1

No. 16-111

In The

Supreme Court of

the United States

Masterpiece Cakeshop, Ltd.; and Jack C. Phillips,

Petitioner,

v.

Colorado Civil Rights Commission; Charlie Craig; and David

Mullins,

Respondent.

On Writ Of Certiorari To The

Colorado Court of Appeals

BRIEF FOR PETITIONER

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COUNSEL
CATHERINE DEMETROVICH
KRISTEN SAWYER

TABLE OF CONTENTS

I. QUESTION PRESENTED……...…………………….........5
II. INTRODUCTION……………………………………………..5
III. STATEMENT OF THE CASE………………………….5-6
IV. ARGUMENT………………………………………………7-16
A. Respondents Cannot Satisfy the Strict
Scrutiny Test due to the Requirements Made
to Phillips ……………………………………………7-8
a. The Requirements do not Satisfy the
Lemon Test ……………………………….8-9
B. Compelling Phillips to Make the Cake for the
Couple Violates the Free Speech Clause within
the First Amendment……………………………….9-11
b. The Compelled-Speech Doctrine is
Violated …………………………………..11-12
i. Compelling Phillips to Design
Custom Wedding Cakes for
Same-sex Marriage Violates his
Right to Expressive
Association…………………….12-13
C. The Colorado Commission’s Requirements
Violate the Free Exercise Clause ………........13-14
D. CADA is Not Applied Neutrally or Generally
……………………………………………………...……..14-16
E. Government Cannot Regulate Privately-
owned Businesses if They are not in the State of
Commerce ………………………………..........................16
V. CONCLUSION………………………………………….16-17


TABLE OF AUTHORITIES

CASES:
Boy Scouts of America v. Dale,
530 U.S. 640 (2000) ……………………………………12-13
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) …………………………………8, 14
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) …………………………………………14
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Hammer v. Dagenhart,
247 U.S. 251 (1918) ………………………………………….16
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group
of Boston,
515 U.S. 557 (1995) ………………………………………….11
Obergefell v. Hodges,
135 S. Ct. 2584 (2015)………………………………….12-13
Texas v. Johnson,
491 U.S. 397 (1989) ………………………………………….10

U.S. CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOVLED:

Article XIV, Section 1 …………………………………………………7-9
Article 1, Section 1 ………………………………………………...10-16
Article 1, Section 8, Clause 3 …………………………………..16-17
Pet.App. 57a-58a …………………………………………………………7
Religious Freedom Restoration Act ………………………13-14

OTHER AUTHORITIES:

Andrew Koppelman, Gay Rights, Religious
Accommodations, and the Purposes of
Antidiscrimination Law, 88 S. Cal. L. Rev. 619 (2015)
………………………………………………………………………11
Katherine McFarland Bruce, Pride Parades: How a Parade
Changed the World (2016) ………………………………15
Mark Meredith and Will C. Holden, Cake Shop Says
Business Booming, Fox 31 Denver, July 30, 2012,
http://bit.ly/2uQZHJO …………………………………….15
The Essential Guide to Cake Decorating (2001) ……………9
Wendy A. Woloson, Refined Tastes: Sugar, Confectionery,
and Consumers in NineteenthCentury America
(2002) ………………………………………………………..…..10
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I. QUESTION PRESENTED
Whether Colorado is able to apply the public-
accommodation law if the item is not fully in the
state of commerce, and whether compelling
artists to convey messages objectionable to their
religious beliefs violates the Free Speech or Free
Exercise Clause of the First Amendment.

II. INTRODUCTION
Petitioner Jack C. Phillips is the owner of
Masterpiece Cakeshop. The First Amendment
guarantees Phillips the freedom to decline
requests for wedding cakes that go against his
religious beliefs. The statute in question is
unconstitutional because it fails the strict
scrutiny test, the lemon test, and it goes against
the Religious Freedom Restoration Act. However,
the Colorado Civil Rights Commission argues that
the state’s legislative interest, economic interest,
and dignity of the couple overrides Phillips’s
rights stated in the First Amendment. Even if
these these facts were arguably more important
than Phillips’s rights, the custom-made cake has
not reached the state of commerce yet.
Therefore, the government does not have any
right to regulate the item.

