No. 13-1653
_______________________________________________________________________
SUPREME COURT OF THE UNITED STATES
_____________________________________________________
BUDDY’S BAKERY,
Plaintiff-Appellee,
v.
NORTH GREENE HUMAN RIGHTS COMMISSION and ANNE
MARIE, Defendants-Appellants.
_________________________________________________________
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE UNITED STATES
ON APPEAL FROM THE THIRTEENTH CIRCUIT
_________________________________________________________________________
BRIEF FOR RESPONDENT
ORAL ARGUMENT REQUESTED
_________________________________________________________________________
TEAM 6
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................ii
TABLE OF AUTHORITIES..........................................................................................................iv
STATEMENT OF ISSUE...............................................................................................................1
STATEMENT OF THE CASE.......................................................................................................2
STATEMENT OF THE FACTS………………………………………………………………….3
SUMMARY OF THE ARGUMENT..............................................................................................4
ARGUMENT...................................................................................................................................7
THIS COURT SHOULD AFFIRM THE DECISION OF THE NORTH GREENE SUPREME
COURT, FINDING THAT THE APPLICATION OF THE NORTH GREENE HUMAN
RIGHTS ACT WAS NOT UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT
…………………………………………………………………………………………………..7
The Court should affirm the North Greene Supreme Court decision and apply the Rumsfeld
compelled speech standard because it ensures that the First Amendment does not overshadow
other rights. ………………….…………....................................................................................8
The application of the NGHRA does not result in compelled speech and is therefore
constitutional under Rumsfeld because they’re not being required to speak a government or third
party message. ………………………..........................................................................................9
The NGHRA is constitutional under First Amendment scrutiny regardless of whether or not the
NGHRA compels speech. ….......................................................................................................16
THE SUPREME COURT OF NORTH GREENE PROPERLY HELD THAT THE
APPLICATION OF THE NORTH GREENE HUMAN RIGHTS ACT DID NOT VIOLATE
BUDDY BAKERY’S RIGHT UNDER THE FREE EXERCISE CLAUSE OF THE FIRST
AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE II, SECTION 11 OF
THE NORTH GREENE CONSTITUTION OR THE NORTH GREENE RELIGIOUS
FREEDOM RESTORATION ACT....................................................................…....................22
A For Profit Corporation May Not Assert A Free Exercise of Religion Claim or a Claim Under
the North Green Religious Freedom Restoration Act.................................................................23
The Application of the NGHRA did not Violate Buddy Bakery’s Rights Under the Free Exercise
Clause of the First Amendment to the United States Constitution and Article II, Section 11 of the
North Greene Constitution, as Well as the NGRFRA.................................................................24
The NGHRA is Neutral and Generally Applicable.....................................................................29
Buddy’s Bakery is a Place of Public Accommodation and Was Not Engaged in Inherently
Expressive Conduct......................................................................................................................34
i
The Application of the NGHRC did not Violate Buddy Bakery’s Rights Under the North Greene
Religious Freedom Restoration Act..........................................................................................38
CONCLUSION..........................................................................................................................39
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Branzburg v. Hayes, 408 U.S. 665 (1972)………………………………………………29, 32
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)………………………………………..15, 16
Cantwell v. Connecticut, 310 U.S. 296 (1940)………………………………………….23
Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010)………………………...23-26
Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 724 F.3d
377, 383 (3d Cir. 2013) …………………………………………………………………passim
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)………passim
Emp't Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990)…………….23, 29, 33
Gitlow v. New York, 268 U.S. 652 (1925)……………………………………………….7, 23
Hosanna–Tabor Evangelical Lutheran Church & Sch. v. EEOC 132 S.Ct. 694 (2012)...24
Johnson v. California, 543 U.S. 499 (2005)……………………………………………..17
United States v. Lee, 455 U.S. 252 (1982)……………………………………………….29-30
Miami Herald Pub. Co v. Tornillo, 418 US 24 (1974)…………………………………..14,20
Pac. Gas & Elec. Co. v. Pub. Utilities Comm'n of California, 475 U.S. 1 (1986)……….15, 21
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)……………………………………………11,18
Robertson v. Baldwin, 165 U.S. 275 (1897)………………………………………………7, 16
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006)
Sherbert v. Verner, 374 U.S. 398 (1963)………………………………………………….33-34
ii
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)………………………17, 19
Wooley v. Maynard, 430 U.S. 705 (1977)………………………………………………passim
STATE COURT DECISIONS
Donahue v. Fair Employment and Hous. Cornm'n, 2 Cal. Rptr. 2d 32 (Ct. App. 1991)…3, 33
Elane Photography, LLC v. Willock, 284 P.3d 428, 435 (2013)……………………….. ..passim
Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291 (W.D.Okla.2012)…....25
Smith v. Fair Employment and Hous. Comm'n, 30 Cal. Rptr. 2d 395(Cal. 1994)………..31, 33
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I……………………………………………………………………...passim
U.S. Const. amend. XIV……………………………………………………………….....passim
UNITED STATES CODE
42 USCA § 2000bb–4…………………………………………………………………….passim
FEDERAL LEGISLATION
Religious Freedom Restoration Act of 1993 (RFRA), P.L. 103–141, 107 Stat. 1488......22
STATE LEGISLATION
N.G.S.A. 28-22-3...................................................................................................................38
N.G.S.A. 28-1-2(A)................................................................................................................38
North Greene Human Rights Act...........................................................................................passim
North Greene Religious Restoration Act ...............................................................................passim
2 N. G. Const. § 11................................................................................................................22
iii
ISSUES PRESENTED
I. Whether the NGHRC’s interpretation of the NGHRA was constitutional under the First
Amendment Free Speech Clause of the United States Constitution and Article II, Section 17 of
the North Greene Constitution when it did not compel Buddy’s Bakery to affirm a government or
third party message and when the narrowly tailored statute serves the compelling interest of
preventing discrimination.
II. Whether the North Greene Human Rights Commission’s application of the North Greene
Human Rights Act violated Buddy’s Bakery’s rights under the free exercise clause of the First
Amendment to the United States Constitution, Article II, Section 11 of the North Greene
Constitution, or the North Greene Religious Freedom Restoration Act?
1
STATEMENT OF THE CASE
Nature of the Case. This case involves Petitioner’s (Buddy’s Bakery) violation of the
North Greene Human Rights Act (NGHRA). The North Greene Human Rights Commission
found that Buddy’s Bakery engaged in an illegal act of discrimination based on sexual
orientation by refusing to provide its services to a homosexual couple. (R. at 5).
District of North Greene. Buddy’s Bakery appealed to the North Greene district court
and included a claim that the Commission’s decision and the law violated their constitutional
rights and the North Greene Religious Freedom Restoration Act (NGRFRA). Specifically,
Buddy’s Bakery claimed that the application of the NGHRA violated its right to freedom of
speech and under the First Amendment of the U.S. Constitution and Article II, section 17 of the
North Greene Constitution and its rights under the Free Exercise Clause of the First Amendment
to the U.S. Constitution and Article II, Section 11 of the North Greene Constitution. The district
court granted summary judgment for Buddy’s Bakery.
North Greene Court of Appeals. The Defendants appealed to the North Greene Court of
Appeals which affirmed the district court’s grant of summary judgment for Buddy’s Bakery. (R.
at 6).
Supreme Court of North Greene. The Supreme Court of North Greene found that the
application of the NGHRA did not violate the Petitioner’s right to free speech or free exercise
under the U.S. Constitution, the North Greene Constitution or its rights under the NGRRA. The
SCNG reversed and remanded to the Court of Appeals with instruction to further remand it to the
district court for entry of summary judgment for the Respondents on the basis that the Bakery’s
rights under the United States Constitution and North Greene Constitution were not violated. (R.
at 6).
