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More than a cake: How legal briefs will influence religious freedom debate beyond Supreme Court case

POSTED: October 2, 2017 4:59 a.m.
There are deep and difficult questions at the heart of the highly anticipated Supreme Court case involving a baker, a gay couple and Colorado civil rights law: What are the limits of free speech? What counts as religious expression? Who wins when the rights of one American clash with the rights of another?

But many Americans who happen to hear about the case ask a much simpler one: Why is baking a wedding cake such a big deal?

This confusion creates a tough situation for Lakewood, Colorado, baker Jack Phillips and his legal team from the Alliance Defending Freedom. While constructing complex legal arguments, they must also acknowledge this simple question, reminding justices and general observers alike that Masterpiece Cakeshop v. Colorado Civil Rights Commission is about much more than cake.

Couples pay thousands of dollars for wedding cakes "not because a particular baker uses the best eggs or milk. They're paying for a person's artistic talents and expressive ability," said Jeremy Tedesco, senior counsel and vice president of U.S. advocacy and administration for the Alliance Defending Freedom.

Phillips and his lawyers have an impressive list of allies in this effort, including organizations, scholars and faith groups that have written amicus, or friend-of-the-court, briefs in support of Phillips. Forty-six briefs — most with multiple signatories — were submitted in support of the Colorado baker last month, including from The Church of Jesus Christ of Latter-day Saints, Justice Department officials and the Catholic Church.

"This is a veritable who's who of Christian conservative groups and people who tend to defend religious liberty," said Daniel Bennett, an assistant professor of political science at John Brown University and an expert on Christian legal activism.

The amici come at the case from many angles, emphasizing the important role cakes play in the ritual of marriage and equating forced cake sales with blasphemous speech. Perhaps most importantly, several of the briefs argue that the Supreme Court has already showed its hand on the issue at stake, when it referenced respect for religious diversity in its 2015 same-sex marriage ruling.

"As the court recognized in Obergefell, the problem is not the existence of a multiplicity of good faith views about marriage, but rather the enshrining of a single view into law which can be used to demean, stigmatize and exclude those who do not accept it," argued the brief from Becket Law, a religious liberty-focused law firm with a winning record at the Supreme Court.

The Colorado commission found that Phillips violated the state's anti-discrimination laws by refusing to bake a wedding cake for a same-sex couple, and the panel rejected his argument that his craft is an expressive act protected by the Constitution. Briefs backing the commission aren't due until late October, but experts predict that its supporters will include LGBT activists and some faith groups.

The so-called amicus briefs supporters can file play an influential role in the legal process, echoing and expanding the arguments of the main parties. They paint a picture of who stands to be affected by the eventual ruling, said Rick Garnett, a professor of law and political science at the University of Notre Dame.

"The theory behind them is that the court benefits from getting the opinions and insights from people other than the parties to the case," he said.

Oral arguments in the Masterpiece Cakeshop case haven't been scheduled yet, but the briefs filed so far provide insights into how Phillips' attorneys will argue their case. For the baker and his supporters, victory isn't about whether he can bake a wedding cake. It's about finding a way forward that respects all beliefs.

"In tense times, for this court to recognize and affirm the crucial distinction between an objection to same-sex marriage and the much more offensive (and rare) objection to serving people who are gay or lesbian would be an important step toward a sensible reconciliation of laws and policies promoting both antidiscrimination and expressive freedom," argued a brief from 34 legal scholars, which Garnett signed.

Role of amicus briefs

Contrary to TV portrayals, big court cases rarely hinge on eloquent speeches by well-dressed lawyers or tearful confessions from the witness stand. More often, victory goes to the side that soldiers through hours of document preparation and research to write a well-reasoned, thorough argument, according to legal scholars.

This is especially true for cases that reach the Supreme Court, whether they involve affirmative action or religious freedom. Rulings are driven by substance rather than style.

Amicus briefs benefit a legal team's strategy because they beef up the arguments made by the main parties appearing before the Supreme Court.

