No. 16-111

IN THE

Supreme Court of the United States

MASTERPIECE CAKESHOP, LTD., et al.,Petitioners,

—v.—

COLORADO CIVIL RIGHTS COMMISSION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

COLORADO COURT OF APPEALS

BRIEF OF AMICI CURIAE FORMER REPRESENTATIVE

TONY COELHO, NATIONAL FEDERATION OF THE BLIND,

NATIONAL ASSOCIATION OF THE DEAF, AMERICAN

COUNCIL OF THE BLIND, DISABILITY RIGHTS BAR

ASSOCIATION, DISABILITY RIGHTS ADVOCATES,

DISABILITY RIGHTS EDUCATION & DEFENSE FUND,

JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH

LAW, CIVIL RIGHTS EDUCATION & ENFORCEMENT

CENTER, ASSOCIATION OF LATE DEAFENED ADULTS,

AUTISTIC SELF ADVOCACY NETWORK IN SUPPORT OF

RESPONDENTS, URGING AFFIRMANCE

d

SANFORD JAY ROSEN

Counsel of Record

ROSEN BIEN GALVAN

& GRUNFELD LLP

50 Fremont Street,

Nineteenth Floor

San Francisco, California 94105

(415) 433-6830

srosen@rbgg.com

Attorney for Amici Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. CREATION OF A CONSTITUTIONALPERSONAL SCRUPLES DEFENSETO ENFORCEMENT OF THE COLORADOANTIDISCRIMINATION ACTJEOPARDIZES LEGISLATIVEPROTECTIONS OF PERSONS WITHDISABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Petitioners’ Free Exercise DefenseWould Upset the Careful BalanceCivil Rights Laws Have StruckBetween First Amendment andEqual Protection Rights . . . . . . . . . . . . 6

1. The Principal Sponsor of theADA Personally Faced ReligiouslyBased Discrimination Due toHis Disability . . . . . . . . . . . . . . . . . . . 8

2. Accommodations for People withDisabilities Have Been WrongfullyDenied on the Basis of ReligiousBelief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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B. Defendants Frequently AssertInappropriate Free Expression Defenses to Disability Rights Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Some Defendants Have Argued That Branding Is Free ExpressionThat Justifies Violating Accessibility Requirements . . . . 15

2. Some Defendants Have Argued That Refusal to Accommodate IsJustified as First Amendment Protected Academic Freedom . . 17

II. HISTORY TEACHES THE IMPORTANCEOF FULL ENFORCEMENT OF ANTI-DISCRIMINATION LAWS IN THE FACE OF EXPRESSIVE AND RELIGIOUS FREEDOM DEFENSES AND ASSERTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

APPENDIX OF STATEMENTS OF THE INDIVIDUAL AMICI . . . . . . . . . . . . . . . . . . . . 1a

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TABLE OF AUTHORITIES

Cases:

Bob Jones University v. United States,461 U.S. 574 (1983) . . . . . . . . . . . . . . . . . . . . . . 20, 21

Bradford v. Prosoft, LLC,No. 3:16-CV-00373-CRS-DW, 2017 WL1458201 (W.D. Ky. Apr. 24, 2017) . . . . . . 14

Bragdon v. Abbott,524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . 14

Colorado Cross-Disability Coal. v. Abercrombie & Fitch Co.,765 F.3d 1205 (10th Cir. 2014) . . . . . . . . . 16

Colorado Cross-Disability Coal. v. Abercrombie & Fitch Co.,835 F. Supp. 2d 1077 (D. Colo. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Cooper v. Aaron,358 U.S. 1 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Craig v. Masterpiece Cakeshop, Inc.,370 P.3d 272 (Colo. App. Aug. 13, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Doe v. Deer Mountain Day Camp, Inc.,682 F. Supp. 2d 324 (S.D.N.Y. 2010) . . . 14

EEOC v. Miss. Coll.,626 F.2d 477 (5th Cir. 1980) . . . . . . . . . . . . 21

Employment Div., Dep’t of Human Res. of Oregon v. Smith,494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

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PAGE

Guckenberger v. Boston Univ.,974 F. Supp. 106 (D. Mass. Aug. 15, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Heart of Atlanta Motel, Inc. v. United States,379 U.S. 241 (1964) . . . . . . . . . . . . . . . . . . . . . . 2

Lentini v. California Ctr. for the Arts, Escondido,370 F.3d 837 (9th Cir.2004) . . . . . . . . . . . . . 13

Loving v. Virginia,388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Obergefell v. Hodges,135 S. Ct. 2584 (2015) . . . . . . . . . . . . . . . . . . . . 2, 22

Palmer v. Thompson,403 U.S. 217 (1971) . . . . . . . . . . . . . . . . . . . . . . 19

PGA Tour, Inc. v. Martin,532 U.S. 661 (2001) . . . . . . . . . . . . . . . . . . . . . . 3

Redding v. Nova Se. Univ., Inc.,165 F. Supp. 3d 1274 (S.D. Fla. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Reynolds v. United States,98 U.S. 145 (1878) . . . . . . . . . . . . . . . . . . . . . . . 6

Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,547 U.S. 47 (2006) . . . . . . . . . . . . . . . . . . . . . . . 5

Sch. Dist. of Abington Twp., Pa. v. Schempp,374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . . 6

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PAGE

Stevens v. Optimum Health Institute,810 F. Supp. 2d 1074 (S.D. Cal. Aug. 24, 2011) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13

Stormans, Inc. v. Selecky,586 F.3d 1109 (9th Cir. 2009) . . . . . . . . . . . 14

Virginia State Bd. of Pharmacy v. VirginiaCitizens Consumer Council, Inc.,425 U.S. 748 (1976) . . . . . . . . . . . . . . . . . . . . . . 16

Statutes and Regulations:

42 U.S.C. § 12101, note (b)(1) and (5) . . . . . . 1

42 U.S.C. § 12101(a)(7) . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 12101(b)(2) . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. § 12102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

