No. 16-111
IN THE

Supreme Court of the United States
_________________________

MASTERPIECE CAKESHOP, LTD., ET AL.,
v.

Petitioners,

COLORADO CIVIL RIGHTS COMMISSION, ET AL.,
_________________________

Respondents.

ON WRIT OF CERTIORARI TO
THE COLORADO COURT OF APPEALS
_________________________

BRIEF OF AMICI CURIAE
CORPORATE LAW PROFESSORS
IN SUPPORT OF RESPONDENTS
_________________________

Kent Greenfield
BOSTON COLLEGE
LAW SCHOOL
885 Centre Street
Newton Centre, MA
02549

Andrew D. Silverman
Daniel A. Rubens
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
(212) 506-5000
drubens@orrick.com

Counsel for Amici

 i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................... ii
INTEREST OF AMICI CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................... 1
ARGUMENT ............................................................. 3
I.

Because Of The Separate Legal
Personality Of Corporations And
Shareholders, The Constitutional
Interests Of Shareholders Should Not Be
Projected Onto The Corporation. ....................... 3
A. Corporate separateness—i.e., legal
personhood—is the core principle of
corporate governance. ................................... 7
B. Corporate separateness should not be
ignored in constitutional law. ..................... 15

II. Courts Should Not Reflexively Presume
The Sincerity Of Political Or Religious
Beliefs Asserted By For-Profit Enterprises
To Gain Exemptions From Regulatory
Constraints Applicable To Competitors. ......... 20
CONCLUSION ........................................................ 25
APPENDIX A

List of Amici Corporate
Law Professors ........................ 1a

 ii
TABLE OF AUTHORITIES
Cases
Anderson v. Abbott,
321 U.S. 349 (1944) ..............................................12
Bhd. of Locomotive Eng’rs v. Springfield
Terminal Ry. Co.,
210 F.3d 18 (1st Cir. 2000) ..................................12
Boy Scouts of Am. v. Dale,
530 U.S. 640 (2000) ........................................17, 20
Braswell v. United States,
487 U.S. 99 (1988) ................................................18
Brown v. Entm’t Merchants Ass’n,
564 U.S. 786 (2011) ..............................................16
Burnet v. Clark,
287 U.S. 410 (1932) ................................................8
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014)....................................14, 16
Cedric Kushner Promotions, Ltd. v. King,
533 U.S. 158 (2001) ................................................8
Citizens United v. FEC,
558 U.S. 310 (2010) ........................................16, 17
Cohen v. California,
403 U.S. 15 (1971) ..................................................4

 iii
Dole Food Co. v. Patrickson,
538 U.S. 468 (2003) ..............................................12
Dole v. Shenandoah Baptist Church,
899 F.2d 1389 (4th Cir. 1990)..............................23
EEOC v. Townley Eng’g & Mfg. Co.,
859 F.2d 610 (9th Cir. 1988)................................24
First National Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ........................................18, 21
Hale v. Henkel,
201 U.S. 43 (1906) ................................................18
Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333 (1977) ..............................................17
Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp.,
515 U.S. 557 (1995) ..............................................20
Ill. Bell Tel. Co. v. Glob. NAPS Ill., Inc.,
551 F.3d 587 (7th Cir. 2008)................................12
Lyng v. Nw. Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988) ..............................................20
Moline Props., Inc. v. Comm’r,
319 U.S. 436 (1943) ..............................................11
N. Am. Catholic Educ. Programming
Found., Inc. v. Gheewalla,
930 A.2d 92 (Del. 2007) .......................................13

 iv
NAACP v. Button,
371 U.S. 415 (1963) ..............................................17
New Colonial Ice Co. v. Helvering,
292 U.S. 435 (1934) ................................................8
N.Y. State Bd. of Elections v. López
Torres,
552 U.S. 196 (2008) ..............................................17
N.Y. Times Co. v. United States,
403 U.S. 713 (1971) ..............................................16
Schenley Distillers Corp. v. United States,
326 U.S. 432 (1946) ..............................................11
Tony & Susan Alamo Found. v. Sec’y of
Labor,
471 U.S. 290 (1985) ..............................................23
Trs. of Dartmouth Coll. v. Woodward,
17 U.S. 518 (1819) ................................................19
United States v. Bestfoods,
524 U.S. 51 (1998) ..................................................7
United States v. United Foods, Inc.,
533 U.S. 405 (2001) ..............................................16
Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) ..............................................17
Statutes
Colo. Rev. Stat. § 7-90-501 ..........................................6

 v
Colo. Rev. Stat. § 7-102-102 ........................................6
Colo. Rev. Stat. § 24-34-601(1) ...................................6
Colo. Rev. Stat. § 24-34-601(2)(a) ...............................6
Other Authorities
Stephen M. Bainbridge, Director
Primacy: The Means and Ends of
Corporate Governance, 97 Nw. U. L.
Rev. 547 (2003) ....................................................15
Lucian Arye Bebchuk, The Case for
Increasing Shareholder Power, 118
Harv. L. Rev. 833 (2005) ......................................15
William Blackstone, Commentaries on
the Laws of England (U. Chicago
Press 1979) .............................................................8
Margaret M. Blair & Elizabeth
Pollman, The Derivative Nature of
Corporate Constitutional Rights, 56
Wm. & Mary L. Rev. 1673 (2015) ........................18
William W. Cook, The Principles of
Corporation Law (1925) .........................................8
E. Merrick Dodd, Jr., For Whom Are
Corporate Managers Trustees?, 45
Harv. L. Rev. 1145 (1932) ....................................15

 vi
William O. Douglas & Carrol M.
Shanks, Insulation from Liability
Through Subsidiary Corporations,
39 Yale L.J. 193 (1929) ..........................................7
Frank H. Easterbrook & Daniel R.
Fischel, Limited Liability and the
Corporation, 52 U. Chi. L. Rev. 89
(1985) ......................................................................7
Forbes, America’s Largest Private
Companies 2017, available at
http://tinyurl.com/ycwn47v2 ................................14
Kent Greenfield, In Defense of Corporate Persons, 30 Const. Comment.
309 (2015) .............................................................17
Amanda Holpuch, Chick-fil-A Appreciation Day Brings Huge Crowds to
Fast-Food Chain, The Guardian
(Aug. 1, 2012), available at
http://tinyurl.com/y8veq28m ...............................22
George D. Hornstein, Corporation Law
and Practice (1959) ..............................................10
Masterpiece Cakeshop Incorporated,
Certificate and Articles of
Incorporation of Masterpiece
Cakeshop Incorporated (Dec. 2,
1992), available at
http://tinyurl.com/yac5ol43 ....................................5

