Colorado Supreme Court

2 East 14th Ave., Denver, CO 80203

On Certiorari to the Colorado Court of Appeals,
Case No. 2021CA1142
El Paso County District Court
Hon. A. Bruce Jones, Case No. 2019CV32214

Petitioners: MASTERPIECE CAKESHOP INC.

and JACK PHILLIPS
v.
Respondent: AUTUMN SCARDINA

Attorneys for Amici Curiae:

Ian Speir, #45777
Covenant Law PLLC
13395 Voyager Pkwy. #130-732 Case No. 2023SC00116
Colorado Springs, CO 80921
Telephone: (719) 464-7357 Court of Appeals Case No.:
[email protected] 2021CA1142
Howard Slugh, pro hac vice admission pending District Court Case No.:
Jewish Coalition for Religious Liberty 2019CV32214
2400 Virginia Ave N.W., Apt. C619 County: Denver
Washington, D.C., 20037
Telephone: (954) 328-9461
[email protected]

Brief of Jewish Coalition for Religious Liberty, Coalition for Jewish Values,
Summit Ministries, The Colson Center for Christian Worldview, American
Muslim & Multifaith Women’s Empowerment Council, and World Hazara
Council USA as Amici Curiae in Support of Petitioners
Certificate of Compliance

I hereby certify that this brief complies with all requirements of C.A.R. 28,
29, and 32, including all formatting requirements set forth in these rules.
Specifically, the undersigned certifies that:

The brief complies with the applicable word limits set forth in C.A.R. 29(d)
in that it contains 2,406 words.

The brief complies with the content and format requirements of C.A.R.
28(a)(2) & (3), 29(c), and 32.

I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28, 29, and 32.

Respectfully submitted,

Covenant Law PLLC

s/ Ian Speir
Ian Speir, #45777

Attorney for Amici Curiae

ii
Table of Contents

Certificate of Compliance ......................................................................................... ii

Table of Contents ..................................................................................................... iii

Table of Authorities ................................................................................................. iv

Identity and Interest of Amici .....................................................................................1

Argument....................................................................................................................2

I. The lower court’s ruling threatens to compel all religious artists—Jews,

Christians, and Muslims—to speak messages that violate their consciences. .......2
II. The First Amendment’s protection against compelled speech is especially
important to artists who adhere to minority faiths. ................................................5
Conclusion ...............................................................................................................10

iii
Table of Authorities

Cases

303 Creative LLC v. Elenis, 600 U.S. 570 (2023)…………………………….7, 8, 9

303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021)

(Tymkovich, C.J., dissenting)………………………………………………………9

Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019)……………..6

Elane Photography, LLC v. Willock, No. CV-2008-06632,

2009 WL 8747805 (D.N.M. 2009)………………………………………………….6

Masterpiece Cakeshop Inc. v. Elenis, 445 F. Supp. 3d 1226 (D. Colo. 2019)……….7

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995)……………………5

Obergefell v. Hodges, 576 U.S. 644 (2015)…………………………………………6

Scardina v. Masterpiece Cakeshop, Inc., 2023 COA 8, ¶ 78…………………….5, 9

Telescope Media Grp. v. Lindsey, 271 F. Supp. 3d 1090 (D. Minn. 2017),
aff’d in part, rev’d in part and remanded sub nom. Telescope Media Grp.
v. Lucero, 936 F.3d 740 (8th Cir. 2019)……………………………………………..6

Other Authorities

Sarah Cascone, “To Mark International Women’s Day, ‘Fearless Girl’ on

Wall Street Has Been Surrounded by Frightening Shards of Broken Glass,”
Artnet, Mar. 8, 2021, https://news.artnet.com/art-world/fearless-girl-
surrounding-menacing-shards-glass-1949974...........................................................3

Chelsweets, “Shattered Glass Cake,” https://chelsweets.com/shattered-glass-

cake/ (last visited Dec. 6, 2023)……………………………………………………3

Tr. of Oral Arg, 303 Creative LLC v. Elenis (No. 21 476)…………………………9

iv
Tr. of Oral Arg., Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n (No.
16-111)……………………………………………………………………………...4

Tr. of Oral Arg., Obergefell v. Hodges (No. 14-556)……………………………...5

v
Identity and Interest of Amici

Amici are a diverse set of religious organizations or organizations that promote

religious liberty, representing each of the Abrahamic faith traditions.

The Jewish Coalition for Religious Liberty is an incorporated organization of

rabbis, lawyers, and communal professionals who practice Judaism and are

committed to defending religious liberty. Coalition for Jewish Values (“CJV”) is the

largest Rabbinic public policy organization in America, representing over 2,500

traditional, Orthodox rabbis. CJV promotes religious liberty, human rights, and

classical Jewish ideas in public policy, through education, mobilization, and

advocacy, including amicus briefs in defense of equality and freedom for religious

institutions and individuals.

