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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-02074-WYD-STV
MASTERPIECE CAKESHOP INCORPORATED,
a Colorado corporation; and
JACK PHILLIPS,
Plaintiffs,
v.
AUBREY ELENIS, Director of the Colorado Civil Rights Division, in her
official and individual capacities;
ANTHONY ARAGON, as member of the Colorado Civil Rights
Commission, in his official and individual capacities;
MIGUEL “MICHAEL” RENE ELIAS, as member of the Colorado Civil
Rights Commission, in his official and individual capacities;
CAROL FABRIZIO, as member of the Colorado Civil Rights
Commission, in her official and individual capacities;
CHARLES GARCIA, as member of the Colorado Civil Rights
Commission, in his official and individual capacities;
RITA LEWIS, as member of the Colorado Civil Rights Commission, in
her official and individual capacities;
JESSICA POCOCK, as member of the Colorado Civil Rights
Commission, in her official and individual capacities;
AJAY MENON, as member of the Colorado Civil Rights
Commission, in his official and individual capacities;
CYNTHIA H. COFFMAN, Colorado Attorney General, in her official
capacity; and
JOHN HICKENLOOPER, Colorado Governor, in his official capacity,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
ARGUMENT .................................................................................................................................. 7
I.

Phillips is likely to succeed on the merits of his claims ..................................................... 7
A.

B.

Phillips is likely to succeed on his free-exercise claim........................................... 7
1.

Colorado unequally applies CADA against Phillips................................... 8

2.

Commissioners exhibit bias against Phillips............................................. 11

3.

Colorado has created a system of individualized exemptions and has
violated a hybrid of rights. ........................................................................ 12

Phillips is likely to succeed on his free-speech claim ........................................... 13
1.

2.
C.
II.

Colorado applies CADA to unlawfully compel expression ...................... 13
a.

The requested cakes are speech .................................................... 14

b.

Phillips objects to the requested cakes’ messages ........................ 18

c.

Colorado compels speech ............................................................. 18

d.

Strict scrutiny applies .................................................................... 19

e.

Colorado cannot satisfy strict scrutin. ........................................... 20

CADA, as applied and on its face, unlawfully restricts expression .......... 22

Phillips is likely to succeed on his due-process claim. ......................................... 25

The remaining preliminary-injunction factors favor Phillips ........................................... 29

CONCLUSION ............................................................................................................................. 30

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TABLE OF AUTHORITIES
Cases
Agency for International Development v. Alliance for Open Society International, Inc.,
570 U.S. 205 (2013) ...........................................................................................................13
American Civil Liberties Union v. Johnson,
194 F.3d 1149 (10th Cir. 1999) .........................................................................................30
Anderson v. City of Hermosa Beach,
621 F.3d 1051 (9th Cir. 2010) .....................................................................................15, 17
Awad v. Ziriax,
670 F.3d 1111 (10th Cir. 2012) .........................................................................................30
Axson-Flynn v. Johnson,
356 F.3d 1277 (10th Cir. 2004) ...............................................................................7, 12, 13
Batson v. Kentucky,
476 U.S. 79 (1986) .......................................................................................................27, 28
Boy Scouts of America v. Dale,
530 U.S. 640 (2000) ...............................................................................................14, 18, 21
Brown v. Entertainment Merchants Association,
564 U.S. 786 (2011) .....................................................................................................15, 22
Buehrle v. City of Key West,
813 F.3d 973 (11th Cir. 2015) .....................................................................................15, 17
Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009) .....................................................................................................25, 27
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) .........................................................................................................7, 8
Cohen v. California,
403 U.S. 15 (1971) .............................................................................................................14
Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for
Southern California,
508 U.S. 602 (1993) ...........................................................................................................29
Cressman v. Thompson,
719 F.3d 1139 (10th Cir. 2013) .........................................................................................16
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Cressman v. Thompson,
798 F.3d 938 (10th Cir. 2015) .........................................................................14, 15, 16, 18
Derma Pen, LLC v. 4EverYoung Ltd.,
773 F.3d 1117 (10th Cir. 2014) ...........................................................................................7
Elrod v. Burns,
427 U.S. 347 (1976) ...........................................................................................................29
Employment Division v. Smith,
494 U.S. 872 (1990) ...........................................................................................................12
ETW Corporation v. Jireh Publishing, Inc.,
332 F.3d 915 (6th Cir. 2003) .............................................................................................17
Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992) .....................................................................................................24, 25
Gibson v. Berryhill,
411 U.S. 564, 577 (1973) ...................................................................................................29
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ...........................................................................................................21
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,
515 U.S. 557 (1995) ................................................................................................... passim
In re Murchison,
349 U.S. 133 (1955) ...........................................................................................................25
J.E.B. v. Alabama,
511 U.S. 127 (1994) ...........................................................................................................28
Janus v. American Federation of State, County, and Municipal Employees,
Council 31,
138 S. Ct. 2448 (2018) .....................................................................................13, 14, 19, 22
Kolender v. Lawson,
461 U.S. 352 (1983) ...........................................................................................................24
Marshall v. Jerrico, Inc.,
446 U.S. 238 (1980) .....................................................................................................25, 26
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,
138 S. Ct. 1719 (2018) ............................................................................................... passim

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Matal v. Tam,
137 S. Ct. 1744 (2017) .................................................................................................12, 24
Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974) ...............................................................................................13, 14, 17
National Institute of Family & Life Advocates v. Becerra,
138 S. Ct. 2361 (2018) .......................................................................................................19
Pacific Gas and Electric Co. v. Public Utilities Commission of California,
475 U.S. 1 (1986) .........................................................................................................13, 20
Powers v. Ohio,
499 U.S. 400 (1991) ...........................................................................................................28
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ...............................................................................................20, 23, 24
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) ...........................................................................................19, 20, 22
Riley v. National Federation of the Blind of North Carolina,
487 U.S. 781 (1988) .....................................................................................................17, 19
Saxe v. State College Area School District,
240 F.3d 200 (3d Cir. 2001)...............................................................................................24
Taylor v. Hayes,
418 U.S. 488 (1974) ...........................................................................................................25
Texas v. Johnson,
491 U.S. 397 (1989) .....................................................................................................16, 22
United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803 (2000) ...........................................................................................................22
United States v. Stevens,
559 U.S. 460 (2010) ...........................................................................................................24
Verlo v. Martinez,
820 F.3d 1113 (10th Cir. 2016) ...................................................................................29, 30
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943) ...............................................................................................14, 16, 19

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Ward v. Village of Monroeville, Ohio,
409 U.S. 57 (1972) .............................................................................................................29
Williams v. Pennsylvania,
136 S. Ct. 1899 (2016) ...............................................................................25, 26, 27, 28, 29
Wisconsin v. Yoder,
406 U.S. 205 (1972) ...........................................................................................................21
Withrow v. Larkin,
421 U.S. 35 (1975) .............................................................................................................25
Wooley v. Maynard,
430 U.S. 705 (1977) ...............................................................................................13, 14, 17
Statutes
Colo. Rev. Stat. § 24-34-301(7) .....................................................................................................20
Colo. Rev. Stat. § 24-34-303(1)(b)(I)(B) .......................................................................................27
Colo. Rev. Stat. § 24-34-303(1)(b)(II)(A) .....................................................................................27
Colo. Rev. Stat. § 24-34-303(1)(b)(II)(A) .....................................................................................12
Colo. Rev. Stat. § 24-34-305(3) .....................................................................................................10
Colo. Rev. Stat. § 24-34-306(4) .....................................................................................................28
Colo. Rev. Stat. § 24-34-601(2)(a) ............................................................................................5, 23
Colo. Rev. Stat. § 24-34-701 .....................................................................................................5, 23
Colo. Rev. Stat. § 24-34-705 .....................................................................................................5, 23

