NO. 14-218

_______________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2013

_______________

BUDDY’S BAKERY,

Petitioner,

v.

NORTH GREENE HUMAN RIGHTS COMMISSION

and

ANNE MARIE,

Respondents.

_______________

On Writ of Certiorari to the

Supreme Court of North Greene

_______________

BRIEF FOR RESPONDENTS

_______________

TEAM 19

Attorneys for Respondents

i

QUESTIONS PRESENTED

I. Whether an antidiscrimination law that requires a bakery to provide services for same-sex

weddings violates a bakery‘s freedom of speech right.

II. Whether an antidiscrimination law that requires a bakery to provide services for same-sex

weddings violates a bakery‘s rights under the Free Exercise Clause.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF AUTHORITIES ......................................................................................................... iv

OPINIONS BELOW ........................................................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......................................1

STATEMENT OF THE CASE ........................................................................................................1

SUMMARY OF THE ARGUMENT ..............................................................................................3

STANDARD OF REVIEW .............................................................................................................4

ARGUMENT AND AUTHORITIES ..............................................................................................4

I. THE NORTH GREENE SUPREME COURT CORRECTLY HELD THE ACT IS

CONSTITUTIONAL UNDER THE FREE SPEECH CLAUSE OF THE FIRST

AMENDMENT .....................................................................................................................4

A. Petitioner‘s Services Are Not an Expressive Activity and Do Not Qualify

for First Amendment Protection .................................................................................5

B. The Act Did Not Compel Speech ...............................................................................8

1. The act does not require Petitioner to speak the government‘s message ..............8

2. The Act does not require Petitioner to host or accommodate another

Respondents‘ ―message‖ .....................................................................................10

C. Even if This Court Finds Petitioner‘s Freedom of Speech Right Was

Infringed, the Harm Is Incidental and the Act Meets Strict Scrutiny .......................13

II. THE NORTH GREENE SUPREME COURT CORRECTLY HELD THAT THE ACT IS

CONSTITUTIONAL UNDER THE FREE EXERCISE CLAUSE OF THE FIRST

AMENDMENT ...................................................................................................................15

A. The Act Is Neutral Since It Does Not Discriminate .................................................16

1. The Act does not facially discriminate ...............................................................16

2. The Act is not discriminatory in its object or purpose ........................................17

iii

B. The Act Is Generally Applicable Because It Applies to All Public

Accommodations ......................................................................................................18

C. Even if This Court Applies Strict Scrutiny Under the RFRA, the Act Is

Constitutional Because It Has a Compelling Interest Which Is Narrowly

Tailored .....................................................................................................................20

1. Petitioner does not have free exercise rights .......................................................20

2. The RFRA does not apply to private parties .......................................................21

3. The Act has a compelling interest that is narrowly tailored ...............................23

CONCLUSION ..............................................................................................................................25

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Am. Life League, Inc. v. Reno,

47 F.3d 642 (4th Cir. 1995) ...............................................................................................16

Autocam Corp. v. Sebelius,

730 F.3d 618 (6th Cir. 2013) .............................................................................................21

Axson-Flynn v. Johnson,

356 F.3d 1277 (10th Cir. 2004) .........................................................................................20

Banks v. Dougherty,

No. 07-cv-5654, 2010 WL 747870

(N.D. Ill. Feb. 26, 2010).....................................................................................................22

Boggan v. Miss. Conference of the United Methodist

Church,

433 F. Supp. 2d 762 (S.D. Miss. 2006),

aff’d, 222 F. App‘x 452 (5th Cir. 2007) .............................................................................22

Braunfeld v. Brown,

366 U.S. 599 (1961) ...........................................................................................................24

Brown v. Bd. of Educ.,

349 U.S. 249 (1955) ...........................................................................................................14

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .............................................................................................................4

Cervelli v. Aloha Bed & Breakfast,

Civ. No. 11-1-3103-12 ECN,

Order (Haw. Cir. Ct. 1st Cir. Apr. 15, 2013) .....................................................................24

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) .........................................................................................16, 17, 18, 19

City of Dallas v. Stanglin,

490 U.S. 19 (1989) ...............................................................................................................6

v

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 (2013) ..................................................................................21

Craig v. Masterpiece Cakeshop Inc.,

No. CR 2013-0008

(Colo. Off. of Admin. Cts. Dec. 6, 2013),

available at https://www.aclu.org/sites/default/files/

assets/initial_decision_case_no._cr_2013-0008.pdf ............................................................7

Eden Foods, Inc. v. Sebelius,

733 F.3d 626 (6th Cir. 2013) .............................................................................................21

EEOC v. Townley Eng’g & Mfg. Co.,

859 F.2d 610 (9th Cir. 1988) .............................................................................................21

Elane Photography, LLC v. Willock,

309 P.3d 53 (N.M. 2013) ...........................................................................................6, 7, 22

Emp’t Div., Dep’t of Human Res. of Or. v. Smith,

494 U.S. 872 (1990) ,

superseded on other grounds by statute in Religious

Freedom Restoration Act of 1993,

42 U.S.C. §§ 2000bb-2000bb(4) (1993) ......................................................................15, 24

Gen. Conference Corp. of Seventh-Day Adventists v.

McGill,

617 F.3d 402 (6th Cir. 2010) .......................................................................................22, 23

Gilardi v. U.S. Dep’t of Health & Human Servs.,

733 F.3d 1208 (D.C. Cir. 2013) .........................................................................................21

Gitlow v. New York,

268 U.S. 652 (1925) .............................................................................................................4

Grote Indus., LLC v. Sebelius,

914 F. Supp. 2d 943 (S.D. Ind. 2012),

injunction pending appeal granted,

708 F.3d 850 (7th Cir. 2013) .............................................................................................16

Hankins v. Lyght,

441 F.3d 96 (2d Cir. 2006).................................................................................................23

Hobbie v. Unemployment Appeals Comm’n of Fla.,

480 U.S. 136 (1987) ...........................................................................................................18

vi

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013),

cert granted, 134 S. Ct. 678 (2013) ...................................................................................21

Hobby Lobby Stores, Inc. v. Sebelius,

870 F. Supp. 2d 1278 (W.D. Okla. 2012) ..........................................................................21

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.

of Boston,

515 U.S. 557 (1995) .................................................................................................5, 11, 12

Korte v. Sebelius,

735 F.3d 645 (7th Cir. 2013) .............................................................................................21

Loving v. Virginia,

388 U.S. 1 (1967) ...............................................................................................................14

McDaniel v. Paty,

435 U.S. 618 (1978) ...........................................................................................................16

Menges v. Blagojevich,

451 F. Supp. 2d 922 (C.D. Ill. 2006) .................................................................................16

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974) ...........................................................................................................10

N. Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty.