42 U.S.C. § 12183(a)(1) . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 12187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 C.F.R. § 35.130(a) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Colo. Rev. Stat. § 24-34-601 . . . . . . . . . . . . . . . . . 2

Other Authorities:

135 Cong. Rec. S.10,800 (1989) (statement of Sen. Simon) . . . . . . . . . . . . . . . 13

56 Fed. Reg. 35544-35691 (Jul. 26, 1991) . . . . . 6, 7

Alexander Bickel, The Least Dangerous Branch,Yale University Press (1962) . . . . . . . . . . . 22

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PAGE

Americans With Disabilities: 2010, Matthew W. Brault, U.S. Census Bureau, Rep. No. P70-131, July 2012 . . . . . . . . . . . . . . . . . . 1

August 30, 2016 letter from Rebecca B. Bond,Disability Rights Section Chief, Department of Justice to UC BerkeleyChancellor Nicholas B. Dirks, et al., DJ No. 204-11-309 . . . . . . . . . . . . . . . . . . . . . . . 19

Charles L. Black, Jr., The Lawfulness of theSegregation Decisions, 69 Yale Law Journal 421 (1960) . . . . . . . . . . . . . . . . . . . . . . . 21

Denver Judge: Abercrombie Brand HollisterViolating Disabilities Act, The ColoradoIndependent, Susan Greene, May 16, 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harvard LawReview 1, 34-35 (1959) . . . . . . . . . . . . . . . . . . 21

Koran 6:39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Leviticus 21:17-20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

March 1, 2017 Statement of UC Berkeley Vice Chancellor Cathy Koshland, re Campus Message on Course CaptureVideo, Podcast Changes . . . . . . . . . . . . . . . . . 19

Minnesota's Muslim Cab Drivers FaceCrackdown, Reuters, Apr. 17, 2007 . . . . 13

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Pain and Suffering as Viewed by the HinduReligion, Sarah M. Whitman, MD, TheJournal of Pain, Vol. 8, No. 8 (Aug. 2007), at 607-13 . . . . . . . . . . . . . . . . . . . 7

Peter David Blanck, Civil Rights, LearningDisability, and Academic Standards, 2Journal of Gender, Race, & Justice 33 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Robert Bork, Civil Rights—A Challenge, New Republic, Aug. 31, 1963 . . . . . . . . . . . . 22

S. 2345 to Establish a Clear and ComprehensiveProhibition of Discrimination on the Basis of Handicap: Joint Hearing Before theSubcomm. on the Handicapped of the S.Comm. on Labor & Human Res. & Subcomm.on Select Ed. of the H. Comm. of Ed. & Labor, 100th Cong. 11-12 (1988) (statement of Rep. Coelho) . . . . . . . . . . . . . . 10

S.Rep.No.872, 88th Cong., 2d Sess., at 16-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Buddha Speaks the Sutra on Cause andEffect in the Three Periods of Time,Translated by the Buddhist Text Translation Society . . . . . . . . . . . . . . . . . . . . . . 7

Transcript of Oral Argument at 9:7-9,Expressions Hair Design v. Schneiderman,137 S. Ct. 1144 (15-1391) (question of Breyer, J.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

INTEREST OF AMICI CURIAE1

Recognition of freedom of expression andreligion defenses to enforcement of civil rightslaws, such as those asserted by Petitioners, wouldseriously weaken statutory and constitutionalprotections of the rights of people with disabilitiesto “equality of opportunity, full participation,independent living, and economic self-sufficiency,”the express goals of the Americans withDisabilities Act (“ADA”). 42 U.S.C. § 12101(a)(7).Over 56 million Americans—almost 20% of theU.S. population—have a disability. AmericansWith Disabilities: 2010, Matthew W. Brault, U.S.Census Bureau, Rep. No. P70-131, July 2012.

It is not always obvious who constitutes aperson with a disability. Under federal law, peopleentitled to disability civil rights protectionsinclude individuals with physical or mentalimpairments that substantially limit one or moremajor life activities; individuals with a record orhistory of such impairment; and individualsregarded as having such impairment. See 42U.S.C. § 12102. This definition “offers a broadscope of protection,” and “should not demandextensive analysis.” See 42 U.S.C. § 12101, note(b)(1) and (5).

Amici Curiae are a principal author of theAmericans With Disabilities Act (“ADA”) andleading disability rights organizations withsubstantial expertise related to federal, state, and

1 No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary

contribution to the preparation or submission of this brief. All

parties have consented in writing to the filing of this brief.

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local disability rights law and disability rightslitigation.

Amici have expertise directly bearing on theissues before the Court. The organizational Amiciand the lawyers and others who work with and forthem are on the front lines enforcing the ADA andstate and local laws, such as the Colorado Anti-Discrimination Act (“CADA”). They frequentlyencounter freedom of expression and religiondefenses to proper enforcement of these statutes.Such beliefs, regardless of the sincerity withwhich they are held, cannot be used as a shield fordiscrimination in contravention of disability rightsentitlements. The cases discussed below are aminor fraction of such instances, constituting justthose that have citable references.

The Statements of the twelve Amici are setforth in the Appendix to this Brief.

SUMMARY OF ARGUMENT

In Obergefell v. Hodges, this Court securedequal dignity for same-sex couples byguaranteeing them their fundamental right tomarry. 135 S. Ct. 2584, 2603 (2015). Consistentwith the core of Obergefell, the CADA assuresLGBTQ people equal dignity by prohibitingdiscrimination based on sexual orientation in andby places of public accommodation. Colo. Rev.Stat. § 24-34-601. Like its federal counterpartTitle II of the Civil Rights Act of 1964, the CADA regulates economic conduct, with “[t]he fundamental object . . . to vindicate ‘thedeprivation of personal dignity that surelyaccompanies denials of equal access to publicestablishments.’” Heart of Atlanta Motel, Inc. v.

