No. 16-111

In The
MASTERPIECE CAKESHOP, LTD., ET AL.,
Petitioners,
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL.,
On Writ of Certiorari to the Court of Appeals of
Colorado
BRIEF OF CHEFS, BAKERS, AND
RESTAURATEURS AS AMICI CURIAE IN
SUPPORT OF RESPONDENTS
Sarah Warbelow
Legal Director
HUMAN RIGHTS CAMPAIGN
1640 Rhode Island Ave.
NW
Washington, DC 20036
(202) 572-8981

Pratik A. Shah
Counsel of Record
Martine E. Cicconi*
AKIN GUMP STRAUSS HAUER
& FELD LLP
1333 New Hampshire Ave. NW
Washington, DC 20036
(202) 887-4000
pshah@akingump.com
* Licensed to practice in
California only and under the
direct supervision of a partner of
Akin Gump Strauss Hauer &
Feld LLP who is an enrolled
active member of the District of
Columbia Bar; applicant for
admission to the D.C. Bar.

Counsel for Amici Curiae

 i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION
AND
SUMMARY
OF
ARGUMENT .......................................................... 3
ARGUMENT ................................................................ 5
THE FIRST AMENDMENT DOES NOT
ALLOW A CHEF, BAKER, OR OTHER
CULINARY ARTIST TO REFUSE TO
PROVIDE A GENERALLY OFFERED
SERVICE BASED ON THE IDENTITY OF
THE CUSTOMER .................................................. 5
A. The Fact That Food Preparation
Involves Talent, Skill, And Artistry
Does Not Necessarily Entitle It To
First Amendment Protection ...................... 5
B. When A Chef Offers Something To
The Public, He Must Offer It To All ........... 9
C. There Is No Basis In Law To
Recognize An Exception For Weddings
Or Wedding Cakes ..................................... 12
CONCLUSION .......................................................... 17
APPENDIX OF ADDITIONAL AMICI ..................... 1a

 ii
TABLE OF AUTHORITIES
CASES:
Cressman v. Thompson,
798 F.3d 938 (10th Cir. 2015) ................................ 7
Hurley v. Irish-Am. Gay, Lesbian & BiSexual Gr. of Bos., Inc.,
515 U.S. 557 (1995) .............................................. 10
Mastrovincenzo v. City of New York,
435 F.3d 78 (2d Cir. 2006).............................. 7, 8, 9
Rex v. Ivens,
7 Car. & P. 213, 173 Eng. Rep. 94 (N. P.
1835) .................................................................... 10
Rumsfeld v. Forum for Acad. & Institutional
Rights, Inc.,
547 U.S. 47 (2006) ............................................ 4, 16
STATUTES:
42 U.S.C.
§ 2000a(a) ............................................................. 11
§ 2000a(b)(2) ......................................................... 10

 iii
OTHER AUTHORITIES:
Buccafusco, Christopher J., On the Legal
Consequences of Sauces: Should Thomas
Keller’s Recipes Be Per Se Copyrightable,
24 CARDOZO ARTS & ENT. L.J. 1121
(2007) ...................................................................... 7
Fauchart, Emmanuelle & Eric von Hippel,
Norms-Based Intellectual Property
Systems: The Case of French Chefs, 19
ORG. SCI. 187 (2008) ............................................... 6
Harris, Anne-Marie G., A Survey of Federal
and State Public Accommodations
Statutes: Evaluating Their Effectiveness
in Cases of Retail Discrimination, 13 VA.
J. SOC. POL’Y & L. 331 (2006) ............................... 11
Huen, Eustacia, World’s Best Chefs Share
Their Proudest Dish, FORBES (Mar. 3,
2015) ....................................................................... 6
Lerman, Lisa G. & Annette K. Sanderson,
Comment: Discrimination in Access to
Public Places: A Survey of State and
Federal Public Accommodations Laws, 7
N.Y.U. REV. OF L. & SOC. CHANGE 215
(1978) .................................................................... 10

 In The
No. 16-111
MASTERPIECE CAKESHOP, LTD., ET AL.,
Petitioners,
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL,,
On Writ of Certiorari to the Court of Appeals of
Colorado
BRIEF OF CHEFS, BAKERS, AND
RESTAURATEURS AS AMICI CURIAE IN
SUPPORT OF RESPONDENTS
INTEREST OF AMICI CURIAE 1
Amici are a group of 222 leading chefs, bakers,
and restaurateurs from across the country. They
submit this brief to convey their first-hand
perspective, as culinary artists, on why application of
public accommodation laws in cases such as this one
do not impinge on the core expressive exercise of
their talent and skill.
Amici include:

This brief is filed with the written consent of all parties
through universal or individual letters of consent on file with
the Clerk. No counsel for either party authored this brief in
whole or in part, nor did any party or other person make a
monetary contribution to the brief’s preparation or submission.
1

(1)

 2
•

Jose Andres, chef
ThinkFoodGroup;

and

owner

•

Katherine Kallinis Berman and Sophie
Kallinis LaMontagne, co-founders of
Georgetown Cupcake in Washington,
DC;

•

Anthony Bourdain, chef, author, and
host of Anthony Bourdain:
Part’s
Unknown;

•

Tom Colicchio, chef, owner of Crafted
Hospitality, and head judge of Top Chef;

•

Elizabeth
Falkner,
restaurateur;

•

Duff Goldman, chef and owner of Charm
City Cakes in Baltimore, MD;

•

Carla Hall, chef and co-host of The
Chew;

