Trump Administration Defends LGBT Discrimination in Wedding Cake Case

In a significant blow to LGBT rights, the Trump administration has filed a brief with the Supreme Court, arguing that businesses must be able to deny LGBT people services under the First Amendment. Civil rights groups were swift to condemn the move.

The case involves Jack Phillips, owner of Masterpiece Cakeshop in Colorado. Phillips contends that the state’s human rights law infringes on his rights by requiring him to bake cakes for everyone, including gay couples.  

Phillips infamously refused to make a cake for couple Charlie Craig and David Mullins in 2012. He then faced a human rights complaint, which he lost.

Emboldened by GOP efforts to defend a religious right to discriminate, Phillips went on to petition the state courts. He again lost, with the courts maintaining that providing a service — in this case, baking a wedding cake for a same-gender couple  – is not the same as being forced to endorse that marriage. Phillips is now appealing to the Supreme Court. 

In an act that has caught human rights groups somewhat off guard, the Department of Justice filed an amicus brief in the case on Thursday, September 7, arguing in favor of a right to discriminate.

“Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” said the Justice Department in the brief. “In the view of the United States, a … First Amendment intrusion occurs where a public accommodations law compels someone to create expression for a particular person or entity and to participate, literally or figuratively, in a ceremony or other expressive event.”

The argument goes somewhat further, however, maintaining that public accommodations laws — which also cover characteristics like race — should not be applied where the service is “inherently communicative.” 

James Esseks of the ACLU argues that the administration’s attempts to gut public accommodations protections are representative of a wider civil rights problem:

While the Justice Department says this wouldn’t necessarily allow businesses to turn people away because of their race, if the Constitution protects such a right to discriminate against gay people, it would also authorize businesses to discriminate based on national origin, sex, religion, disability, gender identity, or any other basis. That means businesses could put up other signs as well: “We Don’t Sell to Women.” “No Muslims.” “No Transgender People.” All in open defiance of the nation’s civil rights laws.

Yes, the couple could have — and, in fact, did — go to a different bakery, people cannot be turned away simply because of who they are.

Had the couple committed discriminatory conduct toward Phillips, the story would be quite different, but Phillips is arguing is that he has a right to be offended by the mere existence of a same-gender couple seeking his services.

In this case a ruling by the Supreme Court in Phillips’ favor would represent a serious erosion of constitutional protections that could greatly endanger many disfavored classes.

A religious right to discriminate?

Phillips has always contended that his quarrel is not with same-gender couples per se, but rather the fact that the state is requiring him to violate his sincerely held religious beliefs. In its brief, the Justice Department similarly contends that unless we allow this kind of exemption to public accommodations laws, then we must necessarily demand that, for example, a Jewish graphic designer provide services to a neo-Nazi group.

Seen in this light, it is not anti-gay discrimination, Phillips’ counsel argues, but rather a violation of religious rights. Phillips’ lawyers highlight decisions like that in the Hobby Lobby case, which effectively found that businesses do have free speech rights, and may discriminate in narrow circumstances.

But I would beg to differ. If this interaction truly violated Phillips’ First Amendment rights, he should also prove that he subjects any and all heterosexual couples to the same standards to which he held a same-gender couple. Is the couple, for example, on their first or second marriage? Have they been faithful? Have they had sex outside of marriage? If baking a wedding cake is tantamount to endorsing a marriage, surely Phillips’ religion demands that he ask these questions.

If Phillips does not hold opposite gender couples to the same rigor of religious scrutiny as same-gender couples, he is singling out gay couples and holding them to a higher standard. Phillips cannot pick and choose which perceived Biblical standards he wants to enforce if he wants to claim this isn’t about anti-gay discrimination.

In opening a business, Phillips made the choice to serve the public and abide by his city and state’s human rights laws. To claim an exception now is to try to assert a privilege to discriminate.

That’s not a loss of freedom of speech — that’s an exceptional right to discriminate and impact the constitutionally protected rights of same-gender couples.

If the Supreme Court were to decide in Phillips’ favor, it would do irreparable harm not just to same-gender couples, but also to the religious and civil rights of all minorities in the United States.

Photo credit: Thinkstock.

47 comments

Karen H
Karen H4 days ago

Yeah, Donald. We remember when you said, "Ask yourself who is really the friend of women and the LGBT community. Donald Trump with actions, or Hillary Clinton with her words? I will tell you who the better friend is and someday I believe that will be proven out bigly." It hasn't even been proven out "littlely".

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David F
David F6 days ago

The logic of the LGBT complaints is bizarre, they are trying to make the government force a citizen to violate their 1st amendment freedom of religion even when there is zero discrimination of race, color, religion, sex, or national origin.


Then there are the pukes that believe if one is forced by government rules to incorporate in order to make a living, they automatically have to surrender their 1st amendment rights.

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Lorraine Andersen

Shame on those people. Whatever happened to live and let live? Religion has no place in politics.

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David C
David C7 days ago

we used to be the home of "the brave", but now minority administration is making US the "home of the always selfish and scared"

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David C
David C7 days ago

we used to be the United states, but now minority administration is making us divided states.

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Ellie M
Ellie M8 days ago

ty

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Teresa W
Teresa W9 days ago

no comment

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Teresa W
Teresa W9 days ago

mhmmm...

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Lisa M
Lisa M9 days ago

Noted.

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Lisa M
Lisa M9 days ago

Noted.

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