2
STATEMENT OF THE FACTS
Buddy’s Bakery is a limited liability company owned by Mary and Buddy Carlos. (R. at
3). It is a commercial business that sells its services designing and baking cakes for customers to
celebrate events such as birthdays and weddings. Both owners consider themselves Christians
and believe that gay marriage contradicts their religious beliefs. (R. at 3).
The owners consider their cakes artistic expressions and have refused to bake cakes that,
according to their beliefs, portray sinful messages. They refused to create cakes with themes of
eroticism and horror on this basis in the past. (R. at 3).
The event leading to the present case took place on or around September 21, 2010. Mary
Carlos received an email from Anne Marie stating that she was researching potential bakers for
her “commitment ceremony”. (R. at 4). Anne Marie stated it was a same-gender ceremony, that
she would like a cake with two women figurines on top and asked for a quote. Carlos responded
with an email that said that her company makes cakes for “traditional weddings” and failed to
include a price quote. Annie Marie then proceeded to clarify the response, asking if Carlos was
saying that their company does not offer cake services to same-sex couples. Carlos then
responded “Yes, you are correct in saying [our company] does not make cakes for same-sex
weddings.” (R. at 4).
Anne Marie and Marlo Donahue proceeded with a “commitment ceremony” without
procuring the services of Buddy’s Bakery though the state of North Greene does not recognize
marriages or any other type of legal union between same-sex individuals. (R. at 4).
3
SUMMARY OF THE ARGUMENT
I
The North Greene Supreme Court was correct when it held that the application of the
NGHRA was constitutional. This court should affirm the North Greene Supreme Court decision
and apply the Rumsfeld standard for First Amendment compelled speech violations.
Under Rumsfeld, compelled speech occurs when an individual is required to express a
government or third-party message. In the present case, the court is determining whether the
application of the NGHRA compels speech when its function is limited to prohibiting public
accommodations from discriminating against individuals by denying service.
The NGHRA does not compel speech because it does not dictate what services a public
accommodation must provide, it merely requires the owners to provide the services they choose
equally therefore any expression that occurs when a public accommodation complies with this
statute is incidental. Moreover, the statute does not directly address a government message or
that of a third party. Further, baking is not an inherently expressive activity. The statute does not
prevent the public accommodation from displaying signs on their business that express their
viewpoint or disclaiming association with the messages their cakes may or may not send.
Therefore, the NGHRA does not compel speech.
Alternatively, if this Court finds that the NGHRA compels Buddy’s Bakery to express a
government or third party message by baking a cake, thereby minimally infringing upon its First
Amendment rights, the statute still passes First Amendment scrutiny and therefore should be
found constitutional. The NGHRA prevents discrimination and ensures equal access to services
and goods and therefore serves a compelling state interest. Further, the NGHRA only applies to
public accommodations and is narrowly written to ensure it does not directly compel speech.
4
Finally, there is no alternative method the state could employ to ensure the compelling interest is
served.
The First Amendment upholds important rights; however it is not without limitations.
Public interest dictates that we do not enforce liberty of speech absolutely and a state is surely
justified to protect other central interests such as equality. Therefore, the Respondent respectfully
requests that this Court affirm the North Greene Supreme Court’s decision, finding that the
NGHRA is constitutional.
II
The application of the North Greene Human Rights Act (hereinafter “NGHRA”) to
Buddy’s Bakery did not violate the free exercise rights to the United States Constitution and
Article II, Section 11 of the North Greene Constitution of Buddy’s Bakery and did not violate the
North Greene Religious Freedom Restoration Act (hereinafter “NGRFRA”). The North Greene
Supreme Court correctly decided that the NGHRA was neutral and generally applicable.
Although, the free exercise has been incorporated by the states, corporations may not
assert their rights under the free exercise clause. Corporations that are for-profit choose to
engage in the public sphere and do not have the same rights as individuals with regards to the
free exercise clause. The Court in Conestoga Wood Specialities, Inc. held that corporations do
not have the ability to engage in religious exercise because corporations are secular by nature.
Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 724 F.3d
377, 383 (3d Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013). Additionally, Buddy’s Bakery
is not a religious organization that receives a higher amount of protection under the First
Amendment. Id at 385-86.
5
If The Court allows Buddy’s Bakery to assert their rights under the free exercise clause,
The Court should still find that the rights were not violated and that the NGHRA is neutral and
generally applicable because it does not target any specific religion, rather it applies equally to
all religions. Additionally, it does not burden the faith of Buddy’s Bakery owners more than any
other faith. Furthermore, there are strong governmental interests and public interests associated
with anti-discrimination laws. The government has a strong interest in making sure individuals
are not denied service because of their sexual orientation or other affiliation covered by the
NGHRA.
Buddy’s Bakery claims that the making of cakes is a form of expression and that the form
of expression should be protected. The case of Elaine Photography LLC v. Willock held that only
conduct that is inherently expressive is protected and that commercial photography was not the
type of conduct that was protected by the First Amendment. Elane Photography, LLC v. Willock,
2012-NMCA-086, 284 P.3d 428, 435 cert. granted, 2012-NMCERT-008, 296 P.3d 491 and aff'd,
2013-NMSC-040, 309 P.3d 53. Similarly, the commercial baking of cakes is not inherently
expressive and is not protected by the First Amendment.
6
ARGUMENT
I.
THIS COURT SHOULD AFFIRM THE DECISION OF THE NORTH
GREENE SUPREME COURT, FINDING THAT THE APPLICATION OF
THE NORTH GREENE HUMAN RIGHTS ACT WAS NOT
UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT
At the heart of this issue is the First Amendment free speech clause. This court is asked
to determine what limits exist on this fundamental right and what interests supersede it. The
U.S. Constitution and North Greene Constitution provide that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech”. U.S. Const. amend. I. This right is also protected in the North Greene
Constitution. N.G. Const. art. II, §17. The right to free speech includes an implicit right to
withhold from speech. Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 61 L.Ed.2d 752
(1977).
Under the 14th Amendment, this right is also protected from infringement by state
governments. Gitlow v. New York, 268 U.S. 652, 666, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).
Though this is an important right, the right to free speech and expression is not absolute.
Robertson v. Baldwin, 165 U.S. 275, 281, 17 S. Ct. 326, 41 L. Ed. 715.
Only inherently expressive actions are considered to be protected. Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47, 66, 126 S. Ct. 1297, 164 L.Ed.2d 156 (2006).
In the instance of compelled speech, this Court has held that the public is protected from being
compelled to speak the government’s message or that of a third party when there is no
compelling state interest to justify it. Id at 48-49. If the expression is not inherently expressive
or does not constitute an affirmation of a belief, it is not compelled speech. Further, a statute is
not necessarily unconstitutional if the expression is incidental to the action required. Id at 48.
Freedom of expression is a fundamental right and is therefore subject to First Amendment
7
scrutiny. Id at 48. Under First Amendment scrutiny, infringement may be constitutional if there
is a compelling government interest served, the statute is narrowly tailored to achieve that goal
and it is the least restrictive means to secure the government’s interest. Wooley, 430 U.S. at 713.
Here, Buddy’s Bakery is claiming the NGHRA violates their first amendment rights. The
NGHRA prohibits public accommodations from discriminating on characteristics including
sexual orientation. However, requiring Buddy’s Bakery to provide the same services to
homosexual couples as it does to heterosexual couples does not compel them to speak the
government’s message or that of a third party.
Further, baking a cake is not inherently
expressive. Finally, the NGHRA serves the compelling state interest of ensuring equal access to
public goods and preventing discrimination, these are two rights found in the constitution. It is
narrowly tailored to achieve that goal because it only applies to public accommodations, does not
directly regard speech or expression in any way, and there is no other means to secure this
interest. Therefore, the North Greene Supreme Court correctly found that the application of the
NGHRA was not unconstitutional.
A. The Court should affirm the North Greene Supreme Court decision and apply the
Rumsfeld compelled speech standard because it ensures that the First Amendment
does not overshadow other rights.