 vii
Masterpiece Cakeshop Ltd, Articles of
Incorporation for a Nonprofit
Corporation (Nov. 1, 2012), available
at http://tinyurl.com/ycvhupdf ...............................5
Masterpiece Cakeshop, Ltd., Articles of
Organization (July 5, 2017),
available at
http://tinyurl.com/ybkn9ksx ..................................5
Masterpiece Cakeshop Ltd, History and
Documents, available at
http://tinyurl.com/y7gygbtv ...................................5
David K. Millon, Piercing the Corporate
Veil, Financial Responsibility, and
the Limits of Limited Liability, 56
Emory L.J. 1305 (2007) .......................................10
F. Hodge O’Neal & Robert B.
Thompson, O’Neal and Thompson’s
Close Corporations and LLC’s: Law
and Practice (rev. 3d ed. 2017) ..............................9
Alex Poor & Michelle Reed, The
“Control” Quagmire: The
Cumbersome Concept of “Control” for
the Corporate Attorney, 44 Sec. Reg.
L.J. Art. 1 (Summer 2016) ...................................12
Stephen B. Presser, Piercing the
Corporate Veil (2017) ...........................................10

 viii
Christina Rogers, Shareholders Again
Back Ford Family, Wall St. J. (May
12, 2016), available at
http://tinyurl.com/ybdhv97n ................................14
Robert B. Thompson, Piercing the
Corporate Veil: An Empirical Study,
76 Cornell L. Rev. 1036 (1991) ............................10
Wal-Mart Says Walton Family To Sell
Shares To Keep Lid on Stake,
Reuters (April 10, 2015), available
at http://tinyurl.com/ybkfve2z .............................14

 INTEREST OF AMICI CURIAE 1
Amici are 34 law professors whose research and
teaching focus on corporate governance law, securities law, or constitutional law as applied to corporations and other business entities. See Appendix A
(listing the individual law professors joining this
brief). This brief addresses issues that are within
amici’s particular areas of scholarly expertise.
INTRODUCTION AND
SUMMARY OF ARGUMENT
The constitutional claims of petitioner Masterpiece Cakeshop, Ltd., “a Colorado corporation,” Pet.
Br. at ii, depend on assumptions running contrary to
longstanding and fundamental principles of corporate law, namely the separation of shareholders from
the corporate entity. The constitutional interests asserted here by Petitioners are not the interests of the
corporation, but rather the interests of one of the
corporation’s shareholders, Jack Phillips, who demands that the Court project his religious beliefs
and political views onto the company. Petitioners’
brief is replete with assertions of how the Colorado
Anti-Discrimination Act (CADA) burdens Phillips’s
individual religious beliefs. But Phillips wants to assert that such beliefs are burdened when the corporation in which he owns shares is required to act as
1 The parties have consented to the filing of this amicus
brief. No counsel for a party authored the brief in whole or in
part. No party, counsel for a party, or any person other than
amici and their counsel made a monetary contribution intended
to fund the preparation or submission of the brief.

 2
a public accommodation under the laws of Colorado.
But he and the corporation are not the same and
should not be deemed identical for purposes of the
Constitution. Such unity between a shareholder and
a corporation runs counter to longstanding corporate
law principles this Court has repeatedly acknowledged. This Court should not base its constitutional
jurisprudence on an implicit assumption that contravenes this fundamental tenet of corporate law.
Even in situations in which a single shareholder
is dominant, the separation of shareholder from corporation is fundamental. Separateness is often the
very reason why founders of companies—even small
ones—choose the corporate form among the possible
legal forms available. Shareholders receive immense
benefits in exchange for this separation, including
the right of limited liability, which protects their
personal assets from claims against the corporation.
Shareholders depend on and desire this separation;
they should not be able to assert unity with the corporation whenever it suits their ideological, political,
or religious purposes, or exempts the company from
regulatory obligations that bind other corporations.
Moreover, any relaxation of this rule would cause
immense definitional difficulties, creating the likelihood of years of proxy fights followed by litigation
regarding the extent of shareholder control necessary to permit corporations to assert shareholders’
beliefs as their own.
This Court generally accepts as sincere the assertions of religious or political belief by individuals
and nonprofit associations, and no one questions the
sincerity of Phillips’s beliefs here. But this Court

 3
should be wary in expanding this deference to forprofit entities in cases, like this one, where a corporation’s constitutional claims would operate to exempt it from regulatory requirements applicable to
competitors. Because the drive to seek out competitive advantage is inherent in the nature of for-profit
entities, the risk of subterfuge or puffery is significant and more pronounced than with nonprofit or
human claimants. Before taking the unprecedented
step of extending to for-profit enterprises the right
to assert claims of religious or political exemption
from otherwise applicable regulations, the Court
should more carefully scrutinize the sincerity of such
entities’ religious and political claims. The Court
should require that such beliefs be organic to the
company, not merely projections of dominant shareholders, and not asserted as pretext to gain economic
advantage.
ARGUMENT
I.

Because Of The Separate Legal Personality
Of Corporations And Shareholders, The
Constitutional Interests Of Shareholders
Should Not Be Projected Onto The
Corporation.

