DOJ Files SCOTUS Brief Defending LGBTQ Discrimination

Masterpiece Cakeshop

In the latest attack on the LGBTQ community, the Trump administration’s Justice Department just filed an amicus brief defending discrimination against LGBTQ people in places of business. The brief argues that business owners have a constitutional right to discriminate against LGBTQ people so long as they couch that discrimination in protected speech and expression founded in religious belief.

The Justice Department’s brief will become a part of the upcoming Supreme Court hearing on Masterpiece Cakeshop v. Colorado Civil Rights Commission – a case we’ve covered extensively.

Case History

In the original Masterpiece Cakeshop case, owner Jack Phillips explicitly told a gay couple he was refusing service to them based on their sexual orientation because of his religious beliefs.

We wrote about the case in 2013:

David Mullins and Charlie Craig visited Masterpiece Cakeshop last year, with Craig’s mother, to order a cake for their upcoming wedding reception. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Masterpiece owner Jack Phillips informed them that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding.

Immediately after the Colorado Civil Rights Commission issued their decision, Phillips appealed and eventually lost.

The Colorado Civil Rights Commission ruled that a Lakewood bakery violated the Colorado Anti-Discrimination Act by refusing to sell a wedding cake to a gay couple, because of the owner’s personal religious beliefs. At a public hearing today, the commission rejected the bakery’s appeal of an earlier finding of unlawful discrimination by an administrative judge. [SNIP]

Long-standing Colorado state law prohibits public accommodations, including businesses such as Masterpiece Cakeshop, from refusing service based on factors such as race, sex, marital status or sexual orientation. Last year, an administrative judge upheld the Colorado Civil Rights Division’s finding of illegal discrimination by the bakery. Today’s decision from the Colorado Civil Rights Commission affirms the prior ruling. The commission also ordered a change of policy, staff training, and quarterly reporting to confirm that the bakery is not turning away customers due to sexual orientation. [SNIP]

Phillips admitted he had turned away other same-sex couples as a matter of policy despite Colorado’s law

“Masterpiece Cakeshop has willfully and repeatedly considered itself above the law when it comes to discriminating against customers, and the Commission has rightly determined otherwise,” said Sara R. Neel, staff attorney with the ACLU of Colorado.

At issue in lower court cases was mostly the semantics of what constituted a ‘same-sex marriage’ and who could enter into it. (That is, Phillips attempted to argue anyone could legally enter into a same-sex marriage and therefore he was not necessarily targeting the couple based on their sexual orientation.) The court saw through that.

“Masterpiece’s distinction, therefore, is one without a difference,” wrote the appeals court in their decision against the business owner. “But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.”

After the Colorado Supreme Court refused to hear his case, Phillips appealed to the highest court in the land.

The Trump administration is now showing their cards in demonstrating just how much of an “ally” they are to LGBTQ people.

Louise Melling, deputy legal director of the ACLU, commented on the administration’s intervention into the case. “This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear.” Melling added, “But this brief was shocking, even for this administration. What the Trump Administration is advocating for is nothing short of a constitutional right to discriminate. We are confident that the Supreme Court will rule on the side of equal rights just as the lower courts have.”

The Brief

The DOJ’s brief is actually fairly tame though – should Masterpiece Cakeshop prevail at the Supreme Court – it could set a dangerous and potentially cascading precedent.

ThinkProgress‘ Ian Millhiser analyzed the brief last night noting:

The Trump administration’s brief, however, seems designed to make this case a lot smaller. It spends a surprising amount of time listing scenarios where civil rights laws would apply in full force. And it ignores altogether the baker’s argument that his religion permits him to discriminate. While ultimately unpersuasive, the brief offers what may be the narrowest possible grounds that the Court could rely on to rule in favor of the cake baker.

That argument may be enough to convince wavering conservative justices that they can safely hand the baker a win here, but it would leave the religious right with a much smaller victory than they probably hope to gain from this case.