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INTRODUCTION
Plaintiffs Jack Phillips and Masterpiece Cakeshop (collectively, Phillips) sketch, sculpt,
and paint cakes that convey messages. Phillips creates his cakes for all people; it is part of his
religious calling to love his neighbors. But his religious beliefs prevent him from expressing
messages that violate his conscience. For exercising his faith this way, Defendants (collectively,
Colorado) insist on turning his life upside down, trying to punish him again just months after
the Supreme Court found that Colorado has been acting with “clear and impermissible hostility
toward [his] sincere religious beliefs.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights
Comm’n, 138 S. Ct. 1719, 1729 (2018). Colorado’s message to Phillips is clear: his religious
beliefs aren’t welcome. He must either agree to violate his faith or shut down his shop.
Colorado’s intolerance toward Phillips is violating three constitutional guarantees. First,
Colorado is infringing Phillips’s free-exercise rights by acting with hostility toward his religious
beliefs and practices. Nothing has changed since the Supreme Court’s decision. Colorado
continues to treat Phillips unequally, allowing other cake artists to decline cakes that express
messages they find objectionable while depriving Phillips of that same freedom. And the
Colorado Civil Rights Commission (Commission) still has commissioners who oppose Phillips
and his religious exercise. One commissioner has even called him the “cake hater.”
Second, Colorado is steamrolling Phillips’s free-speech rights. It interprets the Colorado
Anti-Discrimination Act (CADA) to demand that Phillips create cakes expressing messages
contrary to his faith, including cakes with designs that represent and celebrate a gender
transition and that express support for Satan or satanic beliefs. That conflicts with Supreme
Court case law affirming that states cannot apply public-accommodations laws like CADA to

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force people to express messages they deem objectionable. In addition, Colorado silences
Phillips—barring him from telling others about the messages he cannot express and the
religious reasons why, through vague and overbroad CADA provisions that threaten jail time.
Third, Colorado is disregarding Phillips’s due-process rights. Due process demands an
objective appearance of fairness and neutrality. But Colorado’s attempt to drag Phillips through
another Commission proceeding, one initiated by a lawyer who has harassed Phillips with
multiple requests, right after the Supreme Court condemned the state’s hostility toward him
cannot live up to that stringent standard. Also, recent Supreme Court case law denounces the
Commission’s procedure of placing commissioners over both the decision to prosecute and the
adjudication. Commissioners cannot be both accusers and adjudicators.
Ruling for Phillips will not only protect his conscience but also the conscience of others,
such as an African American cake artist asked to create a cross-shaped cake celebrating a
religious group that espouses white-supremacist doctrine. At the same time, Colorado will
maintain its power to punish business owners who turn customers away simply because of who
they are rather than the messages they request. This balance ensures freedom for all.
STATEMENT OF FACTS
Phillips is an expert cake artist and owner of Masterpiece Cakeshop. Am. Compl. ¶¶ 83–
85. He is also a Christian who lives to honor and follow Jesus Christ in everything he does,
including the operation of his business and creation of his cake art. Id. at ¶¶ 95–99, 107. Phillips
serves everyone, no matter their protected characteristics. Id. at ¶ 2. But he declines to create
cakes with messages that violate his faith, including messages that demean LGBT people,
express racism, celebrate Halloween, and promote marijuana use. Id. at ¶¶ 109–17.

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Phillips uses artistic skills such as designing, painting, and sculpting to create expressive
cakes. Id. at ¶¶ 86–93. When customers request such a cake, Phillips collaborates with them on
the design; then he sketches, sculpts, and hand-paints to bring the cake to life. Phillips Decl.
¶¶ 4–9. Next, he places the cake in packaging with the shop’s logo, Am. Compl. ¶¶ 135–38,
which associates Phillips with and conveys approval for the cake’s messages, id. at ¶ 139.
In 2012, two customers asked Phillips to create a wedding cake celebrating a same-sex
marriage. Phillips Decl. ¶ 11. Phillips declined because the cake’s message violated his religious
beliefs, but he offered to sell the customers other items in the shop or to create a different cake
for them. Id. The customers filed a charge of discrimination against Phillips under CADA, and
after administrative proceedings, the Commission issued an order punishing him. Id. at ¶ 12.
Meanwhile, a man named William Jack asked three other cake shops “to create cakes
with images” and religious messages “that conveyed disapproval of same-sex marriage.”
Masterpiece, 138 S. Ct. at 1730. After the shops declined because they deemed the messages
offensive, William Jack filed religious-discrimination charges against them. The Colorado Civil
Rights Division (Division) found—and the Commission agreed—“that [those shops] acted
lawfully in refusing service.” Id. Through those decisions, Colorado established that it applies
CADA using an “offensiveness” rule, which allows cake artists “to decline to create specific
messages [they] consider[] offensive,” id. at 1728—a rule that it did not apply in Phillips’s case.
Only a few months ago, the Supreme Court reversed the Commission’s ruling in
Phillips’s case because Colorado acted with hostility toward his faith. Id. at 1729. The Court
relied on two factors. One was Colorado’s blatantly unequal treatment of Phillips compared to
the three cake artists who declined to express religious messages opposing same-sex marriage.

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Id. at 1730–31. The other was the commissioners’ bigoted comments about religion, ranging
from the sentiment that certain people of faith are not “welcome in Colorado’s business
community,” to outright animus referring to Phillips’s plea for religious freedom as a
“despicable piece[] of rhetoric” akin to “defenses of slavery and the Holocaust.” Id. at 1729.
Phillips continues to exercise his faith by declining to create cakes that convey messages
at odds with his beliefs. Am. Compl. ¶¶ 109, 191, 304, 307–23, 327. In 2017, on the day the
Supreme Court announced that it would hear Phillips’s case, a Colorado attorney called
Masterpiece Cakeshop and requested a custom cake designed with a pink interior and blue
exterior to celebrate the anniversary of a gender transition. Id. at ¶¶ 184–86. The lawyer said
that “the design was a reflection of the fact that [the lawyer] transitioned from male-to-female”
and that “the cake was ‘to celebrate’” that transition. Ex. 27 at 2.
The shop declined that request not because of who the customer was but because the
cake’s design expressed messages that conflict with Phillips’s faith. Am. Compl. ¶¶ 186–94.
The design communicated that sex can be changed or chosen and is determined by perceptions
rather than biology, and the cake expressed celebration for those ideas. Phillips Decl. ¶ 16. But
Phillips believes the opposite: that sex is given by God, is biologically determined, and cannot
be chosen. Id. Masterpiece Cakeshop offered to create a different cake for the lawyer or to sell
the lawyer any item available for purchase in the shop. Am. Compl. ¶ 196. After this, the lawyer
called the shop at least once and requested a cake celebrating Satan. Id. at ¶¶ 311–15.
The lawyer filed a discrimination charge concerning the gender-transition cake, Ex. 24
at 3–4, and the Division issued a probable-cause determination finding that Phillips “violated”
CADA, Ex. 27 at 4. On October 9, 2018, the Commission filed a formal complaint claiming that