The viability of the constitutional claims of petitioner Masterpiece Cakeshop, Ltd., a corporation
chartered under Colorado law, depends on the
Court’s willingness to assume the corporation holds
sincere beliefs that operate to exempt it from otherwise applicable law. It is not the corporation that
holds any such beliefs, however, but rather one of its
shareholders, Jack Phillips. It is shareholder Phillips

 4
who “is a cake artist,” who refused to sell a wedding
cake to a same-sex couple because of “his” religious
beliefs. Pet. at i. Phillips characterizes the question
to be decided as whether Colorado can compel “him”
to violate “his” sincere religious beliefs, not the beliefs of the corporation in which he owns shares. Id.
Thus, it is not the company but rather Phillips
who asserts a “deep religious faith,” Pet. Br. 1, and
who “meticulously crafts each wedding cake,” id. It is
“Phillips’s voice” that is allegedly being compelled,
Pet. Br. 2, in violation of the “core tenets of his
faith,” Pet. Br. 9 (emphasis added). Phillips asserts a
violation of his “individual dignity and choice.” Pet.
Br. 15 (emphasis added) (quoting Cohen v. California, 403 U.S. 15, 24 (1971)). He does not assert a
compelled speech claim on behalf of the company but
states it is “his artistic expression” at issue. Pet. Br.
17 (emphasis added). Cakes are “his” expression because “he intends to, and does in fact, communicate
through them.” Pet. Br. 19 (emphasis added). He
stakes his coerced speech claim on the notion that
the cakes embody “great religious meaning for him.”
Pet. Br. 22 (emphasis added).
Masterpiece Cakeshop, Ltd., meanwhile, is a
“Colorado corporation” whose shareholders are Phillips and his wife. Pet. Br. at ii. Originally chartered
in 1992, the company has gone through at least
three business forms: it began as a corporation, became a nonprofit corporation after Respondents
Charlie Craig and David Mullins filed charges of discrimination, and most recently changed to a limited

 5
liability company. 2 While Phillips repeatedly equates
his interests with those of the corporation, in the
company’s most recent incarnation, Phillips does not
even appear in its chartering documents. The sole
incorporator is an attorney, and the company’s “initial principal office” is a law firm. See Masterpiece
Cakeshop, Ltd., Articles of Organization (July 5,
2017), available at http://tinyurl.com/ybkn9ksx. 3
While Phillips represents that he and his spouse are
the only shareholders, he does not specify his percentage of share ownership, nor does he state that he
is the majority owner. See Pet. Br. at ii. Colorado
does not require private companies to disclose their
See Masterpiece Cakeshop Incorporated, Certificate and
Articles of Incorporation of Masterpiece Cakeshop Incorporated
(Dec. 2, 1992), available at http://tinyurl.com/yac5ol43; Masterpiece Cakeshop Ltd, Articles of Incorporation for a Nonprofit
Corporation (Nov. 1, 2012), available at http://tinyurl.com/
ycvhupdf; Masterpiece Cakeshop, Ltd., Articles of Organization
(July 5, 2017), available at http://tinyurl.com/ybkn9ksx.
2

3 When originally incorporated in 1992, Phillips was listed
as one of four incorporators and one of four initial directors. See
Masterpiece Cakeshop Incorporated, Certificate and Articles of
Incorporation of Masterpiece Cakeshop Incorporated (Dec. 2,
1992), available at http://tinyurl.com/yac5ol43. Masterpiece
Cakeshop reincorporated as a nonprofit corporation in November 2012, see Masterpiece Cakeshop Ltd, Articles of Incorporation for a Nonprofit Corporation (Nov. 1, 2012), available at
http://tinyurl.com/ycvhupdf, but appears to have become delinquent when it failed to file a Periodic Report, see Masterpiece
Cakeshop Ltd, History and Documents, http://tinyurl.com/
y7gygbtv. In 2017, Masterpiece Cakeshop submitted Articles of
Organization to become a Limited Liability Company. See Masterpiece Cakeshop, Ltd., Articles of Organization (July 5, 2017),
available at http://tinyurl.com/ybkn9ksx. The articles also indicate the company’s management is vested in “one or more
managers” and not in “the members.” Id. at 2.

 6
ownership structure, see Colo. Rev. Stat. §§ 7-102102, -90-501, and it is not apparent in the record
whether the shareholding percentages have changed
over time or whether Phillips’s ownership share is
the same under the current, post-litigation structure
as it was in earlier iterations. The company is not
chartered as a religious organization and has no recorded corporate policy with regard to the service of
LGBT customers. J.A. 62.
Under Colorado law, a public accommodation
must be a “place of business,” Colo. Rev. Stat. § 2434-601(1), and the Colorado Civil Rights Division determined that Masterpiece Cakeshop was a public
accommodation and subject to CADA. J.A. 69. The
initial administrative complaint was issued against
the company. See J.A. 71, 80 (“The Respondent is a
bakery that provides cakes and baked goods to the
public, and operates within the state of Colorado.”).
Amici take no position as to whether Phillips has an
individual claim to be exempted from CADA’s requirements vis-à-vis “a person” who “refuse[s] … an
individual … because of … sexual orientation … the
full and equal enjoyment of the goods … of a place of
public accommodation.” Colo. Rev. Stat. § 24-34601(2)(a). But Petitioners’ brief does not appear to
make such a distinction in any event.
As for the constitutional claims of the corporation, they can succeed only if the company can claim
Phillips’s religious beliefs as its own. But Phillips
and Masterpiece Cakeshop are not the same. They
are not identical for purposes of corporate law, and
they should not be deemed identical for purposes of
First Amendment law.

 7
A. Corporate separateness—i.e., legal personhood—is the core principle of corporate governance.
The first principle of corporate law is that forprofit corporations are entities that possess legal interests of their own and a legal identity separate and
distinct from their shareholders. This legal “personhood” holds true whether the for-profit corporation
has two, two hundred, or two million shareholders.
In each scenario, the corporate entity is distinct in
its legal interests and existence from those who contribute capital to it.
This Court has repeatedly recognized this principle of strict separation, calling it “a general principle of corporate law deeply ‘ingrained in our
economic and legal systems.’” United States v.
Bestfoods, 524 U.S. 51, 61 (1998) (quoting William O.
Douglas & Carrol M. Shanks, Insulation from Liability Through Subsidiary Corporations, 39 Yale L.J.
193, 193 (1929)). This separation is not an ancillary
part of corporate law and governance. It is instead
the sine qua non of the wealth-creating legal innovation of the corporate form. The rationale behind corporate separateness is to encourage entrepreneurial
activity by founders, investment by passive investors, and risk-taking by corporate managers. See,
e.g., Frank H. Easterbrook & Daniel R. Fischel, Limited Liability and the Corporation, 52 U. Chi. L. Rev.
89, 93-97 (1985). The corporate veil is a profound but
simple device helping to achieve all three of these
goals. Indeed, it is impossible to imagine a workable
legal framework for corporate governance without
such separation.