Under the compelled speech doctrine, violation of the First Amendment right to withhold
from speech occurs when the government requires an individual to speak its message or that of a
third party when there is not a compelling state interest served. Rumsfeld, 547 U.S. at 63. The
holding of the North Greene Supreme Court should be affirmed because the application of the
NGHRA was not unconstitutional under the First Amendment.
8
The NGHRA prohibits “any person in any public accommodation to make a distinction,
directly or indirectly in offering or refusing to offer its services… to any person because of race,
religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal
affiliation, or physical or mental handicap.” Section 28-1-7(f). The NGHRA prohibits
discriminatory treatment. 2003 N.G. Laws, ch. 383, § 2. As defined by the NGHRA, “sexual
orientation”
includes
“homosexuality
or
bisexuality.”
Section
28-1-2(P).
A
public
accommodation is defined as “any establishment that provides or offers its services, facilities,
accommodations or good to the public”. Importantly, the Act does not cover clubs or other
establishments that are by nature and use distinctly private. Section 28-1-2(H).
The lower courts and Buddy’s Bakery interpreted Wooley and Barnette to mean that the
government may not compel people “to engage in unwanted expression.” (R. at 8). However,
the compelled speech doctrine should be applied in a narrower fashion that the lower courts
perceived. This is an issue of first impression. This court should affirm the North Greene
Supreme Court’s decision and adopt the Rumsfeld approach because the government is not
requiring Buddy’s Baker to speak its message or a third-party message, the conduct is not
inherently expressive, and there is significant state interest in preventing discrimination.
1. The application of the NGHRA does not result in compelled speech and is
therefore constitutional under Rumsfeld because they’re not being required to
speak a government or third party message.
The Supreme Court of North Greene found that the NGHRC’s application of the
NGHRA was not unconstitutional. They reasoned that it did not violate Buddy’s Bakery’s First
Amendment right to freedom of expression because the NGHRA did not compel speech. Under
Rumsfeld, compelled speech occurs when a statute requires an individual to engage in the
9
inherent expression of the government or a third party’s message. Id at 62. This court should
affirm the NGSC holding and apply the Rumsfeld approach because cake baking is not inherently
expressive and they are not being required to speak the government or another’s message.
In Rumsfeld the court found that the Solomon Amendment did not compel schools to
speak a government or third party message and that providing services to military organizations
was not an action that was inherently expressive. Id at 62. The court held that being required to
distribute emails without discrimination did not functionally equate to expression of the
military’s message. The court stated that, “this sort of [activity] is a far cry from the compelled
speech in Barnette and Wooley.” Id at 62. Rumsfeld is distinct from those cases because the
Solomon Amendment did not dictate the content of speech at all and there was nothing
approaching a government-mandated pledge or motto that the school was forced to endorse. Id at
62. Compelling a law school to send emails for military recruiters as it does for other recruiters
is different from forcing a student to recite the pledge of allegiance or forcing a Jehovah’s
Witness to display the motto “Live Free or Die”. Id at 62. It trivializes the freedom protected
in Barnette and Wooley to suggest that it is.” Id at 62. The same is true here: requiring a bakery
to provide services to both homosexual and heterosexual couples does not rise to the level of
compelled speech.
The action of providing baking services is not inherently expressive.
Buddy’s Bakery is not being required to portray the couples’ message as their own; they’re
merely required to provide the same service to a homosexual couple as they do to a heterosexual
couple. They are not prevented from declaring on their website that they do not support
homosexual partnerships or marriage and the public can decipher the different from providing a
service and condoning or holding a belief. Further, there is no government message at issue
here. Accepting gay marriage is not the government’s message; in fact, North Greene does not
10
recognize gay marriage. (R. at 4.) Regardless, the supposed compelled speech would be
incidental to the NGHRA which, at its heart, only compels equal treatment.
Roberts v. U.S. Jaycees is also similar to the case at hand. The court held that the
application of the Minnesota Human Rights Act which required a private organization to extend
the same membership to a protected class of people did not violate freedom of expression under
the First Amendment. Roberts v U.S. Jaycees, 468 U.S. 609, 610, 104 S.Ct. 3244, 82 L.Ed.2d
462 (1984). The Minnesota Human Rights Act (MHRA) prohibits public accommodations from
denying any person the full and equal enjoyment of goods, services, facilities, privileges,
advantages, and accommodations because of characteristics including sex. Id at 609. The U.S.
Jaycees violated the MHRA when it granted limited membership status to women. The court
reasoned that the U.S. Jaycees’ membership choices were not inherently exclusive or expressive
of a viewpoint and admitting women would not significantly burden the message their
organization did express. Id at 613. Therefore, the expression didn’t merit the protection of the
First Amendment. The organization’s objective was to promote and foster the growth and
development of young men’s civic organizations. Id at 612. Admitting women would not
compromise that objective. Here, baking cakes does not express any specific message about
morality, therefore requiring them to provide their services equally does not inherently affect
their ability to express their personal moral beliefs.
The case at hand is quite similar to Elane Photography, LLC v Willock. In that case the
court held that New Mexico’s Antidiscrimination law (NMHRA) did not violate the first
amendment freedom of speech clause or compel unwanted expression when its application
regulated a commercial entity. Elane Photography, LLC v. Willock, 284 P.3d 428, 438 (N.M. Ct.
App. 2012). There, a photography business refused to photograph a same-sex marriage
11
ceremony. The court found that the photography business violated the NMHRA when it refused
to provide its services to a homosexual couple on the basis of their sexual orientation as
evidenced by an email the photographer sent to the customer. The court noted the distinction
between regulating conduct in a commercial capacity and regulating conduct in a personal
capacity and photography performed in a commercial capacity is not necessarily entitled to First
Amendment protection because it is not expressive in the same manner. Id at 438. The court
draws a parallel to Rumsfeld and states that the NMHRA regulates Elane Photography’s conduct
in its commercial business not its speech or right to express its own views about same-sex
relationship. Therefore, it does not compel speech in violation of the First Amendment. Also,
individuals that observe the product will not necessarily assume that the viewpoints expressed by
the photos are the views held by the photographer. Id at 439. The same is true here.
The facts here parallel Elane, varying only in the type of service that the couple was
seeking for their wedding. The owners of Elane Photography offer their services to the public on
a commercial basis and photograph weddings. Like the owners of Buddy’s Bakery, they have a
policy that they will only photograph life events that communicate messages that are consistent
with their personal and religious beliefs. (R. at 3). The owners in both cases were contacted by an
individual seeking to obtain their services for a commitment ceremony. Both businesses refused,
stating that they only provide their services for “traditional weddings” then specified that they do
not provide services for same-sex weddings. (R. at 4).
The statute in Elane is virtually identical to the NGHRA. The NMHRA prohibits “any
person in any public accommodation to make a distinction, directly or indirectly, in offering or
refusing to offer its services to any person because of… sexual orientation.” Id at 433. This
language mirrors that in the NGHRA. These statutes do not compel or address speech in any
12
way. They merely require public accommodations to provide services without discrimination in
its commercial capacity.
The cases Buddy’s Bakery cites are distinguishable because those cases concern statutes
that either directly compel the expression of a government message or that of a third party or
concern activities that are inherently expressive.