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Phillips “denied service to [the lawyer] based on her sexual orientation (transgender status) . . .
in a violation of [CADA].” Ex. 28 at 3. The complaint’s one-sided rendition of facts is more
favorable to the lawyer than even what is recited in the discrimination charge. Am. Compl.
¶¶ 202–04, 232–33. The Commission could have passed on filing its complaint, and the lawyer
would have been authorized to file a civil action against Phillips in state court. Id. at ¶ 229.
Meanwhile, Phillips has been—and continues to be—hit with a barrage of requests for
custom cakes that express messages contrary to his religious beliefs. Id. at ¶¶ 304, 327–28. Four
of those requests, at least one of which came from the same lawyer who requested the gendertransition cake, id. at ¶ 313, sought cakes celebrating or otherwise supporting Satan: (1) a “red
and black” design with “an upside down cross, under the head of Lucifer,” id. at ¶ 308; (2) a
“red and black theme and an image of Satan smoking marijuana,” id. at ¶ 315; (3) a topper with
Satan “licking a . . . black Dildo,” id. at ¶ 318; and (4) “a pentagram” design, id. at ¶ 320.
Colorado interprets CADA to forbid Phillips from declining these requests. Id. at ¶ 325. When
discussing this case, Governor Hickenlooper said that “just because you don’t agree with
someone’s religion,” you should not “be able to deny them service.” Ex. 22 at 8.
Facing Colorado’s intolerance and the threat of losing his livelihood, Phillips has begun,
and plans to continue, communicating about Colorado’s mistreatment of him. Am. Compl.
¶¶ 266–67. He also wants to inform the public about the kinds of messages he cannot express—
like messages celebrating Satan or the idea that sex can be changed—and the religious reasons
why. Id. at ¶¶ 268–70. But CADA’s publication bans bar Phillips, with threat of jail time, from
announcing that he will decline certain requests or from making some feel “unwelcome.” Colo.
Rev. Stat. §§ 24-34-601(2)(a), 24-34-701, 24-34-705. Colorado interprets those bans to prohibit

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Phillips from communicating that he cannot create expressive cakes like the satanic and gendertransition cakes, which has caused him to chill his speech. Am. Compl. ¶¶ 270–71, 278–81.
Colorado’s hostility toward Phillips since 2012 has been blatant. Past and current
commissioners, all appointed by Governor Hickenlooper and many of whom are connected with
an advocacy group—One Colorado—that consistently opposes Phillips, have openly expressed
their disapproval of Phillips’s religious beliefs and exercise. In 2013, when tweeting about
Phillips’s first case, past Commissioner Heidi Hess, a current field organizer for One Colorado,
wrote: “Freedom OF religion does NOT mean freedom FOR YOUR religion.” Id. at ¶¶ 155–56;
Ex. 16 at 2. When Hess’s term expired, the Governor felt so strongly about keeping her that he
attempted to override senate opposition. Am. Compl. ¶ 157. Also, past Commissioner Diann
Rice referred to Phillips’s reliance on his faith as a “despicable piece[] of rhetoric” akin to
“defenses of slavery and the Holocaust,” and past Commissioner Raju Jairam said that Phillips
“cannot act on his religious beliefs ‘if he decides to do business in the state,’” Masterpiece, 138
S. Ct. at 1729—a sentiment agreed with by Katina Banks, another former commissioner and
former One Colorado board member. Am. Compl. ¶¶ 147–53.
Without discovery or responses to public-records requests, Phillips has already learned
of some current commissioners’ opposition—and even animus—toward him. When
Commissioner Pocock, a former field coordinator for One Colorado, discussed Phillips’s first
case in a series of 2013 tweets with Hess, she referred to Phillips as the “cake hater.” Id. at
¶ 259; Ex. 12 at 5. And Commissioner Aragon, a former One Colorado board member and selfdescribed “LGBT activist,” posted a Facebook comment referencing the Supreme Court
arguments in Phillips’s first case with an image of the White House lit up in rainbow colors.

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Am. Compl. ¶¶ 260–62; Ex. 10 at 2; Warner Decl. ¶ 13. Aragon also serves with another group,
the National LGBTQ Task Force, that filed an amicus brief against Phillips. Am. Compl. ¶ 261;
Exs. 3–4; Ex. 10 at 3. So despite commissioner changeover, the anti-Phillips sentiment remains.
ARGUMENT
To obtain a preliminary injunction, a party must show: (1) a likelihood of success on the
merits, (2) irreparable harm, (3) the balance of equities favors an injunction, and (4) an
injunction is consistent with the public interest. Derma Pen, LLC v. 4EverYoung Ltd., 773 F.3d
1117, 1119 (10th Cir. 2014). All four requirements are satisfied here.
I.

Phillips is likely to succeed on the merits of his claims.
Phillips raises a free-exercise, free-speech, and due-process claim in support of his

request for a preliminary injunction. He is likely to succeed on each of those claims.
A.

Phillips is likely to succeed on his free-exercise claim.

State action “that is not neutral” toward religion “or not of general application must
undergo the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 546 (1993). Government fails to act neutrally when enforcement
officials manifest open hostility toward religious people or religious claims. Masterpiece, 138 S.
Ct. at 1729–30. And “[o]fficial action that targets religious conduct for distinctive treatment,”
Lukumi, 508 U.S. at 534—including “[a] rule that is . . . discriminatorily applied to religious
conduct,” Axson-Flynn v. Johnson, 356 F.3d 1277, 1294 (10th Cir. 2004)—is neither neutral nor
generally applicable. See also Masterpiece, 138 S. Ct. at 1730–31. “The Free Exercise Clause
bars even ‘subtle departures from neutrality’ on matters of religion,” and its protection applies
“upon even slight suspicion that . . . state [actions] stem from animosity to religion or distrust of

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its practices.” Id. at 1731 (quoting Lukumi, 508 U.S. at 534, 547) (emphasis added). When
government hostility toward religion is blatant and egregious, litigants establish a free-exercise
violation without needing to satisfy strict scrutiny. See id. at 1729–32.
The Supreme Court just said that Colorado violated these principles by acting with “a
clear and impermissible hostility” toward Phillips’s faith. Masterpiece, 138 S. Ct. at 1729. The
Court found “indication[s] of hostility” in (1) Colorado’s discriminatory enforcement of CADA
against Phillips and (2) commissioners’ comments about Phillips, his faith, and religious
freedom. See id. at 1729–31. Because those infirmities remain, Phillips should prevail.
1.

Colorado unequally applies CADA against Phillips.

In enforcing CADA, Colorado has created an “offensiveness” rule that allows cake
artists “to decline to create specific messages [they] consider[] offensive.” Masterpiece, 138 S.
Ct. at 1728. Colorado applied that rule when approving “the refusal of bakers to create cakes
with images that conveyed [religious] disapproval of same-sex marriage.” Id. at 1730. And
Colorado reaffirmed that rule in its Supreme Court briefing. Id. at 1736 (Gorsuch, J.,
concurring) (quoting the state’s brief). Yet Colorado applies that rule in a discriminatory
fashion, targeting Phillips for exercising his faith while allowing others to refuse messages that
they deem offensive. This “difference in treatment between Phillips[]” and other cake artists is
an “indication of hostility” toward Phillips’s religious beliefs. Id. at 1730.
The Supreme Court has already held that Colorado applies that rule to discriminate
against Phillips. Id. at 1730–31. The Court was concerned not only that Colorado punished
Phillips while absolving others, but also that it analyzed Phillips’s case differently. Id. Using an
offensiveness rule to treat Phillips worse demeaned his faith by “elevat[ing] one view of what is

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offensive over another,” which “itself sends a signal of official disapproval of [his] religious
beliefs.” Id. at 1731.
Colorado’s actions following Masterpiece confirm its practice of unequally applying
CADA. When Phillips declined to create the requested gender-transition and satanic cakes, he
did so not because of the person who requested them but because he considered the messages
that they would have conveyed offensive to his faith. Am. Compl. ¶¶ 191–94, 307–24. Yet
Colorado maintains that Phillips may not decline those requests. Governor Hickenlooper said as
much when he remarked, in reference to this case, that “just because you don’t agree with
someone’s religion,” you should not “be able to deny them service.” Ex. 22 at 8. And the
Commission has issued a formal complaint insisting that Phillips violated CADA by declining
to create the gender-transition cake. Ex. 28 at 3.
Three factors highlight the unequal treatment. First, Colorado told the Supreme Court
that cake artists may decline cakes with designs, themes, and symbols—including those that are
pro-LGBT—that convey messages offensive to their conscience. Ex. 31 at 35 (“Under the Act,
Phillips is free . . . to decline to sell cakes with ‘pro-gay’ designs”); id. at 25 (“[I]f Phillips
would not sell a . . . cake with a particular artistic theme,” such as a “cake featuring a symbol of
gay pride,” “to any customer, regardless of that customer’s protected characteristics, he need not
sell one to [anyone].”). The satanic and gender-transition cakes all sought designs, themes,
symbols, or images that expressed messages. Leaving no doubt on this point, the lawyer who
requested the gender-transition cake told Masterpiece Cakeshop that “the design was a
reflection of the fact that [the lawyer] transitioned from male-to-female” and that “the cake was
‘to celebrate’” that transition. Ex. 27 at 2. And Colorado has acknowledged that Masterpiece