Superior Court,

189 P.3d 959 (Cal. 2008) ...................................................................................................23

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal.,

475 U.S. 1 (1986) ...............................................................................................................11

PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) .............................................................................................................15

Roberts v. Jaycees,

468 U.S. 609 (1984) .....................................................................................................13, 14

Romer v. Evans,

517 U.S. 620 (1996) ...........................................................................................................14

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc.,

547 U.S. 47 (2006) ...............................................................................................5, 8, 12, 13

vii

Smith v. Fair Emp’t & Hous. Comm’n,

12 Cal. 4th 1143 (1996) .....................................................................................................23

State by McClure v. Sports & Health Club, Inc.,

370 N.W.2d 844 (Minn. 1985)...........................................................................................23

Swanner v. Anchorage Equal Rights Comm’n,

874 P.2d 274 (Alaska 1994)...............................................................................................23

Texas v. Johnson,

491 U.S. 397 (1989) .............................................................................................................5

Thomas v. Anchorage Equal Rights Comm’n,

102 P.3d 937 (Alaska 2004)...............................................................................................23

Tomic v. Catholic Diocese of Peoria,

442 F.3d 1036 (7th Cir. 2006) ...........................................................................................23

Turner Cable Broad. Sys. v. FCC,

520 U.S. 180 (1997) ...........................................................................................................12

United States v. Heart of Atlanta Motel,

379 U.S. 241 (1964) ...........................................................................................................14

United States v. Lee,

455 U.S. 252 (1982) .....................................................................................................15, 24

United States v. O’Brien,

390 U.S. 367 (1968) .......................................................................................................5, 14

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 623 (1943) ...................................................................................................8, 9, 10

Wooley v. Maynard,

430 U.S. 705 (1977) .......................................................................................................9, 10

UNITED STATES CONSTITUTION:

U.S. Const. amend. I ........................................................................................................................1

viii

STATUTES:

42 U.S.C. §§2000bb–2000bb(4) (1993) ........................................................................................15

42 U.S.C. § 3603(b)(1) & (2) (2012) .............................................................................................19

N.G.S.A. § 28-1-2(A) ..............................................................................................................14, 20

N.G.S.A. § 28-1-7(F) .............................................................................................................1, 4, 17

N.G.S.A. § 28-1-9(A)(1) ................................................................................................................19

N.G.S.A. § 28-1-9(C) .....................................................................................................................19

N.G.S.A. § 28-1-9(D) ....................................................................................................................19

N.G.S.A. § 29-22-2(B) ...................................................................................................................21

N.G.S.A. § 28-22-3 ....................................................................................................................1, 20

N.G.S.A. § 28-22-4 ........................................................................................................................21

LEGISLATIVE MATERIALS:

S.B. 1062, 55th Leg., 2d Reg. Sess. (Ariz. 2014) ..........................................................................24

LEGAL PERIODICALS:

Sara Lunsford Kohen,

Religious Freedom in Private Lawsuits: Untangling

When RFRA Applies to Suits Involving Only Private

Parties,

10 Cardozo Pub. L. Pol‘y & Ethics J. 43 (2011) ...............................................................23

Justin Muehlmyer,

Toward a New Age of Consumer Access Rights:

Creating Space in the Public Accommodation for

the LGBT Community,

19 Cardozo J.L. & Gender 781 (2013) ................................................................................8

ix

Jeffery M. Shaman,

Rules of General Applicability,

10 First Amendment L. Rev. 419 (2012) ...........................................................................18

OTHER SOURCES:

Letter from Janice Brewer, Governor, Arizona,

to Honorable Andy Biggs, President of the Senate,

Arizona (Feb. 26, 2014) .....................................................................................................25

Molly Young,

Sweet Cakes by Melissa Violated Same-Sex

Couple’s Civil Rights When It Refused to Make

Wedding Cake, State Finds,

Oregon Live (Jan. 17 2014),

http://www.oregonlive.com/business/index.ssf/

2014/01/sweet_cakes_by_melissa_investigation_

wraps_up_as_state_finds_evidence_that_bakery_

violated_civil_rights_for_refusing_to_make_same-

sex_wedding_cake.html .......................................................................................................7

1

OPINIONS BELOW

The judgments of the United States District Court for the District of North Greene and the

Court of Appeals of North Greene are unreported. The reported judgment of the Supreme Court

of North Greene appears in the record at pages 1–19.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the First Amendment to the United States Constitution. U.S. Const.

amend. I. This case also involves the following statutory provisions: North Greene Religious

Freedom Restoration Act N.G.S.A. § 28-22-3 and the North Greene Human Rights Act.

N.G.S.A. § 28-1-7(F).

STATEMENT OF THE CASE

This appeal involves Petitioner‘s sexual orientation discrimination. Buddy‘s Bakery

(―Petitioner‖) engaged in sexual orientation discrimination when it refused to make a cake for

Anne Marie‘s same-sex wedding. North Greene Human Rights Commission (―Commission‖)

and Marie (―Respondent‖) filed a claim and required Petitioner to comply with North Greene‘s

antidiscrimination law. Petitioner claims compliance would violate its rights to freedom of

speech and free exercise rights under the First Amendment to the United States Constitution.

The Bakery’s Beliefs. Petitioner is a limited liability company, owned by Buddy and Mary

Carlos (―Owners‖) in Elon City, Greene County, in the State of North Greene. (R. at 3.)

Petitioner specializes in designing and creating cakes for various occasions ranging from

birthdays, bar mitzvahs, engagements and weddings. Id. Petitioner‘s owners have strong

Christian beliefs that influence their business. Id. They believe that marriage is between a man

and a woman and do not believe in same-sex marriages. Id. Petitioner believes that its services

2

are an ―artistic expression.‖ Id. Petitioner has denied customers due to their moral and

philosophical beliefs. Id.

The Emails. On September 21, 1010, Respondent sent an email to Petitioner expressing

interest in Petitioner‘s cakes. (R. at 4.) Respondent informed Petitioner that the cake would be

for her same-sex wedding. Id. Petitioner responded to Respondent informing her that they only

made cakes for ―traditional weddings.‖ Id. Respondent clarified by asking, ―Are you saying that

your company does not offer your cake services to same-sex couples?‖ Id. Petitioner promptly

replied stating, ―Yes, you are correct in saying we do not make cakes for same-sex weddings.‖

Id.

The Complaint. On November 28, 2012, the Commission filed a complaint of sexual

orientation discrimination alleging Petitioner violated North Greene Human Rights Act (―Act‖)

when it declined to provide its services to Respondent. (R. at 5.) On April 9, 2013, the

Commission held that Petitioner violated the Act. Id.