In Wooley the court held that the state law was unconstitutional because the stataute
required individuals to disseminate the state’s message by displaying it on their private property
in a manner and for the express purpose that it be observed and read by the public. Wooley, 430
U.S. at 718. The court first noted that under Barnette that the statute invaded the sphere of
intellect and spirit which is protected by the First Amendment by forcing an individual, as part of
their daily life to be an instrument for advocating for an ideological point of view that he didn’t
agree with. Id at 706. The New Hampshire statute at issue in that case made it a misdemeanor
“knowingly [to obscure]… the figures or letters on any number plate.” Id at 709. The Plaintiff
claimed that by requiring them to display the license plate with the state motto “live free or die”
violated their religious beliefs. The statute directly compels expression of the government’s
message by requiring the motto to be displayed on personal property. Thus, the statute there
required an individual to participate in the dissemination of an ideological message by displaying
it on their private property so that it could be observed by the public. Id at 706. Essentially, the
statute functioned to force individuals effectively to become billboards. Id at 715. The language
of the statute was affirmative and specifically compelled the display of a government message on
their private property when they were acting in a private capacity. However, the facts here are
markedly different. The NGHRA merely requires a public accommodation, not an individual, to
provide services without a discriminating eye. It impacts expression only incidentally and in
13
relation to commercial activities. It doesn’t affect the Bakery’s personal property in public and
the message is not associated with any of the Bakery’s property which is displayed to the public
therefore it is not inherently expressive as in Wooley. The Bakery is never required to publically
display the cake to the public and once the customer is in possession of the cake, any display of it
is the customer’s own expression. Therefore, the NGHA does not invade the sphere of intellect
and spirit as the statute did in Wooley because it did not compel an inherently expressive
behavior.
Moreover, the supposed expression here is unlike the line of cases that found that
compelled speech occurred when individuals were required to speak a third party’s message.
The case here is different from Miami Herald Publishing Co. v. Tornillo because that case
involved a statute that directly controlled publication. Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241, 244, 94 S. Ct. 2831, 41 L.Ed.2d 730 (1974). The Florida statute required
publishers to include rebuttal pieces from political candidates against whom potentially
detrimental material was published. Id at 244. The expression there is dissimilar to baking cakes
because the act of publishing an article or newspaper on a whole is indisputably expressive.
Publications have historically served as valuable reflections of government, a mechanism that
serves the people by conveying information or beliefs including beliefs about the government or
politicians. This function requires a degree of immunity in order for this purpose to be served.
Baking cakes does not serve the same type of role as publishing does and it does not rise to the
expressive status as publication. Further, the statute in that case directly compelled expression
by requiring the Miami Herald to include responses from political candidates in their
publications. The statute here does not directly compel expression.
14
Pacific Gas and Electric Co is distinguishable under the same logic: it was a publication
which, as the newspaper was in Tornillo, is inherently expressive. Pacific Gas & Electric Co. v.
Public Utilities Commission of California, 475 U.S. 1, 106 S. Ct. 903, 89 L.Ed.2d 1 (1986).
The Petitioner’s reliance on Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. Of Boston
is also improper because that case involved an inherently expressive action. Hurley v. Irish-Am.
Gay, Lesbian & Bisexual Grp. Of Boston, 515 U.S. 557, 569, 115 S. Ct. 2338, 132 L.Ed.2d 487
(1995). There the court noted that a parade is inherently expressive because there is a point
being made to the bystanders along the way. In fact, the court notes that parades are made
explicitly to have a large public audience. Id at 568. However the circumstances in that case
were distinct from the case at hand because there a private party was engaging in a parade which
is an extremely public form of expression. The form of expression here is different from that in
Irish American. The Bakery is not being required to engage in a public form of expression.
They are not required to display gay marriage cakes at their shop or on their website. They are
only required to provide services without discrimination. The expression is not public and they
are not being required to affirm a belief as the Committee was in danger of being forced to do in
Hurley. Baking a cake is inherently different from a parade. Parades have been historically
recognized as a form of collective expression not only to each other by to bystanders in the world
as the court in Hurley describes. Id at 568.
Boy Scouts of Am v. Dale is distinguishable because the court found that expression was
inherent because the Boy Scout oath and morals are central to the function of the group. Boy
Scouts of Am. v. Dale, 530 U.S. 640, 641, 120 S. Ct. 2446, 147 L.Ed.2d 554 (2000). However,
though the owners of Buddy’s Bakery have strong moral beliefs, those beliefs are not central to
the primary function of a bakery which is to produce cakes. Any expression of their beliefs is
15
supplemental to that primary function. Therefore, baking cakes is not inherently expressive of
certain morals as it is in Dale.
The text of the NGHRA does not address speech or expression and does not compel the
bakery to speak another’s message. Gay marriage is not recognized in North Greene so it is also
not the government’s message. The NGHRA does not require the affirmation of a belief, rather it
merely requires that a public accommodation to provide services without discriminating.
Therefore, it does not compel speech. Baking is also not an inherently expressive activity. Thus,
the application of the NGHRA does not constitute a compelled speech violation of the First
Amendment.
2. The NGHRA is constitutional under First Amendment scrutiny regardless of
whether or not the NGHRA compels speech.
The First Amendment serves a significant function by protecting free speech, press and
assembly. The exercise of these rights had a considerable role in the American Revolution and
the creation of our nation. However, as this Court noted in Robertson, liberty of expression is
not absolute. Robertson, 165 U.S. at 281. Further, it is unlikely that the founding fathers had cake
baking in mind when they protected free speech in the Bill of Rights.
Specifically, it can be overridden by statutes that serve compelling state interests, as long
as they are unrelated to the suppression of ideas that cannot be achieved through means
significantly less restrictive of associational freedoms. Boy Scouts, 530 U.S. at 640-641. A
balance must be struck between First Amendment rights and other central interests. As this court
noted in Hurley, statutes such as the NGHRA are well within the state’s usual power to enact
because there is a legitimate state interest in preventing discrimination and ensuring equal access
16
to public goods and services Hurley, 515 U.S. at 572.
nation promoted from its infancy.
Equality is another concept that this
Equality is directly addressed in the Declaration of
Independence and is noted in the Fourteenth Amendment. U.S. Const. amend. XIV. It has been
prioritized and ultimately expanded by the States as the centuries passed. In fact, many states
progressively broadened the scope of their public accommodation laws in order to facilitate
equality. Roberts, 468 U.S. at 624. By discouraging discrimination, public accommodation laws
ensure equality which in turn upholds individual dignity and secures society the benefits of wide
participation in political, economic and cultural life. Id at 625. This is indeed a compelling
interest.
The First Amendment protects fundamental rights; therefore the court must apply strict
scrutiny Rumsfeld, 547 U.S. at 48. Under strict scrutiny, these statutes may constitutionally
restrict First Amendment rights if there is a compelling government interest to prevent a clear
and present danger and if it is narrowly tailored. West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178, 147 A.L.R. 674, 87 L.Ed. 674 (1943). Though strict
scrutiny is a high standard to pass, every statute must be judged on its own merits. Justice
O'Connor stated “[t]he fact that strict scrutiny applies says nothing about the ultimate validity of
any particular law; that determination is the job of the court applying strict scrutiny.” Johnson v.
California, 543 U.S. 499, 515, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005).
Here, the government interest is to prevent discrimination and ensure equal access to
public goods and services. There is a clear and present danger that some groups will still be
discriminated against, which perpetuates stigmas and threatens liberty. The danger is that a
public accommodation is effectively determining that this couple is not worthy of their services,
endangering their access to public accommodations. As the court noted in Roberts, ensuring
17
equal access is a compelling interest of the highest order and that is unrelated to the suppression
of ideas. Roberts, 468 U.S. at 624. Next, the statute is narrowly tailored because it applies only
to public accommodations and lists very specific groups of people that have historically and
commonly been discriminated against. Finally, there are not alternative ways to achieve this
goal and some accommodations may continue to discriminate against and withhold their services
from these groups if these statutes are not enforced. Therefore, this Court should find that the
NGHRA passes strict scrutiny.
In Roberts, the court applied a balancing test and held that Minnesota’s compelling
interest in eradicating discrimination against women justified the impact that the application of
the Act may have on male members’ right to expression. Roberts, 468 U.S. at 623. The court
noted that the interest in preventing discrimination against women is unrelated to the suppression
of expressive rights and Minnesota advanced that interest in the least restrictive means. Id at 610.
The NGHRA serves the same purpose and the two statutes are very similar. It is not relevant
that the rights allegedly breached in the present case are different from the rights Buddy’s
Bakery claimed were breached because they are of equal importance under the First Amendment.
In fact, the statute here is even more narrowly tailored than the statute in Roberts because it
applies only to public accommodations, making it more likely that it passes strict scrutiny.