III. STATEMENT OF CASE
Petitioner Jack C. Phillips is the owner of
Masterpiece Cakeshop. His shop is based on his
faith. He closes his business on Sundays so that
his employees can attend religious services, and
he has a close, personal relationship with each of
them. Phillips has received many custom-made
cake requests over his years of owning his own
business; however, he has declined some orders
due to objectionable messages. Although he may
not be willing to write a message that he does not
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agree with on certain cakes, he is always willing

to sell his premade cakes to all customers.
In July 2012, Charlie Craig and David
Mullins desired to order a cake from Masterpiece
Cakeshop. At this time, Colorado did not
recognize same-sex marriage. After Craig and
Mullins told Phillips what they wanted to have on
their cake for their union celebration, Phillips
told them that he would be unable to fulfill this
request due to his beliefs. However, he did make
it clear that he was willing to sell a premade cake
or another item to them.
The Colorado Civil Rights Division
argued that Phillips engaged in sexual-
orientation discrimination. The administrative
law judges then heard the case and rejected his
claim to free-speech. Phillips did not have this
right because Craig and Mullins did not specify
what they wanted to be portrayed on the cake.
Phillips appealed to the Colorado Civil Rights
Commission. They adopted the final order that
Phillips must (1) design wedding cakes that
celebrate same-sex marriages, (2) reeducate his
staff (which includes his family members) on
CADA compliance, and (3) submit quarterly
compliance reports for two years describing all
orders that he declines and the reasons for
denial. Pet.App.57a-58a.
Phillips appealed to the Colorado Court
of Appeals, but they still argued that Phillips
violated the statute by declining to create the
wedding cake for Craig and Mullins. They also
argued that the cake does not convey a message
of his own beliefs, so he is not being religiously
discriminated by the Commission’s
requirements. They rejected his free-exercise
arguments. They determined that CADA satisfies
rational-basis review.
Finally, Phillips was denied review at the
Colorado Supreme Court, but the Court then
granted his petition for writ of certiorari on June
26, 2017.
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IV. ARGUMENT
I. Respondents Cannot Satisfy the Strict
Scrutiny Test due to the Requirements Made
to Phillips
To pass the strict scrutiny test, the
statute must be made to further a compelling
government interest and is narrowly tailored to
fit that interest. However, the statute cannot
violate the rights of any given group, including
race, religion, sexuality, etc. In the strict scrutiny
test, the burden is placed on the government,
and it is difficult to be satisfied.
For a statute to pass the strict scrutiny
test, it must be implemented in the least
invasive way possible. The requirements
instilled by the Colorado Commission seems as
though to target Phillips’s religion directly. The
first point requires Phillips to make all cakes
celebrating same-sex marriage even though this
completely goes against his Christian beliefs.
The second requirement, forcing Phillips to
reeducate his staff on the CADA compliance,
could be considered very invasive since it is
targeting his beliefs and the beliefs of his entire
family since they make up his staff. Overall, it is
not difficult to identify the Commission’s
negative outlook on Phillips’s religious beliefs,
especially when one Commissioner commented,
“And to me [freedom of religion or religion] is
one of the most despicable pieces of rhetoric
that people can use to – to use their religion to
hurt others.” Before Phillips even argued his
case, the Commission clearly had a preconceived
notion of how the hearing would go and what
the outcome would be.
The Commission has argued that their
compelling interests include: ensuring that
same-sex couples planning their weddings have
ample access to cake artists, avoiding adverse
economic effects that might accompany certain
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forms of discrimination, and protecting the

