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UCLA Law scholars file Supreme Court briefs in major free speech showdown

Friend-of-the-Court briefs say Colorado wedding cake maker cannot refuse same-sex couple on First Amendment grounds

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Same-sex wedding cake
David McNew/Getty Imag

Baking is not speaking or a form of speech and thus not protected by the First Amendment, some UCLA Law schlolars asserted in their briefs.

All eyes will be on the justices of the U.S. Supreme Court when they hear oral argument on Dec. 5 in the high-stakes case about a Colorado baker who refused to make a cake for a gay wedding because of his religion. In deciding the case, the justices will consider the views of three sets of UCLA School of Law scholars who have written friend-of-the-court briefs.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is perhaps the most important Supreme Court case on the 2017–18 docket, with both sides claiming that fundamental free speech rights support their cause. UCLA Law professors Seana Shiffrin and Eugene Volokh, as well as members of the school’s Williams Institute, have authored or co-authored briefs in the case, each taking different paths to the conclusion that the owner of Masterpiece Cakeshop in Lakewood, Colorado, cannot turn away the business of a same-sex couple because of his religious beliefs.

The briefs are among nearly 100 submissions by interested lawyers, academics, religious organizations, labor unions and even chefs who believe the case could have profound impact on the constitutional law and their communities.

“Amicus briefs can really influence the justices, especially when submitted by known and trusted experts in a field,” said Adam Winkler, professor in the UCLA School of Law, who ranks among the 20 scholars most cited by courts in the United States. His research was cited in the Supreme Court’s landmark 2008 Second Amendment case, District of Columbia v. Heller, and his new book, “We the Corporations,” shows how corporations, like women and minorities, have fought since America’s earliest days to win equal rights under the Constitution — culminating in 2010’s blockbuster Citizens United v. FEC decision.

In the Masterpiece Cakeshop case, same-sex couple Charlie Craig and David Mullins filed a complaint against Masterpiece baker Jack Phillips, claiming that, by turning them away, he violated Colorado’s law prohibiting public businesses from discriminating against customers based on race, religion, gender or sexual orientation. Here is a summary of the UCLA Law briefs.

  • Adam Romero, the Williams Institute’s director of legal scholarship and federal policy and Arnold D. Kassoy Scholar of Law, filed a brief on behalf of several institute members, including executive director Jocelyn Samuels and Ilan Meyer, the distinguished senior scholar of public policy. Marshaling social science and public health research, the brief explains that when a bakery or other place of public accommodation refuses to serve lesbian, gay and bisexual people, the experience is a “minority stressor” that can adversely impact LGB people in powerful tangible and symbolic ways. Minority stress is linked to a variety of health disparities documented among LGB people, including higher rates of depression and thoughts of suicide. “Protecting the dignity of, and eradicating discrimination against, LGB people is a compelling state interest,” their brief states. In its 2015 ruling affirming same-sex marriage, Obergefell v. Hodges, the Supreme Court referenced research done by the Williams Institute.
  • Seana Valentine Shiffrin, a decorated scholar in the area of speech and the Pete Kameron Professor of Law and Social Justice, co-wrote a brief along with her father, former UCLA Law professor Steven Shiffrin, who is now an emeritus professor at Cornell Law School, and Cornell law professor Michael Dorf. They argue that Phillips’ free speech rights are not constrained because the act of baking a cake is “not speaking,” even if the baker might hold a particular feeling about doing so: “The provision of a wedding cake does not constitute an endorsement of the marriage.” Moreover, they write, to rule otherwise risks opening a floodgate in which people with “non-religious ideologies, including hate-filled ideologies,” could use the First Amendment as an excuse to discriminate.
  • Eugene Volokh, the Gary T. Schwartz Distinguished Professor of Law at UCLA and the fourth-most-cited scholar by state and federal courts, according to recent rankings, submitted a brief on behalf of himself, Southern Methodist University law professor Dale Carpenter, and the American Unity Fund, a libertarian non-profit that advocates for LGBTQ rights. They, too, argue that the so-called compelled speech doctrine does not apply because, like landscaping or hairstyling, baking a cake is not protected by the First Amendment: “Its dominant purposes are functional … providing people with filling and tasty food.” They ask the court to draw a clear line distinguishing conduct that is protected by the First Amendment (such as photography, singing and writing) from conduct that is not.

The Supreme Court is expected to issue a ruling in the case by June 2018.

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