DoJ files brief on behalf of baker in gay wedding cake case

The Department of Justice will file an amicus brief in the case of a Colorado baker who ran afoul of the state's civil rights laws when he refused to bake a wedding reception cake for a gay couple.

Hit and Run:

The baker, Jack Phillips of Masterpiece Bakeshop in Lakewood, Colorado, is the plaintiff in a case scheduled to be heard by the Supreme Court this fall. The state's civil rights commission ruled that Phillips violated Colorado's public accommodations law and engaged in discrimination for refusing to bake a wedding cake for a same-sex couple.

Phillips has argued that his religious beliefs oppose same-sex marriage recognition. Forcing him to make a wedding cake for a gay couple was compelling him to participate in the couple's wedding and that the act of crafting a wedding cake – not merely just selling one – is expressive activity protected by the First Amendment.

Trump's Justice Department agrees. In a filing with the Supreme Court today, the Justice Department argues that traditionally public accommodation laws had not in the past run afoul of the First Amendment because they were neutral to content and focused on conduct. A gas station couldn't refuse to sell fuel to a person because he or she is black, for example. But there's no message in the process of selling gas, so there's no compelled speech.

Here, the Justice Department argues, the making of a wedding cake is an expressive activity, and the court needs to engage in heightened scrutiny of the First Amendment issues:

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Read the brief here.

The brief is narrowly argued:

It is not making a case for freedom of association, whereupon businesses would have a general right to decide with whom to do business. The filing is very specific that in this case and in similar cases involving expressive activity (photography, floral arrangements), the First Amendment of the business owners are violated if they're compelled by the law to participate by producing goods or offering their services.

And that's really what the Supreme Court will be considering in this case. Is the act of baking a cake a form of expressive activity and therefore protected by the First Amendment? We'll get a sense of what the justices think when they hear the case later this year.

Liberal justices will almost certainly raise the slippery slope issue:

If a baker can refuse service to a same-sex couple, someone else would surely come forward to claim a religious right to deny service in the case of interracial or interfaith marriages. The courts would naturally be inclined to object to that. In so doing, they'd essentially be saying that discrimination based on sexual orientation is acceptable while other forms are not.

Do courts really want to get into the business of deciding which forms of discrimination have a legitimate grounding in religious values and which do not?

Isn't that what the Supreme Court is supposed to do?  Make the tough calls on what objections to a law are based on true constitutional rights and which aren't?  Is the fact that ruling in favor of the baker would open the floodgates for litigating all sorts of unrelated cases be a determining factor in a gay marriage case?

This may be why the DoJ offered such a narrow defense of the baker:

If the Supreme Court does insist on finding a religious right to deny service, it should do so in the narrowest way possible. One idea might be to find that anyone claiming a religious objection is obligated to find an alternative vendor to provide the requested services.

I can't imagine anyone but radical leftists objecting to that.

But the justices may conclude that after already legalizing same sex marriage, they should be consistent in applying the law to protect gays.  It's hard to say what will happen, except the vote will be close.

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