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Cakeshop declined that request because Phillips does not want to create cakes with designs
expressing that sex (male or female) is not “immutable.” Id. at 3. By ignoring what it told the
Supreme Court and prosecuting Phillips anyway, Colorado confirms its double-standard.
Second, Colorado continues its inconsistent reasoning when applying CADA to Phillips.
The cake shops that declined the religious messages opposing same-sex marriage did not violate
CADA, Colorado explained, because each of them “was willing to sell other products . . . to the
prospective customers.” Masterpiece, 138 S. Ct. at 1730. But in Phillips’s first case, “the
Commission dismissed [his] willingness to sell [other cakes] to gay and lesbian customers as
irrelevant.” Id. Similarly, both the Division and Commission have ignored that Masterpiece
Cakeshop told the lawyer who requested the gender-transition cake that the lawyer “is welcome
to purchase any of the cake shop’s premade items or obtain a different custom cake.” Ex. 25 at
3; see also id. at 6. This disparate analysis is exactly what the Supreme Court condemned.
Third, while Colorado defers to the message-based objections of cake artists whose
views it likes, it ignores state law and “presume[s]” that Phillips violates CADA when he
declines to express certain messages that offend his faith. Masterpiece, 138 S. Ct. at 1736–37
(Gorsuch, J., concurring); see Colo. Rev. Stat. § 24-34-305(3) (requiring “the commission” and
“division” to “presume that the conduct of [the accused] is not unfair or discriminatory”). When
the cake artists who were asked to criticize same-sex marriage objected to religious “wording
and images” that they considered offensive, Colorado readily accepted that and did not presume
a violation. Masterpiece, 138 S. Ct. at 1730. But when Phillips objected to the gender-transition
cake because the design admittedly communicated celebration for the view that sex is not

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“immutable,” Colorado pointed to that fact alone in concluding that Phillips violated CADA.
Ex. 27 at 3–4. That is the antithesis of equal treatment, and it must stop.
2.

Commissioners exhibit bias against Phillips.

Commissioners, both past and present, have exhibited hostility toward Phillips and his
faith. As the Supreme Court found, past commissioners “endorsed” the “inappropriate and
dismissive” “view that religious beliefs cannot legitimately be carried into the public sphere or
commercial domain” and that “religious beliefs and persons are less than fully welcome in
Colorado’s business community.” Masterpiece, 138 S. Ct. at 1729. Also, one former
commissioner—with “no objection” from the others—“disparage[d]” Phillips’s religion “by
describing it as despicable,” “characterizing it as . . . insubstantial,” and “compar[ing] [his]
invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” Id.;
see also Ex. 21 at 4 (that commissioner maintains that even now she “doesn’t regret what she
said”). And another past commissioner who decided Phillips’s first case tweeted that “Freedom
OF religion does NOT mean freedom FOR YOUR religion.” Ex. 16 at 2.
Colorado has done nothing to disavow or correct the Commission’s systemic and deepseated opposition toward Phillips and his faith. Without Phillips having the chance to conduct
discovery or obtain public records, evidence already confirms that it remains. In a brazen show
of hostility, Commissioner Pocock publicly referred to Phillips as the “cake hater.” Ex. 12 at 5.
And Commissioner Aragon demonstrated his personal opposition to Phillips through a rainbowtheme Facebook post about the Supreme Court arguments in Phillips’s prior case, Ex. 10 at 2,
and his current service with a group—the National LGBTQ Task Force—that filed an amicus
brief against Phillips, Exs. 3–4; Ex. 10 at 3. That current commissioners have continued to

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publicly oppose—and, in Pocock’s case, express animus toward—Phillips is not surprising.
They were all selected by the same Governor under the same selection criteria, see Colo. Rev.
Stat. § 24-34-303(1)(b)(II)(A), which he used to appoint many who have worked with a
Colorado advocacy group that openly opposes Phillips. Commissioner bias against Phillips thus
continues. And as in Masterpiece, that bias—combined with Colorado’s unequal treatment of
Phillips—establishes a free-exercise violation without needing to apply strict scrutiny.
3.

Colorado has created a system of individualized exemptions and has
violated a hybrid of rights.

At the very least, to defeat Phillips’s free-exercise claim, Colorado must satisfy strict
scrutiny because it has (1) created a system of individualized exemptions under CADA and (2)
violated a hybrid of Phillips’s rights. See Axson-Flynn, 356 F.3d at 1295 (recognizing that strict
scrutiny applies to an “individualized exemption” and “hybrid rights”).
First, the government establishes “a system of individualized exemptions” when it
applies “a subjective test” on a “case-by-case basis” to assess whether particular conduct is
forbidden. Id. at 1297. The Supreme Court found that a subjective “good cause” standard is an
individualized exemption. Emp’t Div. v. Smith, 494 U.S. 872, 884 (1990). And the Tenth Circuit
said that affording an exemption to one person suffices. Axson-Flynn, 356 F.3d at 1298–99.
Colorado’s offensiveness rule rests on a subjective and viewpoint-discriminatory standard that
invites Colorado to consider the facts of each case. Matal v. Tam, 137 S. Ct. 1744, 1756 n.5,
1763 (2017) (plurality) (standard based on offensiveness is “highly subjective” and
discriminates based on “viewpoint”). And as the prior cases involving cake artists show,
Colorado applies that rule on a case-by-case basis to reach disparate results. That amounts to a
system of individualized exemptions.

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Second, the “hybrid rights” doctrine applies “when a free exercise claim is coupled with
some other constitutional claim (such a free speech claim).” Axson-Flynn, 356 F.3d at 1295. A
plaintiff must “show that the companion constitutional claim is ‘colorable,” which requires “a
fair probability or likelihood, but not a certitude, of success on the merits.” Id. at 1297. Phillips
has a strong likelihood of success on his other claims discussed below. Hybrid-rights theory
thus demands strict scrutiny, which, as explained below, Colorado cannot satisfy.
B.

Phillips is likely to succeed on his free-speech claim.

The Free Speech Clause guarantees that each person is free to “decide for himself or
herself the ideas and beliefs deserving of expression, consideration, and adherence.” Agency for
Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013). That freedom
“includes both the right to speak freely and the right to refrain from speaking.” Wooley v.
Maynard, 430 U.S. 705, 714 (1977). Colorado violates those rights (1) by compelling Phillips to
create expression he considers objectionable and (2) by restricting his desired speech.
1.

Colorado applies CADA to unlawfully compel expression.

