Justice Department Takes Baker’s Side in Gay Wedding Cake Case Before Supreme Court

The Department of Justice under President Donald Trump is taking the side of a Colorado baker who declined to make a cake for a gay couple.

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 Justice Department’s argument is very narrow. 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.

The Reason Foundation (the non-profit think-tank that produces this site and publishes Reason magazine) is in agreement with the Justice Department in this case. They’ve submitted a brief asking the Supreme Court to consolidate this case with a petition by a florist in Washington State who is also being punished for declining to provide arrangements for a same-sex wedding. Read about that case here.