•

Sam Kass, former Assistant White
House Chef and Senior Policy Advisor
for Nutrition Policy to President Barack
Obama;

•

Padma Lakshmi, author and host of Top
Chef;

•

Marcus Samuelson, chef and owner of
Red Rooster in New York, NY;

•

Christina Tosi, chef and owner of
Momofuku Milk Bar in Washington, DC.

chef

Additional amici are listed in the appendix.

of

and

 3
INTRODUCTION AND SUMMARY OF
ARGUMENT
For some people, cooking is a chore. For others,
it is a hobby. For professional chefs, bakers, and
restaurateurs (collectively herein, “chefs”), including
amici, it is much more. It is a way to display talent
and skill honed over years of study and practice. It is
a way to introduce patrons to new flavor
combinations and culinary techniques. And it is a
way for chefs to convey their perspective to the world.
Notwithstanding the talent and skill required to
create fine cuisine, and the expression that may flow
from it, amici acknowledge that food preparation is
not a core First Amendment activity. Even when
prepared by celebrated chefs, food retains a clear
purpose apart from its expressive component: it is
made to be eaten. For that reason, food products
(and their preparation) are not necessarily protected
by the First Amendment. Of course, chefs or other
artists may use edible media to convey an expressive
message; where (unlike here) the primary purpose
and effect is to convey the chefs’ or artists’ own
message (e.g., creating a peace sign out of cupcakes
as a personal war protest), the activity would
implicate their First Amendment rights. In most
cases, however, culinary creations may appropriately
be viewed as commercial goods not imbued with First
Amendment protection.
In any event, the First Amendment does not
allow a chef or other culinary artist to exempt himself
from generally applicable laws that do not target
expressive activity. Public accommodation laws like
Colorado’s Anti-Discrimination Act have been a

 4
staple in the food service industry for decades. Chefs
and other culinary professionals are aware of the
obligations those laws impose when they enter the
business.
Moreover, compliance with public accommodation
laws does not stifle a chef’s creativity. Chefs retain
discretion to choose the cuisine they prepare and the
menu items and services they offer.
Antidiscrimination laws merely demand that chefs and
others treat all customers equally: what is offered to
some must be offered to all.
There is no basis in law or logic to carve out an
exception to these norms for weddings or for wedding
cakes. That is particularly true where, as here, the
refusal to serve a same-sex couple extends to making
any wedding cake—including one identical in every
way to that offered to opposite-sex couples. Contrary
to petitioners’ (and the United States’) contention,
the centrality of a cake in a wedding celebration does
not inevitably associate the baker with the
celebration or the couple getting married. Rather, as
this Court has repeatedly recognized, audiences can
separate the views of a speaker (here, the couple
celebrating their marriage) from the perspective of
one who is providing a generally available service in
compliance with the law. See Rumsfeld v. Forum for
Acad. & Institutional Rights, Inc., 547 U.S. 47, 65
(2006).
At bottom, petitioners ask this Court for broad
constitutional immunity from long-established laws
prohibiting discrimination on the basis of protected
characteristics. Because Jack Phillips is not unique
in the talent, skill, and expression he displays in his

 5
craft, affording such immunity to Phillips necessarily
means affording it to countless other creative
professionals.
Such a sweeping exemption from
public accommodation laws would upend antidiscrimination norms accepted throughout the
country, to the detriment of historically disfavored
minority groups—including, as here, same-sex
couples. Rather than open that Pandora’s box, this
Court should reaffirm the principles of equality and
fairness that have led Congress and legislatures in
virtually every state to enshrine protection from
discrimination into law.
ARGUMENT
THE FIRST AMENDMENT DOES NOT ALLOW
A CHEF, BAKER, OR OTHER CULINARY
ARTIST TO REFUSE TO PROVIDE A
GENERALLY OFFERED SERVICE BASED ON
THE IDENTITY OF THE CUSTOMER
A.

The Fact That Food Preparation
Involves Talent, Skill, And Artistry
Does Not Necessarily Entitle It To First
Amendment Protection

1. While for some, cooking is a mundane task, for
others, like amici, it is a display of talent and skill.
Mastering many cooking styles requires years of
training and practice. And creating dishes served in
the world’s finest restaurants—many of which
resemble works of art—demands creativity,
imagination, patience, and expertise.
To many chefs, cooking is also a means of selfexpression. Some of the world’s most acclaimed chefs
serve dishes that define their culinary styles and

 6
showcase their unique perspectives. Through these
dishes, chefs reveal their personal histories, the
flavor and color combinations that speak to them,
and the experiences in their lives that have shaped
them as chefs and individuals.
Consider, for
example, Chef Alaine Ducasse’s description of his
seasonal vegetables crockpot:
This dish is an illustration of my
culinary story, which began when I was
a child picking vegetables out of my
grandmother’s garden. For years, I have
always wanted to create a signature
dish with my favorite vegetables, as
they are the thread that connects my
life experience with the diverse, sensory
experience found at my restaurants. 2
As this description shows, dishes conceived and
prepared by skilled chefs are more than a collection
of ingredients—they are a product of years of
thoughtful preparation and, in some cases, a window
into the mind and soul of the chef that created them.
Given the talent and creativity required to produce
these culinary feats, it is not surprising that norms in
the cooking industry recognize recipes and food
presentation as the creative product of the chefs that
develop them. See Emmanuelle Fauchart & Eric von
Hippel, Norms-Based Intellectual Property Systems:
Eustacia Huen, World’s Best Chefs Share Their Proudest
(Mar.
3,
2015),
available
at
Dish,
FORBES
https://www.forbes.com/sites/eustaciahuen/2015/03/03/chefalain-ducasse-daniel-humm-yannick-alleno-other-world-classchefs-share-their-proudest-dish/#d586cb372ff0
2