The Trial Court. Petitioner appealed the case to the North Greene District Court invoking

the district court‘s original and appellate jurisdiction for a trial de novo ―as if no trial had been

had below.‖ Id. Petitioner alleged that compliance with the Act violated Petitioner‘s freedom of

speech and free exercise rights under the First Amendment to the United States Constitution. Id.

Petitioner did not challenge the Commission‘s finding that it was a public accommodation. Id.

Petitioner does not challenge that it violated the Act by denying Respondent its services. The

district court granted Petitioner‘s motion for summary judgment.

The Court of Appeals. Respondent appealed to the North Greene Court of Appeals, which

affirmed the district court. (R. at 6.)

3

The Supreme Court of North Greene. Ultimately, Respondent appealed to the Supreme

Court of the State of North Greene, which found that Petitioner‘s compliance with the Act did

not violate Petitioner‘s freedom of speech and free exercise rights under the First Amendment to

the United States Constitution. (R. at 7–19.) The Supreme Court reversed the lower courts‘

holding and entered summary judgment for Respondent.

SUMMARY OF THE ARGUMENT

The Act does not violate Petitioner‘s freedom of speech rights. Petitioner is a bakery and its

services are not an expressive activity. Petitioner creates cakes based on its customer‘s

preferences and thus it is unlikely that observers would understand that Petitioner‘s cakes

represented Petitioner‘s support for the event. Therefore, Petitioner‘s services do not warrant

First Amendment protection. The Act does not compel Petitioner to speak the government‘s

message because the Act‘s purpose is not to disseminate the government‘s message. The Act

does not require Petitioner to host or accommodate Respondents‘ message because it is highly

unlikely that observers would conclude that the presence of Petitioner‘s cake equates to its

endorsement. Also, the Act does not infringe on Petitioner‘s own message because Petitioner still

is allowed to express its opinions on same-sex marriage. Even if the Act infringed on Petitioner‘s

freedom of speech right it was incidental and the Act meets even strict scrutiny.

The Act does not violate Petitioner‘s free exercise rights. The Act is a valid and neutral law

of general applicability and does not need to be justified by a compelling government interest

even if the Act has the incidental effect of burdening Petitioner‘s religious rights. The Act is

neutral because it does facially discriminate and does not discriminate in its object or purpose.

Also, the Act is generally applicable because it does not impose burdens on select groups and its

exception does not invalidate its purpose.

4

Petitioner‘s claim under the North Greene Religious Freedom Restoration Act (RFRA)

does not have merit. First, because it has not been established that a for-profit corporation has

free exercise rights. Second, the RFRA only applies when it is a government agency and the

decision by the state court does not qualify as a government agency. Third, the Act is still valid

under strict scrutiny because it serves a compelling government interest that is narrowly tailored.

STANDARD OF REVIEW

This Court reviews the North Greene Supreme Court‘s denial of Petitioner‘s motion of

summary judgment under a de novo standard. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

ARGUMENT AND AUTHORITIES

The North Greene Human Rights Act (―Act‖) does not violate Petitioner‘s freedom of

speech nor free exercise rights. The Act 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.‖ N.G.S.A. § 28-1-7(F) (emphasis

added). Petitioner is a bakery and thus qualifies as a public accommodation. (R. at 6.) Petitioner

concedes that it violated the Act when it denied Marie its services because of its opposition to

same-sex marriages. Id. Therefore, Petitioner‘s compliance is required.

I. THE NORTH GREENE SUPREME COURT CORRECTLY HELD THE ACT IS CONSTITUTIONAL

UNDER THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT.

The Act does not violate Petitioner‘s freedom of speech rights. The First Amendment to the

United States Constitution provides that ―Congress shall make no law . . . abridging the freedom

of speech . . . .‖ U.S. Const. amend. I. This extends to state governments through the Fourteenth

Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925). Petitioner‘s compliance with the

5

Act does not violate its freedom of speech rights. First, Petitioner‘s services do not qualify as an

expressive activity and do not warrant First Amendment protection. Second, the Act did not

compel speech. Petitioner was not compelled to speak the government‘s message nor host or

accommodate Respondent‘s message. Third, even if infringement occurred the harm was

incidental. The Act meets strict scrutiny and is therefore valid. Thus, the Act did not violate

Petitioner‘s freedom of speech rights.

A. Petitioner’s Services Are Not an Expressive Activity and Do Not Qualify for

First Amendment Protection.

Petitioner‘s services are not an expressive activity and do not qualify for protection under

the First Amendment. Freedom of speech extends to ―other mediums of expression, such as art,

music and expressive conduct‖ but it does not qualify all conduct as expressive conduct. Hurley

v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995). There are limits

to what constitutes speech. This Court has stated, ―We cannot accept the view that an apparently

limitless variety of conduct can be labeled ‗speech‘ whenever the person engaging in the conduct

intends thereby to express an idea.‖ United States v. O’Brien, 390 U.S. 367, 376 (1968). Instead,

the court has extended First Amendment protection only to conduct that is inherently expressive.

Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2006). In order

for conduct to be expressive, there must be a reasonable likelihood that those who view it

understand the ―message.‖ Texas v. Johnson, 491 U.S. 397, 404 (1989). Here, Petitioner‘s

services are not inherently expressive nor is there a reasonable likelihood that anyone viewing

Petitioner‘s cakes understand its ―message.‖

Petitioner bakes and customizes cakes for its customers. Petitioner has created cakes for

birthdays, engagements, bar mitzvahs, weddings and other special occasions. Petitioner claims

that its services qualify as expressive conduct and that their cakes communicate a message to

6

observers. Yet, this Court has stated, ―It is possible to find some kernel of expression in almost

every activity a person undertakes . . . but a kernel is not sufficient to bring the activity within the

protection of the First Amendment.‖ City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

Therefore, the act of making cakes is not inherently expressive.

Petitioner offers its services to the public. Petitioner makes cakes customized for each

customer. The customer decides the size, shape, flavor, design and other minute details of the

cake. Petitioner claims that its services create an ―overall theme‖ that ―helps create a positive

story about each wedding,‖ yet ultimately, Petitioner‘s services are used to create cakes

reflecting the customer‘s preference. (R. at 3.) The purpose of antidiscrimination laws is to

ensure that individuals are given the same access to services that are offered to the public.

Petitioner can choose to refuse customers for a wide variety of valid reasons so long as it does

not violate the Act. Petitioner‘s religious beliefs underlay its decision to refuse cakes that

promote or depict practices such as unmarried cohabitation, no-fault divorce, or same-sex

marriages. Id.