The statutes in other cases did not pass the balancing test for a number of reasons that do
not apply to the NGHRA. In the cases the Buddy’s Bakery cites governmental or third party
messages were expressly compelled when there was not a compelling state interest and there
were alternative means that could have been used to achieve the interest. Here, the statute is
narrowly construed because it applies only to public accommodations and it serves a specific
compelling interest and there are not alternative means.
18
Wooley is clearly distinguishable on these grounds. The statute at issue there served the
interest of facilitating the identification of passenger vehicles and to promote the appreciation of
history, individualism and state pride. Wooley, 430 U.S. at 706. The court found that passenger
cars were distinguishable for law enforcement in other ways and were alternative means with
which Maryland could facilitate the appreciation of history, individualism and state pride. Id at
416.
Therefore, the court held that the state interest was not great enough to justify the
infringement on the plaintiff’s First Amendment rights and also that there were alternative means
of achieving the interest. This is unlike the situation here. The NGHRA serves the interest of
preventing discrimination of public service, it is narrowly tailored and there is no alternative way
to do this, therefore the outcome of this test here should be that the statute is constitutional.
Barnette is also distinguishable. The court there held that the statute didn’t pass strict
scrutiny because the statute was not narrowly tailored enough to serve its purpose. The state’s
interest was to teach history and governmental organization.
Barnette, 319 U.S. at 631.
Ultimately the court found that this interest did not outweigh the interest in maintaining freedom
of speech because reciting the pledge of allegiance does not directly achieve this goal, therefore
it is not narrowly tailored to serve this purpose and because there are alternative and less drastic
measures than requiring children to recite the pledge of allegiance. Id at 633. The court noted
that learning about history may indirectly inspire patriotism and love of country which is
acceptable, however, the statute does not directly promote historical understanding. Rather, it is
geared more towards inspiring loyalty and conformity therefore it doesn’t pass strict scrutiny. Id
at 631.
The purpose and function of that West Virginia statute is markedly different from that of
the NGHRA. Here the state interest protected by the NGHRA is a compelling one, is narrowly
19
tailored, does not require the affirmation of belief and indisputably will discourage
discrimination, justifying the supposed intrusion on Buddy’s Bakery’s First Amendment rights.
Dale is distinct because it involves a private organization and forced membership rather
than the provision of services. The law there was similar to the NGHRA but the court found that
the state interest in creating the law did not outweigh such a severe intrusion on the freedom of
expressive association. Dale, 530 U.S. at 653. The court noted that the law may promote
conduct in place of harmful behavior but here it was not justified because the law was being used
to interfere with speech for no better reason than promoting an approved message or
discouraging a disfavored one. Id at 642. However, that is not the case here. The NGHRA
serves a higher purpose than promoting a message because it ensures than individuals have equal
access to services and goods regardless of their characteristics. Further, the intrusion in the case
at hand is less severe than the one in Dale because it only applies to public accommodation’s that
have willingly opened their doors to the general public.
The same is true for Hurley, where the public accommodation law required defendants to
alter expressive content of their parade. Hurley, 515 U.S. at 569. This case is distinct because
the law was applied to require private organizers to admit a group to participate in the parade.
The court applied a similar reasoning to that in Dale, stating that the law may promote conduct in
the place of harmful behavior but it cannot interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one. Id at 575. Here, the state is
encouraging non-discrimination not only to promote a message of equality but also for the very
practical reason of ensuring equal access to goods and services.
Miami Herald Publishing Co v Tornillo is unlike the case at hand because the goal of the
statute there, to allow political candidates to express their side of controversies, directly collides
20
with the First Amendment because it does not serve any other purpose. Tornillo, 418 U.S. at 260.
Further, this could be achieved by less drastic and indeed non-legal means such as publication on
their own website. The same is not true for guaranteeing equal access to public goods.
Pacific Gas is distinguishable under the same reasoning as Tornillo. The regulation
involved in this case is not content neutral and the purpose directly conflicts with the First
Amendment. Further, this regulation does not achieve the ends which it purports to achieve and
is not narrowly tailored. Conversely, the NGHRA indisputably ensures equal provision of goods
and services which is wholly unrelated to expression under the First Amendment.
In sum, the application of the NGHRA does not constitute compelled speech and the
statute passes First Amendment scrutiny. The Petitioner relies on cases that are factually and
theoretically distinct from the case at hand. The NGHRA does not require the affirmation of a
belief and does not go so far as to invade the sphere of intellect of Buddy’s Bakery.
Additionally, the NGHRA serves two very important functions: promoting equality and nondiscrimination and ensuring equal access to goods and services. North Greene has a great
interest in providing this to its citizens. Therefore, this court should affirm the ruling of the North
Greene Supreme Court.
21
II. THE SUPREME COURT OF NORTH GREENE PROPERLY HELD THAT THE
APPLICATION OF THE NORTH GREENE HUMAN RIGHTS ACT DID NOT
VIOLATE BUDDY BAKERY’S RIGHT UNDER THE FREE EXERCISE CLAUSE OF
THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE II,
SECTION 11 OF THE NORTH GREENE CONSTITUTION OR THE NORTH GREENE
RELIGIOUS FREEDOM RESTORATION ACT
The Defendants appeal the decision of the Court of Appeals which granted summary
judgement to the plaintiffs and held that the North Greene Human Rights Commission
(hereinafter as “NGHRC”) violated Buddy’s Bakery’s rights under the free exercise clause of the
First Amendment to the United States Constitution and Article II, Section 11 of the North Greene
Constitution, as well as the North Greene Religious Freedom Restoration Act (hereinafter as
“NGRFRA”).
The Supreme Court of North Greene held that the application of NGHRC did not violate
Buddy Bakery’s rights under the free exercise clause of the First Amendment to the United
States Constitution and Article II, Section 11 of the North Greene Constitution, as well as the
NGRFRA. The Supreme Court of North Greene correctly held that the application of the North
Green Human Rights Act (hereinafter as “NGHRA”) correctly applied. The NGHRA prohibits
“any person in any public accommodation to make a distinction, directly or indirectly, in offering
or refusing to offer its services ... to any person because of race, religion, color, national origin,
ancestry, sex, sexual orientation, gender identity, spousal affiliation[,] or physical or mental
handicap.” 1.
1
(Section 28–1–7(F)) (N.G.S.A)
22
The majority opinion correctly stated that the NGHRA was neutral and generally
applicable and therefore, was not in violation of the free exercise clause of the First Amendment
or the NGRFRA2.
A. A For Profit Corporation May Not Assert A Free Exercise of Religion Claim or a Claim
Under the North Green Religious Freedom Restoration Act
The First Amendment states: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances. USCA CONST Amend. I.
The First Amendment was incorporated to the states through the Due Process Clause in
the Fourteenth Amendment and therefor, the free exercise clause applies to the states. Although,
the First Amendment is entirely incorporated now, the freedom of speech clause was
incorporated before the free exercise clause. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69
L. Ed. 1138 (1925). Fifteen years later, the free exercise clause was incorporated in the case of
Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L.Ed. 1213 (1940).
Whether or not a corporation has the right to free speech was answered in the case of
Citizens United v. Fed. Election Comm'n. In Citizens United, the Supreme Court held that “the
Government may not suppress political speech on the basis of the speaker's corporate identity,”
and The Court accordingly struck down statutory restrictions on corporate independent
expenditure. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 365, 130 S.Ct. 876, 175
2
Emp't Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 879, 110 S. Ct. 1595, 108 L.Ed.2d 876 (1990),
superseded on other grounds by statute in, Religious Freedom Restoration Act of 1993 (RFRA), P.L. 103–141, 107
Stat. 1488 (codified at 5 U.S.C. § 504; 42 U.S.C. §§ 1988, 2000bb, 2000bb–1 to –4) (internal quotation marks and
citation and omitted)
23
L.Ed.2d 753 (2010); Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health &
Human Servs., 724 F.3d 377, 383 (3d Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).