 7
The Case of French Chefs, 19 ORG. SCI. 187 (2008); see
also Christopher J. Buccafusco, On the Legal
Consequences of Sauces: Should Thomas Keller’s
Recipes Be Per Se Copyrightable, 24 CARDOZO ARTS &
ENT. L.J. 1121, 1154 (2007) (“Culinary history has
long had a custom of attributing a new dish to the
chef who created it, and this practice remains in force
today. Aspiring chefs are taught to respect the rights
of other chefs when using their recipes.”).
2. Notwithstanding the skill, imagination, and
personality chefs display in their cooking, that
activity is not necessarily entitled to First
Amendment protection.
Following this Court’s
precedents, courts of appeals have held that even
when “an item possesses expressive elements” (and
even when it “could be labeled ‘art’”), courts should
determine “whether that item also has a common
non-expressive purpose or utility.” Mastrovincenzo v.
City of New York, 435 F.3d 78, 92, 95 (2d Cir. 2006).
“Where an object’s dominant purpose is expressive,
the vendor of such an object has a stronger claim to
protection under the First Amendment; conversely,
where an object has a dominant non-expressive
purpose, it will be classified as a ‘mere commercial
good[],’ the sale of which likely falls outside the scope
of the First Amendment.” Id. at 95 (alteration in
original) (citation omitted); see also Cressman v.
Thompson, 798 F.3d 938, 952-954 (10th Cir. 2015) (in
assessing whether First Amendment protection
attaches, “courts, on a case-by-case basis, must
determine whether the ‘disseminators of [an image]
are genuinely and primarily engaged in *** selfexpression’”) (alternation and ellipsis in original)
(quoting Mastrovincenzo, 435 F.3d at 91).
For

 8
example, “[a] cufflink fastens the cuff and keeps the
shirtsleeve from crowding the wrist; a pot serves as a
tidy and dry depository for food and other objects,
and cutlery (or, for that matter, a silver plate), even if
wrought with substantial skill and artistry, most
often serves a predominantly non-expressive
purpose.” Mastrovincenzo, 435 F.3d at 95.
Even when prepared by renowned chefs, food
retains a clear non-expressive purpose—namely,
consumption. No matter how intricate, creative, and
aesthetically pleasing a dish might be, it is not
designed to be displayed in perpetuity, but rather to
be served and eaten. With a clear “non-expressive
purpose,” food items may be appropriately “classified
as *** ‘commercial good[s],’ the sale of which likely
falls outside the scope of the First Amendment.”
Mastrovincenzo, 435 F.3d at 95.
The same is true of Phillips’s wedding cakes.
Regardless of the creativity of his designs or the skill
with which he executes them, Phillips’s customers
purchase a product intended to be consumed. If that
were not the case, there would be no reason for
Phillips to “write[], paint[], and sculpt[] using mostly
edible materials like icing and fondant rather than
ink and clay.” Pet. Br. 20. For that reason, the
comparison to “abstract painting[s] *** [and] modern
sculpture[s],” Pet. Br. 20-21—items that presumably
have no purpose other than to reveal the expression
of the artist—is inapt.
To be sure, a sculpture or painting made with
edible media may make a political or societal
statement just as surely as a piece made with
traditional materials. And even if the creation is

 9
perishable, First Amendment protection may well
attach if the artist’s predominant purpose was
expressive. Take a baker, for example, that creates a
peace sign out of cupcakes as a display of his own
anti-war views.
But such predominantly and
personally expressive activity is far removed from
Phillips’s cakes, which are valued for their flavors
and textures in addition to their aesthetic or
expressive qualities, and are designed primarily to
further the customers’ ends. Like other items “with
non-expressive uses,” whether First Amendment
protection applies to Phillips’s wedding cakes
depends on whether “these non-expressive uses are
secondary to the [cakes’] expressive or communicative
characteristics.” Mastrovincenzo, 435 F.3d at 96. If
not, Phillips’s commercial activity should not entitle
him to First Amendment protection.
B.

When A Chef Offers Something To The
Public, He Must Offer It To All

1. Whether or not the creation of cakes or other
food products implicates the First Amendment, any
such protection does not entitle a chef to violate laws
and regulations that do not target expressive activity.
A chef may not evade health laws that preclude the
use of certain unsafe ingredients on the ground that
he prefers to cook with them. Similarly, a chef may
not violate worker safety laws on the ground that his
preferred cooking methods call for dangerous
equipment.
By the same token, a chef may not invoke the
First Amendment to avoid anti-discrimination laws
simply because serving particular classes of
customers conflicts with his personal beliefs. Public