The court limits the number of pages each party has to make its case, so the Alliance Defending Freedom and the Colorado Attorney General's Office have called on allies to make some of their arguments for them, said Tobin Grant, chair of the political science department at Southern Illinois University Carbondale.

"The Alliance Defending Freedom is going to try to make the argument that will win the case, but they might have amicus briefs bring in issues that push the envelope or raise other implications," he said.

Tedesco noted that "they matter because these are organizations and groups of people across the country saying to the U.S. Supreme Court that they think Jack Phillips ought to win this case."

Phillips' journey to the high court began in July 2012, when a gay couple, David Mullins and Charlie Craig, visited Masterpiece Cakeshop to request a cake for their wedding reception. Phillips declined, explaining that participating in their event would go against his religious beliefs. Mullins and Craig then filed a civil rights complaint with the state alleging Phillips violated state law by illegally discriminating against them for being gay.

An administrative law judge, the Colorado Civil Rights Commission and then the state's Court of Appeals ruled against Masterpiece Cakeshop, ordering Phillips to either pay a fine or start selling wedding cakes to anyone and retrain his staff on nondiscrimination laws. When the Colorado Supreme Court declined to hear the case, Phillips appealed to the U.S. Supreme Court. Phillips' case is among several around the country where small business owners have faced legal action for refusing to serve a gay marriage.

About a month before the amicus briefs in support of Masterpiece Cakeshop were due, more than 30 organizations planning to participate in the case gathered on a conference call to hash out a general strategy, said Mark David Hall, a professor of politics at George Fox University who participated in the call.

"Organizations spoke to what they were thinking about doing" in order to get everyone on the same page, he said.

This is a common approach to major cases, especially among Christian legal interest groups, as the Deseret News reported in July. It ensures that justices understand the full scope of the arguments being made, as well as the various groups potentially impacted by the outcome of the case, Grant noted.

Those who submit an amicus brief "want to make sure the court knows how the case could affect them," he said.

In the brief outlining its arguments, the Alliance Defending Freedom spends much more time on free speech concerns than religious exercise protections. Phillips' lawyers counter the Colorado commission's claim that the case is about illegal discrimination against a gay couple by focusing on how cake decorating is a form of artistic expression protected by the Constitution.

"The Free Speech Clause protects more than words. Phillips' custom wedding cakes — which he intricately and artistically forms with his own hands for the purpose of celebrating his clients' marriages — are his protected expression," the organization's brief argues.

To bolster and expand on these arguments, several of the amicus briefs dedicate pages and pages to religious freedom-related arguments, emphasizing the importance of allowing people like Phillips, who says his faith prevents him from participating in a same-sex marriage, to live out their beliefs.

"American citizens should never be forced to choose between their religious faith and their right to participate in the public square," explain the authors of an amicus brief signed by the U.S. Conference of Catholic Bishops and other Catholic groups.

Where they do address speech protections, faith groups and other religious liberty advocates address why a wedding cake should be viewed as an expressive act, linking the value of free speech to their religious convictions, Hall said.

"The state cannot, must not, compel any individual to participate in a wedding ceremony. To do so is an imposition on the human conscience every bit as grotesque and intrusive as a requirement than an individual blaspheme their own faith," wrote lawyers for a group of 33 family policy organizations.

Spectrum of support

Each amicus brief has a role to play in a high-profile case, but the documents are not all created equal. Only a few can truly alter the direction of a case, while many of them are thinly veiled ploys for media coverage or financial support, experts said.

"Sometimes, to be honest, groups are filing amicus briefs not so much because they have something unique or important to say, but because they want to tell their donors that they're filing amicus briefs," Garnett said.

Amicus briefs can be serious or silly, hyperbolic or subtle. Among the hundreds of claims made so far in the Masterpiece Cakeshop case, you'll find well-reasoned legal arguments and impassioned pleas for support, as well as a reflection on the legacy of Princess Diana and photos of beautiful wedding cakes.

Major cases often generate a high number of briefs. More than 140 amicus briefs were filed in the case that eventually led to the legalization of same-sex marriage, Obergefell v. Hodges.