dignity of same-sex couples. None of these
reasons can satisfy the strict scrutiny test. The
couple’s ease in receiving their wedding cake
after posting the situation on social media
proves that there was ample access to order a
wedding cake in their area. Also, the situation
would not cause adverse economic effects since
Phillips was still willing to sell the couple one of
his premade cakes. He simply declined selling a
custom-made cake. Lastly, the Court can all
agree that protecting the dignity of the couple is
important since protecting the dignity of every
person is important. However, the Commission’s
interest cannot override Phillips’s First
Amendment rights.
In Burwell v. Hobby Lobby Stores, the
Supreme Court ruled in favor of the Hobby
Lobby Stores, allowing them to find a less
restrictive method since the contraception
requirement “goes against their stated religious
principles … it creates a substantial burden that
is not the least restrictive method of satisfying
the government’s interests.” Since there is
another less restrictive method available, the
Court ruled in favor of Hobby Lobby. Since the
facts are similar between the two cases, the
Court should rule in favor of Phillips. The
requirements of the Commission are going
against Phillips’s religious principles, and it has
created a burden upon him and his family.
A. The Requirements do not Satisfy
the Lemon Test
After much confusion with
establishment clause cases, the justices have
adhered to a three-pronged test, referred to as
the Lemon Test. The requirements include: the
statute must have a secular legislative purpose,
the statute’s primary effect must be one that
neither advances nor inhibits religion, and the
statute must not foster an excessive government
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entanglement with religion. The Lemon Test is

not used frequently, but it allows the justices to
see the way in which Phillips’s beliefs are
violated by the Commission’s requirements.
If the strict scrutiny test is not used, the
Lemon Test should control the outcome of this
case. The requirements instilled by the Colorado
Commission fail the Lemon test. The first two
requirements both advance and inhibit each
party’s beliefs. The Colorado Commission is
advancing the beliefs of the couple by forcing
Phillips to design wedding cakes for them,
celebrating the concept of same-sex marriage.
However, the Commission is also inhibiting
Phillips’s religious beliefs by not allowing him to
freely practice his religion. Also, their second
requirement implies that Phillips and his entire
family should reconsider the way that they run
their business since it was started based on the
foundation of religion. This is clearly a way in
which their beliefs are being repressed by the
Commission.
II. Compelling Philips to Make the Cake for
the Couple Violates the Free Speech Clause
within the First Amendment
The Free Speech Clause protects both
expression and expressive conduct. Some may
argue that a cake does not constitute as
expression. The Court cannot argue that
Phillips’s cake sculptures do not convey a
message or are not considered artistic
expression when tattoos and custom-painted
clothing have protection by the government
under the First Amendment. Phillips’s entire
store is based on his faith and artistic talents. He
uses fine-art skills such as sketching, sculpting,
and painting to achieve his desired result
(Essential, 2001). These skills that he uses are
prevalent in artistic expression that is already
protected by the First Amendment. His logo
displays him with a paintbrush and whisk, just
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as many artists have been famously displayed.

The Court cannot argue that his cakes do not
signify artistic expression when the entire
atmosphere of his store is based on his talents. It
is hard to believe that the Court even questions
the validity of his expression when in Texas v.
Johnson, the Supreme Court ruled that the act of
burning the national flag is considered
expression and has protection under the First
Amendment.
Phillips’s involvement with the process
of making the cake and the set-up at the
ceremony displays that his cakes are art and
intend to display a particular message. When a
customer orders a custom-cake, Phillips has a
consultation with the couple, attempting to
incorporate their desires, aspects of their
personalities, and intricate wedding details on
the cake. There is a long process of preparation,
such as sketching the design multiple times,
before he even begins sculpting it. Phillips is
present when he delivers and helps set up the
cake. He also frequently interacts with guests at
the wedding, further conveying his message of
celebration towards the couple and the
ceremony at hand. The cakes are the centerpiece
of the wedding celebrations and convey the
message that Phillips’s opinion is that these
ceremonies should be celebrated (Woloson,
2002). The Colorado Commission should not
have the ability to force Phillips to convey a
message that he does not believe in.
Based on Phillips’s religious beliefs,
marriage has a sacred role in his heart. His
definition of marriage is clearly stated as a union
between one man and one woman. The Colorado
Commission should not have the ability to force
Phillips to convey a message that he would
consider sacrilegious, especially if he is willing
to sell the couple other items in the store.
Phillips has not only rejected sales of custom-
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made cakes conveying a celebratory message of