 10
accommodations laws like the one at issue in this
case “ha[ve] a venerable history,” deriving from
“common law.” Hurley v. Irish-Am. Gay, Lesbian &
Bi-Sexual Gr. of Bos., Inc., 515 U.S. 557, 571 (1995).
“As one of the 19-century English judges put it, the
rule was that ‘[t]he innkeeper is not to select his
guests[;] [h]e has no right to say to one, you shall
come into my inn, and to another you shall not, as
every one coming and conducting himself in a proper
manner has a right to be received; and for this
purpose innkeepers are a sort of public servants.” Id.
(quoting Rex v. Ivens, 7 Car. & P. 213, 219, 173 Eng.
Rep. 94, 96 (N. P. 1835)) (alterations in original).
From
these
common-law
roots,
public
accommodation laws have evolved to prohibit
discrimination
based
on
various
protected
characteristics, including (in some U.S. jurisdictions)
sexual orientation. Regardless of the particular
protected characteristic, such laws overwhelming
apply to restaurants and other food-service
establishments. Since its enactment in 1964, the
federal Civil Rights Act has prohibited discrimination
in “any restaurant, cafeteria, lunchroom, lunch
counter, soda fountain, or other facility principally
engaged in selling food for consumption on the
premises.” 42 U.S.C. § 2000a(b)(2). By 1978, all 38
states
with
public
accommodation
statutes
guaranteed access to restaurants and similar
entities. 3
Today, nearly all states preclude
See Lisa G. Lerman & Annette K. Sanderson, Comment:
Discrimination in Access to Public Places: A Survey of State and
Federal Public Accommodations Laws, 7 N.Y.U. REV. OF L. &
SOC. CHANGE 215, 247 (1978).
3

 11
restaurants from discriminating against would-be
customers. 4
Critically, discrimination based on protected
characteristics is not limited to the categorical
refusal to serve customers. With the obligation to
serve all comes the obligation to provide equal
treatment when offering service. See, e.g., 42 U.S.C.
§ 2000a(a) (“All persons shall be entitled to the full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, and accommodations of any
place of public accommodation.”) (emphasis added).
Accordingly, a chef cannot refuse to sell certain
customers some of the items on their menus. If a
chef offers a special dessert for Valentine’s Day, he
cannot refuse to serve that dessert to an interracial
couple. Similarly, chefs cannot refuse to host events
for some customers that they would host for others.
If a restaurant is willing to open its doors for a sweetsixteen party, it cannot refuse to host a quinceanera.
2.
Despite these basic anti-discrimination
obligations, culinary artists have broad license to
express themselves. Chefs can specialize in any sort
of cuisine they choose, whether from a particular
country or region—or a combination of several—or
based on certain flavors and cooking techniques.
They can choose to cook only vegetarian dishes, or to
serve meat ranging from the mundane to the exotic.
See Anne-Marie G. Harris, A Survey of Federal and State
Public Accommodations Statutes:
Evaluating Their
Effectiveness in Cases of Retail Discrimination, 13 VA. J. SOC.
POL’Y & L. 331, 340 (2006) (noting that 45 out of 50 states
prohibit discrimination in places of public accommodation).
4

 12
They may include as many or as few items on their
menus as they desire.
Public accommodation laws do not stifle this
freedom. Such laws do not compel chefs or other
culinary artists to create dishes they do not wish to
create and do not offer to others.
No antidiscrimination law would require a vegan chef to
serve meat, or a kosher restaurant to offer a shellfish
item. No such law would compel a baker to offer a
flavor or appliqué he did not wish to use. And if a
baker chooses, as a general matter, not to write
messages on his creations, a public accommodation
law would not compel him to do so in order to comply
with non-discrimination requirements.
Rather, public accommodation laws simply
mandate equal access. When a chef or other culinary
artist offers an item or service for sale, he must offer
it to all customers.
That anti-discrimination
obligation is neither surprising nor burdensome.
Given the established nature of such laws, chefs are
aware of their obligation to serve all customers when
they enter the business. Any claim that following
such laws will chill expressive activities is therefore
unfounded.
Compliance with anti-discrimination
laws does not require a chef to suppress his
creativity; it merely compels him to channel that
creativity in a way that serves all patrons equally.
C.

There Is No Basis In Law To Recognize
An Exception For Weddings Or
Wedding Cakes

1. Petitioners describe in detail the time, skill,
and care Phillips takes in creating wedding cakes.
Moreover, they argue, his “custom wedding cakes are

 13
his artistic expression because he intends to, and
does in fact, communicate through them.” Pet. Br.
19.
But Phillips is not unique in his intention or
ability to express himself through cooking.
As
described above, many chefs view cooking as an act of
expression and many create dishes that can and do
convey a personal message.
Hence, accepting
petitioners’ position that First Amendment protection
attaches to Phillips’s creations would subject a wide
variety of laws affecting food preparation to
heightened scrutiny.
By the same token, weddings are not the only
events chefs and other creative professionals serve
that have expressive meaning—the same might be
said of anniversary parties, baby showers, first
communions, bar mitzvahs, and graduations, to name
just a few. Accordingly, the position petitioners and
the United States advance—which turns on the
expressive nature of the product and the event—
would allow countless bakeries, restaurants, caterers,
other creative businesses to opt out of antidiscrimination laws. For example, under petitioners’
rule, a baker could refuse, based on religious views,
to provide a cake for an anniversary party or baby
shower for a same-sex couple, and could also refuse to
serve an interfaith couple if creating a cake for their
celebration required him to “create expression that
he considers objectionable.” Pet. Br. 27. For the
same reason, a chef could refuse to cater a bar
mitzvah even if he would cater a religious celebration
for customers of a different faith. Such sweeping
immunity from public accommodation laws would
upend
anti-discrimination
norms
accepted

 14
throughout the country, to the detriment
historically disfavored minority groups.