Summit Ministries and The Colson Center for Christian Worldview are

Colorado-based ministries that educate adults and young people, equipping them to

live as Christians and champion a biblical worldview.

The American Muslim & Multifaith Women’s Empowerment Council takes

on the challenge of internal and external bigotry by empowering Muslim women on

the frontlines. Inspired by their own journeys as immigrants who have prospered in

America, they are proud American Muslim women leaders who unite to strengthen

community, confront bigotry, celebrate cultural heritage, and build enduring bonds

1
with fellow Americans of all faiths. The mission of World Hazara Council USA is

to provide advocacy and humanitarian assistance to at-risk Hazara and at-risk

marginalized populations in their time of need, both in the United States and

globally. It strives to be a resource to defend human rights and every person’s

freedom to live. This includes working to ensure that all Americans, including

Hazara, can practice their faith freely.

Argument

I. The lower court’s ruling threatens to compel all religious artists—Jews,

Christians, and Muslims—to speak messages that violate their
consciences.

The viewpoint diversity secured by the First Amendment is especially

important to religious artists, be they cake artists, web designers, videographers, or

speechwriters. Such artists often have strong conscience-based objections to

expressing certain messages. Forcing them to choose between expressing these

messages or retiring from their chosen profession is exactly the sort of cruel dilemma

the First Amendment was intended to avoid. The lower court’s decision creates a

multitude of problems for such artists—problems illustrated by this case, but that

extend well beyond its factual particulars. Amici write to make the Court aware of

these.

2
There are many circumstances where the context of a piece of art may change

it from laudable or even benign into something that expresses a message the artist

would never willingly utter. Suppose a customer commissions a sculpture of a young

woman surrounded by shards of broken glass. Many Jewish artists would have no

problem creating this sculpture for someone advocating more female representation

in corporate boardrooms, to symbolize “breaking the glass ceiling.”1 But a Jewish

artist would object to creating an identical sculpture for a neo-Nazi intending to

celebrate Kristallnacht, literally the “Night of Broken Glass,” a horrific pogrom

against Jews in Nazi Germany that began on November 9, 1938.

Or consider examples closer to this case: a custom cake that says “Happy

November 9th!” or a cake with no words and only sugar shards resembling shattered

glass, a common cake-design technique.2 Again for a Jewish artist, context would

be essential for determining whether the cakes’ messages were commendable or

condemnable. If these cakes were for celebrating a November 9 wedding anniversary

1
Such a sculpture was recently across from the New York Stock Exchange. See
Sarah Cascone, “To Mark International Women’s Day, ‘Fearless Girl’ on Wall
Street Has Been Surrounded by Frightening Shards of Broken Glass,” Artnet, Mar.
8, 2021, https://news.artnet.com/art-world/fearless-girl-surrounding-menacing-
shards-glass-1949974.
2
See, e.g., Chelsweets, “Shattered Glass Cake,” https://chelsweets.com/shattered-
glass-cake/ (last visited Dec. 6, 2023).

3
or a female colleague making CEO, no problem. But if they were intended for

Kristallnacht celebrations, the problem is obvious, and governmental coercion to

express such a message would be intolerable. Justice Alito flagged a similar

hypothetical in Masterpiece I. See Tr. of Oral Arg. at 70, Masterpiece Cakeshop,

Ltd. v. Colorado C.R. Comm’n (No. 16-111).

Would Colorado courts really tell Jewish artists in these scenarios, “Sorry. We

don’t think a glass-shard sculpture or cake has ‘inherent meaning.’ Since you would

design these to celebrate female empowerment, you have to design them to celebrate

antisemitism”? Would anyone seriously doubt that the Jewish artist had refused to

make the cake because of the pro-Holocaust message that resulted from the

combination of the artwork and its context? There is a logical straight line between

these chilling hypotheticals and the lower court’s reasoning.

Similar situations in other religious and artistic contexts are easy to imagine.

A Muslim videographer would not object to shooting custom footage for ads for a

Middle East travel site. But she would likely object if the customer intended to use

the footage to advertise a Middle East “missions trip” to proselytize for Christianity

or another faith. Or consider Islamic calligraphy, a traditional form of art born of the

Islamic prohibition on depicting certain imagery. A Muslim calligrapher would be

thrilled to create a document with an artistic rendition of the name Mohammed to be

4
used in a mosque, but he would refuse to create the exact same document if it would

be used in a disrespectful way, such as in a bathroom. Based on the Court of Appeals’

holding below, the First Amendment wouldn’t protect Muslim artists in these

scenarios, since “the message” of the video footage and the calligraphy “in …

context” would be “generated by the observer based on their understanding of the

purpose” and would not constitute expression directly attributable to the artist.

