Metro Weekly

Justice Department sides with anti-gay baker on discrimination case

DOJ repeats arguments that cake-baking is a form of protected First Amendment speech

The Robert F. Kennedy Department of Justice Building. – Photo: Ed Brown, via Wikimedia.

The Department of Justice has filed an amicus brief with the Supreme Court defending a baker who refused to bake a cake for a same-sex couple’s wedding reception.

In the brief, first obtained by BuzzFeed News’ Chris Geidner, the Trump administration agrees with arguments put forth by lawyers for Jim Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colo.

Phillips’ lawyers argue that Colorado’s nondiscrimination law violates their client’s First Amendment rights, because making custom-made cakes is an act of artistic expression.

Acting Solicitor General Jeffrey Wall writes in the brief: “Compelling a creative process is no less an intrusion [by the government] — and perhaps is a greater one — on the ‘individual freedom of mind’ that the First Amendment protects.”

The Justice Department argues that, even though David Mullins and Charlie Craig did not specifically ask for a message on the cake endorsing their same-sex marriage, Phillips’ custom-made cakes constitute a product that is “inherently communicative.”

As such, forcing someone like Phillips who objects to same-sex marriage to bake a cake for a gay couple — even if there is no explicit message endorsing same-sex marriage — infringes upon that baker’s free speech rights. As a result, the law cannot stand or must be altered to allow for a religious exemption for conscientious objectors to same-sex marriage.

The American Civil Liberties Union, which is defending the Colorado Civil Rights Commission that found Phillips in violation of the nondiscrimination law, issued a statement blasting the Trump administration for siding with Phillips and his lawyers from the infamously anti-LGBTQ organization Alliance Defending Freedom.

“This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear. But this brief was shocking, even for this administration,” ACLU Deputy Legal Director Louise Melling said in a statement. “What the Trump Administration is advocating for is nothing short of a constitutional right to discriminate.”

Nonetheless, Melling said, her organization is “confident that the Supreme Court will rule on the side of equal rights just as the lower courts have.”

GLAAD responded to the DOJ’s amicus brief via Twitter, pointing to past criticism they’ve leveled at President Trump, Attorney General Jeff Sessions, and other figures in the administration.

“We’ve been saying it from the start — Trump and his administration are anti-LGBTQ activists,” the organization tweeted.

The case, scheduled to be heard by the Supreme Court in its upcoming term, arises out of a dispute that occurred after Phillips refused to create a cake for Mullins and Craig’s wedding reception. The couple sued and filed a complaint with the Colorado Civil Rights Commission. Both an administrative judge and the Commission subsequently ruled that Phillips had illegally discriminated against the couple based solely on their sexual orientation.

Phillips appealed the decision to the Colorado Court of Appeals, which ruled unanimously that he had violated the state’s nondiscrimination law. The Colorado Supreme Court refused to hear the case, allowing the lower court’s decision to stand. Phillips’ lawyers then appealed to the U.S. Supreme Court, which agreed to hear the case in June.

The Human Rights Campaign also issued a statement responding to the Justice Department, knocking President Donald Trump, Sessions, and Vice President Mike Pence — whom they see as encouraging the Trump administration to pursue anti-LGBTQ actions behind the scenes — for being on “the wrong side of history.”

“Once again, the Trump-Pence Administration has taken direct aim at our nation’s progress on LGBTQ equality, this time urging the Supreme Court to grant a potentially sweeping license to discriminate against same-sex couples,” Sarah Warbelow, HRC’s legal director, said in a statement. 

“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,” Warbelow added. “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.”

Editor’s Note: This story was updated to include comment from the Human Rights Campaign.

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com