same-sex marriage, but also cakes that contain
messages celebrating Halloween, expressing
anti-family themes, conveying hateful, vulgar, or
profane messages, or promoting atheism,
racism, or indecency. Phillips has declined
requests similar to the couple’s in years prior;
however, he has stated that he is always willing
to create any cake for LGBT customers that have
messages that he supports (Koppleman, 2015).
A. The Compelled-Speech Doctrine is
Violated
The compelled-speech doctrine
forbids the government from forcing citizens or
businesses to express messages that they deem
objectionable or from punishing them for
declining to convey such messages. The
Colorado Commission blatantly violates this
doctrine through their requirements. The first
requirement forces Phillips to make cakes for all
same-sex marriages if he makes cakes to
celebrate opposite-sex marriages. Phillips does
not agree with the message that would be
conveyed and is being punished for declining
the sale. Both of these facts goes against this
doctrine.
The Supreme Court ruled in Hurley v.
Irish-American Gay, Lesbian, and Bisexual Group
of Boston that the state cannot force individuals
to celebrate something that they deem offensive
to their beliefs. This is exactly what the Colorado
Commission is forcing Phillips to do. He has
stated that his religious beliefs do not agree with
the celebration of same-sex marriage; however,
the Commission forces him to through his cake
sales. In Hurley, the parade organizers argued
that they were not excluding a class of people
but declining to express certain ideas. This
coincides directly with Phillips’s case. By his
offer to sell the couple other cakes, he is not
objecting the rights that they have to their
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beliefs. He is just unwilling to express the idea of

celebration toward same-sex marriage.
1. Compelling Phillips to Design
Custom Wedding Cakes for
Same-Sex Marriage Violates his
Right of Expressive Association
The Freedom of Association allows
individuals the right to freely associate;
however, organizations are not forced to include
members who hold different beliefs that may
affect their expression of a certain message. In
Boy Scouts of Am. v. Dale, the Supreme Court
allowed James Dale’s membership in the Boy
Scouts organization to be revoked because of his
homosexuality. They ruled that the
memberships of homosexuals would convey an
inconsistent message with the organization. If
they forced the inclusion of homosexuals within
the Boy Scouts, they would be compelling them
to promote a message that they do not agree
with.
The case in which Phillips is coerced
into conveying a message that he does not
believe in coincides with Boy Scouts of Am. v.
Dale. If the Supreme Court has ruled that the
Boy Scouts organization does not have to
include homosexuals because it conveys the
opposite message of what their organization is
based off of, Phillips should not be forced to
make cakes conveying a message that he cannot
support. Since Phillips does not agree or believe
in the message that would be conveyed, it would
be altered. It would not be a true message of
celebration.
In Obergefell v. Hodges, the Supreme
Court held that states cannot deny same-sex
couples the right to marry, while also protecting
the beliefs of religious organizations. The Court
understood that many religions do not agree
with the idea of same-sex marriage and respect
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their differing views. The Court’s opinion allows

Phillips to keep his religious beliefs without
punishment. If the Supreme Court is consistent
in their decisions, both Boy Scouts and Obergefell
give Phillips the freedom to continue his beliefs
and deny to convey messages that he finds
objectionable. However, the Colorado
Commission continued to punish Phillips
despite this.
III. The Colorado Civil Rights Commission’s
Requirements Violate the Free Exercise
Clause
The First Amendment states that
“Congress shall make no law … prohibiting the
free exercise” of religion. This statement created
a solid wall between government regulation and
religious practices. After many cases, the
Supreme Court held that the government can
regulate certain actions of religious
organizations. Religious organizations have the
freedom to exercise their beliefs, but they must
still follow the laws. In this case, Phillips was
simply exercising his beliefs without breaking
any laws or acting in a way that could
potentially harm the public. The First
Amendment allows him to run his store the way
that he intended to, without government
interference.
The Religious Freedom Restoration Act
has become a common standard for the
Supreme Court. It has created a balance between
religious freedom and government regulation. It
states, “Government shall not substantially
burden a person’s exercise of religion even if the
burden results from a rule of general
applicability [unless the government can show
that the burden] (1) is in furtherance of a
compelling governmental interest; and (2) is the
least restrictive means of furthering that
compelling governmental interest.” Since this
act has been established, the Court has been
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able to more clearly define their opinions.