 8
“After all,” the Court has emphasized, “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and
privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533
U.S. 158, 163 (2001).
The centrality of corporate separateness is well
established and longstanding. See Burnet v. Clark,
287 U.S. 410, 415 (1932) (a “corporation and its
stockholders are generally to be treated as separate
entities”); New Colonial Ice Co. v. Helvering, 292
U.S. 435, 442 (1934) (“As a general rule, a corporation and its stockholders are deemed separate entities ….”); 1 William Blackstone, Commentaries on
the Laws of England 455 (U. Chicago Press 1979)
(“[I]t has been found necessary … to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. These
artificial persons are called bodies politic, bodies corporate, … or corporations ….”).
Because the corporation is a separate entity, its
shareholders are not responsible for its debts. This
“privilege of limited liability,” as protected by the
corporate veil, is “the corporation’s most precious
characteristic.” William W. Cook, The Principles of
Corporation Law 19 (1925). Although the term “corporation” sometimes calls to mind large, publicly
traded enterprises, incorporation provides equally
critical benefits to smaller businesses even when
their shares are not publicly traded. One of the most
compelling reasons for a small business to incorporate is so that its shareholders can acquire the pro-

 9
tection of the corporate veil. By incorporating a
business, the founders and investors insulate their
personal assets from risk. Absent significant misconduct and fraud, shareholders in a corporation
cannot lose any more than their original investment.
If the corporation cannot pay its bills, the creditors—
not the shareholders—bear the loss, with only very
narrow exceptions. 4
Even where a single shareholder owns all the
corporation’s shares (which is presumably not the
case with Masterpiece Cakeshop), the corporate veil
cannot be pierced absent significant misconduct or
fraud on the part of the shareholder. This presumptive impermeability of the corporate veil has been
confirmed by “thousands of instances where a sole
shareholder was held not liable for either tort or conThe leading treatise on closely held corporations notes
that, in addition to limited liability,
4

[t]here may [be other benefits] from the recognition
of the separate entity[:] the participants in the enterprise may be entitled to claim benefits as an employee for purposes of workers’ compensation, social
security, unemployment compensation or other entitlement statutes. A corporate officer or employee
who is also the sole or controlling shareholder of the
corporation has sometimes been able to successfully
assert a claim as an employee for workers’ compensation. Similarly, some courts respect the separate
entity of a close corporation so that shareholderemployees qualify for social security benefits for
which they would not be eligible if self-employed.
1 F. Hodge O’Neal & Robert B. Thompson, O’Neal and Thompson’s Close Corporations and LLC’s: Law and Practice § 1:15
(rev. 3d ed. 2017) (footnotes omitted).

 10
tract obligation[s] of his wholly owned corporation.”
George D. Hornstein, Corporation Law and Practice
§ 751 (1959); see generally Stephen B. Presser, Piercing the Corporate Veil § 1.1 (2017) (“It is now accepted as one of the first principles of American law that
those who own shares in corporations, whether such
shareholders are individuals or are themselves corporations, normally are not liable for the debts of
their corporations.”); Robert B. Thompson, Piercing
the Corporate Veil: An Empirical Study, 76 Cornell
L. Rev. 1036 (1991).
Because of these benefits, founders of even small
businesses routinely choose the corporate form or
another limited liability business form for the organization of a company. If entrepreneurs want to remain legally identified with their businesses, they
can organize them as sole proprietorships or partnerships. But the cost of doing so is the exposure to
much greater financial and legal risks. The corporate
form insulates entrepreneurs from those risks and
acts as a subsidy to entrepreneurs and shareholders
by offering a way to shift those risks to creditors, tort
victims, and the public at large. See David K. Millon,
Piercing the Corporate Veil, Financial Responsibility,
and the Limits of Limited Liability, 56 Emory L.J.
1305, 1307 (2007) (“[T]he best way to understand the
purpose of limited liability is as a subsidy designed
to encourage business investment. The subsidy
comes at the expense of corporate creditors.”); id. at
1324 (“By allowing entrepreneurs to externalize
these costs of doing business, limited liability
provides a subsidy paid for by uncompensated tort
victims.”).

 11
In the present case, Masterpiece Cakeshop argues it should be exempt from CADA because of the
religious values of a (presumably) controlling shareholder, while seeking to maintain the benefits of corporate separateness for all other purposes. The
company has benefited from its separateness in
countless ways, and Phillips has been insulated from
actual and potential corporate liabilities since inception. Yet now the company and the shareholder ask
this Court to disregard that separateness in connection with a government regulation they would rather
not obey. Petitioners want to argue, in effect, that
the corporate veil is only a one-way ratchet: its
shareholders can get protection from tort or contract
liability by standing behind the veil, but the corporation can ask a court to disregard the corporate veil
whenever the company is required by law to act in a
way that offends a shareholder’s beliefs.
Petitioners cannot have their cake and eat it too.
As this Court has said, “One who has created a corporate arrangement, chosen as a means of carrying
out his business purposes, does not have the choice
of disregarding the corporate entity in order to avoid
the obligations which the statute lays upon it for the
protection of the public.” Schenley Distillers Corp. v.
United States, 326 U.S. 432, 437 (1946); see Moline
Props., Inc. v. Comm’r, 319 U.S. 436 (1943) (holding
that even a sole shareholder cannot seek to sidestep
a corporation’s separateness to gain a personal tax
advantage). 5

As this Court is aware, federal and state courts may
pierce the corporate veil as an equitable remedy where the cir5

