Kramer Levin Files Supreme Court Amicus Brief on Behalf of Mainstream Religious Groups Opposing Colorado Bakery That Refused to Sell Wedding Cake to Same-Sex Couple

Kramer Levin has filed an amicus brief on behalf of numerous major religious organizations and nearly 1,300 individual faith leaders – including the Central Conference of American Rabbis, the Rocky Mountain Conference of the United Church of Christ, and the Unitarian Universalist Association, among others – in the landmark case now pending before the U.S. Supreme Court addressing the claimed right of a Colorado baker to refuse to sell a wedding cake to a same-sex couple otherwise protected by a state antidiscrimination law. 

The brief, filed in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued on December 5, documents the growing support among mainstream U.S religions for fair and equal treatment under the law for LGBT individuals based on the common belief, shared across many faiths and equally rooted in Supreme Court civil rights jurisprudence, in the fundamental dignity and worth of each individual person. The brief opposes arguments by the bakery and its owner, Jack C. Phillips, that because he harbors religious objections to marriage for same-sex couples, the First Amendment exempts him and his bakery from a Colorado antidiscrimination law requiring businesses open to the public not to refuse service based on certain aspects of a person’s identity – here, their sexual orientation. The brief argues that public accommodation laws should be applied on the basis of religiously neutral principles of equal protection under the law. 

The Kramer Levin brief also responds to arguments made by certain amicus briefs supporting the bakery that public accommodation laws like Colorado’s threaten religious liberty. Contrary to the suggestion that civil rights protections for LGBT persons necessarily conflict with religious belief and practice, a growing number of mainstream faiths have long affirmed same-sex couples’ relationships, including by supporting if not solemnizing their marriages, and diverse faith groups and religious observers affirm LGBT persons’ place in civic life. While acknowledging the right of conservative Christians and others to hold different beliefs, the brief argues that requiring businesses open to the general public, like the bakery here, to offer the same goods and services to LGBT customers that they offer to all others does not infringe upon actual religious practice, and in any event petitioners’ religious convictions do not trump their obligation to comply with a valid, neutral law that applies to everyone. The brief further argues that Plaintiffs have offered no limiting principle to prevent their claimed exemption from gutting civil rights enforcement. 

The major leaders and institutions signing on to the brief include the Central Conference of American Rabbis; Rocky Mountain Conference of the United Church of Christ; Reconstructionist Rabbinical Association; Religious Institute, Inc.; Union for Reform Judaism; and Unitarian Universalist Association, among others. In addition, the brief has been endorsed by nearly 1,300 individual faith leaders from a wide range of faiths, including Conservative and Orthodox Rabbis, Episcopal Priests, and Muslim imams. 

The brief echoes themes in similar briefs filed by Kramer Levin in a string of marriage equality and LGBT rights cases starting in 2013 with United States v. Windsor, in which the Supreme Court struck down part of the Defense of Marriage Act, and culminating in the 2015 case of Obergefell v. Hodges, which recognized same-sex couples’ constitutional right to marry. 

The newly filed brief explains that the myriad faith organizations and leaders supporting the gay couple who challenged the bakery’s conduct under Colorado’s antidiscrimination law, “unite in believing it is both morally wrong and not constitutionally required to permit blanket discrimination in the public marketplace for goods and services based on the personal religious beliefs of merchants with respect to same-sex couples’ rights and relationships,” and that “public accommodation laws should be applied on the basis of religiously neutral principles of equal protection under the law.” 

“Our brief takes head-on the false assertion that protecting the right of LGBT individuals to participate fully in society somehow conflicts with religious liberty,” said Kramer Levin partner Jeffrey S. Trachtman, counsel of record on the brief. 

“The assertion is false for two important reasons: First, a growing cross-section of mainstream religious groups and millions of Americans of faith embrace the essential dignity and equality of LGBT people. Those who would impose their religious views to curtail LGBT persons’ civil rights do not speak monolithically for American ‘religion,’ which has always embraced a rich diversity of views. 

“Second, there is no real conflict between religious liberty and even-handed enforcement of public accommodation laws. Core religious observance is always protected, and Mr. Phillips remains free to hold and express any views he wishes. But when we enter the commercial marketplace, we become subject to a wide range of neutral laws that may be inconsistent with our religious views. Permitting a business offering wedding cakes to the general public to refuse to sell one to a same-sex couple simply based on personal religious views about marriage would create a giant loophole in civil rights enforcement. Fifty years ago, the Supreme Court rejected as ‘patently frivolous’ a religious objection to serving black people alongside white people in a restaurant. If the sincerity of a private religious objection is the only criteria to justify an exemption, even that holding could be threatened.”

Kramer Levin has played a leading role in pro bono LGBT rights litigation for nearly two decades. The firm previously submitted amicus briefs in Boy Scouts v. Dale and Lawrence v. Texas, two landmark LGBT rights cases before the Supreme Court; the 2013 and 2015 marriage cases; and several intervening and subsequent cases in state and federal court addressing marriage equality and LGBT rights. The firm also served as co-counsel in Hernandez v. Robles, which sought equal marriage rights under the New York constitution.