BUDDY S BAKERY Petitioner. NORTH GREENE HUMAN RIGHTS COMMISSION and ANNE MARIE, Respondents

No. 14-218 IN THE SUPREME COURT OF THE UNITED STATES SPRING TERM 2014 BUDDY S BAKERY Petitioner v. NORTH GREENE HUMAN RIGHTS COMMISSION and ANNE MARIE, Respondents On Writ of Certiorari from the Supreme Court of North Greene BRIEF FOR RESPONDENTS Team 12 1

QUESTIONS PRESENTED 1. Does a public accommodation statute prohibiting commercial discrimination on the basis of sexual orientation unconstitutionally compel speech when it does not prescribe any particular message to be conveyed? 2. If not, does the same statute, when it does not appear to target a particular religion or religions, infringe on individuals Free Exercise rights or a state s Religious Freedom Restoration Act? 2

TABLE OF CONTENTS Questions Presented............................................................ i Table of Authorities........................................................... iv Statutes Involved............................................................. vii Statement of the Case........................................................... 1 Procedural History....................................................... 1 Statement of Facts........................................................ 2 Summary of Argument......................................................... 3 Argument.................................................................... 4 I. THE PUBLIC ACCOMMODATION SECTION OF THE NGHRA DOES NOT COMPEL FREE SPEECH UNDER THE UNITED STATES OR NORTH GREENE CONSTITUTIONS..9 A. The NGHRA as-applied does not compel the petitioner to speak the government s message 11 B. Buddy s Bakery is not compelled to express or endorse the specific views of a third party since the third party s message is distinguishable from that of the business...12 C. Selling cakes should not be protected as expressive speech following the tests from O Brien and Johnson...16 II. THE NGHRC DID NOT OFFEND THE FREE EXERCISE RIGHTS OF BUDDY S BAKERY, NOR VIOLATE THE NGRFRA 18 A. The NGHRA is neutral and generally applicable because it does not target a particular religion and contains only secular exceptions.19 B. The government narrowly tailored a remedy to stop the crippling effects of discrimination..23 3

TABLE OF AUTHORITIES Cases Cantwell v. Connecticut, 310 U.S. 296 (1940)... 19 Catholic Charities of Diocese of Albany v. Serio, 859 N.E. 2d 459 (2006)... 23 Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (2004)... 23 Church of the Lukumi Babalu Aye. Inc. v. City of Hialeah, 508 U.S. 520 (1993)... passim Daniel v. Paul, 395 U.S. 298, 307 (1969)... passim Elane Photography, LLC v. Willock, 2013-NMSC-040, 309 P.3d 53... 25 Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990)... 19, 25 Gitlow v. New York, 268 U.S. 652 (1925)... 10 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)... 19 Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987)... 22 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012)... 23 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 572 (1995)... passim Hyman v. City of Louisville, 132 F.Supp.2d 528, 538 (W.D. Ky. 2001), vacated on other grounds, (6th Cir. 2002)... 23 Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974)... passim Spence v. Washington, 418 U.S. 405, 410-11 (1974)... passim Swanner v. Anchorage Equal Rights Comm n, 874 P.2d 274, 282 (Alaska 1994)... 25 United States v. O Brien, 391 U.S. 367, 376 (1968)... passim Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696 (1970)... 21 Wooley v. Maynard, 430 U.S. 705, 714 (1977)... passim 4

United States Constitution U.S. Const., Amdt. I... 10, 19 Statutes 42 U.S.C. 3603(b)(1) & (2) (2012)... 21 N.G. Const. art. II, 17... 10 NGSA 1978 28-1-9(A)(1)-(D) (2000)... 22 NGSA 1978, 28-22-1-5 (2000)... 19, 21 State Legislative Bills H.B. 2453 (Ks. 2014)... 26 H.B. 426, 62d Leg., 2d Reg. Sess. (Id. 2014)... 26 L.D. 1428 126th Leg., 1st Reg. Sess. (Ma. 2014)... 26 S.B. 1062, 51st Leg., 2d Reg. Sess. (Az. 2014)... 26 S.B. 128, 89th Leg. (SD 2014)... 26 S.B. 2566, 108th Leg. (Tn. 2014)... 26 Other Authorities Justin Muehlmeyer, Note, Toward a New Age of Consumer Rights: Creating Space in the Public Accomodation for the LGBT Community, SSRN. (May 22, 2013) http://ssrn.com/abstract=2269345... 22 Daniel L. Patrick et al., Bullying and Quality of Life in Youths Perceived as Gay, Lesbian or Bisexual in Washington State, 2010, 103 American Journal of Public Health 1255, 1256 (2013).... 24 5