of

2. The United States’ effort to narrow the scope
of the rule it endorses is unavailing. To start, the
distinction the United States draws between so-called
off-the-shelf products and “custom” products is
nebulous in the culinary realm—food is often made to
order rather than pre-made. And even if some dishes
are more specifically tailored to a customer’s
preferences, that distinction is apparently immaterial
to the federal government. After all, the facts of this
case show that Phillips declined to create any
wedding cake for the same-sex couple, including one
identical to cakes he created for opposite-sex couples.
See Pet. App. 75 (Phillips “categorically refused” to
accept the cake order “before there was any
discussion about what that cake would look like *** .
[He] was not asked to apply any message or symbol
to the cake.”); see also Pet. App. 279 (as an
alternative to requesting a unique design, Phillips’s
customers may select an existing—in other words,
off-the-shelf—design). 5
The United States also argues that its rule will not sweep
too broadly because some states and the federal government
limit anti-discrimination laws to entities that serve food on their
premises. That is unpersuasive. First, Colorado is not alone in
applying its anti-discrimination law more broadly. Second, as
described above, the government’s rule would apply equally to
restaurateurs who do not wish to hold certain “expressive
events” (e.g., same-sex wedding receptions, anniversary parties,
or engagement parties) in their restaurants. Hence, regardless
of the sweep of certain public accommodation laws, the impact
of the rule the federal government advances is anything but
narrow.
5

 15
In any event, this argument rests on a flawed
premise. The fact that a chef customizes an item or a
menu to a customer’s preference does not mean that
he endorses the customer’s life choices, or even that
he supports the event for which the food is prepared.
Chefs do not inquire into the life choices or personal
views of their patrons before serving their meals—
even meals specially prepared to celebrate a
milestone.
And although petitioners state that
Phillips’s services include consultation with his
customers to learn their “desires, personalities,
preferences, and wedding details,” Pet. Br. 8, even
petitioners do not claim Phillips investigates whether
each couple whose wedding he services shares his
views on marriage and family. Petitioners do not
claim, for example, that Phillips takes steps to assure
himself that his customers intend to be faithful to
each other throughout their marriage. Rather, like
all chefs and other creative professionals, Phillips
provides a service upon request to customers whose
lives remain, for the most part, a mystery to him.
It is also no answer to claim that the
circumstances of this case are sui generis because of
the role a cake plays in a wedding. Even accepting
the view that a wedding cake is uniquely important
to the event (a tenuous claim at best given the role
cakes play in many celebrations), that argument
fails. No matter how central the cake is to the
wedding celebration, the baker of that cake has no
such centrality. Rather, the cake baker does not
participate in the wedding ceremony or the
celebration any more than the caterer who provides
the dinner, the owner of the venue that hosts it, the
bridal shop that makes a bride’s dress, the florist that

 16
provides the flowers, or the hair dresser who styles
the hair. As this Court has recognized, audiences are
well-equipped to distinguish between views being
expressed by a speaker (here, the couple marrying)
and one who performs a service in compliance with
generally applicable laws. Cf. Forum for Acad. &
Institutional Rights, 547 U.S. at 65.
There is no
reason to deviate from that rule for cake bakers,
florists, dress makers, or any other wedding vendor
who provides a service in exchange for a fee.
3. In addition to its sweeping scope, the rule
petitioners and the United States advocate suffers
from another flaw: it will disproportionately harm
same-sex couples. Although petitioners’ claim is
couched broadly in Phillips’s religious beliefs, the
practical import of the position petitioners and the
federal government advocate is that same-sex couples
will be excluded from services offered to others.
When approaching a chef, baker, or restaurateur in
the hopes of procuring their services for a wedding,
anniversary, or other event that celebrates their life
as a couple, same-sex partners are unable to hide
their sexual orientation. By contrast, another couple
whose marriage Phillips might not support—such as
a couple intending to have an “open marriage” or
even a couple entering into an interfaith marriage—
need not reveal the aspect of their life he is likely to
denounce. Such unequal treatment, on the basis of
sexual orientation, is exactly what the Colorado
legislature intended to prohibit when it enacted the
Anti-Discrimination Act. This Court should not allow
Phillips to flout that judgment.
Instead, this Court should hold that where, as
here, a chef or other artist who engages in

 17
commercial activity is not asked to create a product
that he would decline to create for any other patron,
the First Amendment does not give him the right to
refuse service in violation of public accommodation
laws.
CONCLUSION
For the foregoing reasons, the decision below
should be affirmed.
Respectfully submitted.
Sarah Warbelow
Legal Director
HUMAN RIGHTS CAMPAIGN

Pratik A. Shah
Counsel of Record
Martine E. Cicconi*
AKIN GUMP STRAUSS
HAUER & FELD LLP
* Licensed to practice
in California only and
under the direct
supervision of a
partner of Akin Gump
Strauss Hauer & Feld
LLP who is an enrolled
active member of the
District of Columbia
Bar; applicant for
admission to the D.C.
Bar.

October 30, 2017

 1a
APPENDIX OF ADDITIONAL AMICI
The following amici also join this brief:
•

Benjamin Adler of The Skinny Pancake
in Burlington, VT;

•

Erin Archuleta of ICHI Sushi in San
Francisco, CA;

•

Tim Archuleta of ICHI Sushi in San
Francisco, CA;

•

Jessica Arneson of Red River Coffee Co.
in Fargo, ND;

•

Jason Babb of American Cut Steakhouse
in Atlanta, GA;

•

Greg Baker of The Refinery and Fodder
& Shine in Tampa, FL;

•

Josey Baker of Josey Baker Bread and
The Mill in San Francisco, CA;

•

Natalia Banjac of Nothing Bundt Cakes
in Tulsa, OK;

•

Christina Barber of Velvet Sky Bakery
in Jenkintown, PA;

•

Kim Bartmann of the Bartmann Group
in Minneapolis, MN;

 2a
•

Chia Basinger of Sweet Action Ice
Cream in Denver, CO;

