Nine months into Donald Trump’s presidency, it should surprise no one to learn that his administration is going out of its way to restrict civil rights, rather than expand them. Nevertheless, a brief the Department of Justice filed this month in a high-profile Supreme Court case is jarring, given its wholesale adoption of the spurious arguments advanced by the anti-LGBT hate group and self-proclaimed “Christian” legal nonprofit representing the plaintiff.
The case, which we’ve previously covered here at RD, is Masterpiece Cakeshop v. Colorado Civil Rights Commission, and that legal nonprofit is none other than the Alliance Defending Freedom, which the Southern Poverty Law Center last year designated an anti-LGBT hate group. (For those paying attention, it’s also the massively well-funded right-wing legal outfit to which Attorney General Jeff Sessions gave a fawning, closed-door speech in July.)
“This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear,” said ACLU deputy legal director Louise Melling, who is representing the same-sex couple who was turned away by Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado. “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.”
As Slate’s Mark Joseph Stern accurately explained, the DOJ’s brief is “cynical, dishonest, and embarrassing.” In siding with Phillips, the DOJ argues that anti-gay discrimination doesn’t really exist because it’s not as bad as racial discrimination, claims that wedding cakes deserve special First Amendment protections because they are “inherently expressive,” and, most ominously, suggests that any statewide non-discrimination laws that go further than Title II of the Civil Rights Act of 1964 are subject to heightened judicial scrutiny because they may constitute an undue imposition on freedom of expression.
Anthony Kreis, an attorney and visiting assistant professor at Chicago-Kent College of Law who specializes in “religious freedom” and civil rights, told RD that the DOJ’s brief is par for the course of an administration that started its tenure by rescinding Title IX protections for transgender students, then went on to claim that federal laws against sex discrimination in the workplace (namely, Title VII) don’t apply to gay, lesbian, and bisexual people.
“This is one part of the Administration’s full on assault against LGBT rights,” said Kreis, who is gay. “I don’t think that any reasonable observer would have expected the Administration come out on the other end.”
That being said, though, the brief is noteworthy for its twisted logic, and the incredible pains it takes to elevate anti-LGBT religious dogma to a protected class, while simultaneously denigrating actual LGBT people (and the state laws that protect them) to a legally irrelevant nuisance. To do so apparently also requires elevating wedding cakes, specifically, to a form of inherent expression and association that unequivocally deserves First Amendment protections.
“[The DOJ] tried to have their cake and eat it, too,” explained Kreis. “They say on one hand that wedding cakes are just different—that wedding cakes are inherently expressive, but other types of commercial transactions aren’t. They’ll say that there’s something different about a wedding cake, but that furniture-making is not expressive.”
Who deems a food product expressive? Why not a cookie? A hotdog? A birthday cake? A deep dish pizza? There's no neutral limiting principle.
— Anthony M. Kreis (@AnthonyMKreis) September 7, 2017
Indeed, there are several paragraphs in the DOJ’s brief where the nation’s top law enforcement agency details the “secular and religious” importance of the cake-cutting ceremony at a wedding as “proof” of the special status this particular baked good should be granted.
“Like wedding rings, and unlike most other products present at a wedding, a wedding cake is used in a ritual that signifies and celebrates the beginning of a marriage—namely, the ceremony in which the newlyweds cut the cake together and sometimes feed it to each other,” the DOJ’s brief reads. It goes on to note that the same-sex couple who Phillips turned away did indeed have a cake-cutting ceremony at their wedding, and that photos exist which “capture the celebratory, cooperative nature of the ritual.”
The brief attempts to argue that since Phillips customizes the wedding cakes he makes, a “reasonable observer” would conclude that the baker approved of—or at least did not oppose—the wedding in which his cake was featured. (It does not extend this logic to the pre-made wedding cakes Phillips reportedly offers.) But Colorado state law, which since 2008 has required businesses open to the public to serve all comers without regard to race, religion, creed, color, sex, age, national origin or ancestry, disability, or sexual orientation (inclusive of gender identity), prohibits differential treatment or denial of service based on any one of these protected classes.
And that’s where the DOJ’s brief gets particularly twisted—and intellectually dishonest. It contends that Colorado’s non-discrimination law compels speech (which in this case means the design and baking of a cake in exchange for a fee) that contradicts the baker’s sincerely held religious belief. Such an imposition violates the baker’s constitutional right to free expression, the DOJ says. As such, Colorado’s non-discrimination law fails to pass constitutional muster. Although the DOJ doesn’t make the it explicit, it’s clear that this argument, if accepted by the Supreme Court, sets up any state’s broad non-discrimination law for a similar constitutional challenge.
“I think they’re really throwing the kitchen sink here and just hoping something sticks,” Kreis said of the DOJ’s argument. He rejects the DOJ’s assertion that Colorado’s non-discrimination law is overly broad or that it unfairly burdens businesses, which benefit from taxpayer-funded infrastructure support like sidewalks, street lighting, and fire and police departments.
“I think [that claim] offends the basic social contract that we have in this country,” he continued. “When… despite being able to make something of yourself, with the help of society, that you want to throw out social conventions and discriminate. As a general principle, I think it’s offensive, but it’s definitely so when the United States federal government says yes, that should be OK; the Constitution permits that kind of odious behavior.”
While Phillips and ADF have consistently asserted that Phillips has a “sincere religious belief” that same-sex marriages are sinful and that he cannot “endorse” them with his cake “artistry,” the DOJ doesn’t actually engage much with the plaintiff’s faith. There’s a good reason for that, Kreis explained.
“Historically, religious claims and free expression claims are both analyzed under strict scrutiny,” said Kreis. “Usually religious claims lose because there’s conduct involved. The courts are more susceptible to allowing conduct-based exemptions because there’s usually a third party harm. In the free expression context, speech doesn’t harm people generally. … Barring some kind of harm, you really can’t prescribe the individual speech.”
Instead, the DOJ is effectively arguing in favor of a constitutional right to discriminate—but only against LGBT people. The brief spends several pages attempting to explain why anti-gay discrimination is not as pervasive or odious as racial discrimination, which the DOJ contends a state could have a legitimate interest in preventing. In those instances, the DOJ’s brief contends, even a First Amendment challenge would likely be insufficient to override a non-discrimination law that prohibited racial discrimination.
“You can have a cake maker who wants to deny making a cake for an interracial couple, or for a couple who is of mixed faith, but the DOJ’s position [here] is that the State’s interest in protecting against that kind of discrimination is fundamentally different and more important than protecting LGBT people,” Kreis explained.
“I think this is an exceptionally offensive argument that DOJ is putting forward—because it just seems to me that they’re effectively saying the State is compelling this [baker’s] speech and it is expressive… But in the instance that it’s racial discrimination or another form of discrimination, the State can still overcome that First Amendment challenge; but not in this context, because gays are different.”