Lesbian, Gay, Bisexual, and Transgender Health, Centers for Disease Control and Prevention (Feb 20, 2014) http://www.cdc.gov/lgbthealth/youth.htm.... 24 6

STATEMENT OF THE CASE Procedural History Upon request by respondent Anne Marie, the North Greene Human Rights Commission (NGHRC) filed a Commission Complaint of sexual orientation discrimination on November 28, 2012 against petitioner, Buddy s Bakery. R. at 4-5. On April 9, 2013, the NGHRC ruled that Buddy s Bakery, a public accommodation, had illegally discriminated based upon sexual orientation. Id. Buddy s Bakery appealed to the North Greene District Court, invoking de novo review pursuant to N.G.S.A. 28-1-13(A) (1955). Id. Petitioner claimed that the NGHRC s judgment should be reversed because it violated Buddy s Bakery s right to freedom of speech under the First Amendment of the U.S. Constititon and Article II, section 17 of the North Greene Constititon, as it compeled Buddy s Bakery to participate in and advance a viewpoint it did not hold. Id. Buddy s Bakery also argued that the NGHRC s actions were in violation of the Free Exercise Clause of the First Amendment to the U.S. Constition and Article II, Section 11 of the North Greene Constition and that it furthermore violated the North Greene Religious Freedom Restoration Act (NGFRA). Id. Buddy s Bakery did not challenge the NGHRC s finding that it was a public accommodation under the Act or that it had violated the Act by denying its services to a homosexual couple. R. at 6. Both sides filed motions for summary judgment but the district court granted summary judgment for Buddy s Bakery. Id. They concluded that the Commission had made the bakery choose between advancing a viewpoint they opposed or being punished for discrimination, thus violating their rights to freedom of speech and their implicit right to conscience under the First Amendment of the U.S. and North Greene Constitions. Id. The district court also held that the Commision had substantially burdened the bakery s religious beliefs and that the government lacked a compelling state interest, implemented by the least 7

restrictive means, to justify the substantial burden on Buddy s Bakery s free exercise of religion. R. at 5-6. Anne Marie and the NGHRC filed an appeal to the North Greene Court of Appeals. R. at 6. The Court of Appeals affirmed the district court s grant of summary judgment for Buddy s Bakery and so the respondents appealed to the Supreme Court of North Greene. Id. The Supreme Court of North Greene reversed, finding that Buddy s Bakery had violated the NGHRA and that in enforcing the NGHRA, the NGHRC had not violated Buddy s Bakery s constititonal and statutory rights based upon freedom of speech, freedom of expression, or freedom of religion. R. at 18. Buddy s Bakery appealed to this court and its Writ of Certiorari was granted. R. at 19. Statement of the Facts On or about September 21, 2010, Anne Marie emailed Buddy s Bakery to request a wedding cake. R. at 4. She and her partner, Marlo Donahue were planning a commitment ceremony in Phoenix, North Greene on September 15, 2011 and needed a cake for the celebration afterwards. Id. Anne Marie received an email back from Buddy s Bakery stating that they made cakes for traditional weddings, engagements, anniversaries, and the like, as well as cakes for birthdays and other special occasions. Id. On November 28, 2010, Anne Marie replied, asking for clarification. She received an email from Buddy s Bakery the same day saying that she was correct and we do not make cakes for same-sex weddings. Id. Buddy s Bakery is a limited liability company formed in 1990 that designs and creates cakes for weddings, birthdays, bar mitzvahs and other special occasions. R. at 3. The owners of Buddy s Bakery believe that marriage is between one man and one woman. Id. Due to its owners beliefs, Buddy s Bakery refuses to make cakes for situations its owners believe promote 8

non-traditional marraiges, such as same-sex commitment ceremonies. Id. The State of North Greene does not yet recognize marriages or civil unions between same-sex partners. R. at 4. In addition to not making cakes for same-sex weddings, Buddy s Bakery also will not make cakes that portray erotic imagery, horror imagery, or other images that they consider sinful including sexually explicit cakes for bachelor/bachelorette parites, gambling-themed cakes or drug-themed cakes for fraternities and sororities. R. at 3. After being refused service, Anne Marie notified the NGHRC and this suit followed. SUMMARY OF ARGUMENT This court should uphold the findings of the Supreme Court of North Greene and find that the actions of the NGHRC were constitional and legal under the U.S. and North Greene Constitions as well as the North Greene Religious Freedom Restoration Act. The NGHRA as applied does not compel speech because it does not require anyone to speak the government s message. Buddy s Bakery was also not victim to compelled speech because it was not made to endorse specific views and any third party would easily be able to distinguish between the views of Buddy s Bakery and the views of its customers. Furthermore, selling cakes itself is not expressive conduct under O Brien and Johnson, as a wedding cake does not convey a message on its own. The NGHRC also did not violate the Free Exercise Rights of Buddy s Bakery. The NGHRA is a neutral and applicable law because it does not target a particular religion and contains only secular exemptions. Furthermore, under the NGRFRA, North Greene narrowly tailored its law so as to stop the crippling effects of discrimination, a sufficiently compelling 9

