Orrick Team Files Amicus For Corporate Law Professors in Colorado Baker Case

October.31.2017

Weighing in on one of the U.S. Supreme Court’s most closely-watched cases of the term, an Orrick appellate team, together with Professor Kent Greenfield (Boston College Law School), filed an amicus brief today in Masterpiece Cakeshop on behalf of 34 corporate law professors who argue the case has major implications for business law.

The case involves a Colorado bakery that refused on religious grounds to provide a wedding cake to a same-sex couple, asserting that the public accommodation state law invoked against the business violates the First Amendment. The amicus brief filed by the corporate law professors, which sides with the respondents (the Colorado civil rights commission and the same-sex couple that was denied the cake), raises crucial – but thus far overlooked – legal issues that are important to the mechanics of corporate America beyond the hotly debated free speech and religious exercise questions at stake in the case.

Orrick’s brief for the corporate law professors makes two main points: First, the constitutional claims asserted here by a corporation depend on the religious beliefs of one of the corporation’s shareholders, yet longstanding corporate law principles draw a sharp distinction between the shareholder and the corporation, and the petitioners in this case have never explained why this basic tenet of corporate law should be disregarded. Second, although courts typically accept the sincerity of asserted political or religious beliefs, they should apply more skepticism when such beliefs are advanced by for-profit businesses. The drive for competition inherent in the nature of for-profit enterprises creates a risk that such claims, raised in this context, will be asserted as a pretext to gain economic advantage.

The brief can be read here.

Partner Andrew Silverman and senior associate Daniel Rubens led the amicus effort for the law professors.