Trump administration lawyers joined sides with a Colorado baker Thursday and urged the Supreme Court to rule that he has the right to refuse to provide a wedding cake to celebrate the marriage of two men.
Acting Solicitor Gen. Jeffrey B. Wall filed a friend-of-the-court brief arguing that the cake maker’s rights to free speech and the free exercise of religion should prevail over a Colorado civil rights law that forbids discrimination based on sexual orientation.
“A custom wedding cake is a form of expression,” he said. “It is an artistic creation that is both subjectively intended and objectively perceived as a celebratory symbol of a marriage.” And as such, the baker has a free-speech right under the 1st Amendment to refuse to “express” his support for a same-sex marriage, Wall argued.
The case of the Colorado cake maker has emerged as the latest battle in the culture wars. It is a clash between the religious rights of a conservative Christian against gay rights and equal treatment for same-sex couples.
The brief filed Thursday is likely to bolster the cake maker’s case, and is in line President Trump’s repeated promises to protect “religious liberty.”
But Wall asked the high court to carve out “only a narrow” exception to the state civil rights laws forbidding businesses to discriminate based on sexual orientation. It should extend only to people like painters, photographers and others whose “product or service [is] inherently communicative.” Most businesses would not qualify, he said. “A commercial banquet hall may not refuse to rent its facilities, nor may a car service refuse to provide limousines” because its owners do not approve of a same-sex marriage, he said.
He also said an exemption for “expressive conduct” would not extend to cases of racial discrimination. The Supreme Court has said racial bias always violates the Constitution’s guarantee of equal protection of the laws, he said, but has not yet adopted the same strict standard for judging bias based on sexual orientation.
Louise Melling, deputy legal director of the American Civil Liberties Union, said the administration was trying to create a “constitutional right to discriminate.”
“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,” she said. “We are confident that the Supreme Court will rule on the side of equal rights just as the lower courts have.”
The case began five years ago when two men who were planning to marry went to Masterpiece Cakeshop in a Denver suburb to ask about a wedding cake for their reception. They were surprised and angered when Jack Phillips, the shop owner, said he would not make a cake for a same-sex marriage. Doing so would violate his Christian faith, he said.
The two men filed a complaint with the state Civil Rights Commission in Colorado, which like 20 other states has a law that requires businesses serving the public to provide “full and equal” service to customers without regard to their sexual orientation. An administrative judge, a seven-member state commission and a Colorado appeals court all agreed Phillips had violated the law.
Phillips has continued to operate his bakery, but he no longer designs custom wedding cakes.
Backed by the Arizona-based Alliance Defending Freedom, he appealed to the Supreme Court late last year for the right under the 1st Amendment to be exempted from the state law.
Shortly after Trump’s first appointee, Justice Neil M. Gorsuch, was confirmed and took his seat, the justices announced they would hear the baker’s appeal. The case of Masterpiece Cakeshop vs. Colorado is due to be argued in late November or early December.