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United States, 379 U.S. 241, 250 (1964) (quotingS.Rep.No.872, 88th Cong., 2d Sess., at 16-17).

In this case, a baker and his bakery seek afederal constitutional exception to this stateantidiscrimination law that will allow thebusiness, an undisputed place of publicaccommodation, to discriminate in the provision ofits goods and services on the basis of sexualorientation. Antidiscrimination laws protectmembers of numerous historically excludedgroups. If created, this defense will infect allantidiscrimination laws in our country and willhave terrible consequences for all such protectedgroups, including people with disabilities.

Amici are dedicated to vindication of thedignity of individuals with disabilities throughactions seeking to ensure and improve the rightsof such individuals to full and equal participationin all aspects of our society. In the ADA, Congressprovided a “broad mandate” meant “to remedywidespread discrimination against disabledindividuals.” PGA Tour, Inc. v. Martin, 532 U.S.661, 674 (2001). The express purpose is “to provideclear, strong, consistent, enforceable standardsaddressing discrimination against individualswith disabilities.” 42 U.S.C. § 12101(b)(2)(emphasis added). State and local laws, like theCADA, also protect people from discrimination onthe basis of disability, as well as sexualorientation, race, and other invidiousclassifications.

The baker’s proposed exceptions to publicaccommodation laws would jeopardize the ADA’spromise of consistent and enforceable standards,and allow an individual’s professed scruples to

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supersede the rights of historically disadvantagedpeople to full participation in this nation’seconomic and commercial life.

Here Amici marshal examples of FirstAmendment defenses already raised by opponentsof full enforcement of the ADA, and past attemptsto trammel constitutional and legal protections ofblacks, women, and members of otherconstitutionally protected classes.

ARGUMENT

I. CREATION OF A CONSTITUTIONALPERSONAL SCRUPLES DEFENSE TOENFORCEMENT OF THE COLORADOANTIDISCRIMINATION ACTJEOPARDIZES LEGISLATIVEPROTECTIONS OF PERSONS WITH DISABILITIES.

Antidiscrimination laws are enacted andenforced to vindicate the freedom and humandignity of historically oppressed, discretelyidentifiable groups. Court-created exceptions ofthe type proposed by Petitioners would riddle ourantidiscrimination protections with holes anderect significant procedural barriers toenforcement of these important rights, even wheresuch defenses lack merit.

The Colorado Court of Appeals correctlyrejected Petitioners’ arguments for a religiousliberty or free speech exception to the CADA. TheCourt of Appeals found that the baker and hisbakery were not entitled to a religious exemptionfrom the law, because the “CADA is a neutral lawof general applicability,” not one that

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discriminates on the basis of religion. Craig v.Masterpiece Cakeshop, Inc., 370 P.3d 272, 288(Colo. App. Aug. 13, 2015). It also correctly heldthat the CADA did not compel Petitioners toconvey any particular message by and through hiscakes, and that the commercial nature of thetransaction reduced the likelihood that anyreasonable observer would believe that the bakersupported the message, if any, expressed in itsfinished product. Id. at 286-87.

This last point is one of critical importance.This Court has held that, when determiningwhether conduct is sufficiently expressive totrigger First Amendment protections, a reasonableobserver should be presumed to “appreciate thedifference” between speech that is endorsed by thespeaker and speech that is merely “legallyrequired.” Rumsfeld v. Forum for Acad. &Institutional Rights, Inc., 547 U.S. 47, 65 (2006).

All legally required conduct can be reframedas a compelled message of agreement with theunderlying policy that is being served. But thisCourt has warned against this unnervingproposition. See id.; Employment Div., Dep’t ofHuman Res. of Oregon v. Smith, 494 U.S. 872, 878(1990) (“It is no more necessary to regard thecollection of a general tax, for example, as‘prohibiting the free exercise [of religion]’ by thosecitizens who believe support of organizedgovernment to be sinful, than it is to regard thesame tax as ‘abridging the freedom . . . of thepress’ of those publishing companies that mustpay the tax as a condition of staying inbusiness.”).

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A. Petitioners’ Free Exercise DefenseWould Upset the Careful BalanceCivil Rights Laws Have StruckBetween First Amendment andEqual Protection Rights.

“The free exercise of religion means, first andforemost, the right to believe and professwhatever religious doctrine one desires.” Id. at877. And surely religious leaders have been at theforefront of advancing civil rights for centuries.But the United States is “a country whose peoplecame from the four quarters of the earth andbrought with them a diversity of religiousopinion.” Sch. Dist. of Abington Twp., Pa. v.Schempp, 374 U.S. 203, 214 (1963). Religiouspluralism is an asset to our democracy, but civilsociety requires a strong line between anindividual’s civic responsibilities under the lawand the individual’s personal religious beliefs andpractices. To make the “professed doctrines ofreligious belief superior to the law of the land [is]in effect to permit every citizen to become a lawunto himself. Government could exist only inname under such circumstances.” Reynolds v.United States, 98 U.S. 145, 167 (1878).

Congress struck a balance in Title III of theADA by exempting from coverage “religiousentities or entities controlled by religiousorganizations, including places of worship.” See 42U.S.C. § 12187; 56 Fed. Reg. 35544-35691 (Jul. 26,1991) (describing the religious organizationexemption as “very broad” and stating that “evenwhen a religious organization carries outactivities that would otherwise make it a publicaccommodation, the religious organization is

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exempt from ADA coverage”). “The test is whetherthe church or other religious organizationoperates the public accommodation.” Id.Petitioners’ free exercise exemption would upendthis balance, and allow any individual businessowner to assert their beliefs as a defense to theireconomic conduct in the public square.