If Petitioner‘s services qualified as an expressive activity then it would open to the door to

numerous exceptions and invalidate the purpose of antidiscrimination laws. ―Courts cannot be in

the business of deciding which businesses are sufficiently artistic to warrant exemptions from

antidiscrimination laws.‖ Elane Photography, LLC v. Willock, 309 P.3d 53, 71 (N.M. 2013). In

effect, any public accommodation claiming its services were ―expressive‖ could legally

discriminate against a protected class. Just in the wedding industry alone, photographers,

caterers, musicians, ring-designers, dress-designers, make-up artists and any other countless

services could claim freedom of speech rights as rationale behind their discrimination.

7

In Elane Photography, the New Mexico Supreme Court held photography services were

not inherently expressive. Id. A photographer violated the antidiscrimination law when she

refused to photograph a same-sex wedding citing religious reasons. Id. at 61. The photographer

claimed her services ―expressed a story‖ through her ―artistic touch‖ and was therefore

expressive conduct. Id. Yet, the court held that even if her services were expressive, there are no

cases in which expressive activity is an exception to antidiscrimination laws.

Similarly, a bakery violated Oregon‘s antidiscrimination law when it refused to make a

cake for a customer‘s same-sex wedding. Molly Young, Sweet Cakes by Melissa Violated Same-

Sex Couple’s Civil Rights When It Refused to Make Wedding Cake, State Finds, Oregon Live

(Jan. 17 2014), http://www.oregonlive.com/business/index.ssf/2014/01/sweet_cakes_by_

melissa_investigation_wraps_up_as_state_finds_evidence_that_bakery_violated_civil_rights_

for_refusing_to_make_same-sex_wedding_cake.html. The court held that the Oregon bakery

could not claim freedom of speech as a defense for its violation. In Colorado another bakery was

required to comply with Colorado‘s antidiscrimination law. The bakery refused to bake a cake

for a same-sex wedding asserting freedom of speech and free exercise claims. The court held that

―the act of preparing a cake is simply not ―speech‖ warranting First Amendment protection.

Craig v. Masterpiece Cakeshop Inc., No. CR 2013-0008 (Colo. Off. of Admin. Cts. Dec. 6,

2013), available at https://www.aclu.org/sites/default/files/assets/initial_decision_case_no._cr_

2013-0008.pdf.

Petitioner claims observers would conclude that the presence of its cake equates to support

of an occasion that is different from Petitioner‘s religious or philosophical beliefs. (R. at 3.)

Petitioner claims its Christian faith prevents it from creating cakes contrary to Christian beliefs.

Id. Yet, Petitioner has created cakes for bar mitzvahs—a historically Jewish tradition—and was

8

not concerned that its cake would convey its acceptance and support of the Jewish faith. Id.

Petitioner‘s argument that its services are inherently expressive is merely a shield for it to single

out and discriminate against one particular group of protected persons. See Justin Muehlmyer,

Toward a New Age of Consumer Access Rights: Creating Space in the Public Accommodation

for the LGBT Community, 19 Cardozo J.L. & Gender 781 (2013).

Petitioner‘s services are not an expressive activity and do not warrant First Amendment

protection. Petitioner‘s cakes do not communicate a message to be understood by others as

Petitioner‘s support of an occasion. The purpose of the Act is to prevent discrimination by public

accommodations that offer its services and expressive service exceptions would invalidate the

purpose of antidiscrimination laws.

B. The Act Did Not Compel Speech.

The compelled-speech doctrine prohibits the government from requiring an individual to

―speak the government‘s message‖ or to ―host or accommodate another speaker‘s message.‖

Forum for Academic & Institutional Rights, 547 U.S. at 63. Petitioner‘s compliance with the Act

does not require it to speak the government‘s message nor host or accommodate Respondent‘s

message that same-sex weddings exist and deserve celebration.

1. The act does not require Petitioner to speak the government’s

message.

The government may not compel a person to ―speak the government‘s message.‖ Id. This

includes the right to refrain from speaking. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 623,

633, 642 (1943). Petitioner‘s claim drastically differs from other compelled-speech cases. In

Barnette, this Court held that the state could not require students to recite the Pledge of

Allegiance and salute the flag. Id. The state‘s purpose was for ―teaching, fostering, and

perpetuating the ideals of principles and spirit of Americanism.‖ Id. at 625. If a student refused

9

to comply they were to be expelled and their parents could be prosecuted and fined. Id. at 630. A

group of parents objected to the law because their faith prevented affirmation of any oath. This

Court overturned the law and held that ―compulsory flag salute and pledge require[d] affirmation

of a belief and an attitude of mind.‖ Id. at 633. First, it established that flag salutes were a form

of utterance and within the protection of the First Amendment. Id. at 632. Second, the court held

that the government‘s purpose of ―[c]ompulsory unification of opinion achieves only unanimity

of the graveyard.‖ Id. at 641. Therefore, the state‘s law compelled speech and was invalid.

Another case of compelled speech dealt with a law that required citizens to display the state

motto on their license plates. The law was held to be invalid. Wooley v. Maynard, 430 U.S. 705

(1977). In Wooley, George Maynard continuously covered up the state‘s motto ―Live Free or

Die‖ on his license plate because it was contrary to his religious beliefs. Id. at 707. As a result,

Maynard was fined, jailed, and had his license revoked. Id. This Court held that the law

compelled Maynard to speak the government‘s message. Id. First, the phrase ―Live Free or Die‖

is undoubtedly speech. Id. at 761. Second, the court focused that the law required citizens to ―use

their private property as a ―mobile billboard‖ for the State‘s ideological message.‖ It was a

requirement for the state motto to be on each citizen‘s license plate. Therefore, the law explicitly

required individuals to speak the government‘s message. Id. at 763.

In the present case, Petitioner‘s claim drastically different. In Barnette and Wooley,

recitation of the Pledge of Allegiance, flag salute, and display of the state‘s motto undoubtedly

constituted as expression and fell within the protection of the First Amendment. Here,

Petitioner‘s services have not been established as a form of expression that constitutes protection.

Petitioner is not required to affirm the validity or its support for same-sex marriages. In both

cases the state required individuals to express to the government‘s message. In Barnette, the

10

purpose of the Pledge of Allegiance was for students to conform to ideals of nationalism. 319

U.S. at 642. In Wooley, the state‘s motto was chosen to convey the spirit of the state. 430 U.S. at

707. Here, the Act does not require Petitioner to display or convey the government‘s message at

all. The Act does not compel a message; rather, its purpose is to prevent discrimination.

The Act does not require an ―affirmation of a belief and an attitude of mind‖ necessary to

equate to compelled speech. Barnette, 319 U.S. at 633. The Act does not require Petitioner to

adopt North Greene‘s position on the existence or legitimacy of same-sex marriages. Petitioner is

still free to express its stance and religious beliefs about the issue. The Act‘s purpose of the Act

is to prevent discrimination and simply requires Petitioner and any public accommodation to

provide the same services to Respondents as it does for any other customer.