•

Sarah Bates of The
Providence, RI;

•

Julia Battaglini of Secco Wine bar in
Richmond, VA;

•

Kurt Beadell of Vibrant Group Catering
in Portland, OR;

•

Matthew Bell of South on Main in Little
Rock, AR;

•

Meagan Benz of Crust Vegan Bakery in
Philadelphia, PA;

•

Mitch Berliner
Landover, MD;

•

Dorina Bernardo of TPR Restaurant in
Tenafly, NJ;

•

Bob Bernstein of Bongo Bakery in
Nashville, TN;

•

Sondra Bernstein of the Girl & the Fig
in Sonoma, CA;

•

Pamela Berry of Shepherdstown Sweet
Shop Bakery in Shepherdstown, WV;

of

Hot

Club

MeatCrafters

in

in

 3a
•

Kathleen Blake of The Rusty Spoon in
Orlando, FL;

•

Elizabeth Blau of Blau + Associates in
Las Vegas, NV;

•

John Blomgren of Back to Eden Bakery
in Portland, OR;

•

Bill Blum of
Sonoma, CA;

•

Lucy Bonds of Lucy’s Coffee & Tea in
Birmingham, AL;

•

Ben Brainard of Yellow Rocket Concepts
in Little Rock, AR;

•

Heather Bray of
Minneapolis, MN;

•

Robert Brown of Rockmere Lodge in
Ogunquit, ME;

•

Erik Bruner-Yang
Washington, DC;

•

Emily Bruno of Denizens Brewing Co. in
Silver Spring, MD;

•

Sandra Bubbert of The Acadian Bakers
in Houston, TX;

MacArthur

The

of

Place

Lowbrow

Maketto

in

in

in

 4a
•

Jeste Burton of Pie in the Sky Bakery
and Cafe of Juneau, AK;

•

Bethany
Caliaro
Providence, RI;

•

Danielle Callahan of Grown Up Treats
LLC in Chester, PA;

•

Joshua Campbell of Django Western
Taco in Cincinnati, OH;

•

Javier Candon of Joselito Casa de
Comida in Washington, DC;

•

Stefanie Carr of Durk’s Bar-B-Q in
Providence, RI;

•

Amy Cavanaugh
Asheville, NC;

•

Kerry Chao of
Washington, DC;

•

Jared Cohen of West Avenue Restaurant
in Dresher, PA;

•

Scott
Conant
of
Scott
Restaurants in New York, NY;

•

Candace Conley of The Girl Can Cook!
in Broken Arrow, OK;

of

of

Pastaio

Limones

Poke

Papa

in

in
in

Conant

 5a
•

Lupita Corbeil of Den-Tex Central in
San Antonio, TX;

•

Travis Cummings of Brown Box Meals
in Dallas, TX;

•

Laura Davis of The Brew House in
Cincinnati, OH;

•

Nils Davis of Bites on Broadway in
Skagway, AK;

•

Emile Defelice of Soda City in Columbia,
SC;

•

Tom DeGree of Wilde Cafe and Spirits
in Minneapolis, MN;

•

Agnes Devereux of The Village Tearoom
Inc. in New Paltz, NY;

•

Linde Di Lello Morton of Terra Plata in
Seattle, WA;

•

Kelly Doran of Gracie’s in Providence,
RI;

•

Steven Dorcelien of Bright
Creamery in Philadelphia, PA;

•

Lisa Dougherty of Buttercup Cakes LLC
in Sewell, NJ;

Yellow

 6a
•

Jana Douglass of Happy Chicks Bakery
in Cincinnati, OH;

•

Lissa Doumani or Terra in St. Helena,
CA;

•

Steve Durkee of Durk’s Bar-B-Q in
Providence, RI;

•

Elizabeth Ehrenberg of The Gleanery in
Putney, VT;

•

Jennifer Emerson of Local 463 Urban
Kitchen in Ridgeland, MS;

•

Derek Emerson of Walker’s Drive In,
Local 463, CAET Wine Bar, and Parlor
Market in Jackson, MS;

•

Leigh Enderle of Maribelle’s Eat +
Drink in Cincinnati, OH;

•

Nicole Endrikat Matos of Queen Bee
Pastry in Philadelphia, PA;

•

Duskie Estes of Zazu Kitchen + Farm in
Sebastopol, CA;

•

Nima Etemadi of Cake Life Bake Shop
in Philadelphia, PA;

 7a
•

Joshua Even of Tosca Cafe and 242
Columbus Ave, LLC in San Francisco,
CA;

•

Heather Fields of River City Sweets in
Glen Allen, VA;

•

Lily Fischer of Cake Life Bake Shop in
Philadelphia, PA;

•

Jean-Francois Flechet of
Belgium in Cincinnati, OH;

•

Kevin Fonzo of La Tavola in Orlando,
FL;

•

George
Formano
of
Orchestrate
Hospitality in Des Moines, IA;

•

Katina Foster of Sweet Magnolias Bake
Shop in Omaha, NE;

•

Emily Frank of Share Cheesebar and
C’est Cheese Food Truck in Cincinnati,
OH;

•

Angela Garbacz of Goldenrod Pastries in
Lincoln, NE;

•

Randy George of Red Hen Baking Co. in
Middlesex, VT;

Taste

of

 8a
•

Cesraq Gerena of
Provincetown, MA;

Ross’

•

Rob Gerhart of Louisiana Pizza Kitchen
Uptown in New Orleans, LA;

•

Dean Gold of
Washington, DC;

•

Daniel
Greenblatt
of
Restaurant in Ashland, OR;