 12
The Court should not assume it can disregard
this principle of separateness with closely held companies such as Masterpiece Cakeshop and not cause
significant uncertainty, infighting, and litigation
with regard to other companies. If the Court sought
to limit its holding to private or even family companies with a dominant shareholder, courts will be
forced to resolve questions about what degree and
type of ownership constitutes “control”—a question
to which corporate law provides no ready answer,
see, e.g., Alex Poor & Michelle Reed, The “Control”
Quagmire: The Cumbersome Concept of “Control” for
the Corporate Attorney, 44 Sec. Reg. L.J. Art. 1
(Summer 2016)—and what degree of unanimity
among shareholders would allow them to project
their views onto the corporate entity. 6 (Even here, it
cumstances justify it, including when corporate formalities are
disregarded, when shareholders have used the veil to commit
fraud, or when the corporate entity was created for the transparent purpose of evading state or federal policy. See, e.g., Anderson v. Abbott, 321 U.S. 349, 362-63 (1944); Ill. Bell Tel. Co.
v. Glob. NAPS Ill., Inc., 551 F.3d 587, 598 (7th Cir. 2008); Bhd.
of Locomotive Eng’rs v. Springfield Terminal Ry. Co., 210 F.3d
18, 26-27 (1st Cir. 2000). But the “doctrine of piercing the corporate veil” remains “the rare exception, applied in the case of
fraud or certain other exceptional circumstances.” Dole Food
Co. v. Patrickson, 538 U.S. 468, 475 (2003). There is no indication that such is the case here, and Petitioners do not ask that
the corporate veil be disregarded on any basis other than religious belief. Indeed, far from having created a corporation to
circumvent state policy, Petitioners instead ask this Court to
permit circumvention of state policy by ignoring the corporation’s creation.
The definitional problems posed by a reversal would be
immense. Would the religious shareholder have to own the
shares at the time of the asserted constitutional burden? (If so,
it is not clear even in this case that such an ownership re6

 13
is not clear from the record whether Phillips is the
majority or minority shareholder, and the religious
beliefs of his shareholding spouse are only presumed.) And states might find it necessary to require
more disclosure as to the extent and nature of share
ownership in order to monitor and substantiate the

quirement would be satisfied since Masterpiece Cakeshop’s legal structure has changed since the initiation of this litigation.)
Would the religious shareholder have to own all the company’s
shares (not the case here), a majority of shares (unclear in the
current case), or simply be sufficiently dominant that he can
control the company’s management? It is standard for privately
held companies to have common shares and several series of
preferred shares. How should courts determine which shareholder class’s views and beliefs are to be projected onto the
company? If a corporation dominated by a religious shareholder
organizes its business in multiple layers of wholly owned subsidiaries, which is routine, would the shareholder’s religious
beliefs be projected onto the parent company only, or flow
throughout the entire enterprise? When a corporation is insolvent (such that creditors become “the principal constituency injured by any fiduciary breaches that diminish the firm’s value,”
N. Am. Catholic Educ. Programming Found., Inc. v. Gheewalla,
930 A.2d 92, 102 (Del. 2007)), would creditors’ beliefs be projected onto the corporation? What if a majority shareholder
without religious beliefs that require accommodation wishes to
sell to a buyer who does? Would such difference be material to
regulators and providers of capital? When the enterprises asserting religious beliefs are limited liability companies (LLCs),
should courts distinguish between manager-managed LLCs
(such as Masterpiece Cakeshop) and member-managed LLCs?
If so, should courts inquire into the degree of manager involvement? Should courts distinguish between corporations
chartered in the state asserting the regulation and those chartered in Delaware or elsewhere, as is routine? And what if the
enterprise asserting religious beliefs changes its corporate form
over time, as Masterpiece Cakeshop did here? See supra note 3.

 14
need to provide constitutional accommodation to
companies.
Moreover, the Court should not presume all privately held corporations are tiny. “‘Closely held’ is
not synonymous with ‘small.’” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2797 n.19 (2014)
(Ginsburg, J., dissenting). Some of the nation’s most
prominent corporations—Mars ($35 billion in revenues, 80,000 employees), Cargill ($110 billion in revenues, 150,000 employees), Bechtel ($33 billion in
revenues, 58,000 employees), Uber ($6.5 billion in
revenues, 12,000 employees), and Koch Industries
($100 billion in revenues, 100,000 employees), for
example—are privately held. See Forbes, America’s
Largest Private Companies 2017, available at
http://tinyurl.com/ycwn47v2.
Nor should the Court assume that “family
owned” companies are small or even closely held.
Walmart and Ford are both examples of large publicly traded corporations with major share ownership
retained in one family. See Wal-Mart Says Walton
Family To Sell Shares To Keep Lid on Stake, Reuters
(April 10, 2015), available at http://tinyurl.com/
ybkfve2z; Christina Rogers, Shareholders Again
Back Ford Family, Wall St. J. (May 12, 2016), available at http://tinyurl.com/ybdhv97n. If this Court
were to relax the rule of separateness in this case, it
is hardly clear how lower courts would delineate
which corporations could claim the beliefs of their
shareholders and which could not.
Thus, Petitioners not only ask this Court to constitutionalize a view of corporations that displaces

 15
the fundamental principle of separateness, but to do
so in a way that invites years of litigation to define
the contours of that displacement. 7
B. Corporate separateness should not be
ignored in constitutional law.
Given the importance and centrality of corporate
separateness in corporate governance law and doctrine, Petitioners have a heavy burden in persuading
this Court to ignore these entity distinctions in its
constitutional analysis. But Petitioners do not seem
This Court should not mistake the longstanding debate
in the corporate law scholarship over “shareholder primacy”
i.e., the question of whether corporate managers should prioritize shareholder interests over those of other corporate stakeholders, to indicate disagreement about the principle of
separateness. See E. Merrick Dodd, Jr., For Whom Are Corporate Managers Trustees?, 45 Harv. L. Rev. 1145 (1932); Lucian
Arye Bebchuk, The Case for Increasing Shareholder Power, 118
Harv. L. Rev. 833 (2005); Stephen M. Bainbridge, Director Primacy: The Means and Ends of Corporate Governance, 97 Nw. U.
L. Rev. 547 (2003). Amici hold a variety of opinions on the
question of management duties to shareholders and other corporate stakeholders. But our different views on shareholder
primacy do not undermine our unanimity with regard to corporate separateness. Shareholder primacy is simply a description
of one view of the fiduciary duties of management. It does not
mean that shareholders and the corporation are identical as a
matter of legal rights and obligations.
7

In fact, the debate over shareholder primacy suggests another difficulty lurking in future cases if Petitioners prevail. In
companies where a dominant shareholder sincerely holds certain political or religious views, would non-religious directors
and officers violate their fiduciary duties if they failed to assert
the shareholder’s views as a basis for an accommodation for the
company?