Most places of worship have been aggressiveleaders in inclusion, despite this statutoryexemption, and Amici do not question thecommitment to inclusion of the overwhelmingmajority of people of faith. At the same time,many faiths have at least some citable, scripturalbasis for shunning people with disabilities. See,e.g., Leviticus 21:17-20 (“[N]one of yourdescendants who has a defect may come near tooffer the food of his God.”); Pain and Suffering asViewed by the Hindu Religion, Sarah M. Whitman,MD, The Journal of Pain, Vol. 8, No. 8 (Aug.2007), at 607-13; The Buddha Speaks the Sutra onCause and Effect in the Three Periods of Time,Translated by the Buddhist Text TranslationSociety (“The blind of this world bear a heavyburden for past failure to tell the way clearly totravelers.”); Koran 6:39 (“Those who reject ourSigns are deaf and dumb, - in the midst ofdarkness profound.”). Because courts do notinquire into the sincerity of professed religiousbeliefs, Petitioners’ free exercise exception wouldcreate a plausible defense, which in manyinstances would swallow enforcement of the ADAand similar state and local laws.

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1. The Principal Sponsor of the ADA Personally FacedReligiously Based DiscriminationDue to His Disability.

In 1988, United States RepresentativeAnthony Coelho of California introducedH.R.4498, the House version of the Americanswith Disabilities Act. Rep. Coelho, who hasepilepsy, testified in support of the bill’s passageabout his own experiences with religiouslymotivated discrimination on the basis of hisdisability.

As a young man, I developed seizures,later diagnosed as epilepsy. For manyyears, for 5 years, as I had my seizures ona regular basis, I did not know what theywere. I went to every doctor that youcould think of. I also went to three witchdoctors, because I was supposedlypossessed by the devil. My Republicancolleagues think I am, but others believedI was. . . .

In my senior year [of college] . . . . Idecided I wanted to become a Catholicpriest. As I graduated with honors, I thenhad a physical exam in order to enter theseminary. The physical exam pointed outthat the seizures I’d been having for 5years meant that I had epilepsy.

I always remember very well whathappened, in that I walked to the doctor’soffice from my car, sat in the doctor’soffice, was told about my epilepsy, walkedback to my car, got back in my car anddrove back to my fraternity house and I

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was the same exact person. But only inmy own mind because the world aroundme changed.

My doctor had to notify the legalauthorities of my epilepsy. My church wasnotified and immediately I was not able tobecome a Catholic priest, because mychurch did not, at the time, permitepileptics to be priests. My driver’s licensewas taken away, my insurance was takenaway. Every job application has the wordepilepsy on it and I marked it, because Iwas not going to lie. And I couldn’t get ajob.

My parents refused to accept myepilepsy. I became suicidal and drunk bynoon. . . . I had not changed as a person.The only reason is that [the] world aroundme had changed. The light had beenturned off, the light of opportunity, thelight of hope. . . .

I’m here today, serving in the capacitythat I serve, because some peoplebelieve[d]. Not because my governmentprotected me, not because my governmentprotected my basic civil rights.

I am a major advocate of this billbecause I want to make sure that otheryoung people, as [they’re] looking forhope, as they believe that the systemshould work for them, have that hope,have that opportunity. . . .

That is what this bill is all about; 36million Americans deciding it is time for

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us to stand up for ourselves, to make adifference, to say we want our basic civilrights also. We deserve it.

Give us an opportunity to do what wecan do, do not keep telling us what wecannot do.

S. 2345 to Establish a Clear and ComprehensiveProhibition of Discrimination on the Basis ofHandicap: Joint Hearing Before the Subcomm. onthe Handicapped of the S. Comm. on Labor &Human Res. & Subcomm. on Select Ed. of the H.Comm. of Ed. & Labor, 100th Cong. 11-12 (1988)(statement of Rep. Coelho).

Representative Coelho referenced the CanonLaw (Codex Iuris Canonici), promulgated in 1917,which was the classification of laws andjurisprudence that governed the Roman CatholicChurch until its reorganization in 1983. It forbadeto be ordained “those who are or were epilepticseither not quite in their right mind or possessedby the Evil One,” hence Representative Coelho’sreference to the belief that he was “possessed bythe devil.” In the revised Code of Canon Law,promulgated in 1983, reference to physicaldisability and the connection between possessionby evil and epilepsy were removed, and replacedby a prohibition on “insanity or other psychicdefect,” evaluation of which is to be done byexperts.

Representative Coelho’s experience illustratestwo key points. First, the framers of the ADAsought to remedy discrimination against personswith disabilities, including religiously motivateddiscrimination. Hence, Petitioners’ position risks

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promoting to constitutionally protected status thevery attitudinal barriers and prejudices thatCongress enacted the ADA to remedy. Thedisapproval of groups of people that underliesdiscriminatory treatment commonly derives fromor is supported by religious beliefs, as in the caseof the baker here.

Second, it demonstrates that religious beliefs,and the views of religious organizations, can anddo change with developing social and culturalnorms. The transient nature of religiousprejudices against persons with disabilitiescounsels in favor of applying disability rightsprotections without exception for such beliefs.

2. Accommodations for People with Disabilities Have BeenWrongfully Denied on the Basis of Religious Belief.

In practice, disability discrimination is oftenmotivated by sincere religious belief. Amicithrough litigation, client contact, and personalexperience have encountered examples ofdiscriminatory conduct against persons withdisabilities framed as a compulsion of religiousconviction.

In Stevens v. Optimum Health Institute, 810F. Supp. 2d 1074 (S.D. Cal. Aug. 24, 2011), a blindwoman brought an action against a non-profit,religious organization which operated a holistichealth program, alleging it violated Californiastate disability rights protections—the UnruhCivil Rights Act and Disabled Persons Act—bydenying her services in a place of publicaccommodation because of her disability. Plaintiff

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sought to attend the institute either with herservice dog, or unaccompanied with the aid of hercane. Id. at 1081. The Institute refused as to both.Id. The Court granted summary judgment forplaintiff finding that defendant violated bothCalifornia laws by refusing to permit her to attendthe institute with her cane. Id. at 1100.