2. The Act does not require Petitioner to host or accommodate another

Respondents’ “message.”

Petitioner was not required to host or accommodate Respondent‘s personal message.

Petitioner claims that compliance with the Act would compel it to host or accommodate

Respondent‘s message by confirming that same-sex weddings exist and that such ceremonies

deserve celebration and approval. (R. at 7.) Yet, Petitioner‘s compliance does not equate to

hosting or accommodating Respondents‘ message.

In Tornillo, a newspaper had to accommodate another‘s message when the ―right to reply‖

statute mandated that newspapers must print the replies of criticized politicians free of cost in a

conspicuous location. Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 244 (1974). This

Court held that the law was invalid because it gave the newspaper little control over the

―limitations of size and content of the paper.‖ Id. at 258.

Here, the Act does control the production of cakes. Petitioner is free to make square, circle

or triangle cakes with vanilla or butterscotch frosting. Petitioner does not lose its autonomy over

11

the cake-making process any more than it gives consideration to other customers. The Act

merely mandates that Petitioner not discriminate against customers based on sexual orientation.

In Pacific Gas, this Court held that a law that required a utility company to send a third-

party‘s messages on the utility‘s billing statements compelled the utility company to

accommodate the third-party‘s speech. Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475

U.S. 1, 9–13 (1986). This Court held that the law was invalid because it required the utility

company to disseminate another‘s view that was contrary to the company‘s interest. Id. at 14–15.

The Act does not require Petitioner to publicize any views that are contrary to their business‘

interests. Unlike in Pacific Gas, Petitioner does not have to distribute the addresses of rival

bakeries. The Act does not compromise Petitioner‘s autonomy over its business nor does it

require it hinder its business interest, therefore Petitioner is not required to host or accommodate

Respondents‘ message.

In Hurley, this Court held that an organization was compelled to host another‘s message

when it had to include a pro-gay rights group in its parade. 515 U.S. 557. The city of Boston

gave an unincorporated group of individuals (―Council‖) the license to sponsor a parade that

would take place throughout the city. Id. at 561. The gay, lesbian, and bisexual Irish-American

organization, (―GLIB‖) a pro-gay rights group, applied to be in the parade but was denied

because the Council did not agree with GLIB‘s message. Id. First, this Court held that parades

are an expressive activity because they are held together by a ―common theme.‖ Id. at 568. Next,

this Court focused on whether bystanders would conclude that GLIB‘s presence meant that the

Council endorsed GLIB‘s message. Id. at 577. This Court held that ―the parade‘s overall

message is distilled from individual presentations along the way, and each unit‘s expression is

perceived by spectators as part of the whole.‖ Id. GLIB‘s banner promoting gay rights would

12

have been perceived as the Council‘s support for GLIB‘s cause. Id. at 525, 581. Therefore, this

Court concluded that GLIB‘s presence in the parade compromised the Council‘s ―right to

autonomy over [its] message.‖ Id. at 576.

In contrast to Hurley, neither Petitioner‘s services nor cakes are intrinsically expressive and

it is unlikely that others that viewed Petitioner‘s cakes would believe that Petitioner affirmed the

individual‘s beliefs. A parade is held together by a ―common theme‖ and the procession itself is

the method in disseminating the ideals behind the celebration or protest. A cake is merely an

accessory to an event whether it is a wedding or a birthday party. It does not express ideas but

rather complements the occasion in which it appears. In Hurley, GLIB‘s banner interfered with

the Council‘s autonomy over its own message. Here, Petitioner‘s cake appearing in Respondent‘s

ceremony does not mean Petitioner loses autonomy over expression of its beliefs. The Act does

not dictate Petitioner‘s cakes but its services that it offers.

In Turner Cable, the court held that a cable company had a history of serving as a conduit

for various programs, so there was little risk that viewers would assume the station endorsed all

the ideas. Turner Cable Broad. Sys. v. FCC, 520 U.S. 180, 188 (1997). Here, there is little risk

that attendees at an event would conclude that the baker of the cake endorsed the prayer said, the

political views of the attendees, or color scheme chosen for the décor. In Hurley, the Council did

not offer services but rather admission into its private organization, if the Council provided

parade-planning services, then compliance with the antidiscrimination law would not be

perceived as endorsement of GLIB‘s message.

Petitioner‘s case is most similar to Rumsfeld v. Forum for Academic & Institutional Rights

where this Court held that law schools were not compelled to host or accommodate military

recruiters‘ message when offering them equal access onto their campuses. 547 U.S. at 52. A law

13

required a school to give military recruiters equal access onto its campus in order to continue to

receive federal funding. Id. The school‘s regular practice was to send notification emails

including information about the date and time recruiters would be on campus. Id. at 62. The

school claimed sending emails concerning military recruitment would be perceived as an

endorsement of the military‘s policies. Id. The school claimed that the law required it to host the

military‘s message because students would believe that the school endorsed the military‘s

―Don‘t-Ask-Don‘t-Tell‖ policy. Id.

Yet, this Court rejected the school‘s argument claiming that the law did ―not dictate the

content of the speech at all, which is only ‗compelled‘ if, and to the extent, the school provides

such speech for other recruiters.‖ Id. Since the school sent emails for every recruiter, it was only

required to give military recruiters the same treatment. Id. This Court analyzed whether the

school‘s own message was affected and concluded that the school could continue its educational

mission and disclaim the military‘s policy. Id. at 63.

Similar to Forum for Academic & Institutional Rights, the Act only required Petitioner to

give Respondent equal access to the services it already provides. The Act did not dictate the

shape, size, or colors of the cake. It did not mandate that Petitioner operate its bakery in a

different manner. Petitioner‘s own message was not affected and it can publicize its beliefs

against same-sex marriages. For the same reasons the Forum for Academic & Institutional Rights

Court held the school was not compelled to host another‘s message, Petitioner‘s compliance did

not compel it to host Respondent‘s message.

C. Even if This Court Finds Petitioner’s Freedom of Speech Right Was

Infringed, the Harm Is Incidental and the Act Meets Strict Scrutiny.

If a law directly targets freedom of speech then a strict scrutiny standard is used, which

requires a law have a compelling government interest and that, it must be narrowly tailored.

14

Roberts v. Jaycees, 468 U.S. 609, 623 (1984). If a law is content and viewpoint neutral and does

not target speech, then intermediate scrutiny is applied. Intermediate scrutiny requires that the

law must further an important or substantial governmental interest and is no greater than is

essential to furtherance of interest. United States v. O’Brien, 391 U.S. 367 (1968). The Act does

not directly target freedom of speech and is content and viewpoint neutral and does not invoke

strict scrutiny analysis. Although, the Act is valid under strict scrutiny and intermediate scrutiny

as well.