 16
to recognize the necessity of persuasion here, failing
to make any argument at all as to why Phillips’s
constitutional interests should be projected onto the
corporation. Petitioners either ignore the issue or
hope this Court will. 8
This Court has left no doubt that for-profit corporations and their trade associations may raise free
speech claims. See N.Y. Times Co. v. United States,
403 U.S. 713 (1971); Brown v. Entm’t Merchants
Ass’n, 564 U.S. 786 (2011); United States v. United
Foods, Inc., 533 U.S. 405 (2001); see also Citizens
8 On this important issue, this Court’s holding in Burwell
v. Hobby Lobby Stores, Inc., does not control. There, the question was whether for-profit corporations qualify as “person[s]”
that could “exercise … religion” within the meaning of the Religious Freedom Restoration Act of 1993 (RFRA). A divided
Court concluded that closely held corporations are protected
under that statute. 134 S. Ct. at 2767-75. That holding, in turn,
depended on Congress’s instruction that the statutory term
“exercise of religion” “be construed in favor of a broad protection of religious exercise,” which the Court viewed as “an obvious effort to effect a complete separation from First
Amendment case law.” Id. at 2761-62. This Court’s decision did
not address claims under the First Amendment, id. at 2785,
and so it remains true that “no decision of this Court [has] recognized a for-profit corporation’s qualification for a religious
exemption from a generally applicable law … under the Free
Exercise Clause,” id. at 2794 (Ginsburg, J., dissenting); see also
Pet. App. 40a n.13 (noting that notwithstanding Hobby Lobby’s
RFRA holding, “it is unclear whether Masterpiece (as opposed
to Phillips) enjoys First Amendment Free Exercise rights”).
And this Court’s interpretation of a statute intended to protect
the “exercise of religion” need not and should not be transplanted into the Court’s free speech doctrine, especially if doing
so requires a significant recasting of a foundational principle of
corporate law.

 17
United v. FEC, 558 U.S. 310 (2010) (striking down
limits on independent political expenditures by nonprofit and for-profit corporations). But the Court
does not equate the interests of corporations with
their shareholders for the purpose of free speech
analysis. On the contrary—corporations are holders
of their own rights. The Court has recognized corporate speech rights in order to preserve the “‘open
marketplace’ of ideas protected by the First Amendment,” Citizens United, 558 U.S. at 354 (quoting
N.Y. State Bd. of Elections v. López Torres, 552 U.S.
196, 208 (2008)), and to protect the company’s, consumers’, and society’s interest in “the free flow of
commercial information,” Va. State Bd. of Pharmacy
v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
763-64 (1976). The asserted interests are those of the
company itself, not the company’s shareholders. See
generally Kent Greenfield, In Defense of Corporate
Persons, 30 Const. Comment. 309 (2015).
In this respect, for-profit corporations are distinct from membership associations, in that the latter represent and embody the legal interests of their
members, are deemed to share the values of their
members, and have standing to sue on their members’ behalf. See Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977). Corporations, in
contrast, are legally distinct entities whose shareholders may have idiosyncratic investment objectives, distinctive and variable economic needs, and a
diversity of political and religious beliefs. ExxonMobil and Masterpiece Cakeshop are not the Boy Scouts
or the NAACP. See Boy Scouts of Am. v. Dale, 530
U.S. 640 (2000); NAACP v. Button, 371 U.S. 415
(1963). Though this Court may have once theorized

 18
corporations as akin to membership associations in
some cases, this characterization no longer fits modern corporations, modern shareholding, or modern
corporate law. See Margaret M. Blair & Elizabeth
Pollman, The Derivative Nature of Corporate Constitutional Rights, 56 Wm. & Mary L. Rev. 1673, 1707
(2015) (describing changes in corporations in late
nineteenth century that were “at odds” with associational view).
Corporations stand in their own shoes as a matter of free speech law. Corporations, to be sure, can
and should have a role to play in public discourse,
see First National Bank of Boston v. Bellotti, 435
U.S. 765 (1978), but courts should not merely presume that corporations act as conduits for the
shareholders’ points of view or have standing to assert their shareholders’ constitutional interests.
This Court has long recognized this distinction
between shareholders and corporations in other constitutional contexts. See Hale v. Henkel, 201 U.S. 43
(1906) (“[T]he corporation … receives certain special
privileges and franchises, and holds them subject to
the laws of the state and the limitations of its charter”). This Court has recognized the distinction even
between a sole shareholder and the corporation for
purposes of the Fifth Amendment. See Braswell v.
United States, 487 U.S. 99 (1988) (sole shareholder
has no Fifth Amendment right to resist a subpoena
to the corporation for corporate documents that personally incriminate him).
Jack Phillips is both a shareholder of Masterpiece Cakeshop and its employee. No one is challeng-

 19
ing the sincerity of Phillips’s beliefs. But CADA does
not require him to do, say, or create anything as a
shareholder that even arguably violates his beliefs.
To the extent CADA requires him to act contrary to
his beliefs, it is doing so in his role of an employee of
a company determined to be a public accommodation
under Colorado law. The rights of employees to assert a religious objection to a work requirement of an
employer or to a requirement of state or federal antidiscrimination law is a separate question, one on
which amici take no position. But there is no doubt
that if Masterpiece has a corporate speech interest at
issue here, it is not because it has an employee who
disagrees with Colorado law. For the company to
have a claim, it would have to allege that the company qua company has been coerced into saying or
doing something contrary to “those properties which
the charter of its creation confers upon it, either expressly, or as incidental to its very existence.” Trs. of
Dartmouth Coll. v. Woodward, 17 U.S. 518, 636
(1819). There is nothing inherent in the operation
of Masterpiece Cakeshop or in its chartering documents that would make obedience to state
anti-discrimination law inconsistent with “its very
existence.”
This is not to say that corporations cannot assert
First Amendment interests, but merely that courts
should take care that the rights asserted belong to
the corporation and not to someone else. If Phillips
has an individual First Amendment interest here, it
cannot be used as the basis for a regulatory waiver
for the company. Even if the individual employee
could assert a constitutional right to be exempted
from CADA’s obligations for employees of a public