“Compelling individuals to mouth support for views they find objectionable violates [a]
cardinal constitutional command” and is “universally condemned.” Janus v. Am. Fed’n of State,
Cty., and Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). That rule forbids Colorado
from forcing citizens to express messages they deem objectionable or from punishing them for
declining to express such messages. See Pac. Gas and Elec. Co. v. Pub. Utils. Comm’n of Cal.,
475 U.S. 1, 20–21 (1986) (PG&E) (plurality) (business cannot be forced to include another’s
speech in its mailing); Wooley, 430 U.S. at 717 (citizen cannot be forced to display state motto
on license plate); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (newspaper

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cannot be forced to print politician’s writings); W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624, 642 (1943) (students cannot be forced to recite pledge or salute flag). Not even publicaccommodation laws like CADA can override this freedom. See, e.g., Hurley v. Irish-Am. Gay,
Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 572–73 (1995) (parade organizers cannot be
forced to include LGBT group’s message); Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000)
(Boy Scouts cannot be forced to keep leader who contradicts group’s messages).
The right to be free from compelled speech protects conscience by shielding “the sphere
of intellect” and the “individual freedom of mind.” Wooley, 430 U.S. at 714–15. It ensures that
the government cannot force individuals to be “instrument[s] for fostering public adherence to
an ideological point of view [they] find[] unacceptable.” Id. at 715. And it protects “individual
dignity,” Cohen v. California, 403 U.S. 15, 24 (1971), because “[f]orcing free and independent
individuals to [express] ideas they find objectionable”—to “betray[] their convictions” in that
way—“is always demeaning,” Janus, 138 S. Ct. at 2464.
“[T]o make out a valid compelled-speech claim, a party must establish (1) speech; (2) to
which he objects; that is (3) compelled by some governmental action.” Cressman v. Thompson,
798 F.3d 938, 951 (10th Cir. 2015) (Cressman II). By requiring Phillips to create the requested
satanic and gender-transition cakes, Colorado violates his free-speech rights.
a.

The requested cakes are speech.

The requested satanic and gender-transition cakes sought designs, themes, symbols, or
images that communicated obviously intended messages. Am. Compl. ¶¶ 186–92, 202–04, 307–
24. They constitute speech, either artistic expression (i.e., pure speech) or symbolic speech.

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Artistic expression. “[T]he Constitution looks beyond written or spoken words as
mediums of expression,” Hurley, 515 U.S. at 569, and protects artistic expression as pure
speech. “The concept of pure speech is fairly capacious.” Cressman II, 798 F.3d at 952. It
includes “pictures, . . . paintings, drawings, and engravings,” “custom-painted clothing,”
“stained-glass windows,” id., and tattoos, Buehrle v. City of Key West, 813 F.3d 973, 976 (11th
Cir. 2015); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061 (9th Cir. 2010). The
hand-crafted and visually expressive satanic and gender-transition cakes are akin to paintings
and sculptures. That Phillips creates using mostly edible materials like icing and fondant rather
than ink and clay is of no moment. “[T]he basic principles of freedom of speech . . . do not vary
when a new and different medium for communication appears.” Brown v. Entm’t Merchs.
Ass’n, 564 U.S. 786, 790 (2011) (quotation marks omitted).
Those cakes are a means of expression, on both Phillips’s and the customer’s part.
Phillips uses artistic skills such as designing, painting, and sculpting to create expressive cakes.
Am. Compl. ¶¶ 88–93. He intends to and does in fact express messages through his custom
cakes, which is why he declines cakes that convey messages in conflict with his faith. Phillips
Decl. ¶ 10. And the customers seeking the satanic and gender-transition cakes also intended
messages through their designs and themes. See Cressman II, 798 F.3d at 954 (asking whether
an image that a compelled speaker objected to displaying was an expressive “act of creativity on
the part of legislators” requesting that image). The lawyer who requested the gender-transition
cake said that the pink and blue “design was a reflection of,” and intended to celebrate, “the fact
that [the lawyer] transitioned from male-to-female.” Ex. 27 at 2; see Ex. 24 at 4 (“I requested
that its color and theme celebrate my transition”). Such a cake is a form of artistic expression.

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Symbolic speech. At a minimum, the satanic and gender-transition cakes are symbolic
speech. Symbolism is an “effective way of communicating ideas,” serving as “a short cut from
mind to mind.” Barnette, 319 U.S. at 632. The Supreme Court originally adopted a two-prong
test to evaluate whether something is symbolic speech: (1) whether “[a]n intent to convey a
particularized message was present”; and (2) whether “the likelihood was great that the message
would be understood by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989).
Hurley later erased the requirement that the message be “particularized.” 515 U.S. at 569.
The Tenth Circuit has held that the first prong is necessarily satisfied in compelledspeech contexts. Because “a compelled speech plaintiff does not intend to convey the unwanted
messages, but is forced to,” the court “view[s] the compulsion aspect of [a] compelled speech
claim to satisfy any intent requirement.” Cressman v. Thompson, 719 F.3d 1139, 1154 n.15
(10th Cir. 2013) (Cressman I).
Under the second prong, the court discerns the message understood by the reasonable
observer who sees the speech. That observer “focuses on context to give meaning to a symbol
and is cognizant of . . . the environment in which an expressive act occurs.” Cressman II, 798
F.3d at 958 (quotation marks and alterations omitted). He knows the “purpose,” “motive,” and
intended “message” of the person who requests the speech. Id. at 959–60. Here, the observer of
the satanic cakes—bearing images of Satan, devilish color schemes, and satanic symbols—
would know that the cakes expressed support for Satan. Am. Compl. ¶ 324. Similarly, those
viewing the gender-transition cake—people attending the celebration of the anniversary of the
gender transition—would understand that the pink and blue design reflected the gender

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transition and expressed celebration for that. Id. at ¶ 192. The messages of those cakes would
have been understood by their viewers and thus constitute symbolic speech.
As the artist who designs, paints, and sculpts the cakes into form, Phillips’s role in
creating expressive cakes makes him a speaker. People are protected speakers when they create
or distribute expression, even if the message originates with others and the speaker earns
money. See Hurley, 515 U.S. at 569–70 (parade organizers compiling “multifarious voices” are
speakers); Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 795–98 (1988) (fundraisers
paid to recite customers’ messages are speakers); Wooley, 430 U.S. at 715 (motorists displaying
state motto on license plate are speakers); Tornillo, 418 U.S. at 258 (newspapers compiling
others’ writings are speakers). “Protected artistic expression frequently encompasses a sequence
of acts by different parties, often in relation to the same [item]. The First Amendment protects
the artist who [creates] a piece just as surely as it protects” those who request it. Buehrle, 813
F.3d at 977; accord Anderson, 621 F.3d at 1061–62. That is why tattooists who create what
customers request, id.; Buehrle, 813 F.3d at 976; and “[p]ublishers” who “disseminat[e] the
work of others” are protected by the First Amendment, ETW Corp. v. Jireh Publ’g, Inc., 332
F.3d 915, 925 (6th Cir. 2003); see also Hurley, 515 U.S. at 574 (“professional publishers”).
When Phillips creates a custom cake, he acts much like a painter, sculptor, tattooist, or
publisher. He exercises discretion over requests, routinely declining to create cakes that express
messages he deems objectionable. Am. Compl. at ¶¶ 109–29, 191, 304–23, 327; Phillips Decl.
¶¶ 8, 17. And once he accepts a request, he collaborates with the client about the best way to
convey a desired message, draws a sketch of the cake, sculpts it into form, and decorates it with

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painting and sculpting techniques. Am. Compl. ¶¶ 86–94; Phillips Decl. ¶¶ 2–9. His role as an
active creator of expressive cakes easily qualifies him as a constitutionally protected speaker.
b.

Phillips objects to the requested cakes’ messages.

The compelled-speech doctrine applies when an individual objects to conveying a
message. Cressman II, 798 F.3d at 951. It does not apply when someone rejects people simply
because of who they are. Hurley, 515 U.S. at 572. Hurley established this crucial message/
person distinction in public-accommodation cases. The Court held that the compelled-speech
doctrine shielded parade organizers’ decision not to express an LGBT group’s message through
their parade. Critical to the Court’s analysis was its recognition that the organizers declined the
request because of a “disagreement” with the group’s message rather than an “intent to exclude
homosexuals as such.” Id.; see also Dale, 530 U.S. at 653 (organizers in Hurley did not exclude
LGBT group “because of their [members’] sexual orientations,” but because of what it
expressed “march[ing] behind a . . . banner”). Because Phillips objects to the messages of the
gender-transition and satanic cakes on conscience grounds and would otherwise serve the
customers who requested those cakes, compelled-speech principles protect him.
c.

Colorado compels speech.

