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Courtesy photos.

If pictures are worth a thousand words, a brief recently filed in the high-profile U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Equal Rights Commission case is many times longer than court rules allow.

The brief, filed by Baker Botts partner Evan Young, contains roughly three dozen photos of luscious wedding and other special-occasion cakes, ranging from one that looks like a silver pot brimming with crawfish waiting to be boiled, to a “Pistol Pete” cake for a couple who first met at Oklahoma State University. Amicus briefs like this one are limited to 9,000 words.

Filed on behalf of a group of “cake artists” across the country, the brief’s stated aim is to illustrate “literally, through the images of their own work … that cake design and preparation is an art.”

The brief also effused that “the art behind a cake is simply sheer beauty” and appeals to all senses, lamenting that “technology does not yet permit the filing of a brief that enables touch, taste, and smell.”

Some of the cakes made by his clients have ended up in museums, Young wrote, and “thousands and thousands” of copyrights relate to cake design, according to the brief. It also cites the growing popular interest in cake creation, citing cable shows like Cake Boss and Ace of Cakes.

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Framing cake design as an artistic expression is an important argument in the case because a key issue—possibly the biggest issue—is whether Masterpiece Cakeshop owner Jack Phillips had a First Amendment right under the free speech clause to refuse to create a wedding cake for a same-sex couple in 2012. The couple, Charlie Craig and David Mullins, filed a complaint with the Colorado Civil Rights Division, invoking the state’s anti-discrimination laws.

If the high court agrees that making cakes is an expression protected by the First Amendment, it could rule that by forcing Phillips to accommodate the couple, Colorado was improperly compelling him to express himself in celebration of a same-sex marriage, contrary to his religious beliefs.

“The government can no more force Phillips to speak those messages with his lips than to express them through his art,” the cakeshop’s main brief asserts. No date has yet been set for oral arguments in the case.

But as helpful as the cake-artist brief may be to Phillips’s cause before the high court, it was filed “in support of neither party” as Supreme Court parlance puts it. Young noted in the brief that some of the cake artists he represented “would gladly have prepared the cake that respondents requested.”

Young, a former clerk to the late Justice Antonin Scalia, said in an interview, “The cake artists simply want to ensure that no decision, whatever the outcome, relies on the premise that their work cannot seriously be treated as art like any other.  If the court accepts this principle and vindicates the artistic integrity of cake artists, that doesn’t automatically resolve the case one way or the other.” Young added, “It just stops the case from being laughably easy” at least on the free expression branch of the argument.

In other words, Young said that if the court finds that making specialty cakes is “no different than selling slabs of barbecue or renting out hotel rooms,” it will be much easier for the justices to uphold Colorado’s stance that anti-discrimination laws should prevail over Phillips’ claims.

But that could happen even if the court agrees that cake design is protected by the free speech clause, Young said. Depending on what level of protection or scrutiny the court adopts in evaluating the case, the court could find that Colorado has a compelling interest that trumps Phillips’ speech freedom.

Young declined to say how he came to represent a group of cake artists, but said “It has been a real privilege to interact with these cake artists across the country. Their skills are really extraordinary, and I can’t imagine being able to create some of the breathtakingly beautiful things that they design and make on a daily basis.”  

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro

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