With regard to her request for a service dogaccommodation, the Health Institute took theposition that allowing the animal would violatethe program’s religious sanctity. In a declarationfiled as part of the summary judgmentproceedings, Defendant Nees, the EcclesiasticalSuperior of the program’s parent religiousorganization stated:

The grounds of OHI are sacred. In orderto maintain a pure environment forhealing and worship, OHI cannot—anddoes not—welcome animals. . . . [I]n theeyes of the Church, based upon theteachings of the Old Testament, OHI’sgrounds are sacred but animals are not. .. . Allowing animals into the grounds isantithetical to the promotion of a safe,healing environment at the Institute,particularly for people who have animalphobias or allergies. . . .

In my role as Ecclesiastical Superior, Idetermined that even a remote chance ofPlaintiff, attending OHI without a sightedcompanion, needing assistance in theunfamiliar environment of OHI or duringthe OHI program, posed an unacceptablerisk of disrupting the spiritual path ofothers in attendance.

Id. at 1081.

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The court granted summary judgment forplaintiff as to accessing the programunaccompanied with the use of her cane, but heldthat a genuine dispute of material fact existed asto the effect of the presence of plaintiff’s servicedog on the free association rights of the programand religious organization. Id. at 1094-95. Thisdespite settled law that a service dog is a requiredaccommodation in most circumstances. See Lentiniv. California Ctr. for the Arts, Escondido, 370 F.3d837, 845 (9th Cir.2004); 135 Cong. Rec. S.10,800(1989) (statement of Sen. Simon) (“[a] person witha disability and his . . . [service] animal functionas a unit” such that separating the two generally“[is] discriminatory under the [ADA]”).

The belief that dogs are religiously unclean orotherwise to be avoided is not a belief unique tothe defendants in Stevens. Individuals who rely onservice dogs are routinely denied service by storesand other public accommodations, including taxisand rideshare services. Blind or low-visionindividuals disproportionately rely on theseservices for transportation, but frequentlyencounter denials because of the presence of aservice animal. Such denials are sometimesreligiously motivated. See, e.g., Minnesota’sMuslim Cab Drivers Face Crackdown, Reuters,Apr. 17, 2007 (detailing large number of Muslimtaxi drivers in the area of the Minneapolis-St.Paul International Airport who refused totransport dogs because they are unclean),available at: https://www.reuters.com/article/us-muslims-taxis/minnesotas-muslim-cab-drivers-face-crackdown-idUSN1633289220070417.

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Some have used religious beliefs to justifydiscrimination against persons infected with HIV,see Stormans, Inc. v. Selecky, 586 F.3d 1109, 1118n.7 (9th Cir. 2009), and refusing service to aperson because of HIV/AIDS status violates theADA. See Bragdon v. Abbott, 524 U.S. 624, 641(1998) (recognizing clear congressional intent toprohibit discrimination based on HIV status, andholding that asymptomatic HIV infection is adisability under the ADA). Yet cases still aboundwhere religious scruples have been asserted as adefense to providing service to HIV-infectedpeople. In Selecky, asserting religious objections,pharmacists unsuccessfully challenged aWashington law prohibiting pharmacies fromrefusing to deliver lawfully prescribed or approvedmedicines. 586 F.3d at 1116 & n.7. If Petitioners’free exercise defense were accepted, it would takevery little for such defenses to be asserted perhapssuccessfully against disability rights claims toaccess public accommodations and delivery ofhealth services. Cf. also Doe v. Deer Mountain DayCamp, Inc., 682 F. Supp. 2d 324, 331 (S.D.N.Y.2010) (plaintiff’s claim that defendant basketballcamp discriminated against him—in denying himadmission to the camp—on the basis of his HIV+status, in violation of ADA and NY law, wasdefended on the basis of pseudo-science about thedanger of HIV and its transmissibility); Bradfordv. Prosoft, LLC, No. 3:16-CV-00373-CRS-DW, 2017WL 1458201, at *1 (W.D. Ky. Apr. 24, 2017)(plaintiff, a transgender man, brought suit againsthis former employer under the Family MedicalLeave Act, Title I of the ADA, and Title VII of theCivil Rights Act of 1964 because, after he wasouted as being transgender, his employer refused

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him time off for necessary disability-relatedsurgery and fired him).

B. Defendants Frequently AssertInappropriate Free ExpressionDefenses to Disability Rights Claims.

Defendants in the private sector often attemptto recast their economic conduct as protected freeexpression. While “all business activity takesplace through speech” on some level, this Courthas never placed purely transactional conduct onthe same level as core protected speech. SeeTranscript of Oral Argument at 9:7-9, ExpressionsHair Design v. Schneiderman, 137 S. Ct. 1144 (15-1391) (question of Breyer, J.).

1. Some Defendants Have ArguedThat Branding Is Free ExpressionThat Justifies ViolatingAccessibility Requirements.

The ADA and similar state and local lawsgenerally require new construction to be “readilyaccessible.” See 42 U.S.C. § 12183(a)(1). This hasnot stopped recalcitrant merchants from engagingin branding-motivated design choices that excludepeople with mobility disabilities.

In Colorado Cross-Disability Coal. v.Abercrombie & Fitch Co., defendants operated thesurf-lifestyle clothing brand Hollister, whichinstalled in its stores “a raised porch-like platform. . . two steps above ground level,” which was “notaccessible to people in wheelchairs,” to evoke theambience of a surf shack. 835 F. Supp. 2d 1077,1078 (D. Colo. 2011). As a teen-targeting brandHollister is “all about hot lifeguards and beautifulbeaches. . . . [When] Denver policy analyst Farrar

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was nudged by her 12-year-old daughter to wadeinto the retail ‘fantasy of Southern California’ . . .Farrar’s wheelchair couldn’t make it up the stepsof the store.” Denver Judge: Abercrombie BrandHollister Violating Disabilities Act, The ColoradoIndependent, Susan Greene, May 16, 2013,available at: http://www.coloradoindependent.com/127705/denver-judge-abercrombie-brand-hollister-violating-disabilities-act. Farrar’s frustration atthe store’s inaccessible front stairway became anationwide class action against 248 Hollisterstores, garnering the support of the U.S. JusticeDepartment, which characterized the store’sinaccessible entrances as built in plain violation ofthe ADA’s accessibility requirements, with theeffect of pushing people in wheelchairs to enterthe store separately from the side. Id.