It's understandable, then, that Supreme Court justices likely won't make it through every brief attached to the Masterpiece Cakeshop case, Garnett said. The justices will instead identify and focus on briefs submitted by well-known legal scholars or organizations, exploring how these experts sorted out the complex issues involved.

The most conspicuous member of the elite group of bakery supporters is the U.S. government, according to people following the case. The acting solicitor general and other leaders from the Justice Department teamed up to persuade the Supreme Court to rule for the Colorado baker.

"I think it's fair to say that an amicus brief from the U.S. government is going to be read and taken seriously," Garnett said.

The brief defends Phillips' integrity as a Christian business owner, arguing that his actions stem from deep faith rather than ill-will toward the LGBT community.

"Phillips is a Christian who seeks to incorporate his principles into all facets of his business. To that end, for example, he closes Masterpiece on Sundays, refuses to sell goods containing alcohol and chooses not to create or sell goods relating to Halloween," the authors noted.

While the brief is a significant show of support, many observers see it as more of a nod to President Donald Trump's conservative Christian base of voters than a robust legal analysis, Grant said.

"I read it as more of a political signal," he noted.

Another notable brief comes from a diverse group of legal organizations and religious institutions, said Melissa Rogers, a non-resident senior scholar in governance studies with the Brookings Institution.

"It's written by two law professors who support same-sex marriage on behalf of religious organizations that oppose same-sex marriage, although they recognize that it's the law of the land," she said.

The brief expresses the views of people looking for a middle ground, who see the Masterpiece Cakeshop case as an opportunity to strike a balance in laws that protect religious freedom and the LGBT community.

"Most of these amici are involved in ongoing efforts, mostly unsuccessful so far, to negotiate legislation prohibiting sexual-orientation discrimination while providing religious exemptions," wrote Thomas Berg and Douglas Laycock, attorneys known for their extensive work on religious freedom issues.

Many of the highest profile friends-of-the-court supporting Masterpiece Cakeshop argue that a ruling for the Colorado baker would allow those on both sides of the issue to win.

"The Court will surely someday have to reconcile competing civil rights claims in a case that requires painful concessions from both sides. But this is not the case. LGBT customers can obtain their desired services from many willing vendors, and religious individuals such as Phillips need not forfeit their livelihood," the Becket brief explained.

Beyond the court's ruling

The Masterpiece Cakeshop case addresses ongoing, contentious clashes between religious freedom and civil rights protections. But, as Becket attorneys noted, it likely won't resolve them.

Phillips' religious convictions led to the cake conflict, but his attorneys are making free speech arguments more central to the case than religious exercise concerns. That's why so many of the amicus briefs focused on why cake decoration is a form of expression, Garnett said.

"It's not that (the amici) don't care about religious freedom. It's just that there's a certain legal landscape you have to live with," he said.

In other words, complaints about compelled speech make for a stronger argument.

"The most notable thing about the development of cases like these is the shift away from the religious liberty argument to the freedom of speech argument," Hall said.

This change is easy to miss because faith groups have weighed heavily into the debate, expressing support for the baker and the state of Colorado.

"The Masterpiece Cakeshop case is clearly one of the blockbuster cases on the Court’s docket this term, and religious organizations will be vocal on both sides of the case," Rogers said.

The Supreme Court's ruling, which will come by June 30 next year, may broaden the legal definition of protected speech or guarantee service to LGBT couples in bakeries, but it won't resolve ongoing conflict between religious freedom and LGBT discrimination. Americans are divided on the rights of business owners who don't support same-sex marriage for religious reasons.

More than half of U.S. adults (53 percent) oppose allowing wedding service providers like Masterpiece Cakeshop to refuse services to same-sex couples for religious reasons, compared to 41 percent who support such policies, according to an August survey from Public Religion Research Institute.

Amicus briefs submitted in the Masterpiece Cakeshop case that address the ongoing conflict of religious and LGBT rights can have an influence beyond this Supreme Court case, providing some guidance for policymakers and others seeking answers, Rogers said.

"These briefs help organizations communicate their views to their constituency," deepening people's understanding how of religious groups and legal scholars approach challenging issues, she said.
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