Although, the case of Citizens United held that corporations may assert their First
Amendment, freedom of speech right, The Supreme Court in Conestoga Wood Specialties’ Corp.
further explained that whether Citizens United is applicable to the Free Exercise Clause is a
question of first impression. Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health
& Human Servs., 724 F.3d 377, 383 (3d Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).
The case of Conestoga Wood Specialties’ Corp. assessed whether or not a group of health
care providers and health insurance providers had to cover contraceptives and birth control.
Ultimately, The Court held that the free exercise clause of the First Amendment does not cover
for-profit enterprises. The court concluded that for-profit, secular corporations cannot engage in
religious exercise. Id at 381.
The Court started the analysis by examining the history of the free exercise clause. The
court opined: “we must consider the history of the Free Exercise Clause and determine whether
there is a similar history of courts providing free exercise protection to corporations. We
conclude that there is not. In fact, we are not aware of any case preceding the commencement of
litigation about the Mandate, in which a for-profit, secular corporation was itself found to have
free exercise rights. Such a total absence of case law takes on even greater significance when
compared to the extensive list of Supreme Court cases addressing the free speech rights of
corporations.” Id at 384-85.
The Supreme Court, recently did assess the question of whether a religious organization
has the protection of the Free Exercise Clause. Hosanna–Tabor Evangelical Lutheran Church &
Sch. v. EEOC, ––– U.S. ––––, 132 S.Ct. 694, 706, 181 L.Ed.2d 650 (2012). Although, The Court
24
has given religious organizations the protection of the Free Exercise Clause, the Conestoga court
distinguished religious organizations from corporations and stated that corporations are not the
same as religious organizations and corporations should not be afforded the same rights as
religious organizations. Id at 385-86.
The Court reasoned “general business corporations do not, separate and apart from the
actions or belief systems of their individual owners or employees, exercise religion. They do not
pray, worship, observe sacraments or take other religiously-motivated actions separate and apart
from the intention and direction of their individual actors.”3 Id at 385.
Corporations and their owners are generally distinct and separate. For example,
corporation owners are generally shielded from personal liability if the corporation is sued.
Individuals should not be allowed to receive all the benefits of corporate form but pick and
choose those things detrimental to them.
The Court concluded that “the Hahn family chose to incorporate and conduct business
through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate
form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold—
contrary to Townley and Stormans—that the free exercise claims of a company's owners cannot
“pass through” to the corporation.”Id at 388. The court did not distinguish the RFRA in this
analysis and further stated that the Hahn family did not have a viable RFRA claim either. Id at
389.
3
Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291 (W.D.Okla.2012), rev'd en banc, No. 12–6294,
723 F.3d 1114, 2013 WL 3216103 (10th Cir. June 27, 2013); see also Hobby Lobby Stores, Inc., 723 F.3d at 1174–
75, 2013 WL 3216103, at *51 (Briscoe, C.J., concurring in part and dissenting in part) (questioning “whether a
corporation can ‘believe’ at all, see Citizens United, 130 S.Ct. at 972 (‘It might also be added that corporations have
no consciences, no beliefs, no feelings, no thoughts, no desires.’) (Stevens, J., concurring in part and dissenting in
part) Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 724 F.3d 377, 385 (3d
Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013)
25
In the current case, Buddy’s Bakery, like the Hahn family may not assert a freedom of
exercise claim. Buddy’s Bakery is a corporation, which enjoys the benefits of being
incorporated. Buddy’s Bakery is no different from a healthcare provider in the sense that both
organizations are service providers. Whether the public accommodation is healthcare or a cake
does not change the fact that these institutions both provide goods and services to the public.
Additionally, Buddy’s Bakery is a for-profit organization.
As the court in Conestoga correctly noted, general business corporations that are forprofit are secular enterprises and do not exercise religion. Id at 385. Although, Buddy’s Bakery’s
owners may have certain religious beliefs and practices, they are not the religious beliefs and
practices of the corporation. As correctly noted in Citizens United, “corporations have no
consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Fed. Election
Comm'n, 558 U.S. 310, 365, 130 S.Ct. 876, 972; 175 L.Ed.2d 753 (2010). Plaintiffs, Buddy and
Mary Carlos have the protection of the free exercise clause as individuals but not as a
corporation. They have chosen to run a business that serves the public and engage in public
service and therefore, they must comply with the laws set forth the protect the public from
discrimination.
Although, the text of the First Amendment gives special solicitude to the rights of
religious organizations, Buddy’s Bakery may not enjoy those same rights because they are not a
religious organization. Whether an organization is considered a religious organization or not
depends on a series of factors. In determining whether organization is “religious organization”
with First Amendment right to free exercise of religion, a court should weigh the following
factors: (1) whether organization operates for a profit, (2) whether organization produces a
secular product, (3) whether organization's articles of incorporation or other pertinent documents
26
state a religious purpose, (4) whether organization is owned, affiliated with, or financially
supported by formally religious entity such as church or synagogue, (5) whether formally
religious entity participates in organization's management, (6) whether organization holds itself
out to the public as secular or sectarian, (7) whether organization regularly includes prayer or
other forms of worship in its activities, (8) whether organization includes religious instruction in
its curriculum, and (9) whether organization's membership is made up by coreligionists.
Conestoga Wood Specialties’ Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) aff'd sub
nom. Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs., 724
F.3d 377 (3d Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).
Considering the nine factors provided by the court, Buddy’s Bakery should not be
considered a religious organization. (1) Buddy’s Bakery is a for-profit organization; (2) Buddy’s
Bakery produces cakes, which are a secular product; (3) there has been no evidence provided that
Buddy’s Bakery’s articles of incorporation state a religious purpose; (4) there has been no
evidence provided that Buddy’s Bakery is supported by a formally religious entity such as a
church or synagogue; (5) there has been no evidence provided to show that a formally religious
entity participates in the organizations management, the evidence shows that Mary and Buddy
Carlos run the business and they are not a formally religious entity; (6) Buddy’s Bakery is a cake
shop and there has been no evidence prior to this litigation to show that Buddy’s Bakery has held
itself to be a sectarian to the public; (7) there has been no evidence provided to show that
Buddy’s Bakery regularly includes prayer or other forms of worship in its activities; (8) there has
been no evidence provided to show that Buddy’s Bakery includes religious instruction in their
curriculum; and (9) there is no evidence to show that the organization’s membership is made up
27
by coreligionists, it is simply a small business that is run by a married couple who happen to
share the same religion.
In conclusion, Buddy’s Bakery is a for-profit organization and not a religious
organization. For those reasons and the reasons stated above, Buddy’s Bakery may not assert
their right of free exercise under the First Amendment. The court in Conestoga did not
distinguish between the free exercise clause and the Religious Freedom Restoration Act in its
analysis. Conestoga Wood Specialties Corp. v. Sec'y of U.S. Dep't of Health & Human Servs.,
724 F.3d 377, 388 (3d Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013). Therefore, Buddy’s
Bakery may not assert their right to free exercise of religion under the North Greene Religious
Freedom Restoration Act.
Although, Buddy’s Bakery is a corporation and may not assert the rights discussed above,
it is still important to note that even if Buddy’s Bakery could assert such rights, they would not
be successful.
B. The Application of the NGHRA did not Violate Buddy Bakery’s Rights Under the Free
Exercise Clause of the First Amendment to the United States Constitution and Article II, Section
11 of the North Greene Constitution, as Well as the NGRFRA
The NGHRA prohibits any person in any public accommodation to make a distinction,
directly or indirectly, in offering or refusing to offer its services...to any person because of race,
religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal
identification or physical or mental handicap - - this law was enacted especially to prohibit
discrimination such as the one that occurred at Buddy’s Bakery
Buddy’s Bakery asserts that the application of the NGHRA has burdened their right
under the free exercise clause which states that the government may not compel affirmation of
religious belief, punish expression of religious doctrine it believes to be false, impose special
28
disabilities on basis of religious views or religious status, or lend its power to one or other side in
controversies over religious authority or dogma. Employment Div., Dep't of Human Res. of
Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). Prior case law has
held that the right of free exercise does not relieve an individual of the obligation to comply with
a “valid and neutral law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).” United States v. Lee, 455 U.S.
