In 2012, Masterpiece Cakeshop owner Jack Phillips refused to bake a cake for a gay couple’s wedding reception. The couple filed a complaint with the Colorado Civil Rights Commission, which agreed that the state’s public accommodations law had been violated. The couple went on to sue Phillips and won in the Colorado court system. At first, the Supreme Court refused to hear the case, but agreed to hear it after Neal Gorsuch was confirmed.
Phillips argues that baking a cake for a wedding is asking him to participate in the wedding, and that his wedding cakes are artistic expressions protected by the First Amendment. The courts have disagreed, both that baking a cake is a form of artistic expression (instead of, say, like a sandwich at a lunch counter – a part of someone’s job), and that the state actually has a good reason to ban discrimination.
The case is going to the Supreme Court to decide whether the state has a good reason to compel Phillips to sell a cake to a gay couple. The Justice Department argues that, while ending racial discrimination might be reason enough to punish Phillips for discriminating, anti-gay discrimination is not.
“A State’s ‘fundamental, overriding interest’ in eliminating private racial discrimination – conduct that ‘violated deeply and widely accepted views of elementary justice’ – may justify even those application of a public accommodations law that infringe on First Amendment freedoms,” the brief says. “The Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.”
The brief also argues that baking a wedding cake – even a cake without a message on it – is a form of free speech protected by the First Amendment. “Weddings are sacred rites in the religious realm,” the brief says. “When Phillips designs and creates a custom wedding cake for a specific couple and a specific wedding, he plays an active role in enabling that ritual.”
The ACLU, which is representing the gay couple in this case, denounced the brief. “This brief was shocking, even for this administration. What the Trump Administration is advocating for is nothing short of a constitutional right to discriminate.”
Indeed, it’s hard to see where the Trump Administration’s argument would end. If baking a cake without a message on it is a form of free speech, then why wouldn’t making a cocktail also count as a form of free speech? And is letting someone stay in a hotel room a form of participation in that relationship (as much as making a cake that will later be eaten by people you don’t like is)?
“The discrimination endorsed by this administration in their amicus brief is the same form of bigotry Mike Pence signed into law in Indiana in 2015 and for which he was swiftly rebuked by a national backlash among America’s businesses,” HRC said in a statement. “If adopted by the court, the Trump-Pence Administration’s arguments would threaten to gut many of our nation’s most sacred civil rights laws – not just for LGBTQ people, but also for women, people of color, religious minorities, and Americans of all backgrounds.”
The crux of the Trump Administration’s argument is that fighting anti-LGBTQ discrimination is just not that big of a deal. If the Supreme Court accepts that premise, lower courts will have a much harder time ruling in favor of LGBTQ people in discrimination cases.