PHOENIX --- Arizona Attorney General Mark Brnovich is leading a coalition of 16 state attorneys general in an amicus brief supporting free speech rights of small business owners. In Scardina v. Masterpiece Cakeshop Inc. before the Colorado Court of Appeals, the coalition argues that custom cakes are artistic works, and therefore, protected by the First Amendment.
“There are many costs of doing business, but they do not include your civil rights,” said Arizona Attorney General Mark Brnovich. “Small business owners maintain the ability to express themselves in their words and their work.”
Jack Phillips, who owns Masterpiece Cakeshop in Colorado, makes a living creating custom cakes. Mr. Phillips declined to make a custom cake celebrating a gender transition because “[i]t would violate [his] religious beliefs to send a message to anyone that he would celebrate a gender transition.” Mr. Phillips was sued and accused of violating the Colorado Anti-Discrimination Act (CADA). The trial court found he was in violation of CADA and rejected that the First Amendment protects Mr. Phillips in this case. The coalition argues that the “Court here can look to the Supreme Court’s repeated protection of art, apply the same principles here, and recognize that Mr. Phillips is protected in this case by the First Amendment’s guarantee of Freedom of Expression.”
Protecting business owners’ freedom of speech is a priority for the coalition and something the courts have upheld several times. In 2019, the Arizona Supreme Court ruled the City of Phoenix could not force calligraphy artists to create custom wedding invitations for same-sex weddings. The court determined that the City’s interest in ensuring equal access to goods and services was “not sufficiently overriding as to justify compelling Plaintiffs’ speech by commandeering their creation of custom wedding invitations.”
This is not the first time Masterpiece Cakeshop has been the subject of a First Amendment case. In 2012, Mr. Phillips declined to make a cake for a same-sex wedding because it contradicted his religious beliefs. The Colorado Court of Appeals ruled that Mr. Phillips violated CADA. The Supreme Court of the United States reversed that decision under the Free Exercise Clause of the First Amendment.
Joining Arizona Attorney General Mark Brnovich are the Attorneys General of Alabama, Alaska, Arkansas, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, and West Virginia.
Copy of coalition’s amicus brief.