further discussion would have been fruitless. . . . . As the Administrative Law Judge in the Colorado administrative proceedings found, ‘[f]or all Phillips knew at the time, [Mullins and Craig] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.’”
Legal Arguments: “Colorado’s anti-discrimination law is a content- and viewpoint-neutral regulation of business conduct, not a law that targets speech. It applies to all businesses that offer goods or services to the general public, and merely requires that they not discriminate against their customers on the basis of race, sex, sexual orientation and several other protected characteristics. The Act does not require the Company to affirm its support for the anti- discrimination goals of the Act, for any of the groups protected against discrimination by the Act, or for the marriages of same-sex couples. The court below correctly rejected the Company’s claim that the right to free speech entitles it to discriminate in violation of the Act. The Company provides no basis for this Court to review this straightforward application of settled law.”
“This Court’s compelled speech decisions have consistently differentiated between laws that target speech or alter the message of private expressive associations, and laws that regulate commercial business practices without regard to content or viewpoint. Compare Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995), with Cohen v. Cowles Media, 501 U.S. 663 (1991); Arcara v. Cloud Books, 478 U.S. 697 (1986); Hishon v. King & Spalding, 467 U.S. 69 (1984); Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Relations, 413 U.S. 376 (1973). This case presents the latter. Colorado’s anti-discrimination law does not compel speech, it merely requires public accommodations in the state to provide equal treatment to protected groups. . . .”
“The Company’s argument to the contrary ignores this Court’s decision in Rumsfeld v. Forum for Academic and Institutional. Rights, Inc., 547 U.S. 47 (2006). There, as here, an entity sought to avoid a non-discrimination mandate by asserting that complying with the law would compel it to express a message of which it disapproved. Rumsfeld involved a challenge to the Solomon Amendment, which required law schools to provide equal access to military recruiters and non-military recruiters alike. 547 U.S. at 54. At the time, the federal government’s ‘Don’t Ask, Don’t Tell’ policy forbade lesbians and gay men from serving openly in the military. Id. at 52 & n.1. A coalition of law schools argued that the Solomon Amendment violated their First Amendment rights by requiring them to endorse the military recruiters’ message that gay people should not serve in the armed forces by allowing the recruiters access to campus. Id. at 52. This Court rejected the law schools’ free speech claim, stressing that the Solomon Amendment did ‘not dictate the content of the [law schools’] speech at all.’ Id. at 62.”
“The Solomon Amendment, the Court found, “regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Id. at 60 (emphasis in original). “Congress, for example, can prohibit employers from discriminating on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Id. at 62. The Court acknowledged that the schools’ assistance to recruiters “often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer’s behalf . . . .” Id. at 61. But the Court found that this was “a far cry” from being required to pledge allegiance to the flag or bear a state motto on one’s license plate, citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), and Wooley v. Maynard, 430 U.S. 705, 717 (1977). Id. at 62. The Rumsfeld Court explained that “[t]he Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” Id. The same is true here. The Company need not sell wedding cakes to anyone, but it may not discriminate based on protected characteristics by selling wedding cakes to opposite-sex couples while refusing to sell them to same-sex couples. . . .”
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