 20
accommodation (a question on which amici take no
position), the company cannot leverage a solitary
employee’s or shareholder’s objections to a regulation
as the basis for a company-wide exemption.
II. Courts Should Not Reflexively Presume
The Sincerity Of Political Or Religious
Beliefs Asserted By For-Profit Enterprises
To Gain Exemptions From Regulatory
Constraints Applicable To Competitors.
As a general matter, a corporation will enjoy a
competitive advantage in the marketplace if it is exempted from otherwise generally applicable laws
and regulations. In this case, Masterpiece Cakeshop
is asking to be relieved from a state law its competitors are required to obey. Companies that do not assert constitutionally protected beliefs will find
themselves competing at a disadvantage on grounds
that have nothing to do with efficiency.
To be sure, the First Amendment requires accommodation only when a claimant’s political or religious belief is sincerely held. See, e.g., Lyng v. Nw.
Indian Cemetery Protective Ass’n, 485 U.S. 439, 452
(1988). But courts considering such claims typically
do not inquire deeply into sincerity. See Dale, 530
U.S. 640; Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 573-74 (1995). In situations
where the asserted interest would operate as to exempt for-profit entities from regulations applicable
to competitors, however, courts should be wary.
In most free speech cases pertaining to for-profit
corporations, the economic nature of the entity does

 21
not affect the constitutional analysis. Economic motivations for speech should not necessarily receive a
lower level of constitutional respect than nonpecuniary motivations. There is no intrinsic reason why
economic arguments and values are constitutionally
different from the charitable. Democratic debate often depends on economic matters and benefits from
the views and expertise of those involved in the
market. See Bellotti, 435 U.S. at 777 (“The inherent
worth of the speech in terms of its capacity for informing the public does not depend upon the identity
of its source, whether corporation, association, union, or individual.”)
This general rule, however, needs adjustment in
situations, like this one, in which an assertion of belief would operate to give a for-profit entity an exemption from regulations applicable to competitors.
Corporations, because of their economic nature, tend
to seek market advantages wherever and however
they can. Human beings are of course motivated by
self-interest, but it is the rare human who reduces
all decisions to the economic. And though it is possible for for-profit corporations to care about the noneconomic, just as humans can care about the economic, the nature of corporations is that they are
uniquely and particularly focused on gaining competitive advantage. Such is their essence and purpose, and if they fail to achieve it they will cease to
exist.
Competitive advantage need not come only by
way of marketplace success. If a company is able to
avoid regulatory requirements applicable to competitors, it will gain competitive advantage that will flow

 22
financially to its bottom line. Because for-profit corporations exist to seek out economic advantage, any
assertion of political or religious belief that would
require relaxing regulatory burdens should be carefully scrutinized. Companies that can gain competitive advantage over other market participants by
asserting political beliefs will have a tendency to
overstate or manufacture such beliefs.
It is no answer to this concern to assert that
Masterpiece Cakeshop is suffering a competitive disadvantage by refusing service to gay and lesbian
customers. It is hardly clear that denial of service to
a politically disfavored group imposes costs on a
business. The opposite may be true if the business
can seize upon a discriminatory purpose as a way to
attract like-minded customers. See Amanda Holpuch, Chick-fil-A Appreciation Day Brings Huge
Crowds to Fast-Food Chain, The Guardian (Aug. 1,
2012), available at http://tinyurl.com/y8veq28m (describing how eating at fast food chain Chik-fil-A became an act of resistance by opponents of LGBT
rights); see also Law & Econ. Scholars Amicus Br. 19
(describing how “[c]onsumers may prefer” businesses
that refuse to serve certain protected classes because
such businesses’ “convictions may be closely aligned
with related religious or moral convictions that consumers value”). Moreover, in an efficient marketplace, the denial of service to a segment of the
population raises costs to that population by narrowing their choices. Cf. id. (discussing how, if religious
companies are required to abide by antidiscrimination laws, “search costs” of consumers sharing those
companies’ views are “thus increased”; such consumers are “less able to find the best provider to

 23
match their preferences”). And compliance with laws
requiring companies not to discriminate is often
costly.
If this Court were to accept Petitioners’ arguments, corporations would be empowered to invoke
the political or religious views of their shareholders
essentially at will in order to obtain exemptions from
generally applicable laws and regulations that the
corporation finds too costly. Laws protecting LGBT
consumers would not be the only type of regulation
subject to attack. Indeed, some corporate directors
may consider themselves duty-bound to adopt the
political views of some subset of the company’s
shareholders in order to exempt the corporation from
the greatest numbers of applicable laws and regulations. A corporate claim to be exempted from minimum wage laws or pollution limits could result from
a shareholder’s sincerely held belief in laissez faire
economics. Cf. Tony & Susan Alamo Found. v. Sec’y
of Labor, 471 U.S. 290, 303 (1985) (considering nonprofit organization’s claim that minimum wage laws
infringed its free exercise rights). A corporation
whose dominant shareholder believes a woman’s
place is in the home could sue to be exempted from
state or federal parental leave mandates. Cf. Dole v.
Shenandoah Baptist Church, 899 F.2d 1389, 1392
(4th Cir. 1990) (considering religious school’s claim
for an exemption from the Fair Labor Standards Act
so that it could pay female teachers less than male
teachers and below the minimum wage). A corporation with a religiously devout shareholder could assert the right to require employees to attend
devotional services as a condition of employment, in
contravention of Title VII of the Civil Rights Act. See