interest. The actions of the NGHRC and the ruling of the Supreme Court of North Greene should thus be upheld. ARGUMENT I. THE NGHRA IS WITHIN THE STATE S AUTHORITY TO COMBAT DISCRIMINATION AND DOES NOT COMPEL SPEAKING ANY PARTICULAR GOVERNMENT OR THIRD PARTY MESSAGE This court should affirm the judgment of the court below and find the NGHRC s actions permissible under the First Amendment of the United States and its duplicate clauses under the North Greene Constitution. The First Amendment of the United States Constitution provides that Congress shall make no law abridging the freedom of speech. U.S. Const., Amdt. I. Freedom of speech is similarly guaranteed by the North Greene constitution. N.G. Const. art. II, 17. The Due Process Clause of the Fourteenth Amendment extends the prohibition to laws passed by the States as well. Gitlow v. New York, 268 U.S. 652, 666 (1925). The right to free speech is not absolute, however. This right can be limited where it is necessary to serve a compelling state interest or where it is incidental to commercial regulation. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 62 (2006); United States v. O Brien, 391 U.S. 367, 376 (1968). Public accommodation statutes like the NGHRA do not, as a general matter, violate on the First or Fourteenth Amendments of the United States Constitution and are well within a State s police power to protect citizens who may be subject to discrimination. Hurley v. Irish- American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 572 (1995). In fact, the United States Supreme Court has never found a public accommodation statute like the NGHRA to be a compelled-speech violation of the First Amendment. (R. at 10.) Invalidating public 10

accommodation statutes on compelled speech grounds would have far-reaching consequences on other anti-discrimination efforts that these statutes were designed to promote. The NGHRA does not compel speech, as it does not require an individual to speak a specific government message or the message of a third party. The NGHRA guarantees individual citizens equal access to services, applied neutrally to all establishments that provide goods to the public. 28-1-2(H) (N.G.S.A.). The statute does not prescribe any particular message that businesses must say, write or promote. It also does not allow a third party to commandeer the message of a business. The public can perceive the difference between providing passive access to a third party and speaking or endorsing a message directly. Rumsfeld, 547 U.S. at 65. The NGHRA regulates discriminatory commercial conduct rather than speech. Such regulation of conduct is given more deference than laws that regulate speech either directly or indirectly. Texas v. Johnson, 491 U.S. 397, 406 (1989). Even in cases where expression is affected, a governmental interest like protection from discrimination can justify regulation of free expression. O Brien, 391 U.S. at 376. (holding constitutional a ban on Selective Service card based on the substantial governmental interest involved); Roberts v. United States Jaycees, 468 U.S. 609, 626, 628-29 (1984) (holding constitutional a public accommodation law compelling acceptance of women due to the compelling interest in eradicating discrimination ). The compelling government interest in protecting individuals from discrimination is just such an interest. In fact, the Court has held that public accommodation statutes like the NGHRA would withstand strict scrutiny, since they are narrowly tailored to accomplish the compelling interest of combatting discrimination. Id. 11

A. The NGHRA as-applied does not compel the petitioner to speak the government s message, since it prescribes no particular message. The NGHRA does not require petitioner to speak the government s message. There are two foundational cases that establish when a government impermissibly compels an individual to speak the government s message. In West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), this court held that it was impermissible compelled speech to require public school students to recite the Pledge of Allegiance and salute the American flag. Similarly, in Wooley v. Maynard, 430 U.S. 705 (1977), this court found that it was unconstitutional to require New Hampshire citizens to display the message Live Free or Die on their personal property. Both cases began with the broad premise that free speech includes the freedom to refrain from speaking, but the Court invalidated the laws involved on more narrow grounds, citing that it was impermissible to mandate recitation or presentation of a particular, government-originated message. Barnette, 319 U.S. 624; Wooley, 430 U.S. 705. Because the NGHRA does not mandate a particular, government-oriented message it does not constitute unconstitutional compelled speech. Laws that unconstitutionally compel an individual to speak the government s message require a particular, government-oriented message. In Barnette, the Pledge of Allegiance is a particular, prescribed utterance that exists in statute. 319 U.S. at 625. Likewise, in Wooley, the state s license plates had a particular, specific message of live free or die. 430 U.S. at 706. The required message was specific, non-negotiable and promoted by the government. Unlike in Wooley and Barnette, the statute in this case involves no particular message. In fact, it doesn t seem to truly even involve speech at all. The NGHRA is thus not compelled speech under these tests. 12