The way that Colorado interprets CADA compels Phillips to engage in speech. Colorado
is not applying CADA to force Phillips to sell his already-made products, like the cookies
available for purchase at his shop, or even to create non-expressive items, such as a plain white
sheet cake. It is forcing him to hand-craft custom cakes with designs, symbols, themes, and
images that violate his faith. This distinction between a compelled sale of a product and a
compelled creation of expression is key to applying the compelled-speech doctrine.

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Again, Hurley is illustrative. Public-accommodation laws like CADA “do not, as a
general matter, violate the First or Fourteenth Amendments.” Hurley, 515 U.S. at 572. They are
constitutional “on [their] face” and in the vast majority of their applications. Id. But when states
apply those laws to “essentially requir[e]” individuals “to alter . . . expressive content”—when
they are “applied in [that] peculiar way”—compelled-speech principles provide a refuge. Id.
Since that is how Colorado applies CADA to Phillips, they are violating his free-speech rights.
d.

Strict scrutiny applies.

Forcing Phillips to express unwanted messages requires strict scrutiny for two reasons.
First, compelling speech “is always demeaning,” Janus, 138 S. Ct. at 2464, and justifiable “only
on even more immediate and urgent grounds than [compelled] silence,” Barnette, 319 U.S. at
633. Second, Colorado applies CADA based on both content and viewpoint. See Reed v. Town
of Gilbert, 135 S. Ct. 2218, 2231 (2015) (strict scrutiny applies when a law is content based).
Colorado’s content-based application of CADA occurs in two ways. First, the Supreme
Court has recognized—and just reaffirmed this past term—that “[m]andating speech that a
speaker would not otherwise make necessarily alters . . . content” and constitutes “a contentbased regulation of speech.” Riley, 487 U.S. at 795; accord Nat’l Inst. of Family & Life
Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018) (similar). Applying CADA to force Phillips
to craft the satanic and gender-transition cakes mandates expression that he would not otherwise
create. It is thus a content-based application of the law.
Second, “regulation of speech is content based if a law applies to particular speech
because of the topic discussed or the idea or message expressed.” Reed, 135 S. Ct. at 2227. In
compelled-speech cases, this occurs when state action is triggered, and requires a speaker to

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express another’s message, because of content. See PG&E, 475 U.S. at 13–14 (plurality)
(awarding one speaker “access” to another’s expression because of the first speaker’s “views” is
“content based”). Colorado applies CADA to compel Phillips to create the satanic and gendertransition cakes because those cakes address topics (religion and transgenderism) that implicate
a statutory classification. Were Phillips asked for cakes with messages unrelated to a protected
classification, CADA would not apply. Colorado thus applies CADA in a content-based
manner. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (finding a similar law content
based). Indeed, Colorado must satisfy “the most exacting scrutiny” since it “is punishing
[Phillips] because he refuses to create . . . cakes that express” certain messages. Masterpiece
Cakeshop, 138 S. Ct. at 1746 (Thomas, J., concurring).
Worse yet, Colorado applies CADA to discriminate based on viewpoint in two ways.
First, CADA forbids discrimination because of “transgender status,” but does not protect any
other gender identity. Colo. Rev. Stat. § 24-34-301(7). So while Colorado forces Phillips to
create designs celebrating a gender transition, it does not compel the same for a “cisgender”
gender affirmation. Second, Colorado applies its offensiveness rule to allow cake artists to
refuse cakes conveying some messages, while punishing Phillips when he declines to express
messages that the state favors. Such viewpoint discrimination demands strict scrutiny.
e.

Colorado cannot satisfy strict scrutiny.

Strict scrutiny requires Colorado to show that applying CADA in these circumstances
“furthers a compelling interest and is narrowly tailored.” Reed, 135 S. Ct. at 2231. Governments
that have applied public-accommodation laws like CADA to infringe First Amendment rights

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have repeatedly been unable to satisfy constitutional scrutiny. See, e.g., Hurley, 515 U.S. at
578–79; Dale, 530 U.S. at 659. Colorado fares no better here.
Colorado will assert an interest in eradicating discrimination. Yet that characterization of
its interest is too broad. Strict scrutiny “look[s] beyond broadly formulated interests justifying
the general applicability of government mandates” to see whether that standard “is satisfied
through application of the challenged law” to “the particular” party. Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006); see, e.g., Wisconsin v.
Yoder, 406 U.S. 205, 221–22 (1972) (assessing government’s specific interest in forcing Amish
children to attend school from ages 14 to 16 rather than its general interest in mandating school
attendance). As Hurley illustrates, the analysis here focuses not on CADA’s general purpose of
preventing “denial[s] of access to (or discriminatory treatment in) public accommodations,” but
on its “apparent object” when “applied to [the] expressive activity” at issue. 515 U.S. at 578.
Colorado, therefore, must show that it has a compelling interest in forcing cake artists
who serve all people to violate their conscience by creating custom cakes that express messages
they deem objectionable. Unlike most applications of CADA, this has the “apparent object” of
forcing cake artists like Phillips to create speech and thus to “modify the content of [their]
expression.” Id. But as Hurley said, permitting that would “allow exactly what the general rule
of speaker’s autonomy forbids.” Id. Colorado thus cannot satisfy strict scrutiny here.
Colorado does not advance its cause by invoking dignitary concerns. Hurley established
that eliminating dignitary harm is not a compelling state interest where, as here, the harm is
caused by a decision not to express a message. “[T]he point of all speech protection . . . is to
shield just those choices of content that in someone’s eyes are . . . hurtful.” Hurley, 515 U.S. at

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574. Because the offensiveness of an expressive decision cannot be the reason “for according it
constitutional protection” and for removing that protection, Johnson, 491 U.S. at 409,
preventing dignitary harms is not a compelling basis for infringing the freedom not to speak, see
Masterpiece, 138 S. Ct. at 1746–47 (Thomas, J. concurring) (collecting cases). Moreover,
Colorado has not eliminated dignitary harm, but simply shifted it onto Phillips. As the Supreme
Court acknowledged last term, compelling someone to express messages that violate their
conscience “is always demeaning” and “universally condemned.” Janus, 138 S. Ct. at 2463–64.
Nor can Colorado demonstrate narrow tailoring. Its efforts to achieve its asserted
interests are vastly underinclusive, which “is alone enough to defeat” narrow tailoring. Brown,
564 U.S. at 802; accord Reed, 135 S. Ct. at 2231–32. Colorado applies its offensiveness rule to
permit cake artists to refuse all sorts of orders. Selectively enforcing that rule to punish Phillips
when he declines to create cakes expressing state-favored messages is decidedly underinclusive.
Furthermore, less restrictive alternatives exist. United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803, 813 (2000) (state must use “a less restrictive alternative”). For example, Colorado
could apply CADA to ban person-based discrimination but to allow the limited class of business
owners who create custom expression to decline when they object to communicating a desired
message. See Masterpiece, 138 S. Ct. at 1728 (affording such protection would be “sufficiently
constrained” because there are “innumerable goods and services that no one could argue
implicate the First Amendment”). Colorado cannot satisfy strict scrutiny.
2.

CADA, as applied and on its face, unlawfully restricts expression.