The district court enjoined the defendants toremove their inaccessible platform display, notingthat “Defendants have unnecessarily created adesign for their brand that excludes people usingwheelchairs from full enjoyment of the aestheticfor that brand. The steps to the center entranceare a legally unacceptable piece of that brandingand violate Title III of the ADA.” Id. at 1083,vacated on statutory grounds by Colorado CrossDisability Coal. v. Abercrombie & Fitch Co., 765F.3d 1205 (10th Cir. 2014). See Virginia State Bd.of Pharmacy v. Virginia Citizens ConsumerCouncil, Inc., 425 U.S. 748, 781 (1976) (warning of“elevat[ing] commercial intercourse between aseller hawking his wares and a buyer seeking tostrike a bargain to the same plane as has beenpreviously reserved for the free marketplace ofideas” (Rehnquist, J., dissenting)); cf. Pet. Br. 1, 5

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(describing Petitioners’ business logo in support ofargument that Petitioners’ cakes are expressive).

2. Some Defendants Have ArguedThat Refusal to Accommodate Is Justified as First AmendmentProtected Academic Freedom.

Refusal of disability accommodation on thebasis of academic freedom implicates differentconcerns from the purely transactional world ofcommercial branding. The right to full and equalaccess to education is of paramount importance tothe ADA’s concerns, and shares obviouscommonalities with “[t]he process of endingunconstitutional exclusion of pupils from thecommon school system.” Cooper v. Aaron, 358 U.S.1, 25 (1958) (Frankfurter, J., concurring). And yet,in this critical sphere of integration, the disabilitycommunity continues to face significantresistance.

In the late 90s at Boston University, incomingProvost Jon Westling gutted a well-functioninglearning disabilities support services program,and a class action suit ensued to roll back hispolicy changes and ensure continued reasonableaccommodations for 480 enrolled students withlearning disabilities, principally dyslexia andADD/ADHD. The district court found violations ofthe ADA and Article 114 of the MassachusettsConstitution, which provides a broad guarantee offreedom from public and private discrimination onthe basis of disability. Guckenberger v. BostonUniv., 974 F. Supp. 106, 117 (D. Mass. Aug. 15,1997).

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While he was dismantling BU’s disabilityservices program, Provost Westling made a seriesof public statements, in which he accused learningdisability advocates of fashioning fictitiousimpairments, and argued that “the learningdisability movement is a great mortuary for theethics of hard work, individual responsibility, andpursuit of excellence, and also for genuinelyhumane social order.” Id. at 118. The Court notedthat Westling was motivated both by “a genuineconcern for academic standards” and by“uninformed stereotypes” about students withlearning disabilities. Id. at 149. It faulted BU forits failure to “dispassionately determine” whetherthe requested accommodations would “change theessential academic standards of its liberal artscurriculum.” Id. If Petitioners prevail on theirFirst Amendment expressive freedom defense, itwould militate against courts carefullyscrutinizing such administrative decisions. Whenconsidering the reasonableness of requestedacademic accommodations, courts must “study theassumptions underlying academic programs,” andnot merely defer to “attitudinal biases about theabilities of people with learning disabilities,”cloaked in First Amendment academic freedom.See Peter David Blanck, Civil Rights, LearningDisability, and Academic Standards, 2 Journal ofGender, Race, & Justice 33, 53 (1998); see alsoRedding v. Nova Se. Univ., Inc., 165 F. Supp. 3d1274, 1297 (S.D. Fla. 2016) (“A determination ofwhether an accommodation is related to adisability involves no academic judgment andjudicial review of such a decision does not offendprinciples of academic freedom. [Defendant]cannot immunize all of its decisions from review

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by waving the flag of deference merely because itis an academic institution.”).

A recent DOJ investigation into theaccessibility of UC Berkeley’s publicly available,free, online audio and video content resulted infindings that the program violated Title II’smandate that no individual by reason of herdisability may be excluded from participation in orbe denied the benefits of services, programs, oractivities of a public entity. See 42 U.S.C. § 12132;28 C.F.R. § 35.130(a). UC Berkeley’s onlinecontent lacked captions and audio descriptions,documents were not appropriately formatted, andwebsites, materials, and other portals weresimilarly not accessible, obstructing participationfor individuals with hearing, vision, or manualdisabilities. See Aug. 30, 2016 letter from RebeccaB. Bond, Disability Rights Section Chief,Department of Justice to UC Berkeley ChancellorNicholas B. Dirks, et al., DJ No. 204-11-309,available at: https://www.ada.gov/briefs/uc_berkley_lof.pdf.

Rather than commit resources to correctingthese shortcomings, UC Berkeley responded bytaking all of content offline. See Mar. 1, 2017Statement of UC Berkeley Vice Chancellor CathyKoshland, re Campus Message on Course CaptureVideo, Podcast Changes, available at: http://news.berkeley.edu/2017/03/01/course-capture/. Theresult is a public deprivation reminiscent of theCity of Jackson’s closure of all public pools whenfaced with court-ordered integration. See Palmerv. Thompson, 403 U.S. 217, 225, 254 (1971)(noting City’s argument that integrated “poolscould not be operated safely or economically on an

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integrated basis.” (White, J., dissenting)). UnderPetitioners’ expanded free expression theory, UCBerkeley may have simply refused to correct itsunequal provision of content, framing eachrequested accommodation as an infringement ofacademic freedom.