First, the Act serves a compelling government interest in preventing discrimination.

Antidiscrimination laws are ―important, both to the individual and to society, [in] . . . removing

the barriers to economic advancement and political and social integration that have historically

plagued certain disadvantaged groups.‖ Roberts, 468 U.S. at 626. The act of discrimination

―deprives persons of their individual dignity and denies society the benefits of wide participation

in political, economic, and cultural life.‖ Id. at 625. Therefore, the Act serves a compelling

government interest. This Court has consistently upheld laws that prevent discrimination. See

United States v. Heart of Atlanta Motel, 379 U.S. 241 (1964); Brown v. Bd. of Educ., 349 U.S.

249 (1955); Loving v. Virginia, 388 U.S. 1 (1967); Romer v. Evans, 517 U.S. 620 (1996).

Second, preventing discrimination cannot be achieved through less restrictive means. The

Act is least restrictive because it only applies to businesses that qualify public accommodations.

North Greene defines public accommodations as ―any establishment that provides or offers its

services, facilities, accommodations or goods to the public, but does not include a bona fide

private club or other place or establishment that is by its nature and use distinctly private.‖

N.G.S.A. § 28-1-2(H). A business must place itself to the commercial marketplace in order to

fall within the scope of the Act. In the present case, Petitioner conceded that it is a public

15

accommodation and must abide by the Act. The Act is also narrowly tailored because Petitioner

retains the rights to express its stance on same-sex marriages.

In PruneYard, this Court held that ―[s]igns, for example, could disclaim any sponsorship of

message and could explain that the persons are communicating their own message by virtue of

state law.‖ PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87. Petitioner could post signs in its

store or websites explaining its objections and stance to same-sex marriages. Therefore, the Act

serves a compelling government interest that is narrowly tailored. The Act does not violate

Petitioner‘s freedom of speech rights.

II. THE NORTH GREENE SUPREME COURT CORRECTLY HELD THAT THE ACT IS

CONSTITUTIONAL UNDER THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT.

The Act does not violate Petitioner‘s free exercise rights because the Act is neutral and

generally applicable. A law that is neutral and generally applicable does not need to be justified

by a compelling government interest even if the law has the incidental effect of burdening a

religion. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990), superseded

on other grounds by statute in Religious Freedom Restoration Act of 1993, 42 U.S.C.

§§ 2000bb-2000bb(4) (1993). The Free Exercise Clause does not relieve Petitioner from

complying 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).‖ Id. (quoting

United States v. Lee, 455 U.S. 252, 263 n.3 (1982)). First, the Act is neutral because it does not

facially discriminate nor is it discriminatory in object or purpose. Second, the Act is generally

applicable because it does not impose burdens on a particular religion nor do its exceptions

invalidate its purpose. Third, the North Greene Religious Freedom Restoration Act (RFRA) does

not apply because for-profit corporations do not have free exercise rights and the RFRA does not

apply to private parties. Regardless, the Act meets the RFRA‘s standard of strict scrutiny.

16

A. The Act Is Neutral Since It Does Not Discriminate.

A law is not neutral if its object is to infringe upon or restrict practices because of their

religious motivation. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

533 (1993). A law cannot target religious beliefs. Id. (citing McDaniel v. Paty, 435 U.S. 618, 626

(1978) (plurality opinion)). In determining whether or not a law is neutral it is necessary to

identify whether the law facially discriminates within its text and if it is discriminatory in its

object or purpose. Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012),

injunction pending appeal granted, 708 F.3d 850 (7th Cir. 2013). Here, the Act is neutral

because it does not facially discriminate and is not discriminatory in its object or purpose.

1. The Act does not facially discriminate.

At a minimum a law must not discriminate on its face. Lukumi, 508 U.S. at 533, 535, 540;

see also Menges v. Blagojevich, 451 F. Supp. 2d 922, 999 (C.D. Ill. 2006). If a law ―refers to a

religious practice without a secular meaning discernable from language or context‖ then it lacks

facial neutrality. Lukumi, 508 U.S. at 533. A law is neutral ―if it is justified without reference to

the content of the violator‘s message or point of view.‖ Am. Life League, Inc. v. Reno, 47 F.3d

642, 649 (4th Cir. 1995). Facial neutrality requires the text to not refer to the content of

expression or a religious practice in its text.

In Lukumi, this Court analyzed whether ordinances prohibiting animal sacrifice were valid

and neutral laws of general applicability. 508 U.S. at 524. Members of the Santeria faith objected

to the ordinances because it prevented them from practicing animal sacrifice—an integral part of

their worship and faith. Id. The state claimed the ordinances were enacted to protect public

health and prevent animal cruelty. Id. This Court reasoned, ―the minimum requirement of

neutrality is that a law not discriminate on its face.‖ Id. at 533. The ordinances prohibited

17

―sacrifices‖ and ―rituals,‖ words that had religious origins and connotations. Id. Yet, this Court

held that although it was consistent with textual discrimination it was not conclusive. Id. at 534.

Here, the Act does not facially discriminate. The Act does not contain language that

specifically targets Petitioner or Petitioner‘s religious faith. It merely prohibits ―any person in

any public accommodation‖ to discriminate against a protected class. N.G.S.A. § 28-1-7(F).

Petitioner‘s faith may not be the only religion with objections to same-sex marriages but anyone

that operates as a public accommodation is subject to compliance with the Act. The Act‘s text

does not facially discriminate against Petitioner and is facially neutral.

2. The Act is not discriminatory in its object or purpose.

In determining whether a law is neutral in its object or purpose, it is relevant to analyze the

―historical background of the law, specific series of events leading to the enactment or official

policy in question, and the legislative or administrative history, including contemporaneous

statements made by members of the decision-making body.‖ Lukumi, 508 U.S. at 540. A law‘s

neutrality ―is suspect if First Amendment freedoms are curtailed to prevent isolated collateral

harms not themselves prohibited by direct regulation.‖ Id. at 539.

In Lukumi, the state did not enact the ordinances until the Santeria Church announced its

plans to open and expand more churches. Id. at 541. At a town hall meeting citizens and city

officials showed ―significant hostility‖ towards the Santeria faith. Id. A city official stated that

―[Santerians] are in violation of everything this country stands for.‖ Id. at 541–42. Another said,

―Santeria was a sin, foolishness and an abomination to the Lord,‖ and that the city would ―not

tolerate religious practices which are abhorrent to its citizens.‖ Id. Therefore, this Court

concluded that the ordinances were enacted with the object and purpose to suppress the Santeria

faith. Id. at 542.