Colorado applies CADA not only to compel Phillips to express messages but also to
restrict his speech. CADA’s two publication bans forbid Phillips from publishing, distributing,

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or displaying any communication (1) “that is intended or calculated to discriminate or actually
discriminates against any” protected classification “or against any of the members” of a
protected class, Colo. Rev. Stat. § 24-34-701, (2) “that indicates that . . . services . . . will be . . .
denied . . . because of” a protected status, or (3) “that indicates . . . that an individual’s
patronage or presence . . . is unwelcome, objectionable, unacceptable, or undesirable because
of” a protected status, Colo. Rev. Stat. § 24-34-601(2)(a); see also Colo. Rev. Stat. § 24-34-701
(similar language). Colorado applies those bans to prohibit Phillips from announcing some
messages he will not express through his custom cakes—such as messages promoting Satan or
communicating that sex can be changed—and from explaining the religious reasons why he
cannot express those views. Am. Compl. ¶¶ 270–71, 278–80. One of those laws even subjects
Phillips to criminal penalties including jail time. Colo. Rev. Stat. § 24-34-705. This has caused
him to chill his desired speech on his website and in the media. Am. Compl. ¶¶ 270, 281.
These speech restrictions must survive strict scrutiny because they regulate speech based
on content and viewpoint. As to content, the publication bans bar Phillips from posting that he
will not create expressive designs celebrating gender transitions or satanic beliefs, but if he
instead announces that he will not promote, say, the Oakland Raiders, his words are no longer
outlawed. Viewpoint discrimination occurs in two ways. First, although Phillips cannot post his
inability to express messages celebrating gender transitions, he may freely publicize an intent
not to promote “cisgender” celebrations. Second, speech suggesting that certain views about
religion or transgenderism are “objectionable” or “undesirable” is suppressed, while speech
“welcom[ing]” to all religious beliefs and views about gender identity is permitted. Such a
viewpoint-based law is not only subject to, but also cannot withstand, strict scrutiny. See R.A.V.,

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505 U.S. at 391–92 (speech ban incorporating protected classifications was based on content
and viewpoint, was subject to strict scrutiny, and could not survive); Matal, 137 S. Ct. at 1764
(plurality) (state has no legitimate “interest in preventing speech expressing ideas that offend”).
Moreover, the final clause in the publication bans—the “unwelcome” or “objectionable”
provision—is facially unconstitutional because it is vague and overbroad and affords unbridled
discretion to enforcement officials. A law is unconstitutionally vague if “ordinary people” are
unable to discern what it prohibits. Kolender v. Lawson, 461 U.S. 352, 357 (1983). 1 Inherently
subjective and nebulous concepts like “unwelcome” and “objectionable” do not afford such
notice. How is Phillips to know everything he might say that will cause certain groups of people
to feel unwelcome? This portion of CADA is void for vagueness.
It is also overbroad. A statute is impermissibly overbroad when a “substantial number of
its applications are unconstitutional, judged in relation to [its] plainly legitimate sweep.” United
States v. Stevens, 559 U.S. 460, 473 (2010). Other courts have struck down similar language as
overbroad. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 215 (3d Cir. 2001)
(invalidating policy banning “any unwelcome verbal . . . conduct which offends . . . because of”
a protected characteristic). A law that restricts people like Phillips from communicating about
their religious beliefs and the kinds of messages that they will not express is unconstitutional in
a substantial number of its applications. It cannot stand.
Lastly, the final clause of the publication bans runs afoul of the unbridled-discretion
doctrine. That doctrine forbids Colorado from “delegat[ing] overly broad . . . discretion to a
government official” because “such discretion has the potential for becoming a means of
1

The void-for-vagueness doctrine is rooted in due process, but because of the close relationship
between vagueness, overbreadth, and unbridled discretion, Phillips addresses them together.
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suppressing a particular point of view.” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123,
130 (1992). The broad, vague, and undefined terms in CADA’s publication bans grant state
officials unbridled discretion to silence speech they dislike. That kind of standardless
enforcement power is facially unconstitutional.
C.

Phillips is likely to succeed on his due-process claim.

The Due Process Clause requires a “fair trial,” Withrow v. Larkin, 421 U.S. 35, 46
(1975), before a “disinterested tribunal,” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).
“This applies to administrative agencies which adjudicate.” Withrow, 421 U.S. at 46.
Due-process cases apply “objective standards that do not require proof of actual bias.”
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883–84 (2009). Those standards provide that
due process is violated when (1) “there is an unconstitutional potential for bias,” (2) the average
adjudicator in that situation is not “likely to be neutral,” or (3) “the risk of actual bias . . .
endanger[s] the appearance of neutrality.” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905,
1908 (2016) (quotation marks omitted); see also Taylor v. Hayes, 418 U.S. 488, 501 (1974)
(asking “whether there was . . . a likelihood of bias or an appearance of bias”). “[T]o perform its
high function,” due process demands that proceedings “satisfy the appearance of justice.” In re
Murchison, 349 U.S. 133, 136 (1955). These “stringent” rules “sometimes bar trial by
[decisionmakers] who have no actual bias and who would do their very best to weigh the scales
of justice equally.” Taylor, 418 U.S. at 501.
Due process “preserves both the appearance and reality of fairness, generating the
feeling, so important to a popular government, that justice has been done,” and affording each
litigant “assurance that the arbiter is not predisposed to find against him.” Marshall, 446 U.S. at

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242 (quotation marks and citation omitted). “Both the appearance and reality of impartial justice
are necessary to the public legitimacy of [a tribunal’s] pronouncements and thus to the rule of
law itself.” Williams, 136 S. Ct. at 1909.
Allowing the Commission to adjudicate another case against Phillips, just months after
the Supreme Court found that it acted with “a clear and impermissible hostility” toward him,
Masterpiece, 138 S. Ct. at 1729, would flout due process. The Supreme Court did not mince any
words: “religious hostility on the part of the State itself” was infused in the prior “adjudication,”
id. at 1724; and “[t]he Commission gave every appearance of adjudicating Phillips’[s] religious
objection based on a negative . . . evaluation” of his beliefs, id. at 1731 (quotation marks and
citations omitted). Given this and the absence of any steps to correct it, a “potential for bias”
assuredly exists, and the requisite “appearance of neutrality” is a fantasy. Williams, 136 S. Ct. at
1905, 1908. There can and will be no “public legitimacy” to any ruling in the Commission’s
pending prosecution. Id. at 1909. That alone is enough to establish Phillips’s due-process claim.
But there is more. Five other factors firmly establish the due-process violation. First,
Colorado has confirmed its continuing bias and hostility by launching its new prosecution of
Phillips in disregard of what it told the Supreme Court. Even though Colorado said that cake
artists are free to decline requests for cakes with pro-LGBT designs, themes, and symbols, see
supra at 9, it is now punishing Phillips for doing just that. This about-face smacks of bad faith.
Second, it is not just past commissioners who have displayed outright hostility toward
Phillips. See Masterpiece, 138 S. Ct. at 1729–30; supra at 6. Commissioner Pocock, with her
“cake hater” slur, has as well. Ex. 12 at 5. This consistent bias is no accident because all
commissioners were appointed by Governor Hickenlooper, who is so intent on stacking the

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Commission with people who oppose Phillips that he insisted on keeping one such
commissioner despite the senate’s refusal to confirm her. Am. Compl. ¶¶ 155–57.
Third, Commissioner Aragon is charged by statute with representing government
interests, which in his case are pro-LGBT in nature since he serves as the LGBT Liaison to
Denver’s Mayor. Colo. Rev. Stat. § 24-34-303(1)(b)(I)(B); Ex. 1 at 1; Ex. 9 at 1–2. Because
those statutorily imposed interests will impermissibly “tempt [him] to disregard neutrality,”
Caperton, 556 U.S. at 878, allowing him to adjudicate Phillips’s case violates due process.
It is no answer to say that Pocock and Aragon are only two of six current commissioners. “Due process entitles [Phillips] to a proceeding in which he may present his case with
assurance that no member of the [tribunal] is predisposed to find against him.” Williams, 136 S.
Ct. at 1910 (quotation marks omitted) (emphasis added). “[E]xperience teaches us that each
member’s involvement” in “the collective process of deliberation” “plays a part in shaping the
. . . ultimate disposition.” Id. at 1909. Given the actual bias and impermissible interests of some
commissioners, due process forecloses the Commission’s prosecution.
Fourth, the commissioners are chosen by discriminatory means. A majority of them
must be “members of groups of people who have been or who might be discriminated against
because of disability, race, creed, color, sex, sexual orientation, national origin, ancestry, marital
status, religion, or age.” Colo. Rev. Stat. § 24-34-303(1)(b)(II)(A). This selection criteria
violates Phillips’s right to adjudicators who are “indifferently chosen” by “nondiscriminatory
criteria.” Batson v. Kentucky, 476 U.S. 79, 86–87 (1986). More problematic still, Colorado’s
practice appears to largely, if not entirely, exclude people of faith who share Phillips’s beliefs.
See id. at 94 (“[S]ystematic exclusion . . . raises an inference of purposeful discrimination”).