II. HISTORY TEACHES THE IMPORTANCEOF FULL ENFORCEMENT OF ANTI-DISCRIMINATION LAWS IN THE FACEOF EXPRESSIVE AND RELIGIOUSFREEDOM DEFENSES ANDASSERTIONS.

Religious defenses to claims of racialdiscrimination were once common. In Loving v.Virginia, this Court noted the words of theVirginia trial court judge in which the actionoriginated: “Almighty God created the races white,black, yellow, malay and red, and he placed themon separate continents. And but for theinterference with his arrangement there would beno cause for such marriages. The fact that heseparated the races shows that he did not intendfor the races to mix.” 388 U.S. 1, 3 (1967). TheCourt roundly rejected this as a justification fordiscrimination. Id. at 7.

In Bob Jones University v. United States, aprivate university challenged the InternalRevenue Service’s revocation of its tax exemptstatus for its racially discriminatory admissionspolicy. 461 U.S. 574, 580 (1983). The universityasserted that its policy was based on a genuinebelief that the Bible forbids interracial dating andmarriage, and that it was therefore protected bythe Free Exercise Clause. Id. at 622. The Court

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found that the government had a fundamental,overriding interest in eradicating racialdiscrimination in education which substantiallyoutweighed the burden on the petitioners’ freeexercise of religion. Id. at 605; see also EEOC v.Miss. Coll., 626 F.2d 477, 488 (5th Cir. 1980)(“[T]he government has a compelling interest ineradicating discrimination in all forms.”).

In his 1959 essay Toward Neutral Principlesof Constitutional Law, Herbert Wechsler wrotethat the constitutional battle over racialsegregation was really a battle between conflictingassociational rights, between those who did andthose who did not want to associate with membersof another race. Herbert Wechsler, TowardNeutral Principles of Constitutional Law, 73Harvard Law Review 1, 34-35 (1959). In response,Charles Black, who was born and raised in Texasand knew Jim Crow first hand, got to the heart ofthe matter. He lamented that “simplicity is out offashion.” Charles L. Black, Jr., The Lawfulness ofthe Segregation Decisions, 69 Yale Law Journal421 (1960). Counter to Wechsler, Black arguedthat where a group is barred from the common lifeof the community, the law must take notice inname and in application. Id. at 423.

So too Alexander Bickel replied to Wechsler:“What, on the score of generality and neutrality, iswrong with the principle that a legislative choicein favor of a freedom not to associate is forbidden,when the consequence of such a choice is to placeone of the groups of which our society isconstituted in a position of permanent,humiliating inferiority; when the consequencebeyond that is to foster in the whites, by authority

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of the state, self-damaging and potentially violentfeelings of racial superiority—feeling that, asLincoln knew, find easy transference from Negroesto other groups as their particular objects?”Alexander Bickel, The Least Dangerous Branch,Yale University Press (1962), at 57.

A position similar to Wechsler’s was laterbandied as Congress debated the Civil Rights Actof 1964. Robert Bork wrote in the New Republicthat the Act’s guarantee of equal access to publicaccommodations regardless of race would infringethe free association rights of those who viewedintegration as an evil. Robert Bork, Civil Rights—A Challenge, New Republic, Aug. 31, 1963, at 21.“The danger is that justifiable abhorrence of racialdiscrimination will result in legislation by whichthe morals of the majority are self-righteouslyimposed upon a minority,” which he called “aprinciple of unsurpassed ugliness.” Id. at 22. TheSupreme Court’s decision in Heart of AtlantaMotel resolved the question against Bork’sposition, and in favor of governmental authority toprotect the citizenry from private discrimination.

While Wechsler protested the Brown decisionin part because he preferred for societal problemsto be solved by legislatures, not courts, the anti-discrimination protections at risk in this case arenot the product of judicial creation. The Coloradolegislature made a valid determination that aperson’s being LGBTQ, or having a disability, isnot an acceptable reason to deny equal treatmentin public places, services, and goods.

As the Court recognized in Obergefell v.Hodges, sexual orientation discrimination is aconstitutional wrong, just as racial discrimination

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is a constitutional wrong. 135 S. Ct. at 2599. Indicta the Court noted that the First Amendmentprotects an individual’s right to hold anti-samesex marriage views. That insight does not renderthe government powerless to prohibitdiscrimination against LGBTQ people by acommercial business open to the public when itclaims a First Amendment exemption.

CONCLUSION

Consistent with this Court’s longstandingapproach to civil rights protections, and informedby our nation’s history of discrimination againstpersons with disabilities and other discreteminorities, the Court should affirm the judgmentof the Colorado Court of Appeals and confirm thatour nation’s civil rights laws are not subject to aconstitutional exception based on the scruples ofa defendant.

DATED: October 30, 2017

Respectfully submitted,

SANFORD JAY ROSEN,Counsel of Record

ROSEN BIEN GALVAN

& GRUNFELD LLP50 Fremont Street,

Nineteenth FloorSan Francisco, California 94105(415) 433-6830srosen@rbgg.com

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APPENDIX

APPENDIX OF STATEMENTS OF THE INDIVIDUAL AMICI

Former U.S. Representative Anthony(“Tony”) Coelho represented California’s 15thDistrict in the U.S. House of Representatives from1979 until 1991. Mr. Coelho has epilepsy. Whenhe was in his twenties, Mr. Coelho faced disabilitydiscrimination from the Catholic church, which atthe time viewed epilepsy as a sign of demonicpossession. Mr. Coelho subsequently became avigorous advocate for disability rights, and wasthe principal sponsor of the Americans withDisabilities Act. Mr. Coelho believes that ifadopted, Petitioners’ defenses to enforcement ofthe CADA will cut back drastically on the promiseof the ADA.

