Brief of Amicus Curiae Adam J. MacLeod in Support of Petitioner, No. CV-18-0176-PR, Arizona Supreme Court

Abstract

Every person has the ancient and fundamental right to equal treatment under the law. And every person has the ancient and fundamental right not to communicate a message they think is false. These rights are central to our legal and constitutional heritage. Far from competing with each other, they are mutually-reinforcing structural elements of American ordered liberty. The lesson of Masterpiece Cakeshop and Ashers Baking is that the common-law doctrine of public accommodations which the U.S. Supreme Court endorsed in Bell and Hurley remains the preferred means to avoid constitutional conflict between religion and expression liberties on one hand and rights of equal protection on the other. When a proprietor declines to provide a service, which would communicate a message that she wishes not to communicate, the reason for her declining—the reason because of which she declines in the language of public accommodation laws—is the message, not necessarily the person requesting the service. The qualified duty of proprietors not to discriminate in places of public accommodation is a duty not to discriminate intentionally, for an unlawful reason. It is a duty not to decline service because of a person’s status in a protected class. It is not a duty to prevent all undesirable consequence of one’s business decisions.