The latest Supreme Court case on point also follows these guidelines from Wooley and Barnette. In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., the Court upheld the constitutionality of a law granting military recruiters access to college campuses subject to federal fund denial, despite some law schools objection to certain military policies. 547 U.S. at 52. In deciding the case, the Court noted that the law did not dictate any particular content, but instead merely provided equal access. Id., at 60-62. The Court also focused on the substantial governmental interest in raising a militia that had prompted the law. Id., at 67. The Rumsfeld case follows similar factors to those established in Barnette and Wooley, finding that where the government prescribes no specific content and a substantial governmental interest is involved, a regulation that affects free expression is constitutional. Id., at 70. The NGHRA, when considered on the above established criteria, does not compel any individual to speak the government s message. The NGHRA is a public accommodation statute that ensures equal access to goods and services regardless of sexual orientation. N.G.S.A 28-1- 7(F). The statute contains no particular governmental message. It also does not require a particular color, design, or frosting on cakes, nor reciting a government-chosen utterance or posting a particular government-chosen sign as seen in Barnette and Wooley. Barnette 319 U.S. at 632; Wooley 430 U.S. at 707. Petitioner, like any company or individual, remains free to post a statement of its views or criticize a government policy, similar to the rights of law schools. Rumsfeld, 547 U.S. 47. B. Buddy s Bakery is not compelled to express or endorse the specific views of a third party since the third party s message is distinguishable from that of the business. The petitioner s own message is not compelled by adherence to the NGHRA. This court in Rumsfeld upheld the constitutionality of the government requiring an organization to provide 13

equal access to services that accommodate speech, so long as the complaining speaker s own message was not affected. 547 U.S. at 63. Whether access to services affects a speaker s own message is determined partially by the likelihood of misattribution or perceived endorsement due to the discretionary nature of the service provided. Rumsfeld, 547 U.S. 47, 65; Hurley, 515 U.S. at 577; Miami Herald Publishing Company v. Tornillo, 418 U.S. at 261 (1974). The Court also distinguished between laws whose primary purpose involved speech regulation or whether it was incidental to accomplishing another substantial governmental purpose. Rumsfeld, 547 U.S. at 62. The NGHRC s actions towards Buddy s Bakery is not a case of impermissible compelled speech because there is no risk of a wedding cake being considered an endorsement by the bakery of gay marriage. The public can parse the difference between an entity providing equal access to a third party to promote its message and the entity making a message directly. Rumsfeld 547 U.S. at 65. Cases where the message of a third party cannot be extricated from the service provider include particular types of services, whose discretionary delivery make the perceived endorsement inevitable. In Hurley, a gay pride group was denied a float in a privately organized parade. 515 U.S. at 561 (1995). This court held that spectators perceive each unit in a parade to contribute to an overall parade message, attributing each float s theme to the overall voice of the organizers and promoters. Id., at 577. Hurley provides guidance as to the type of organizations whose message can be commandeered by a third party. Other cases follow the notion that compelled speech through endorsement depended on the likelihood of misattribution. Tornillo addressed a right of reply law in Florida that required newspapers to reserve space for a response, free of charge, for any candidate for public office who had been criticized. Tornillo 418 U.S. at 244. The Court reasoned that a newspaper was 14

more than a passive receptacle or conduit, but an entity expected and perceived to exercise editorial judgment, attributing the content of the newspaper to the editor. Id. at 257, 258. Likewise, the Court in Pacific Gas invalidated a California regulation that required a utility to include messages of a critical interest group on a newsletter distributed with their billing statements. Pacific Gas 475 U.S. at 6. Such a requirement would force the utility company to appear to agree with a critical group, since message is contained in its own billing envelope. Id. at 14-16. In both cases, political messages from particular government-selected parties were mandated, effectively commandeering the rights of discretion of the newspaper and utility company. Tornillo, 418 U.S. 241; Pacific Gas, 475 U.S. 1. The Court in Rumsfeld distinguished between fora that facilitate other speakers, but lack the inherent expressive nature of parades, newspapers editorial pages or distributed pieces of mail. Rumsfeld 547 U.S. at 64. The commercial bakery involved in the present case is much more akin to a college providing access to third parties to distribute their message than editorial pages or newsletters. Laws whose primary purpose are to regulate speech are more likely to unconstitutionally compel speech than those who affect speech only incidentally. Rumsfeld, 547 U.S. at 62. Tornillo and Pacific Gas both included laws whose purpose was to promote dissemination of particular types of messages to the public. Tornillo, 418 U.S. at 247-48; Pacific Gas, 475 U.S. at 12-13. In Rumsfeld, the Court specifically acknowledged the validity of laws whose purpose was to prohibit discriminatory practices toward protected classes by commercial entities, even if the laws incidentally regulate the entities speech. Rumsfeld, 547 U.S. at 52. Public accommodations whose services include speech-like elements are still subject to incidental regulation. Rumsfeld, 547 U.S. at 62. None of the aforementioned cases are, in fact, public accommodations, however. In Hurley, the parade was specifically found to not be a public 15

