WASHINGTON — In a recent court filing, the U.S. federal government has thrown its support behind a Christian wedding vendor whom the Colorado Civil Rights Commission penalized in 2014 for refusing to bake a wedding cake for a same-sex couple.
The U.S. Department of Justice’s amicus brief, filed Sept. 7 with the U.S. Supreme Court, argues that the baker, Jack Phillips, cannot be compelled by Colorado to “create expression for and participate in a ceremony” that would violate his First Amendment rights.
“Colorado has not offered, and could not reasonably offer, a sufficient justification for that compulsion here,” Acting Solicitor General Jeffrey Wall, the brief’s author, wrote.
Several legal analysts say the case, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, is the highest-profile clash between religious convictions and legal protections for the “LGBT” community since the U.S. Supreme Court redefined marriage to include persons of the same sex in 2015.
The high court’s decision in the Masterpiece case could affect other cases across the country where wedding vendors — florists, bakers and photographers — have been sued and reprimanded by state human-rights commissions for refusing to participate in same-sex wedding ceremonies.
“This case is the only hope of protection for conservative believers in blue or purple states,” said Douglas Laycock, a University of Virginia School of Law professor who studies religious-liberty cases.
Laycock told the Register that the gay-rights movement has “made it clear” that conscientious objectors to same-sex marriage should be “crushed.” He said liberal-leaning states have also shown that they will not protect those who object on moral and religious grounds.
“So it is federal law or nothing,” Laycock said.
Eric Rassbach, the deputy general counsel at Becket, a Washington, D.C.-based public interest law that specializes in religious-liberty cases, told the Register that Colorado’s application of its laws that prohibit discrimination in public accommodations violates the U.S. Constitution in the Masterpiece case.
“There is a difference between discriminating against someone based on a particular characteristic that they have versus whether you don’t want to participate in a particular kind of ceremony,” Rassbach said.
Core of the Case
The central argument being put forth by the attorneys representing Phillips is that the First Amendment protects him from having to create artistic expression for an event he finds morally objectionable.
“This case is the latest in a long line of cases that affirms the proposition that you can’t force me to say things that I don’t agree with,” said Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law.
Destro told the Register that there is a long history showing that the government cannot force citizens to engage in speech and activity that they oppose. The issue in the Masterpiece case, Destro said, is not about discrimination and animus toward homosexuals, but rather about someone being forced against his wishes to create something to celebrate a same-sex wedding.
“What the other side argues is that refusal to bake the wedding cake is discrimination,” Destro said. “Well, it’s not, because this case is not about discrimination [based] on sexual orientation; it’s based on content of speech.”
Homosexual-rights advocates argue that the Department of Justice (DOJ) is essentially arguing for a license to discriminate. Louise Melling, deputy legal director of the American Civil Liberties Union, said in a prepared statement that President Donald Trump’s administration is advocating for “a constitutional right to discriminate.”
“We are confident that the Supreme Court will rule on the side of equal rights, just as the lower courts have,” Melling said.
The DOJ Brief
The DOJ’s brief says that Phillips, who has owned and operated Masterpiece Cakeshop for almost 25 years, is “a Christian who seeks to incorporate his religious principles into all facets of his business,” including closing his shop on Sundays and refusing to sell goods containing alcohol or relating to Halloween.
The brief argues that Phillips “views the creation of custom wedding cakes as a form of art, to which he devotes his creativity and artistic talents.” As the wedding cake’s designer and creator, Phillips believes he is an “important part of the wedding celebration for the couple” and is “associated with the event.”
In the federal government’s view, the Masterpiece case involves two competing interests: an individual’s right to speak or remain silent, according to the dictates of his or her conscience, and the government’s desire to combat discrimination in commercial transactions. Both interests are important and generally coexist without difficulty. But Colorado’s application of its public-accommodations law in this case creates a significant intrusion on Phillips’ First Amendment rights, the DOJ brief argues.
“I think that’s clearly right,” Laycock said. “The government should not be able to force me as an attorney to represent a cause I find reprehensible.”
A question for the high court to consider is whether designing and creating a wedding cake is “sufficiently expressive” for First Amendment purposes.
Said Laycock, “I think the cake sends a message, and that the state court had to engage in flatly inconsistent reasoning to deny that. And all the harm the same-sex couple complains about is based on the message sent by not making the cake. They are offended by his moral disapproval and by being referred elsewhere.”
Supreme Court Precedent
Writing about the Masterpiece case during a summer symposium at “Scotus Blog,” Helen Alvaré, a law professor at the Antonin Scalia Law School at George Mason University, said the Supreme Court has “robustly” protected citizens’ rights respecting the freedom not to be associated with another’s message. She referenced Hurley v. Irish-American Gay, Lesbian, and Bisexual Group, a 1995 case where the high court affirmed the right of the organizers of the St. Patrick’s Day Parade in Boston to not allow a homosexual-rights group to march because they did not want to be associated with the “gay pride” message.
“In Masterpiece Cakeshop, the speaker — the baker — does not wish to be associated with — in fact, to celebrate — the inherently expressive event of a state-recognized same-sex marriage. He must be permitted to withhold participation,” Alvaré wrote.
The Supreme Court decided to take on the Masterpiece case this past June. More than a dozen other amicus briefs — including one filed by the U.S. Conference of Catholic Bishops — have already been submitted to the court on the baker’s behalf. The high court will hear the case in its upcoming term this fall and could issue a decision by next summer.
Whether the DOJ brief carries any extra influence with the high court remains to be seen. Destro believes that it may, adding that the filing raises pertinent legal issues for the justices to consider.
“We’re talking about equal protection under the law,” Destro said. “You have the right to free speech, and I have no legal obligation to listen to you. Also, you can’t make me participate in speech, and you can’t force me to affirm someone else’s speech.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.