Scardina v. Masterpiece Cakeshop, Inc., 2023 COA 8, ¶ 78. Yet First Amendment

protection has never been limited on that basis, and the lower court cited no authority

for this restrictive interpretation.

II. The First Amendment’s protection against compelled speech is especially

important to artists who adhere to minority faiths.

Religious minorities may hold views that are unpopular or run contrary to the

zeitgeist. It is precisely these views that the First Amendment protects. McIntyre v.

Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (“It thus exemplifies the purpose

behind the Bill of Rights, and of the First Amendment in particular: to protect

unpopular individuals from retaliation—and their ideas from suppression—at the

hand of an intolerant society.”). During the oral argument in Obergefell v. Hodges,

Attorney General Verrilli admitted that if the Court recognized a right to same-sex

marriage, it would create tension with the rights of individuals who hold traditional

views about marriage. See Tr. of Oral Arg. at 38, Obergefell v. Hodges (No. 14-

5
556). Yet the Court affirmed that these views are “decent and honorable.” 576 U.S.

644, 672 (2015).

Over the past fifteen years, courts have, as predicted, seen a spate of cases in

which close-knit artisanal companies have objected to expressing certain messages

that implicate issues of marriage and sexuality. It is not coincidence that these cases

have arisen in the small business community. Artists often choose to work in small,

religiously homogeneous businesses precisely so they can follow their beliefs while

plying their trade:

• Elane Photography LLC created customized artisanal wedding

photographs. This company was owned by a husband and wife, Elaine and
Jon Huguenin, who shared the same religious beliefs, and Elaine
personally created the expressive photography. Elane Photography, LLC
v. Willock, No. CV-2008-06632, 2009 WL 8747805 (D.N.M. 2009).

• Telescope Media Group created customized artisanal wedding videos.

This family company was owned by a husband and wife, Carl and Angel
Larsen, who shared the same religious beliefs, and personally designed the
creative wedding videos. Telescope Media Grp. v. Lindsey, 271 F. Supp.
3d 1090, 1097 (D. Minn. 2017), aff’d in part, rev’d in part and remanded
sub nom. Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019).

• Brush & Nib Studio created customized artisanal wedding invitations. This
close-knit company was owned by Joanna Duka and Breanna Koski, who
shared the same religious beliefs, and personally designed the creative
wedding invitations. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d
890, 897 (Ariz. 2019).

Then, there are the cases like this one, arising out of Colorado’s ongoing

attempt at “excis[ing] certain ideas or viewpoints from the public dialogue” and

6
“eliminat[ing] … dissenting ideas about marriage.” 303 Creative LLC v. Elenis, 600

U.S. 570 (2023) (cleaned up). 303 Creative LLC created customized artisanal

wedding websites. This small business only had one employee, Lorie Smith, its

founder and “sole member-owner,” who personally performed the creative website

design. Id. at 594, 579. And here, Masterpiece Cakeshop creates customized

artisanal cakes for weddings and other occasions. This small company is owned by

husband-and-wife Jack and Debbie Phillips, who share the same religious beliefs,

and Jack personally designs the cakes. See Masterpiece Cakeshop Inc. v. Elenis, 445

F. Supp. 3d 1226, 1241 (D. Colo. 2019).

These artists bring their personal creativity, abilities, and perspective to their

works. Their thoughts, conscientious beliefs, and faith profoundly shape what they

can and cannot say, what they will design and won’t design, and what kind of

projects they can and cannot take on. In these close-knit firms, the artists who

perform the creative work share the same religious beliefs, and they object to

creating a narrow set of specific expressive products whose messages implicate a

matter of conscience. The creative work cannot be passed on to another in-house

artist with different beliefs.

While the litigated cases thus far have largely involved artists that identify

with the Christian faith, artists of other, minority faiths—Jews and Muslims in

7
particular—will be affected by the outcomes of these cases and the rules they

establish. And the troubling implications for them only continue to grow. “Over

time, some States, Colorado included, have expanded the reach of the[ir]

nondiscrimination rules to cover virtually every place of business” and “to prohibit

more forms of discrimination.” 303 Creative, 600 U.S. at 590. The impact of these

decisions will extend beyond both the Christian faith and marriage-related conflicts.

In 303 Creative, where web design and photography were front and center,

amicus Jewish Coalition for Religious Liberty highlighted for the Court the special

problems that might be faced by Jewish artists:

Consider [a] hypothetical…. A Jewish man and a Jewish woman,

who are engaged to be married, ask a Jewish website designer to build
a website to celebrate their nuptials. No problem. Mazal tov! Another
Jewish man and a Christian woman, who are engaged to be married,
ask a Jewish website designer to build a website to celebrate their
nuptials. Big problem. Don’t stomp the glass. Many Jews consider
intermarriage an existential threat to the future of Judaism….