However, there have been controversial cases.
In Burwell v. Hobby Lobby, the Supreme Court
found that the Affordable Care Act went against
the store’s religious liberty. The court ruled that
the state cannot force the owners to run their
company in a way that goes against their beliefs.
The Religious Freedom Restoration Act
proves that the Colorado Commission’s
requirements towards Phillips are unlawful.
They violate both parts of the Act. As previously
stated, the Commission cannot prove that they
have a legitimate governmental interest in
forcing Phillips to make cakes celebrating same-
sex marriage. They also are not using the least
restrictive means possible to achieve their
objective of protecting the dignity of the couple.
Based on the Court’s ruling in Burwell v. Hobby
Lobby, Phillips should not be forced to make
cakes that counter his religious beliefs. He built
his shop on the foundation of his faith and
should be allowed to run it that way based on
this Act.
IV. CADA not Applied Neutrally or Generally
In Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, the government passed a
law against animal cruelty as soon as they heard
that a sect of this certain religion was moving to
their region. The Supreme Court found that this
statute was not neutrally or generally applied.
The government used this statute to clearly
target this group of religious people. Therefore,
it should undergo strict scrutiny. The Colorado
Commission applied the Colorado Anti-
Discrimination Act specifically to punish Phillips
for declining the sale of the couple, targeting his
specific beliefs. However, they allowed other
cake artists to decline requests of cakes with
messages against same-sex unions.
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The Commission argued that they were

able to refuse these sales because of the
offensive nature of the message. This does not
apply because it would only be offensive to
certain groups of people, while the message
supporting same-sex marriage is offensive to
people of similar beliefs to Phillips. For other
cake artists, it was proven that there would be
words on the cakes, but it was inferred from the
facts of the case that the couple was planning on
asking Phillips for a rainbow-themed cake
(Meredith and Holden, 2012). This clearly
symbolizes a celebratory message of their union
(Bruce, 2016). The Commission was willing to
respect other cake artists’ decisions to deny the
sale of those cakes, and Phillips deserves the
same amount of respect.
The Commission also ignored the facts
of the case stating that Phillips was willing to
sell any premade cake to the couple. He was
unwilling to sell custom-made cakes with
messages that go against his beliefs. On the
other hand, other artists do not serve all either
because they declined to make cakes with
messages that they do not believe in. The
Commission cannot confirm that the other cake
artists were willing to sell them other items in
their stores while Phillips was. They also argued
that other cake artists used their cakes to
communicate messages, but Phillips’s cakes did
not convey a message. The Commission is
unable to use this argument since it is the same
situation with opposite messages being
declined.
Lastly, the Commission argued that
LGBT customers deserve more protection than
religious organizations. They do not have any
real facts to confirm this argument. The
Commission is berating Phillips for
discriminating against people with certain
beliefs, while they are discriminating against
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Phillips for his and his organization’s religious

beliefs. It is not relevant for the Commission to
argue against discrimination when they are
blatantly going against their argument.
V. Government Cannot Regulate Privately-
Owned Businesses if They Are Not in the
State of Commerce
The Commerce Clause gives Congress
the power to “regulate commerce … among the
Several states.” Although it took many years for
the government to decipher the exact meaning
that the Framers intended, they decided that
Congress would be allowed to regulate
interstate commerce, trade that happens
between the states, but were not allowed to
intervene with intrastate commerce, which
occurs within a particular state, unless it affects
interstate commerce in some way. However, if
the topic in question does not even constitute as
commerce, this doctrine cannot be applied. For
example, the Supreme Court ruled in Hammer v.
Dagenhart that the production was not
considered commerce, and therefore, could not
regulate it.
If the subject in question was Phillips’s
transaction of his premade cakes to the couple,
then Congress would most likely have the power
to regulate it after proof that it affected
interstate commerce. However, the couple’s
argument is towards Phillips’s custom-made
wedding cakes. His custom-made cakes are
prepared to order, meaning that if he had not
made the sale yet, the cakes have not been
made. If the custom-made cake does not exist
yet, it is not possible for it to be considered
commerce and cannot be regulated by the
government.



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IV. Conclusion
With these facts in mind, the Colorado Court of
Appeals and the Commission’s order should be
reversed by the Supreme Court.

Respectfully submitted,
CATHERINE DEMETROVICH
KRISTEN SAWYER