accommodation. 515 U.S. at 572. Another sentence about Pacific Gas, 475 U.S. 1 (1986) and one about Tornillo, 418 U.S. 241, 258. The Supreme Court in Hurley cast doubt upon the peculiar way in which the lower court applied its state public accommodations statute, claiming that it had (dubiously) construed the parade sponsors speech to be a public accommodation. Hurley, 515 U.S. at 572. Neither newspaper content, subject to an editor s discretion, nor message distribution by a utility company can be classified as public accommodations either. Tornillo, 418 U.S. 241; Pacific Gas, 475 U.S. 1 (1986). A cake s method of message conveyance is far more akin to a passive receptacle that facilitates the message of a purchaser than an inherently expressive parade or editorial page. Tornillo, 418 U.S. at 258. Any perceived endorsement requires misattribution of a third party s message to the endorser. The public can appreciate the difference between speech sponsored and speech permitted to be made by a third party. Rumsfeld, 547 U.S. at 65. In the instant case, the public s ability to discern should not be doubted. No one assumes that a baker is sending birthday wishes through a cake bearing the phrase Happy Birthday. Instead, the baker sells a cake to clients who convey their message. The primary purpose of public accommodation statutes like the NGHRA is to protect citizens from the personal affront and humiliation that result from discrimination. Daniel v. Paul, 395 U.S. 298, 307 (1969) (upholding the validity of a public accommodation statute and commenting on its purpose). Public accommodations statutes, like the NGHRA, are narrowly tailored to meet this substantial government interest, meeting even strict scrutiny. Roberts, 468 U.S. at 626, 628-29. It regulates, primarily, conduct in ensuring equal access in service provision. Any impact on the speech of commercial actors is incidental to protecting the right of 16

equal access, akin to Rumsfeld, which specifically mentions laws prohibiting discrimination as those that regulate conduct. Rumsfeld, 547 U.S. 47, 52. The petitioner does not contest that it is operating as a public accommodation, subject to the NGHRA, providing a substantial distinction since such statutes do not generally violate the First Amendment s Free Speech provision. Hurley, 515 U.S. 557, 572. The Court has not found a compelled speech violation in any cases involving public accommodations. (R. at 10.) It is particularly important to note the distinction between the instant case and Hurley in this regard, since Hurley arose to the Supreme Court under the auspices of a state public accommodations statute. Id. at 561. The Court found that the parade could not have been a public accommodation, making the law s application a moot point. Id. at 573. In the instant case, the law s application and continued efficacy is precisely on point. Petitioner concedes that it is a public accommodation and that the NGHRA applies to it, triggering the protections of a wealth of precedent. Id. at 572; Roberts, 468 U.S. 609, 624-626; C. Selling cakes should not be protected as expressive speech following the tests from O Brien and Johnson. Conduct cannot be simply labeled speech whenever that conduct is intended to express an idea. O Brien, 391 U.S. at 376. Statutes that regulate expressive conduct are given more deference than those regulating written or spoken words. Johnson, 491 U.S. at 406 (holding unconstitutional a statute that prohibits flag burning). To determine when conduct becomes expressive, one must consider consider the intent to convey a message and whether the message is likely to be understood by those who receive it. Spence v. Washington, 418 U.S. 405, 410-11 (1974) (holding unconstitutional a statute that punished individuals for improper exhibition of a United States flag). Even if conduct is deemed expressive, the Court considers whether the regulation is targeted at the communicative nature of the conduct. Id., at 403, 406. So long as 17

