State and Local Legal Center Files Supreme Court Amicus Brief in Cake Case

Masterpiece Cakeshop will be one of the most closely watched Supreme Court cases of this term. Local governments are very much on the front line in this issue.

BLOG POST | Oct 31, 2017

by Lisa Soronen, executive director, State And Local Legal Center 

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court will decide whether Colorado's public accommodations law, which prohibits discrimination on the basis of sexual orientation, violates a cake artist’s First Amendment free speech and free exercise rights. The State and Local Legal Center (SLLC), Washington, D.C., filed an amicus brief supporting Colorado and arguing that the court should not create an exception to Colorado’s public accommodations law for wedding businesses.  

According to the National Council of State Legislatures, 21 other states have public accommodations laws that prohibit discrimination based on sexual orientation. Numerous local governments have adopted similar ordinances.

The owner of Masterpiece Cakeshop, Jack C. Phillips, declined to design and make a wedding cake for a same-sex couple because of his religious beliefs.

The couple filed a complaint against Masterpiece claiming it violated Colorado's public accommodations law. Masterpiece argued that being required to comply with the law violates Phillips’ free speech and free exercise rights.

The Colorado Court of Appeals rejected both of Masterpiece’s claims.  

For speech to be protected by the First Amendment it must convey a particularized message. According to the Colorado Court of Appeals: “Masterpiece does not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally.”

Regarding Masterpiece’s free exercise of religion claim, the lower court applied rational basis analysis to Colorado’s law and “easily conclude[d] that it is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation.”

SLLC's brief points out that local governments have a long history of protecting people against discrimination when the federal government has been unwilling or unable to legislate. Protecting residents against sexual-orientation discrimination for many local governments is part of that proud tradition. More than 100 local governments in 38 states have adopted ordinances protecting residents from sexual-orientation discrimination in public accommodations.

Additionally, the brief notes that local governments have adopted these ordinances at the level of government closest to the people after careful and thoughtful deliberation. They believe that such ordinances are key to creating and maintaining vibrant, safe, healthy communities that are attractive places to live and to work.

Finally, the brief argues that these laws work best if there are no exceptions. Exceptions for wedding businesses would weaken and undermine the democratic choices of these cities and states.

The National League of Cities, the International City/County Management Association, and the International Municipal Lawyers Association joined SLLC's brief, which was written by Professor Bruce La Pierre, Washington University School of Law Appellate Clinic, and Brian Walsh, partner, Bryan Cave LLP, St. Louis, Missouri.


Lisa Soronen is executive director, State and Local Legal Center (SLLC), Washington, D.C. SLLC files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments.


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