In the previous administration, the Department of Justice was not shy about sharing its position on cases involving tension between religious liberty and non-discrimination regulation at the local and state level. The Trump administration’s DoJ continues that tradition in Masterpiece Cakeshop, but with a twist. The Washington Post reports that the DoJ has filed an amicus brief with the Supreme Court defending the baker’s right to choose not to participate in an event that goes against his religious beliefs:
In a major upcoming Supreme Court case that weighs equal rights with religious liberty, the Trump administration on Thursday sided with a Colorado baker who refused to bake a wedding cake for a same-sex couple.
The Department of Justice on Thursday filed a brief on behalf of baker Jack Phillips, who was found to have violated the Colorado Anti-Discrimination Act by refusing to created a cake to celebrate the marriage of Charlie Craig and David Mullins in 2012. Phillips said he doesn’t create wedding cakes for same-sex couples because it would violate his religious beliefs.
The government agreed with Phillips that his cakes are a form of expression, and he cannot be compelled to use his talents for something in which he does not believe.
“Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” Acting Solicitor General Jeffrey B. Wall wrote in the brief.
The ACLU calls this decision “shocking,” but it’s not terribly clear why it’s even surprising:
But Louise Melling, the deputy legal counsel of the American Civil Liberties Union, which is representing the couple, said she was taken aback by the filing.
“Even in an administration that has already made its hostility” toward the gay community clear, Melling said, “I find this nothing short of shocking.”
That’s nonsense. The Trump administration made it clear that it would support religious-liberty claims, and Donald Trump himself focused on the kind of political correctness that these state and local ordinances seek to impose as part of his presidential campaign. It’s only “shocking” if Melling wasn’t paying attention.
Besides, this case has nothing to do with “hostility” toward the gay community. As Jack Philips has made clear since the couple in question walked into his bakery, they’re welcome to shop there at any time. However, he does not want to participate in a ceremony that goes against his sincerely held religious beliefs, and his First Amendment right to freedom of expression should have a priority over any local ordinance that requires forced participation:
“Tolerance should be a two-way street. Phillips gladly serves anyone who walks into his store, but, as is customary practice for many artists, he declines opportunities to design for a variety of events and messages that conflict with his deeply held beliefs. In this case, Jack told the couple suing him he’d sell them anything in the store but just couldn’t design a custom cake celebrating their wedding because of his Christian faith,” said ADF Senior Counsel Kristen Waggoner. “The First Amendment protects Jack’s right to create artistic expression that is consistent with his core convictions. Individuals can support both same-sex marriage and Jack, and people should have the right to disagree on critical matters of conscience. The same government that can force Jack to violate his faith and conscience can force any one of us to do the same.”
The brief argues that the government cannot coerce Phillips to create custom artistic expression that violates his conscience, and that the justices should affirm this longstanding constitutional principle.
“Discovering that he could blend his skills as a pastry chef, sculptor, and painter, [Jack] spent nearly two decades in bakeries owned by others before opening Masterpiece Cakeshop twenty-four years ago,” the opening brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission explains. “Long before television shows like Cake Boss and Ace of Cakes, Phillips carefully chose Masterpiece’s name: it would not be just a bakery, but an art gallery of cakes. With this in mind, Phillips created a Masterpiece logo depicting an artist’s paint palate with a paintbrush and whisk. And for over a decade, a large picture has hung in the shop depicting Phillips painting at an easel. Since long before this case arose, Phillips has been an artist using cake as his canvas with Masterpiece as his studio.”
“Phillips is also a man of deep religious faith whose beliefs guide his work,” the brief continues. “Those beliefs inspire him to love and serve people from all walks of life, but he can only create cakes that are consistent with the tenets of his faith. His decisions on whether to design a specific custom cake have never focused on who the customer is, but on what the custom cake will express or celebrate.”
The question now comes before the Supreme Court, but not before they avoided it for as long as possible. In fact, the decision to grant cert to Masterpiece Cakeshop may have been more surprising than the DoJ’s amicus brief. The court had refused to grant cert for Elane Photography, a New Mexico case with almost identical circumstances; the denial left the penalties against the photographer in place for refusing to work at a same-sex wedding ceremony. That meant that fewer than four justices wanted to review it at that time, while Antonin Scalia was still alive and conservatives had at least four votes.
That’s pretty much the same situation as today, which may mean only that one more of the conservatives finally decided that the court needed to rule precedentially on this matter. That may not be great news for conservatives, especially since Anthony Kennedy remains the likely swing vote. After writing Obergefell, which raised same-sex marriage to a constitutional right, Kennedy may want to rework the First Amendment to limit freedom of expression to fit into that new paradigm. It’s a risk, but at this point, religious liberty advocates appear to have nothing to lose on the bake-the-damned-cake front.