 24
EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610
(9th Cir. 1988) (holding that, notwithstanding the
deeply held beliefs of the shareholders, a manufacturing company could not require a nonreligious employee to attend a mandatory “devotional service”
each week).
There is no conceptual difference between these
examples and the claims asserted by Petitioners
here. Recognizing or allowing corporations to assert
the political and religious views of their shareholders
would create a slippery slope that is unnecessary
and easily avoidable.
These questions do not represent a mere parade
of horribles. Rather, it is easy to imagine companies
suffering a competitive disadvantage claiming a
“Road to Damascus” conversion on any number of political or religious concepts. The risk of subterfuge
and puffery would be significant. Unless federal
courts were authorized and prepared to make inquiries into the legitimacy or good-faith nature of the
corporation’s putative political and religious beliefs,
then the only checks on corporate claims of regulatory exemptions would be labor unrest or consumer
avoidance. And, even if federal courts were authorized and prepared to enmesh themselves in determining whether a corporation’s assertion of political
and religious beliefs is in good faith or a mere subterfuge, that chore would not be easy.

 25
CONCLUSION
This Court should affirm the judgment of the
court of appeals.
Respectfully submitted,
Kent Greenfield
BOSTON COLLEGE
LAW SCHOOL
885 Centre Street
Newton Centre, MA
02549

October 30, 2017

Andrew D. Silverman
Daniel A. Rubens
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
(212) 506-5000
drubens@orrick.com

 1a
APPENDIX A
Jayne W. Barnard
Cutler Professor of Law Emerita
William & Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
Tamara C. Belinfanti
Professor of Law
Co-Director, Center for Business and Financial Law
New York Law School
185 West Broadway
New York, NY 10013
Dr. Margaret M. Blair
Professor of Law
Milton R. Underwood Chair in Free Enterprise
Vanderbilt University Law School
131 21st Avenue South
Nashville, TN 37203
Matthew T. Bodie
Callis Family Professor
Saint Louis University School of Law
100 N. Tucker Boulevard
St. Louis, MO 63101
William Wilson Bratton
Nicholas F. Gallicchio Professor of Law
Co-Director, Institute for Law and Economics
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104

 2a
John Coates
John F. Cogan, Jr. Professor of Law and Economics
Harvard Law School
1563 Massachusetts Avenue
Cambridge, MA 02138
James D. Cox
Brainerd Currie Professor of Law
Duke Law School
210 Science Drive
Durham, NC 27708
Elisabeth de Fontenay
Associate Professor of Law
Duke University School of Law
210 Science Drive
Durham, NC 27708
Kent Greenfield
Professor of Law
Michael and Helen Lee Distinguished Scholar
Boston College Law School
885 Centre Street
Newton Centre, MA 02549
Daniel JH Greenwood
Professor of Law
Deane School of Law at Hofstra University
121 Hofstra University
Hempstead, NY 11549

 3a
Lawrence A. Hamermesh
Professor Emeritus
Widener University Delaware Law School
4601 Concord Pike
P.O. Box 7474
Wilmington, DE 19803
Cathy Hwang
Associate Professor of Law
S.J. Quinney College of Law
The University of Utah
383 South University Street
Salt Lake City, UT 84112
Matthew Jennejohn
Robert W. Barker Professor
Brigham Young University Law School
Provo, UT 84606
Jennifer J. Johnson
Dean & Erskine Wood Sr. Professor of Law
Lewis and Clark Law School
10015 S.W. Terwilliger Boulevard
Portland, OR. 97219
Renee Jones
Professor of Law
Boston College Law School
885 Centre Street
Newton Centre, MA 02549

 4a
Jay B Kesten
Associate Professor
Florida State University College of Law
425 West Jefferson Street
Tallahassee, FL 32306
Anita Krug
Professor of Law
University of Washington School of Law
William H. Gates Hall
Box 353020
Seattle, WA 98195
David Millon
J.B. Stombock Professor of Law Emeritus
Washington and Lee University School of Law
1 Denny Circle
Lexington, VA 24450
Joseph F. Morrissey
Professor of Law
Stetson University College of Law
1401 61st Street South
Gulfport, FL 33707
Lisa H. Nicholson
Professor of Law
University of Louisville
Louis D. Brandeis School of Law
Louisville, KY 40292

 5a
Stefan J. Padfield
Professor of Law
The University of Akron School of Law
Akron, OH 44325
Frank Partnoy
George E. Barrett Professor of Law and Finance
University of San Diego School of Law
5998 Alcalá Park
San Diego, CA 92110
Alicia Plerhoples
Professor of Law
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, DC 20001
Brian JM Quinn
Associate Professor of Law
Boston College Law School
885 Centre Street
Newton Centre, MA 02549
Margaret V. Sachs
Robert Cotten Alston Professor of Law
University of Georgia School of Law
225 Herty Drive
Athens, GA 30602

 6a
Jeff Schwartz
Professor of Law
S.J. Quinney College of Law
The University of Utah
383 South University Street
Salt Lake City, UT 84112
Faith Stevelman
Professor of Law
New York Law School
185 West Broadway
New York, NY 10013
Lynn Stout
Distinguished Professor of Corporate &
Business Law
Cornell Law School
312 Myron Taylor Hall
Ithaca, NY 14853
Jennifer Taub
Professor of Law
Vermont Law School
164 Chelsea Street
South Royalton, VT 05068
B. Ellen Taylor
Associate Professor of Law
Georgia State University College of Law
85 Park Place NE
Atlanta, GA 30303

 7a
Ciara Torres-Spelliscy
Leroy Highbaugh Research Chair
Associate Professor of Law
Stetson University College of Law
1401 61st Street South
Gulfport, FL 33707
Anne M. Tucker
Associate Professor of Law
Georgia State University College of Law
85 Park Place NE
Atlanta, GA 30303
Christyne J. Vachon
Visiting Professor of Law
Director, Community Development Clinic
University of Massachusetts School of Law—
Dartmouth
333 Faunce Corner Road
North Dartmouth, MA 02747
Cheryl Wade
Harold F. McNiece Professor of Law
St. John’s University School of Law
8000 Utopia Parkway
Queens, NY 11439