Altshuler Berzon, LLP filed an amicus brief today on behalf of the Service Employees International Union (“SEIU”) in the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case arose when Respondents Charlie Craig and David Mullins sought to purchase a cake for their wedding from Petitioners Masterpiece Cakeshop, Ltd., a Colorado bakery, and its proprietor, Jack Phillips. Phillips refused to serve Craig and Mullins, saying he would not make a wedding cake for a same-sex couple. Respondent Colorado Civil Rights Commission determined that, in doing so, Masterpiece violated the state’s antidiscrimination law, which prohibits places of public accommodation (including bakeries) from denying service to customers on account of their sexual orientation.
In the Supreme Court, Masterpiece has argued that Phillips’ custom wedding cakes are either artistic “pure speech” or expressive conduct, and that it therefore has a First Amendment right to refuse to make custom cakes for LGBT weddings. SEIU’s amicus brief, supporting Respondents, shows why Masterpiece’s dangerous and unfounded free speech arguments would require a radical expansion of First Amendment law, which, if accepted, would seriously threaten the states’ traditional prerogative to regulate conduct deemed harmful to society, including by enacting civil rights laws. Specifically, the brief argues that the court should not abandon the doctrine that conduct is “expressive” only if reasonable observers would understand it to express an idea (and that providing a wedding cake would not be so understood), as well as the rule that laws aimed at conduct do not violate the First Amendment as long as they do not substantially interfere with the expressive elements of such conduct. Because it is vitally important that the Court continue to recognize that the states may validly enact laws aimed at conduct, rather than speech, and that such laws do not violate the First Amendment even when they are applied to artists and other persons engaged in even unquestionably expressive activity (which baking a cake is not), SEIU’s amicus brief urges the Court to hew to its longstanding precedent and rule for Respondents in this case.
To read the full brief, click here.