252, 263, n. 3, 102 S.Ct. 1051, 1058, n. 3, 71 L.Ed.2d 127 (1982). Id at 879.
If a law is general in its applicability and neutral, it does not need to be justified by a
compelling governmental interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). A law lacks facial neutrality if it refers to a
religious practice without a secular meaning discernable from the language or context. The
neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated
collateral harms not themselves prohibited by direct regulation. Id at 539. The First Amendment
does not invalidate every incidental burdening that may result from the enforcement of civil or
criminal statutes of general applicability. Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33
L. Ed. 2d 626 (1972).
1. The NGHRA is Neutral and Generally Applicable
The case of United States v. Lee held that an Amish farmer who refused to pay the Social
Security taxes and asserted that compelling him to do so would violate his free exercise rights
under the First Amendment was incorrect in stating such a claim. The District Court held that
forcing the Amish to pay into the Social Security System was unconstitutional but this Court
overturned that decision. This case is distinguishable from the case at hand because Mr. Lee was
asserting his rights as an individual and not as a corporation. Even though Buddy’s Bakery is a
29
corporation, the anaylsis would be the same if it is found that Buddy’s Bakery may assert their
rights under the Free Exercise Clause. United States v. Lee, 455 U.S. 252, 263, n. 3, 102 S.Ct.
1051, 1058, n. 3, 71 L.Ed.2d 127 (1982). Id at 879.
In Lee, The Court reasoned that the government's interest in assuring mandatory and
continuous participation in and contribution to social security system is very high, and since the
tax system could not function if denominations were allowed to challenge the tax system because
tax payments were spent in manner that violated their religious beliefs, imposition of social
security taxes is constitutional as applied to persons who object on religious grounds to receipt of
public insurance benefits and to payment of taxes to support public insurance funds. United
States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982).
In the current case, the anti-discrimination law set forth by the NGHRA and applied to
Buddy’s Bakery has strong governmental interests. The law prohibits a place of public service
and public accommodation to discriminate against individuals because of race, sex, national
origin or sexuality. The interest of the government is extremely high when protecting individuals
who may be discriminated against. If places of public service were allowed to discriminate with
regards to who they offer their products to, minorities and individuals who fall within certain
categories may find it very hard to receive services. Buddy’s Bakery claims that they would still
make a cake for the couple and would not discriminate against making them a cake but they are
in fact still discriminating against the couple because they will not make a wedding cake for
them like they would for heterosexual couples.
This Court confronted the issue again in Lukumi Babalu Aye, Inc. v. City of Hialeah,
where The Court considered whether or not an ordinance regulating ritual animal sacrifice
violated the free exercise rights of people that practiced Santeria and especially, members of the
30
Church of the Lukumi Bablue Aye, Inc. This Court held that ordinances regulating ritual animal
sacrifice were not religiously neutral as they used the words “sacrifice” and “ritual,” resolutions
recited that residents and citizens of the city had expressed their concern that certain religions
might propose to engage in practices which were inconsistent with public morals and reiterated
the city's commitment to prohibit any and all such acts of any and all religious groups,
ordinances defined “sacrifice” so as to exclude almost all killings of animals except for religious
sacrifice, ordinances reached few if any killings other than those performed as religious sacrifice
by particular church, and ordinances did not deal with hunting, slaughter of animals for foods,
eradication of insects and pests, or euthanasia. Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993).
The Court further reasoned that “the city's assertions that it is “self-evident” that killing
for food is “important,” that the eradication of insects and pests is “obviously justified,” and that
euthanasia of excess animals “makes sense” do not explain why religion alone must bear the
burden of the ordinances. These ordinances are also substantially under inclusive with regard to
the city's public health interests in preventing the disposal of animal carcasses in open public
places and the consumption of uninspected meat, since neither interest is pursued by respondent
with regard to conduct that is not motivated by religious conviction.” Id at. 2231.
The court opined that “the ordinances cannot withstand the strict scrutiny that is required
upon their failure to meet the Smith standard. They are not narrowly tailored to accomplish the
asserted governmental interests. All four are overbroad or under inclusive in substantial respects
because the proffered objectives are not pursued with respect to analogous nonreligious conduct
and those interests could be achieved by narrower ordinances that burdened religion to a far
lesser degree. Moreover, where, as here, government restricts only conduct protected by the First
31
Amendment and fails to enact feasible measures to restrict other conduct producing substantial
harm or alleged harm of the same sort, the governmental interests given in justification of the
restriction cannot be regarded as compelling.” Id at 2221.
The case of Lukumi is distinguishable from the current case because the NGHRA does
not target a specific religion or conduct that is practiced only by a specific religion. The law
simply and justly states that all businesses may not discriminate against individuals because of
their sexual orientation. This law does not even target a specific type of business, it applies
generally to all businesses which provide service to the public. The law is not only generally
applied but it is neutral on its face because it does not single out conduct that is practiced by any
specific religion.
The owners of Buddy’s Bakery may be incidentally burdened by the NGHRA but if a law
is neutral and generally applicable, incidental burdens are not invalidated by the First
Amendment. Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). The
law does not single out “religious conduct” or “omission of conduct”. The law prohibits the
conduct of discrimination which is conduct that can be considered to be secular versus strictly
religious conduct. Unlike the ordinance in the case of Lukumi, this law is not under inclusive and
includes any type of discriminatory conduct by any place of public service. Discriminatory
conduct cannot be said to strictly be motivated by one’s religion. Individuals in the public service
arena may discriminate against certain sexual orientations for a variety of reasons.
Additionally, The Court in Lukumi made a point to mention that The Church of Lukumi
is a religious organization and not a for-profit organization. The Court made this distinction to
highlight that religious organizations and for-profit corporations do not have the same amount of
protection under the free exercise clause. Church of the Lukumi Babalu Aye, Inc. v. City of
32
Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). The Court in Smith reaffirmed
this concept and also made the distinction between religious organizations and non-religious
organizations and held that “voluntary commercial activity does not receive the same status
accorded directly to religious activity.” Smith v. Fair Employment and Hous. Comm'n, 30 Cal.
Rptr. 2d 395 (Ct. App.), review granted and opinion superseded by 880 P.2d 111 (Cal. 1994);
Donahue v. Fair Employment and Hous. Cornm'n, 2 Cal. Rptr. 2d 32 (Ct. App. 1991), review
granted and opinion superseded by 825 P.2d 766 (Cal. 1992), review dismissed,859 P.2d 671
(Cal. 1993).
The case of Sherbert v. Verner held that the disqualification of an unemployment
compensation claimant from benefits because of her refusal, based on religious beliefs, to accept
employment which would require her to work on Saturday, imposed a burden on the free
exercise of her religion. Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965
(U.S.S.C. 1963). The Court held that the keeping unemployment benefits from an individual
because of their religious beliefs is a substantial burden. The Court reasoned that “governmental
imposition of such a choice puts the same kind of burden upon the free exercise of religion as
would a fine imposed against appellant for her Saturday worship.” Id at 404.
The Court held that “it is basic that no showing merely of a rational relationship to some
colorable state interest would suffice; in this highly sensitive constitutional area.” Id at 406. The
court further reasoned that the law has a substantial burden on individuals who may not work on
Saturday but the burden to the state to provide unemployment compensation to such individuals
is minor. Id at 406.