18

In the present case, the Act was not created with discriminatory object or purpose. The Act

was created in order to prevent invidious discrimination by any public accommodation. There is

no evidence that the legislatures targeted Petitioner, bakeries, or those that belong to Petitioner‘s

faith. The Act is neutral because it is not facially discriminatory nor does it discriminate in object

or purpose.

B. The Act Is Generally Applicable Because It Applies to All Public

Accommodations.

A law is not generally applicable if it imposes burdens only on conduct motivated by

religious belief on select groups, while permitting exceptions for secular or favored religions. Id.

at 543. The Free Exercise Clause protects religious observers against unequal treatment but all

laws will be selective to some extent. Hobbie v. Unemployment Appeals Comm’n of Fla., 480

U.S. 136, 148 (1987). To determine whether a law is generally applicable, it is necessary to

analyze whether it was designed to achieve a general or specific purpose and whether the law

was constructed so in operation it targets only religious conduct. Lukumi, 580 U.S. at 543; see

Jeffery M. Shaman, Rules of General Applicability, 10 First Amendment L. Rev. 419 (2012).

In Lukumi, the state claimed the purpose of the ordinances was to protect public health and

prevent animal cruelty. 508 U.S. at 543. Yet, the ordinances had so many exemptions that

contradicted its purpose it rendered the ordinances severely under inclusive. Id. The purpose to

prevent animal cruelty by outlawing animal sacrifice was undermined because many

nonreligious animal killings were not prohibited. Id. The ordinances allowed extermination of

mice and rats, euthanasia of ―stray, neglected, abandoned or unwanted animals,‖ killing of

animals removed from their owners for humanitarian reasons or simply when the animal was of

―no commercial value.‖ Id. at 544. The infliction of pain and suffering on an animal was allowed

if it was ―in the interest of medical science.‖ Id. And the ordinances allowed extermination of

19

animals on one‘s property by use of poison and use of animals for hunting. Id. The ordinances

also alleged to protect public health by regulating disposal and consumption of uninspected meat.

Id. at 545. However, the ordinances did not regulate hunters from disposal or consumption of

their game or restaurants from improper disposal. Id. As a result the ordinances ―had every

appearance of a prohibition that society is prepared to imposed upon [Santeria worshippers] but

not upon itself.‖ Id.

Here, the Act is generally applicable despite its exemptions. In Lukumi, the Court held the

exemptions thwarted the ordinances‘ purpose; here, the Act‘s exemptions do not invalidate its

purpose. The Act allows religious organizations to ―limit admission or give preference to persons

of the same religion or denomination‖ in selecting buyers, lessees, or tenants in the content of

real estate. N.G.S.A. § 28-1-9(B). The Act exempts religious organizations from provisions

concerning sexual orientation and gender identity in regards to employment or renting. N.G.S.A.

§ 28-1-9(C). Neither of the religious exemptions undermined the Act‘s purpose because they

apply to religious organizations in employment and housing circumstances. If a religious

organization offered goods or services to the public in the same manner as Petitioner that

qualifies it as a public accommodation, it would fall within the scope of the Act as well.

The Act also exempts secular and religious organizations from sales or rentals of single-

family homes and owners who live in small multi-family dwellings who rent out the other

dwellings. N.G.S.A. § 28-1-9(A)(1), (D). These exceptions are similar to those in the federal Fair

Housing Act and do not render the Act not generally applicable. 42 U.S.C. § 3603(b)(1) & (2)

(2012). None of the Act‘s exemptions invalidate its purpose. Therefore, the Act is a valid and

neutral law of general applicability.

20

C. Even if This Court Applies Strict Scrutiny Under the RFRA, the Act Is

Constitutional Because It Has a Compelling Interest Which Is Narrowly

Tailored.

The Act is a valid and neutral law of generally applicability and therefore does not need

justification by strict scrutiny. Petitioner‘s claim does not show ―at least . . . a colorable showing

of infringement of a companion constitutional right‖ and did not raise a hybrid claim before the

North Greene Supreme Court. Axson-Flynn v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004);

(R. at 15). Petitioner asserts that the North Greene Religious Freedom Restoration Act (RFRA)

mandates that the Act be justified by compelling government interest. The North Greene RFRA

states:

A government agency shall not restrict a person‘s free exercise of religion unless:

(A) the restriction is in the form of a rule of general applicability and does not

directly discriminate against religion or among religions; and

(B) 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

government interest.

N.G.S.A. § 28-22-3. Petitioner‘s claim under RFRA is not valid because it has not been

established that corporations have free exercise rights and the RFRA does not apply to claims

between private parties. Even if Petitioner‘s claim is analyzed under RFRA and strict scrutiny

applies, the Act serves a compelling interest that is narrowly tailored.

1. Petitioner does not have free exercise rights.

Under the RFRA Petitioner qualifies as a ―person‖ because the RFRA defines it as ―one or

more individuals, a partnership, association, organization, corporation, joint venture, legal

representative, trustees, receivers or the state and all of its political subdivisions.‖ N.G.S.A. § 28-

1-2(A). Free exercise rights for a for-profit corporation have yet to be established. There have

been no cases answering this question from this Court, even though several circuits have held

21

that corporations do not have free exercise rights. 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

(2013); Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013); Eden Foods, Inc. v. Sebelius,

733 F.3d 626 (6th Cir. 2013).

Some circuits have held that corporations do have free exercise rights. Hobby Lobby Stores,

Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), cert granted, 134 S. Ct. 678 (2013); Korte v.

Sebelius, 735 F.3d 645 (7th Cir. 2013); Gilardi v. U.S. Dep’t of Health & Human Servs., 733

F.3d 1208 (D.C. Cir. 2013); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619–20 (9th

Cir. 1988) (holding that a corporation could assert free-exercise rights of its owners).

A corporation does not exist separately from its owners and does not have separate belief

systems. Corporations do not ―pray, worship, observe sacraments or take other religiously-

motivated actions separate and apart from the intention and direction of their individual actors.‖

Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012). Therefore,

Petitioner does not have free exercise rights.

2. The RFRA does not apply to private parties.

The RFRA only applies to actions between a government agency and a private individual.

A government agency is defined as ―the state or any of its . . . departments, agencies, [or]

commissions . . . .‖ N.G.S.A. § 29-22-2(B). The RFRA applied to the North Greene Human

Rights Commission‘s finding because it is a government agency as defined above. The RFRA

allows Petitioner to ―assert a claim or a defense in a judicial proceeding and obtain appropriate

relief against a government agency . . . .‖ N.G.S.A. § 28-22-4. Yet, Petitioner appealed the

Commission‘s decision invoking the district court‘s jurisdiction. (R. at 5 n.3.) The trial was de

novo ―as if no trial had been had below‖ and subsequent appeals led to the North Greene

22

Supreme Court‘s decision. The courts‘ holding did not fall within the scope of the RFRA

because the RFRA does not list the state courts as a ―government agency.‖ When Petitioner

appealed the Commission‘s decision, the trial was de novo and the courts decided a matter

between two private parties. Id.