The National Federation of the Blind(“NFB”), the oldest and largest nationalorganization of blind persons, is a non-profitcorporation headquartered in Baltimore,Maryland. It has affiliates in all 50 states,Washington, D.C., and Puerto Rico. NFB and itsaffiliates are recognized by the public, Congress,executive agencies of state and federalgovernments, and the courts as a collective andrepresentative voice on behalf of blind Americansand their families. NFB advocates on behalf ofblind people on a broad range of issues, includingtransportation, education, employment, andtechnology. The ultimate purpose of NFB is thecomplete integration of the blind into society on abasis of equality. This objective includes theremoval of legal, economic, and socialdiscrimination.

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The National Association of the Deaf(“NAD”) is the oldest national civil rightsorganization in the United States, and thepremier civil rights organization of, by, and fordeaf and hard-of-hearing individuals in thecountry. NAD’s membership includes over 7,000individuals and over 100 associations from all fiftystates and Washington, D.C. NAD’s mission is topreserve, protect, and promote the civil, human,and linguistic rights of the 48 million deaf andhard-of-hearing people in the United States. Toaccomplish this goal, NAD advocates for deaf andhard-of-hearing Americans on a broad range ofissues including communications, technology,employment, education, and healthcare. NAD hasparticipated in federal and state courts as counselor amicus to protect the rights of deaf and hard-of-hearing Americans. Adoption of Petitioner’sdefenses to the application of the CADA wouldseriously hamper pursuit of NAD’s mission.

The American Council of the Blind(“ACB”), founded in 1961, is a grassrootsorganization comprised primarily of individualswho are blind or who have low vision. For overhalf a century, ACB has advocated for the civilrights of and equal opportunities for persons withvision impairments. Special education, services forseniors with vision loss, employment programs,and discrimination in public accommodations,including violations of the rights of guide doghandlers are just a few of the areas in which thecouncil advocates. ACB believes that if adopted,Petitioners’ defenses would severely underminethe ADA and similar state laws. Taxi drivers,restaurants, hotels and other types of businessescould elect to base discrimination against guide

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dog users on religious or free speech grounds.Private schools and colleges could refuse to allowservice animals on their campuses. Thus, ACB isextremely interested in ensuring that FirstAmendment rights are not found to form a legalbasis for businesses to violate the legal rights ofpersons with disabilities.

The Disability Rights Bar Association(“DRBA”) is a network of attorneys whospecialize in disability civil rights law. Two corepurposes of DRBA are to advance and enforce therights of people with disabilities in all spheres oflife through the use of litigation and other legaladvocacy strategies, and to disseminateinformation regarding disability law andadvocacy. DRBA enters cases as amicus to supportcases that enforce and promote the rights ofpeople with disabilities. Its members, who are onthe front lines enforcing disability rights, areconcerned that the exceptions to the CADAadvocated by Petitioners will seriously limitenforcement of statutes protecting people withdisabilities.

Disability Rights Advocates (“DRA”) is anon-profit legal center dedicated to ensuringdignity, equality, and opportunity for people withall types of disabilities, and to securing their civilrights. DRA represents people with the fullspectrum of disabilities in complex, system-changing, class action cases. To further itsmission, DRA believes that the rights of peoplewith disabilities to participate in society will beseriously eroded if this Court adopts Petitioners’proposed constitutional exceptions to civil rightslaws based on personal scruples.

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The Disability Rights Education &Defense Fund (“DREDF”), based in Berkeley,California, is a national non-profit law and policycenter dedicated to protecting and advancing thecivil rights of people with disabilities. Founded in1979 by people with disabilities and parents ofchildren with disabilities, DREDF pursues itsmission through education, advocacy, and lawreform efforts. DREDF is nationally recognized forits expertise in the interpretation of federaldisability civil rights laws, and has participated asamicus in numerous high court matters involvingthose laws.

The Judge David L. Bazelon Center forMental Health Law is a national non-profit legaladvocacy organization founded in 1972 to advancethe rights of individuals with mental disabilities.The Bazelon Center uses litigation, public policyadvocacy, education, and training to advocate forlaws and policies that ensure equal opportunitiesfor people with mental illness or intellectualdisability in all aspects of their lives, includingthe opportunity to participate fully in theircommunities. The Bazelon Center has participatedas amicus in numerous cases involving the rightsof people with disabilities heard by this Court.

The Civil Rights Education andEnforcement Center (“CREEC”) is a nationalnon-profit membership organization whosemission is to defend human and civil rightssecured by law, including laws prohibitingdiscrimination on the basis of disability. CREEC’sefforts to defend human and civil rights extend toall walks of life, including ensuring that peoplewith disabilities have full and equal access to

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places of public accommodation. CREEC lawyershave extensive experience in the enforcement ofTitle III of the Americans with Disabilities Act(“ADA”) similar state and local laws. On the frontlines of enforcing the protections of disabledpeople they encounter defenses like those assertedby Petitioners, CREEC believes rejecting them isessential to full and appropriate enforcement ofthe CADA and comparable statutes.

The Association of Late Deafened Adults(“ALDA”) is an association of deafened people.ALDA is dedicated to supporting theempowerment of deafened people through buildingcommunity and advocacy. ALDA pursues legaladvocacy, including entering as amicus in federalcases, to advance and protect the rights ofdeafened people. If Petitioners’ arguments areaccepted, ALDA’s constituency will be at risk.

The Autistic Self Advocacy Network(“ASAN”) is a 501(c)(3) non-profit organizationrun by and for autistic people. ASAN advocates toimprove opportunity for, and the lives of,Americans with autism, and to ensure that thevoices of autistic people are heard in policydebates in government and across society. ASAN’sadvocacy includes providing information to thepublic about autism and disability rights, andworking to enforce the rights of autistic people toequal opportunity at school, at work, andthroughout society. ASAN believes that rejectingPetitioners’ defenses to full enforcement of theCADA are essential to its mission.

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