Rather than focus broadly on religious expression (which is what eventually led to the striking down of other state level ‘religious freedom’ laws), the DOJ focused their attention specifically on the ‘creative expression’ First Amendment argument within the case.

In this way the DOJ – and potentially Masterpiece Cakeshop – will be using the segment of free speech law that maintains no one can be compelled to engage in speech or expression they disagree with. The attorney in the case already appears to be thinking along these lines, too.

“His custom cakes necessarily express ideas about marriage and the couple,” Masterpiece Cakeshop owner Jack Phillips’ attorneys wrote in a separate brief.  They added:

At issue here is whether Phillips may decline requests for wedding cakes that celebrate marriages in conflict with his religious beliefs. The First Amendment guarantees him that freedom because his wedding cakes, each one custom-made, are his artistic expression. Much like an artist sketching on canvas or a sculptor using clay, Phillips meticulously crafts each wedding cake through hours of sketching, sculpting, and hand-painting. The cake, which serves as the iconic centerpiece of the marriage celebration, announces through Phillips’s voice that a marriage has occurred and should be celebrated. The government can no more force Phillips to speak those messages with his lips than to express them through his art.

[Emphasis Mine]

Millhiser added:

The Trump administration’s brief largely agrees with this claim, as it agrees with Phillips that requiring him to bake a custom wedding cake for a same-sex couple violates Phillips’ free speech rights, but it calls for a fairly narrow carve-out from civil rights laws for people like Phillips. A civil rights law runs afoul of the Trump administration’s rule only when it “compels both expression and participation in an expressive event.”

Indeed, the brief goes to great pains to list examples of vendors that would not benefit from this rule. “Most commercial transactions will fail to satisfy the threshold requirement that the product or service be inherently communicative,” Acting Solicitor General Jeffrey Wall’s legal team writes, “and even expressive products or services will rarely involve the degree of custom work necessary to suggest either compelled creation or active participation in an expressive event.”

Creating an expression-related carve out to civil rights laws will offer businesses carte blanche ability not only to discriminate against LGBTQ people, but potentially any other group that’s been the target of discrimination throughout the past.

An equally vexing problem is that the line between inherently creative ways of earning a living, such as being a musician, and more rote work, like renting chairs, is much less clear cut than DOJ suggests. Consider, for example, Katzenbach v. McClung, a seminal case establishing that the federal ban on whites-only lunch counters is constitutional. McClung involved Ollie’s Barbecue, an Alabama establishment that refused to serve African Americans in its dining rooms.

As nearly anyone from the South will tell you, producing barbecue can be a deeply expressive activity. Local variants on the Southern staple are a huge source of regional pride. Chefs may spend years developing their technique and experimenting with different kinds of sauces and cooking styles. A barbecue shack in rural Arkansas won a James Beard Award, a roughly the equivalent of the Oscars for chefs.

So if a barbecue chef designs a custom menu for a private wedding, is that an expressive activity worthy of First Amendment protection? What if they merely tweak their sauce a little at a customer’s request?

Perhaps more egregious than the potential to carve out a new loophole to discriminate against virtually any class of people is the argument contained in the DOJ brief stating LGBTQ discrimination is not as bad as racial discrimination (as if to rationalize the argument that LGBTQ people do no deserve legal protection from discrimination in places of public accommodation).

The Washington Blade noted:

The Justice Department also argues the prohibition of racial discrimination is a compelling reason to subordinate freedom of expression to non-discrimination laws, but “the same cannot be said for opposition to same-sex marriage.”

“The Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest,” the filing says. “To the contrary, the Court has recognized that opposition to same-sex marriage ‘long has been held — and continues to be held — in good faith by reasonable and sincere people,” and that ‘[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.’”

It seems that while the Trump administration never got around to issuing an executive order legalizing religious freedom justified discrimination against LGBTQ people, they’re doing something much more insidious: they’re attempting to influence the courts to make the proclamation on their behalf to legitimize the argument.



Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.


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