the regulation s purpose is not to target free expression, the regulation will still be justified by promoting a sufficiently important government interest. O Brien, 391 U.S. at 377. Operating a business that sells cakes is not inherently expressive. While the petitioner business may claim that it views baking and designing the cakes as artistic expression, the business is an LLC whose purpose is to earn a profit. (R. at 3.) The conduct in the instant case, operating a bakery, is distinguishable from flag desecration seen in Johnson and Spense. O Brien U.S. 391 U.S. at 368. Johnson, 491 U.S. at 399; Spense, 418 U.S. at 405. The flag is an overtly political symbol, meant to express messages beyond its aesthetic presence. In addition, the activities in Johnson and Spense were meant to broadcast a message to a broader audience that would understand and associate it with its sender. Spense, 418 U.S. at 410. As previously mentioned, few, if any attribute the message of a baker to the person who purchases, owns, and displays the baking item. In addition, the message must be discernable. The NGHRA does not proscribe a particular method of decorating cakes. Petitioner could simply sell a plain cake, making message conveyance entirely unlikely and outside the classification of expressive content from Spense. Id., at 410-11. Even if operating a cake business is considered expressive conduct, NGHRA does not target the expressive nature of any particular business. The statute applies neutrally to all establishments in North Greene that offer services to the public. 28-1-2(H) (N.G.S.A.). It does not target the communicative nature of conduct that a business engages in, but instead applies to the non-expressive business practice of equal access or, conversely, discrimination. Johnson, 491 U.S. at 407. The Court must consider whether the statute has an interest in regulating the non-expressive portion of conduct. O Brien, 391 U.S. at 376. The purpose of public accommodations statutes like the NGHRA is to prevent the affront and humiliation that 18

accompanies discriminatory practices by businesses, not to regulate any particular expression by a business. Daniel, 395 U.S. at 307. The NGHRA serves a substantial government interest and is effectively achieved, justifying regulation even if the conduct is deemed expressive. Roberts, 468 U.S. at U.S. 626, 628-29; O Brien, 391 U.S. at 377. The O Brien test also requires that the law abridge First Amendment freedoms no more so than is necessary to promote the interest. Id. Again, the Court has found that public accommodations statutes are the least restrictive means to achieving the end of promoting equal access. Roberts, 468 U.S. at 626. II. THE NGHRC DID NOT OFFEND THE FREE EXERCISE RIGHTS OF BUDDY S BAKERY, NOR VIOLATE THE NGRFRA. The Free Exercise Clause of the First amendment, which was made applicable to the States by incorporation into the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), declares that, Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof U.S.Const., Amdt. 1. While beliefs are protected fully by the Free Exercise clause, actions are not given the same absolute protection. Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 877 (1990). Conduct relating to one s religion may be restricted so long as the statute doing so is a valid and neutral law of general applicability. Id. at 879 (upheld in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006)). In addition, under the North Greene Religious Freedom Restoration Act (NGRFRA) any restriction on religious practice must also be essential to further a compelling governmental interest and be the least restrictive means of furthering that compelling governmental interest. NGSA 1978, 28-22-1-5 (2000). The NGHRC did not infringe upon the Free Exercise Clause of the First amendment of the United States, as the statute it enforced contained only secular exceptions and did not target any particular religion. This 19

means the law was neutral and of general applicability, and thus any of its incidental effects on religious practice were constitutional. It also did not violate the NGRFRA, as the government had a compelling interest in ending discrimination and acted to accomplish those aims in an efficient and minimally restrictive manner through the NGHRC. To make an exception to the NGHRC for Buddy s Bakery would not only ignore precedent under the Free Exercise Clause and the NGRFRA, but would also open up the possibility of boundless additional exceptions. Were Buddy s Bakery allowed to discriminate in this instance, many other business owners could claim the same religious justifications, establishing precedent that would undermine antidiscrimination law not only for lesbian, gay and bisexual communities in North Greene, but also for all other protected classes under such statutes around the country. The strength of public accommodation law lies in its uniform and fair enforcement. The NGHRA is a reasonable and necessary regulation on commercial actors that protects the rights of all North Greeners to be free from discrimination. A. The NGHRA is Neutral and Generally Applicable Because it Does Not Target a Particular Religion and Contains Only Secular Exceptions. The Supreme Court explained the rule governing law that is neutral and of general applicability in Church of the Lukumi Babalu Aye. Inc. v. City of Hialeah, 508 U.S. 520, 531, 546 (1993) (striking down a ban on animal sacrifice because it targeted a particular religious sect). A statute is neutral and generally applicable if it does not target certain religious groups or individuals in language or application, but instead concerns all people regardless of religious affiliation. Id. General applicability and neutrality are interrelated, and thus analysis of one weaves with analysis of the other. Id. at 531. In Lukumi Babalu, the Court looked first to whether the statute targeted religious groups on its face. Id at 533. While the statute in Lukumi Babalu 20