•

Trina Gregory-Propst of Se7enbites in
Orlando, FL;

•

Ruth Gresser of Pizzeria Paradiso in
Alexandria, VA;

•

Carole Griffin of Continental Bakery in
Birmingham, AL;

•

Zach Gutweiler of Reeds Hollow in Des
Moines, IA;

•

Mark Haley of Above and Beyond
Catering, Inc. in Boston, MA;

•

Howard Hanna of The Rieger in Kansas
City, MO;

•

Kevin Hart of Chef’s Table Catering in
Philadelphia, PA;

Dino’s

Grill

Grotto

in

in

Greenleaf

 9a
•

Marypat Heineman of DISH Restaurant
in Lincoln, NE;

•

Laurel Herman, author of THE INNER
KITCHEN of Henrico, VA;

•

Susan Hershberg of Wiltshire Pantry in
Louisville, KY;

•

Donald Hitchcock of Lost River Trading
Post in Wardensville, WV;

•

Richard Hogan of Culinaragourmet in
New Hope, PA;

•

Shavone Holt of City Farm Company in
Nashville, TN;

•

Ashley Holtzclaw of Ashley Sue’s Baked
Goods in Atlanta, GA;

•

Mark Howard of Howard Kelly Concepts
d/b/a Bliss ReBar and MTM Concepts
d/b/a FEZ Restaurant & Bar in Phoenix,
AZ;

•

Mark Hunker of JAM
Rehoboth Beach, DE;

•

Julia Izenberh of Izenberg’s Deli,
Bakery, Catering, & Restaurant in
Conshohocken, PA;

Bistro

in

 10a
•

Tom Kaplan of Wolfgang Puck Fine
Dining Group in Las Vega, NV;

•

Penny Karas of Sweet P Confections in
Washington, DC;

•

Douglas Katz of Fire Food and Drink in
Cleveland, OH;

•

Emma Kiser of Wardensville Garden
Bakering in Wardensville, WV;

•

Derek Kitchen of Laziz Kitchen in Salt
Lake City, UT;

•

Dan Kluger of Loring Place in New
York, NY;

•

Kurt Kretschmar of Cocktail Caterers in
New York, NY;

•

Dave Krick of Bittercreek Alehouse in
Boise, ID;

•

Melissa Krumbein of Kitchen Thyme in
Richmond, VA;

•

Shane Landry of Connie’s Bakery &
Catering in Provincetown, MA;

•

Laura Lane-Ruckman of Bridges Cafe &
Catering in Portland, OR;

 11a
•

Tom Lane-Ruckman of Bridges Cafe &
Catering in Portland, OR;

•

Richard Langston of RM Restaurants
LLC in Boise, ID;

•

Wendy Larson of Slates Restaurant and
Bakery in Hallowell, ME;

•

Natalie Latour of Chocolats Latour LLC
in Cincinnati, OH;

•

Kim Laughlin of Park Avenue Pastries
in Chalfont, PA;

•

Nick Leahy of Saltyard in Atlanta, GA;

•

Lindsey Lee of Cargo Coffee in Madison,
WI;

•

Alex Levin of Schlow Restaurant Group
in Washington, DC;

•

Susan Limb of Praline Bakery, LLC in
Bethesda, MD;

•

Joyce Liu of
Francisco, CA;

•

Joe Logsdon of La Mie Bakery-Cafe in
Des Moines, IA;

Tosca

Cafe

in

San

 12a
•

Jennifer Low of The Frosted Fox Cake
Shop in Philadelphia, PA;

•

Brandy Lueders of The Grateful Chef in
Des Moines, IA;

•

Jennifer Luxmoore of Sin Desserts in
Providence, RI;

•

Jason Lyon of Flatbread Company in
Amesbury, MA;

•

Marrin Maher of Rogue Restaurant
Group in Richmond, VA;

•

Robert Maher of Rogue Restaurant
Group in Richmond, VA;

•

Andrew Markert of Beucherts Saloon in
Washington, DC;

•

Katharine March of Big Tree Hospitality
in Portland, ME;

•

Kimmee Masi of Confections of
Rockstar Bakery in Asbury Park, NJ;

•

Scott McKenzie of Scott McKenzie
Catering & Events in Wayzata, MN;

•

Robert McMahon of Eberly McMahon
Copetas LLC in Cincinnati, OH;

a

 13a
•

Amy McMillan of Bohemian Wood Fire
Pizza in Tulsa, OH;

•

Jim Mecca of Bosque Baking Company
in Albuquerque, NM;

•

Roger Meier of The Baker & Butcher in
Honolulu, HI;

•

Suzy Menard of
Washington, DC;

•

Claire Meneely of Dozen Bakery in
Nashville, TN;

•

Robbin Moler
Charleston, SC;

•

Rom Moonguaklang of Pom Pom
Teahouse and Sanwicheria in Orlando,
FL;

•

Marco Morosjni of Silvertron Cafe in
Birmingham, AL;

•

Patrick
Mulvaney
of
Mulvaney’s
Building & Loan in Sacramento, CA;

•

Tamara Murphy of Terra Plata in
Seattle, WA;

•

Rochelle Myers of Rochelle
Catering in Leesburg, VA;

of

Via

Umbria

ShadowMoss

in

in

Myers

 14a
•

Steven Nawalany of Lipkins Bakery in
Philadelphia, PA;

•

Laura Norris of Cucina della Ragazza in
Kansas City, MO;

•

Brian Noyes of Red Truck Bakery in
Marshall, VA;

•

David O’Neill of The Robins Cellars in
Richmond, VA;