Similarly, the Supreme Court of New Mexico held that since New Mexico‘s RFRA did not

list state courts under ―government agency‖ that the district and appellate courts‘ holding was not

within the scope of the RFRA. Willock, 309 P.3d at 76. The court held that the initial decision

made by the Commission was ―as an administrative tribunal‖ and that the subsequent appeal to

the district court for a de novo trial meant the matter was between two private parties. Id. The

court held that the phrase ―against a government agency‖ modified ―judicial proceeding‖ not

―appropriate relief‖ and New Mexico‘s RFRA could only be asserted as a claim or defense when

a government agency was a party. Id.

In Banks, the court held that the Illinois RFRA did not apply to private parties because

―[t]he duty not to substantially burden Plaintiff‘s free exercise of religion was imposed only on

‗governments‘ under the statute.‖ Banks v. Dougherty, No. 07-cv-5654, 2010 WL 747870, at *9

(N.D. Ill. Feb. 26, 2010).

Several federal circuits have held that the federal RFRA does not apply to suits between

private parties. The Fifth Circuit held that a pastor could not bring suit against his former church

under the federal RFRA because it did not ―apply to suits between private parties but rather only

applies to governmental action.‖ Boggan v. Miss. Conference of the United Methodist Church,

433 F. Supp. 2d 762, 762–64 (S.D. Miss. 2006), aff’d, 222 F. App‘x 452 (5th Cir. 2007). The

Sixth Circuit held a pastor could not use the federal RFRA as a defense to a suit brought by a

church for trademark infringement. Gen. Conference Corp. of Seventh-Day Adventists v. McGill,

23

617 F.3d 402, 403 (6th Cir. 2010) (relying on Judge Sotomayor‘s dissent in Hankins v. Lyght,

441 F.3d 96, 114–15 (2d Cir. 2006)). The Seventh Circuit also held that the federal RFRA does

not create a defense to suits brought by private plaintiffs. Tomic v. Catholic Diocese of Peoria,

442 F.3d 1036, 1042 (7th Cir. 2006); see Sara Lunsford Kohen, Religious Freedom in Private

Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, 10 Cardozo

Pub. L. Pol‘y & Ethics J. 43 (2011).

Therefore, Petitioner cannot assert a claim or defense under North Greene‘s RFRA because

this case is an issue between two private parties.

3. The Act has a compelling interest that is narrowly tailored.

As discussed above, the Act is a valid and neutral law of general applicability. Even if this

Court finds that under the RFRA Petitioner has free exercise rights and can assert a claim

between two private parties, the Act still serves a compelling interest that is narrowly tailored.

The Act‘s compelling government interest is to prevent discrimination and courts have

consistently upheld antidiscrimination laws despite religious objections. For example, landlords

have been required to rent housing to unmarried couples despite the landlord‘s religious belief

that cohabitation outside of marriage is a sin. Thomas v. Anchorage Equal Rights Comm’n, 102

P.3d 937 (Alaska 2004) (affirming the holding in Swanner v. Anchorage Equal Rights Comm’n,

874 P.2d 274 (Alaska 1994); Smith v. Fair Emp’t & Hous. Comm’n, 12 Cal. 4th 1143 (1996).

For-profit companies cannot hire, promote, and base employment decisions on marital status and

religion despite the owner‘s religious belief. State by McClure v. Sports & Health Club, Inc., 370

N.W.2d 844 (Minn. 1985). A physician cannot refuse to provide fertility services to a lesbian

couple because of her religious beliefs. N. Coast Women’s Care Med. Grp., Inc. v. San Diego

Cnty. Superior Court, 189 P.3d 959 (Cal. 2008). A bed and breakfast cannot deny its services to

24

same-sex couples. Cervelli v. Aloha Bed & Breakfast, Civ. No. 11-1-3103-12 ECN, Order (Haw.

Cir. Ct. 1st Cir. Apr. 15, 2013).

A business must comply with Sunday-closing laws despite religious objections. Braunfeld

v. Brown, 366 U.S. 599, 605 (1961). A citizen cannot refuse to pay taxes because of religious

reasons since the tax laws are ―essential to accomplish . . . comprehensive insurance system for

all Americans.‖ Lee, 455 U.S. at 253. A law prohibiting drug use has a compelling interest

because drug use is ―one of the greatest problems affecting the health and welfare of our

population.‖ Emp’t Div. v. Smith, 494 U.S. at 904 (O‘Connor, J., concurring).

Antidiscrimination laws serve a compelling government interest that is narrowly tailored.

The Act is narrowly tailored because it only applies to public accommodations. ―When followers

of a particular sect enter into commercial activity as a matter of choice, the limits they accept on

their own conduct as a matter of conscience and faith are not to be superimposed on the statutory

schemes [that] are binding on others in that activity. Lee, 455 U.S. at 253.

In response to courts holding that businesses violate antidiscrimination laws when denying

services based on religious belief, the Arizona Legislature attempted to modify their state RFRA.

The Arizona Legislature attempted to pass a bill that modified its RFRA by expanding the

definition of ―exercise of religion‖ to specifically include both the practice and observance of

religion. S.B. 1062, 55th Leg., 2d Reg. Sess. (Ariz. 2014). The purpose of the bill was to allow

businesses, similar to Petitioner, an excuse to refuse individuals service if it was an ―observance

of religion.‖ Id.

Under the bill Petitioner would be able to refuse Respondent services because its

discrimination was based an observance of its religion. Fortunately, Arizona‘s governor Janice

Brewer, vetoed the bill and stated because it ―could result in unintended and negative

25

consequences‖ and that ―religious liberty is a core American and Arizona value, so is

nondiscrimination.‖ Letter from Janice Brewer, Governor, Arizona, to Honorable Andy Biggs,

President of the Senate, Arizona (Feb. 26, 2014) (on file with author). The Act‘s purpose serves a

compelling interest to prevent discrimination and is narrowly tailored because it applies to public

accommodations. The Act does not violate Petitioner‘s Free Exercise Clause rights and the North

Greene Supreme Court correctly denied Petitioner‘s motion for summary judgment.

CONCLUSION

Respondents request this Court affirm the North Greene Supreme Court‘s judgment that the

Act did not violate Petitioner‘s freedom of speech or free exercise rights.

Respectfully submitted,

______________________________

ATTORNEYS FOR RESPONDENTS