Let’s turn from marriage to adultery. An unmarried Jewish

person asks a Jewish photographer to take a photograph for his JDate
dating profile. Swipe right for the shidduch [matchmaking]. Next, a
married Jewish person asks a Jewish photographer to take a photograph
for his AshleyMadison.com dating profile. Swipe left for this shanda
[a shameful thing]. After all, adultery is a violation of the Seventh
Commandment.

In each of these examples, a Jewish artist would be compelled to

betray his conscience.

8
These examples caught the attention of the Justices at oral argument. See Tr.

of Oral Arg. at 72–75, 303 Creative LLC v. Elenis (No. 21-476). Remarkably,

Colorado told the Court that the state would in fact force Jewish artists to build the

objectionable website, to take the adulterous photo. Id. at 73:21–23, 74:11–14,

75:11–14. When it issued its ruling vindicating artistic free speech, the Court didn’t

just reject this state’s extreme position. It suggested it couldn’t be “[t]aken

seriously.” See 303 Creative, 600 U.S. at 589. “Colorado’s logic,” the Court said,

“would allow the government to force all manner of artists, speechwriters, and others

whose services involve speech to speak what they do not believe on pain of penalty.”

Id. at 589. It would force “an unwilling Muslim movie director to make a film with

a Zionist message, or an atheist muralist to accept a commission celebrating

Evangelical zeal, so long as they would make films or murals for other members of

the public with different messages.” Id. (cleaned up) (quoting 6 F.4th 1160, 1198

(10th Cir. 2021) (Tymkovich, C.J., dissenting)). “[T]he First Amendment tolerates

none of that.” Id. at 590.

The First Amendment’s protection doesn’t disappear simply because the

government tries to recast a coerced message as being “generated by” an “observer”

in “context,” as the lower court did here. 2023 COA 8, ¶ 78. In fact, Colorado claims

to be able to mandate the design and creation of this cake precisely because it

9
“symbolize[s] a transition from male to female.” See App.013, ¶48. The cake’s

message is not beside the point for either the designer or the state. Stated another

way, the symbolism of the cake is the trigger both for Colorado’s nondiscrimination

requirement and for Jack Phillips’ faith-based objection. As between these

competing interests, the First Amendment has struck the balance: the artist’s

freedom of speech prevails. The cake’s symbolic message—of a “transition”—is not

a message that Phillips’s conscience will allow him to send. Nor is it one that many

of his fellow artists, Jewish and Muslim, could send without violating the teachings

of their faiths.

Conclusion

The First Amendment protects all artists, and that protection is especially

important to those with minority or countercultural beliefs. It is not just that the First

Amendment tolerates difference and dissent. It ensures that expression is protected

from the majority’s proclivity to silence speech and punish those who dare utter it.

More fundamentally, it seeks to foster speech pluralism. That constitutional vision,

grounded in the unique American creed of individual dignity and choice, requires

that individuals, and artists especially, be able to express their beliefs without fear,

be able to shape their own artistic messages—what they say and what they don’t—

free of punishment and coercion. When artists create, when they speak up, and when

10
they keep silent, they are contributing to a diverse marketplace of ideas. Many will

disagree with their message, and many will be troubled by their silence. That is as it

should be. This is the ordinary course in a free society. No government and no citizen

wielding the coercive tools of law may turn the contested public square into an echo

chamber or closed forum. Enforcing silence and compelling speech in the name of a

prescribed orthodoxy are equally anathema to our nation’s First Amendment

tradition. The judgment below should be reversed.

Respectfully submitted December 19, 2023,

s/ Ian Speir
Ian Speir, #45777
Covenant Law PLLC
13395 Voyager Pkwy. #130-732
Colorado Springs, CO 80921
[email protected]

s/ Howard Slugh
Howard Slugh
Pro hac vice admission pending
Jewish Coalition for Religious Liberty
2400 Virginia Ave N.W., Apt. C619
Washington, D.C., 20037
[email protected]

Attorneys for Amici Curiae

11
Certificate of Service

On December 19, 2023, I served the foregoing by the Colorado Courts E-

Filing System on:

Jacob P. Warner Amy Lauren Jones

Jonathan A. Scruggs John M. McHugh
Alliance Defending Freedom Fennemore Craig PC
15100 N. 90th Street 1700 Lincoln Street, Suite 2400
Scottsdale, AZ 85260 Denver, CO 80203

Samuel Martin Ventola Paula D. Greisen

Ventola Law Greisen Medlock LLC
1775 Sherman Street, Suite 1650 6110 E Colfax Ave, Ste. 4-216,
Denver, CO 80203 Denver, CO 80220

Attorneys for Petitioners Attorneys for Respondent

s/ Ian Speir
Ian Speir

12