The case of Sherbert is distinguishable from the current situation because a denial of
unemployment benefits is a great burden and holding that an individual may not discriminate in
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the production of cakes is not a burden of the same magnitude. Additionally, not giving
individuals unemployment benefits who may not go to work on Saturday targets a specific
religion and anti-discrimination laws do not target or burden a specific religion. Rather, antidiscrimination laws apply to every religion, equally. Furthermore, the government interest in the
current case is much higher than the government interest in Sherbert. It is of no high interest of
the government to deny individuals compensation because of their inability to work on certain
days. The government interest in the current situation is extremely high because insuring that
individuals do not get discriminated against for their sexual orientation is of great interest to the
government and to the public. For those reasons, the case of Sherbert is dissimilar and Buddy’s
Bakery’s rights are not violated by the free exercise clause like Sherbert’s were.
2. Buddy’s Bakery is a Place of Public Accommodation and Was Not Engaged in Inherently
Expressive Conduct
The Court in Rumsfield v. Forum for Academic & Institutional Rights Inc. held that only
conduct that is inherently expressive is protected by the First Amendment. Rumsfeld v. Forum
for Academic & Institutional Rights, Inc., 547 U.S. 47, 126 S. Ct. 1297, 164 L. Ed. 2d 156
(2006). The court made a distinction between the type of conduct that would be considered
protected by the First Amendment and the type of conduct that would not be protected as such.
The Court held that allowing military recruiters onto a college campus was not expressive
conduct on the part of the students. The students did not want to allow military recruiters to
recruit on their campus because the military allowed homosexuals to serve in the military and the
students did not agree with that. The university could only get federal funding on the condition
that they allow military recruiters onto their campus. The students argued that this was a
violation of their First Amendment right and freedom of expression. Id at 47.
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The court in Rumsfield reasoned that “requiring as a condition for the law school and its
university to receive federal funding that the law school offer military recruiters the same access
to its campus and students that it provides to nonmilitary recruiters receiving the most favorable
access, does not violate law schools' First Amendment freedom of expressive association; while
the school must allow military recruiters on campus and assist them in whatever way school
chooses to assist other employers, recruiters are not part of the law school and this does not raise
concerns about school's ability to express its own message.” Id at 47.
Similarly, baking cakes is not an expression of the owners of Buddy’s Bakery. The cake
is an expression of the customers that are being served and the message on the cake does not
signify the belief of the person making the cake. Hosting a message is different than adopting the
message and expressing it as one’s own message. Buddy’s Bakery does not adopt the message of
its customers, it simply hosts their message and services them with the making of the cake.
In the case of Elane Photography, LLC v. Willock, a case very similar to the current
situation, a same sex couple were denied the opportunity to have their commitment ceremony
photographed because the company owners did not believe in same sex marriage and only
wanted to photograph heterosexual weddings. The court held that a photography business is a
public accommodation and that refusing to photograph same sex couples violated the antidiscrimination act of New Mexico. Elane Photography, LLC v. Willock, 2012-NMCA-086, 284
P.3d 428, 435 cert. granted, 2012-NMCERT-008, 296 P.3d 491 and aff'd, 2013-NMSC-040, 309
P.3d 53. The court also held that the application of the anti-discrimination law does not violate
the free exercise rights of the corporation. Id at 435.
The court in Willock reasoned that a photography business does offer its goods or
services to the general public as part of modern commercial activity. Id at 436. The court further
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reasoned that “Elane Photography advertises its services to the public at large, and anyone who
wants to access Elane Photography's website may do so. We conclude that Elane Photography is
a public business and commercial enterprise. The NMHRA was meant to reflect modern
commercial life and expand protection from discrimination to include most establishments that
typically operate a business in public commerce. As a result, Elane Photography constitutes a
public accommodation under the NMHRA definition and cannot discriminate against any class
protected by the NMHRA.” Id at 436.
The court also held that taking photographs is not a form of freedom of expression and
stated “the NMHRA regulates Elane Photography's conduct in its commercial business, not its
speech or right to express its own views about same-sex relationships. As a result, Elane
Photography's commercial business conduct, taking photographs for hire, is not so inherently
expressive as to warrant First Amendment protections. The conduct of taking wedding or
ceremonial photographs, unaccompanied by outward expression of approval for same-sex
ceremonies, would not express any message from Elane Photography.” Id at 439.
The current situation is very similar to the case of Willock. Since a photography business
is considered a “public accommodation”, it would be logical to conclude that Buddy’s Bakery is
also a “public accommodation”. Also, the conduct that Buddy’s Bakery engages in is not
inherently expressive, just like taking photographs of individuals during the course of business is
not so inherently expressive. Similar to the anti-discrimination law in Willock, the NGHRA does
not violate the right of the owners to freely express themselves, the law simply regulates the
conduct in the commercial business. For example, the owners may post a disclaimer on their
website stating that they do not support same-sex relationships or ceremonies. Also, Similar to
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Elane Photography, Buddy’s Bakery advertises to the public at large and does not target a certain
group of individuals when marketing.
Case law and public policy supports the conclusion that Buddy’s Bakery’s free exercise
rights were not violated by the NGHRA. The NGHRA is neutral and generally applicable and
must not be supported by a strong governmental interest. Although, it must not be supported by a
strong governmental interest, the NGHRA is supported by a very strong governmental interest.
Anti-discrimination is a very strong governmental interest and laws that protect the rights of
citizens are very important to the government and to the public at large. All individuals should
have the equal opportunity to public service and have the right not to be discriminated against
because of their sexual orientation. Additionally, Buddy’s Bakery is not a religious organization
and is voluntarily engaged in business in the public sphere. If Buddy’s Bakery feels very strongly
about not serving certain types of individuals, Buddy’s Bakery can choose to leave the public
service business. Lastly, the business of making cake is not religious conduct and is not
inherently expressive and is therefore, not protected by the First Amendment.
C. The Application of the NGHRC did not Violate Buddy Bakery’s Rights Under the North
Greene Religious Freedom Restoration Act
The North Greene Religious Freedom Restoration Act states:
A government agency shall not restrict a person’s free exercise of religion unless: the restriction
is in the form of a rule of general applicability and does not directly discriminate against religion
or among religions; and the application of the restriction to the person is essential to further a
compelling governmental interest and is the least restrictive means of furthering that compelling
governmental interest. N.G.S.A. 28-22-3.
A “person” is broadly defined in the NGRFRA to include “one or more individuals, a
partnership, association, organization, corporation, joint venture, legal representative, trustees,
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receivers or the state and all of its political subdivisions,” N.G.S.A. 28-1-2(A). Therefore, a
corporation can assert their rights under the NGRFRA.
The analysis of whether the NGHRA is a violation of Buddy’s Bakery’s First
Amendment right of free exercise and the analysis of whether the NGHRA is a violation of the
NGRFRA is very similar. The only different is that Buddy’s Bakery can assert their rights under
the NGRFRA because the NGRFRA includes corporations in the definition of what a “person”
is.
Since the analysis of whether the NGHRA is neutral and generally applicable does not
change, Buddy’s Bakery’s rights are not violated by the application of the NGHRA. For the
reasons discussed above, the NGHRA is neutral and generally applicable and is supported by
strong governmental interests.
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CONCLUSION
Under Rumsfeld, compelled speech occurs when a statute requires the affirmation of a
government or third party message when there is not a compelling state interest served. The
NGHRA ensures that United States citizens have equal access to goods and services from public
accommodations. The statute does not require Buddy’s Bakery to affirm a government or third
party message and baking a cake does not rise to the level of expression as a parade or displaying
a message on personal property. Further, equality is a compelling state interest and North Greene
is justified to pursue it. The NGHRA is narrowly tailored to achieve this interest; therefore the
NGHRA is constitutional under the First Amendment.
Buddy’s Bakery may not assert their freedom of expression right under the First
Amendment because Buddy’s Bakery is a corporation and corporations do not have freedom of
expression rights. If Buddy’s Bakery is allowed to assert their freedom of expression right and
their rights under the NGRFRA, their rights should be found to not have been violated by the
NGHRA because the NGHRA is neutral and generally applicable.
For these reasons, Respondent requests that this Court affirm the North Greene Supreme
Court’s ruling.
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