had some indication of a religious tone through its mention of sacrifice and ritual, the text of the NGHRA is thoroughly unprejudiced. In fact, the only specific reference to religion in the NGHRA is to state that no one shall discriminate based upon religious belief or affiliation. NGSA 1978, 28-22-1-5 (2000). The NGHRA is thus neutral on its face. The Lukumi Babalu Court next asked if the statute in question had targeted religious practice more covertly. 508 U.S. at 534. In Lukumi, the statute failed the neutral and generally applicable tests, as it specifically targeted the central (distinguishing? unique?) element of the plaintiff s religion, outlawed the group s animal sacrifices but made exceptions for other kinds of animal killings, was both under and over inclusive in achieving its stated ends, and functioned in tandem with other ordinances to specifically suppress the plaintiff s religious worship. Id. The NGHRA is starkly different from the statute in Lukumi Babalu. The NGHRA makes no unfair exceptions akin to those seen in Lukumi Babalu. In Lukumi Babalu, the Court rebuked the statute in question for outlawing the plaintiff s animal sacrifices, while allowing for other forms of animal killing including kosher slaughter, hunting for sport and pet euthanasia. Id. They deemed this a religious gerrymander. Lukumi Babalu, 508 U.S. at 534 quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring). The Lukumi statute obviously only truly affected the plaintiff religious group. In contrast, the NGHRA s exceptions apply evenly to religious groups and thus are reasonable and constitutionally valid. The NGHRA has only limited, justified exemptions. The NGHRA exempts sales or rentals of single-family homes if the owner does not own more than three houses. NGSA 1978 28-1-9(A)(1)-(D). It also provides an exception for rentals by owners who live in small multifamily dwellings and rent out the units they do not occupy. Id. These particular exceptions are 21

present in most all public accommodation laws around the country, and date back as far as the Civil Rights Act of 1964. Justin Muehlmeyer, Note, Toward a New Age of Consumer Rights: Creating Space in the Public Accomodation for the LGBT Community, SSRN. (May 22, 2013) http://ssrn.com/abstract=2269345. Almost identical exemptions appear in housing discrimination laws, including the Fair Housing Act. See 42 U.S.C. 3603(b)(1) & (2) (2012). They are sometimes referred to as Mrs. Murphy exceptions and are designed to recognize the practice of some entrepreneurs to open their homes to transient guests, as a supplemental income. Id. In such situations, relationships between business owners and customers is much more intimate than in a traditional commercial establishment, and thus small discriminations based on protected characteristics such as sex or marital status must be permissible. These exceptions, for example, recognize that it would be unreasonable for a young woman renting an extra room in her home to not be able to discriminate in tenant selection based on sex or age. In such a situation, she may wish to do so to ensure her personal safety, or even simply to make a more hospitable and comfortable home environment for herself. These exemptions thus do not indicate any ill will towards religion and thus do not make the law non-neutral. The NGHRA also makes a limited exception for religious organizations, allowing them to discriminate based on religion and sexual orientation in real estate transactions and employment. NGSA 1978, 28-22-1-9 (2000). This court has recognized that the government may, and sometimes must, accommodate religious practices and that it may do so without violating the Establishment Clause. Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 144-45 (1987). In Lukumi Babalu, the Court deemed the statute unconstitutional because it allowed other groups and individuals to perform the exact same actions that the plaintiffs were barred from performing. 508 U.S. at 535. However, the NGHRA s exception for 22

religious organizations pertains only to real estate and employment. Thus, no business or organization, including a religious one, would be allowed to discriminate in the manner in which Buddy s Bakery did. Other Courts have recognized this distinction and ruled similar statutes neutral and generally applicable. See Catholic Charities of Diocese of Albany v. Serio, 859 N.E. 2d 459, 464 (2006) (Finding that a statute requiring employers to provide insurance that included contraceptive coverage was generally applicable and neutral because its object was to make broader health insurance coverage available to women ); Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 83 (2004) (Requiring all employers to provide contraceptive coverage but making an exception for some religious employers was a generally applicable and neutral law because if it burdened defendant, such burden arises not from the religious terminology used in the exemption, but from the generally applicable requirement. ); Hyman v. City of Louisville, 132 F.Supp.2d 528, 538 (W.D. Ky. 2001), vacated on other grounds, (6th Cir. 2002) (Finding that law banning employment discrimination on basis of gender identity or sexual orientation was generally applicable and neutral and some religious practices yield to the common good. ). Furthermore, this exception in many situations goes hand-in-hand with the ministerial exception, which ensures that churches and other religious groups are able to choose and administer religious leaders without interference. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 709 (2012) (Finding that under ministerial exception religious school could fire called teacher, even though in violation of the Americans with Disabilities Act). The statute s limited exemption for religious organizations strengthens the notion that it could not have been enacted because of religious enmity. Neither the language nor the intent behind the NGHRA reveal a religious gerrymander, making the statute neutral and generally applicable. The NGHRA and the actions of the NGHRC 23