•

Patrick O’Connell of The Inn at Little
Washington in Washington, VA;

•

Georgiana
Olson
of
Pheasant
Restaurant in Brookings, SD;

•

Chris Pappas of Puritan Backroom
Restaurant in Manchester, NH;

•

Capi Peck of Trio’s in Little Rock, AR;

•

Chris Powell of Orange Door Hospitality
in Acton, MA;

•

Rachael Ratliff
Cheyenne, WY;

•

Steven Rivelis of The Elephant in
Baltimore, MD;

of

Little

Lark

in

 15a
•

Richard
Rosenthal
of
the
Max
Restaurant Group in Hartford, CT;

•

James Rua of Cafe Capriccio in Albany,
NY;

•

Serena Rundberg of Inspired Madness,
Inc. d/b/a The Nova Cafe in Bozeman,
MT;

•

Jose Salazar of Salazar Restaurant in
Cincinnati, OH;

•

Anne Sexton of the Bartmann Group in
Minneapolis, MN;

•

George Scharefer of Poppi’s Anatolia in
Eugene, OR;

•

Teri Scheff of Artrageous Desserts in
Cincinnati, OH;

•

Brian Scherle of Browndog Creamery in
Northville, MI;

•

Lisa Schroeder of Mother’s Bistro & Bar
in Portland, OR;

•

Jenny Schwarz of Hopscotch Oakland in
Oakland, CA;

•

Gordon Scott or Scott’s
Bakery in Hartford, CT;

Jamaican

 16a
•

Joe Scully of Westmoreland & Scully in
Asheville, NC;

•

Lacey Sher of 200 Uva LLC in Oakland,
CA;

•

Joni Sherman of Sprouts in Cininnati,
OH;

•

David Sierra of Joselito
Comidas in Washington, DC;

•

Andrew
Silva
Burlington, VT;

•

Derek Simcik of Thompson Seattle in
Seattle, WA;

•

Cate Sisco of Sisco Enterprises LLC
d/b/a Piece of Cake in Evansville, IN;

•

Ellen Slattery of Gracie’s Venture in
Providence, RI;

•

Karen Small of Flying Fig and Market
at the Fig in Cleveland, OH;

•

Bill Smith of Crook’s Corner in Chapel
Hill, NC;

•

Alane Spinney of Gracie’s Venture in
Providence, RI;

of

Casa

Mirabelles

de
in

 17a
•

Francine Starke of Navarre in Portland,
OR;

•

Keeley Steele of Bluegrass Kitchen in
Charleston, WV;

•

Mariel Street of Liberty Burger in
Dallas, TX;

•

Pamela Student of Prospect Restaurant
in San Francisco, CA;

•

Jack Sundell of The Root Cafe in Little
Rock, AR;

•

Chris Svoboda of Svolicious Dishes in
Richmond, VA;

•

Daniel Swenson-Klatt of Butter Bakery
Cafe Inc. in Minneapolis, MN;

•

Tony Tausch of Coffee Emporium in
Cincinnati, OH;

•

Arnold Teixeira of The Starving Artist
at Days Restaurant in Ocean Grove, NJ;

•

Christian Thornton of Atria Martha’s
Vineyard in Edgartown, MA;

•

Carol Todd of Market Roost Catering,
Restaurant & Bakery in Fleminton, NJ;

 18a
•

Meredith Tomason of RareSweets in
Washington, DC;

•

Jenny Torrence of NOTO Burrito in
Topeka, KS;

•

Erika Urso-Deutsch of Love Bites by
Erika in Easton, PA;

•

Rahul Vinod of RASA Indian Grill in
Wshington, DC;

•

Gretchen Von Cloedt of Hometown
Desserts in Bradenton, FL;

•

Bonnie Warford of Earl’s Grocery in
Charlotte, NC;

•

Alfred Warren of NGenious DZines in
Tulsa, OK;

•

Mason Waterman of Rosa’s Fresh Pizza
in Philadelphia, PA;

•

Bob Watson of Capitol Grounds Café
and 802 Coffee Roasters in Montpelier,
VT;

•

Bryan Weaver of Butcher and Bee in
Nashville, TN;

•

Ken Weinstein of Trolley Car Diner of
Philadelphia, PA;

 19a
•

Jodi Whalen of
Burlington, VT;

August

•

Rocco Whalen
Cleveland, OH;

•

Joshua White of Swiss Haus Bakery in
Philadelphia, PA;

•

Robert Wiedmaier of RW Restaurant
Group in Kensington, MD;

•

Michael Wiley of Big Tree Hospitality in
Porland, ME;

•

Charlie Wilfong of Cuisine East and
West in Cincinnati, OH;

•

Timothy
Williams
of
Catering in Tulsa, OK;

•

Perrin Williams of Vermont Cake Studio
in Waterbury Center, VT;

•

Alex Wirth of Lucky’s in Boulder, CO;

•

Constance Wolgast of Ginny’s and Jane
E’s in Anna Maria, FL;

•

Andrew Wood of Russet Restaurant in
Philadelphia, PA;

of

First

in

Fahrenheit

in

TW’s-AFAB

 20a
•

Kristin Wood of Russet Restaurant in
Philadelphia, PA;

•

Ken Woytisek of The Culinary Institute
of America of Saint Helena, CA;

•

Jeffrey Zak of Jeff Zak Catering in
Plymouth, MI;

•

Johannah Zuniga of Dream Cakes in
Portland, OR;

•

Peggy Zwerver of Earth Bread
Brewery in Philadelphia, PA.

+