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Such discriminatory selection practices transform tribunals into “ready weapons for
officials to oppress” people with disfavored views. Id. at 86 n.8. Sadly, that is what the
Commission has become, an agency that targets Phillips and treats him unequally. Also,
discriminatory means of composing tribunals “cast[] doubt on the integrity of the . . . process,”
Powers v. Ohio, 499 U.S. 400, 411 (1991), “invite[] cynicism respecting [their] neutrality,” and
“create the impression . . . that the deck has been stacked in favor of one side,” J.E.B. v.
Alabama, 511 U.S. 127, 140 (1994) (quotation marks omitted). Doubts about the fairness of the
Commission are so inescapable that even Governor Hickenlooper was not able to assure the
media that “people who come before the [Commission] get a fair shake.” Ex. 22 at 8.
Fifth, recent Supreme Court precedent establishes that the Commission’s adjudicative
process is constitutionally infirm. “[A]n unconstitutional potential for bias exists when the same
person serves as both accuser and adjudicator in a case.” Williams, 136 S. Ct. at 1905. People
qualify as “accusers” if they approve a significant prosecutorial decision, even if they do not
conduct an investigation or actively participate in the prosecution. Id. at 1907. Having approved
a decision to prosecute, such individuals “cannot be, in the very nature of things, wholly
disinterested in the [outcome].” Id. at 1906. There is an impermissible “risk” that they will be
“psychologically wedded to [their] previous position.” Id. (quotation marks omitted).
All commissioners act as both accusers and adjudicators. After a probable-cause finding,
commissioners decide whether to prosecute by “determin[ing]” whether “the circumstances
warrant” issuing “a written notice and complaint requiring . . . a formal hearing,” Colo. Rev.
Stat. § 24-34-306(4), as they just did in Phillips’s case, Ex. 28. Later, the commissioners will

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review the administrative law judge’s decision and “vot[e] on the case,” Masterpiece, 138 S. Ct.
at 1725, which gives them final administrative say on whether the accused will be punished.
This arrangement, which places the Commission over the decision to begin proceedings
and the decision to punish the accused, is an affront to due process. The risk is far too great that
the Commission will be “psychologically wedded” to its decision to prosecute. Williams, 136 S.
Ct. at 1906. That risk is especially great in the immediate wake of the Commission’s failed
attempt to punish Phillips the first time. It would be very embarrassing—to say the least—for
the Commission to launch another prosecution only to admit that it was wrong. Thus, the
Commission’s procedure, particularly as applied to Phillips here, violates due process.
Finally, the availability of “judicial review, de novo or otherwise, . . . at the conclusion
of the administrative proceedings” does not cure the denial of due process now. Gibson v.
Berryhill, 411 U.S. 564, 577 (1973); see also Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 618 (1993) (“Even appeal and a trial de novo
will not cure” an initial denial of due process); Masterpiece, 138 S. Ct. at 1751 (Ginsburg, J.,
dissenting) (the majority found a constitutional violation even though the “proceedings involved
several layers of independent decisionmaking,” including judicial review). Phillips “is entitled
to a neutral and detached [adjudicator] in the first instance.” Ward v. Vill. of Monroeville, Ohio,
409 U.S. 57, 61–62 (1972). Unless this Court intervenes, Phillips will be stripped of that right.
II.

The remaining preliminary-injunction factors favor Phillips.
Irreparable harm. “[T]he loss of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.” Verlo v. Martinez, 820 F.3d 1113, 1127
(10th Cir. 2016) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). As explained above,

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Colorado is violating, and will continue to violate, Phillips’s free-exercise, free-speech, and
due-process rights absent this Court’s immediate intervention. When constitutional violations
are involved, “no further showing of irreparable injury is necessary.” Awad v. Ziriax, 670 F.3d
1111, 1131 (10th Cir. 2012) (quotation marks omitted).
Balance of equities. The equities favor Phillips because the law places a premium on
protecting constitutional rights. Thus, “the threatened injury to [Phillips’s] constitutionally
protected [rights] outweighs whatever damage the preliminary injunction may cause” Colorado.
Am. Civil Liberties Union v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). That is particularly
true here. Colorado can show no harm to its interests because its offensiveness rule already
allows other cake artists to do precisely what the injunction would permit Phillips to do.
Public interest. “[I]t is always in the public interest to prevent the violation of a party’s
constitutional rights.” Verlo, 820 F.3d at 1127. Because that is what the requested injunction
will accomplish, the public interest lands decidedly on Phillips’s side. Accordingly, all of the
preliminary-injunction factors support Phillips’s request.
CONCLUSION
Phillips wants to peacefully live out his faith through his work as a cake artist by serving
all people while declining to express messages that violate his beliefs. Two administrative
prosecutions—marked by unequal treatment of Phillips and commissioners who have demeaned
him—leave no doubt that Colorado won’t allow it. Phillips seeks the requested preliminary
injunction so that he can return to the life he had before Colorado began targeting him.

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Respectfully submitted this 23rd day of October, 2018.
Attorneys for Plaintiffs:
s/ James A. Campbell
Kristen K. Waggoner (Arizona Bar No. 032382)
James A. Campbell (Arizona Bar No. 026737)
Jonathan A. Scruggs (Arizona Bar No. 030505)
Jacob P. Warner (Arizona Bar No. 033894)
Katherine L. Anderson (Arizona Bar No. 033104)
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
(480) 444-0028 (facsimile)
kwaggoner@ADFlegal.org
jcampbell@ADFlegal.org
jscruggs@ADFlegal.org
jwarner@ADFlegal.org
kanderson@ADFlegal.org
David A. Cortman (Georgia Bar No. 188810)
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Road NE, Suite D-1100
Lawrenceville, GA 30043
(770) 339-0774
(770) 339-6744 (facsimile)
dcortman@ADFlegal.org
Nicolle H. Martin (Colorado Bar No. 28737)
7175 W. Jefferson Avenue, Suite 4000
Lakewood, CO 80235
(303) 332-4547
(303) 425-3201 (facsimile)
nicollem@comcast.net

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CERTIFICATE OF SERVICE
I hereby certify that on October 23, 2018, the foregoing was filed with the Clerk of
Court using the CM/ECF system, which will send notification of such filing to the following:
LeeAnn Morrill
First Assistant Attorney General
Public Officials Unit
State Services Section
1300 Broadway, 6th Floor
Denver, Colorado 80203
Telephone: (720) 508-6159
Facsimile: (720) 508-6041
leeann.morrill@coag.gov

Vincent E. Morscher
Senior Assistant Attorney General
Civil Litigation and Employment Law
Section
1300 Broadway, 10th Floor
Denver, Colorado 80203
Telephone: (720) 508-6588
Facsimile: (720) 508-6032
vincent.morscher@coag.gov

Grant T. Sullivan
Assistant Solicitor General
Public Officials Unit
State Services Section
1300 Broadway, 6th Floor
Denver, Colorado 80203
Telephone: (720) 508-6349
Facsimile: (720) 508-6041
grant.sullivan@coag.gov

Jacquelynn Rich Fredericks
Assistant Attorney General
Higher Education Unit
State Services Section
1300 Broadway, 6th Floor
Denver, Colorado 80203
Telephone: (720) 508-6603
Facsimile: (720) 508-6041
jacquelynn.richfredericks@coag.gov

Attorneys for Defendants

s/ James A. Campbell
James A. Campbell

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