in enforcing it do not violate the Free Exercise clause of the U.S. Constitution, nor its mirror counterpart in the North Greene Constitution. However, under the North Greene Religious Freedom Restoration Act, the application of the NGHRA must also be essential to further a compelling governmental interest and be the least restrictive means of furthering that compelling governmental interest. B. The Government Narrowly Tailored a Remedy to Stop the Crippling Effects of Discrimination. Preventing discrimination has been recognized by this Court as a compelling interest and the government narrowly tailors its remedy for discrimination. See Roberts, 468 U.S. at 629 (1984) (state law barring discrimination in public accommodations responds precisely to the substantive problem which legitimately concerns' the State, and any restrictive effect is no greater than is necessary to accomplish the State's legitimate purposes ) However, most importantly, ending discrimination simply is a significant interest, particularly in the context of the gay and lesbian community. While discrimination can have adverse effects in all populations, it is most devastating to young people. A national study of children grades 7-12 found that gay, lesbian and bisexual youth were twice as likely to attempt suicide than heterosexual children. Lesbian, Gay, Bisexual, and Transgender Health, Centers for Disease Control and Prevention (Feb 20, 2014) http://www.cdc.gov/lgbthealth/youth.htm. The study furthermore showed that the main catalyst to suicide and suicide attempt was bullying and discrimination from peers. Id. For victims of discrimination that escape suicide, bullying has been linked to risky physical health behaviors, depression and mental illness, and overall poorer quality of life. Daniel L. Patrick et al., Bullying and Quality of Life in Youths Perceived as Gay, Lesbian or Bisexual in Washington State, 2010, 24

103 American Journal of Public Health 1255, 1256 (2013). Discrimination has thus become a life or death issue in American society. The dangerous effects of discrimination show why it is important that all businesses in North Greene abide by the NGHRA, even if refusal from one company would not negate availability of a service. Courts around the country facing similar situations as the one here have found value in preventing acts of discrimination, regardless of whether the victim ultimately is able to find alternative services. In Swanner, The Supreme Court of Alaska found that a landlord who refused to rent to unmarried couples was unlawfully discriminated against based on marital status and that his actions were not protected by his right to religious freedom. Swanner v. Anchorage Equal Rights Comm n, 874 P.2d 274, 282 (Alaska 1994). Similarly, in Elane Photography, the New Mexico Supreme Court found that it was unlawful discrimination for a wedding photographer to refuse service for a same-sex commitment ceremony and held that the photographer s actions were unprotected by her free exercise rights or rights under the New Mexico Religious Freedom Restoration Act, a piece of legislation identical to the one in North Greene. 2013-NMSC-040, 309 P.3d 53. In each of these cases, the victims of discrimination were able to find service elsewhere, but that did not negate the harm already done. Were the NGHRA to make an exception for Buddy s Bakery, such a sweeping move would allow any business to discriminate based on sexual orientation, eviscerating the statute. This court has recognized the risk of judicial action creating too large an exception for religious practices, suggesting that it would be better left to the legislature. Smith, 494 U.S. 872, 890 ( leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law until 25

itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. ). Recent bills around the country evidence that deferring to legislative action is an adequate option. Among others, Tennessee, South Dakota, Maine, Idaho and Kansas have introduced so-called turn the gays away legislation, and Arizona even passed such a bill through its Congress. See S.B. 1062, 51st Leg., 2d Reg. Sess. (Az. 2014); H.B. 426, 62d Leg., 2d Reg. Sess. (Id. 2014); H.B. 2453 (Ks. 2014); L.D. 1428 126th Leg., 1st Reg. Sess. (Ma. 2014); S.B. 2566, 108th Leg. (Tn. 2014); S.B. 128, 89th Leg. (SD 2014). The judiciary does not have the same precision to carve out exceptions that the legislature wields, and thus if people truly desire for wedding providers to be able to discriminate based on sexual orientation, such an exception is better left for Congress. Most importantly, Buddy s Bakery should not be given an exception to the NGHRA because the law affects actors conduct, but not beliefs. If the owners of Buddy s Bakery continue to oppose same-sex marriage, they may do so and do so proudly. However, so as to leave space for others who believe differently, they must not act on those beliefs in a commercial setting. While Buddy s Bakery made a choice to enter the commercial market and run as a public accommodation, the respondents in this case had no choice as to their position. 26

CONCLUSION For the above stated reasons, the Respondents ask the Supreme Court of the United States to affirm the lower court s ruling granting summary judgment that the NGHRA neither compels speech, is an act of government speech, nor is in violation of the Free Exercise Clause or the NGRFRA. Dated: March 3, 2014 Respectfully submitted, /s/ Attorneys for Respondents 27

CERTIFICATE OF SERVICE We certify that a copy of Respondent s brief was served upon Petitioner, the United States of America, through the counsel of record by certified U.S. mail return receipt requested, on this, the 3 rd day of March, 2014. /s/ Attorneys for Respondents 28