Should the First Amendment Protect Discrimination?

Baker Phillips

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In an upcoming bench mark Supreme Court case that weighs equal rights with religious liberty, the Trump administration last week sided with a Colorado baker who refused to bake a wedding cake for a gay couple.

Masterpiece Cakeshop v Colorado Civil Rights Division, Charlie Craig, and David Mullins, is one of the most contentious cases the Supreme Court will hear in its term beginning October 2.

The conflict was inevitable. Two years ago, in Obergefell v Hodges, Justice Anthony Kennedy inserted a caveat into his otherwise sweeping majority opinion unlocking marriage laws nationwide to LGBTQ. “[T]hose who adhere to religious doctrines”, he wrote, “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned” and they are protected in this mission by the First Amendment. The court will now clarify how far this authority extends.

The Department of Justice on September 7 filed a brief on behalf of baker Jack Phillips, who was found to have violated the Colorado Anti-Discrimination Act by refusing to create a cake to celebrate the marriage of Charlie Craig and David Mullins in 2012. Phillips said he doesn’t create wedding cakes, which his lawyers described as an act of artistic expression, for same-sex marriages because it would violate his religious beliefs.

“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. “Compelling a creative process is no less an intrusion [by the government] — and perhaps is a greater one — on the ‘individual freedom of mind’ that the First Amendment protects.”

The Justice Department argues that, even though Mullins and Craig did not specifically ask for a message on the cake endorsing their same-sex marriage (nor was he invited to participate in the wedding), Phillips’ made-to-order cakes represent a product that is “inherently communicative.”

“Even in an administration that has already made its hostility” toward the gay community clear, Louise Melling, the deputy legal counsel of the American Civil Liberties Union, said, “I find this nothing short of shocking.” She continued, “What the Trump Administration is advocating for is nothing short of a constitutional right to discriminate.”

The case of Phillips, a baker in the Denver suburbs, is similar to lawsuits brought elsewhere involving florists, calligraphers and others who say providing services to same-sex weddings would violate their religious beliefs. But these objectors have found little success in the courts, so far, which have ruled that businesses serving the public must comply with state anti-discrimination laws.

The civil rights commission and a Colorado court rejected Phillips’ argument that forcing him to create a cake violated his First Amendment rights of freedom of expression and exercise of religion. The Colorado Supreme Court refused to hear the case, allowing the lower court’s decision to stand. Phillips’ lawyers then appealed to the U.S. Supreme Court, which agreed to hear the case in June.

“We’ve been saying it from the start — Trump and his administration are anti-LGBTQ activists,” GLAAD responded to the DOJ’s amicus brief via Twitter.

“Once again, the Trump-Pence Administration has taken direct aim at our nation’s progress on LGBTQ equality, this time urging the Supreme Court to grant a potentially sweeping license to discriminate against same-sex couples,” Sarah Warbelow, Human Rights Campaign legal director, said in a statement.

“The discrimination endorsed by this administration in their amicus brief is the same form of bigotry Mike Pence signed into law in Indiana in 2015 and for which he was swiftly rebuked by a national backlash among America’s businesses,” Warbelow added. “If adopted by the court, the Trump-Pence Administration’s arguments would threaten to gut many of our nation’s most sacred civil rights laws — not just for LGBTQ people, but also for women, people of color, religious minorities, and Americans of all backgrounds.”

The tiff between Masterpiece Cakeshop and Craig and Mullins does not entail a clash of constitutional rights. Nothing in the US Constitution entitles a gay couple to a cake prepared by a particular baker. The same goes for race-based discrimination by private entities. In the 1883 Civil Rights Cases, the Supreme Court ruled that Congress had no power under the 13th or 14th amendments to require “public accommodations”—restaurants, theatres, inns, petrol stations—to serve patrons of all races equally. Those amendments, the court reasoned, empowered Congress to ban only official acts of discrimination by the state, not “individual invasion of individual rights” by private entities.

This ruling still stands today. Even when Congress finally barred public accommodations from refusing service to blacks, women and others in Title II of the 1964 Civil Rights Act, it embedded its oversight in the Constitution’s “commerce clause.”

Although 21 states and the District of Columbia requires bakeries or other private businesses to serve gays and lesbians, there is no federal law that extends such protections.

Colorado’s public accommodations law is explicit, no “business engaged in any sales to the public” may “refuse…to an individual or a group, because of… sexual orientation” the “full and equal enjoyment” of their goods and services. The Colorado Civil Rights Division ordered Phillips to comply with the law and make wedding cakes, if he makes them at all, for all customers. Phillips is now asking the Supreme Court for relief arguing that the First Amendment’s protection of free speech and free religious exercise prohibit Colorado from compelling him to make cakes that violate his conscience.

Phillips’ lawyers say, in documents presented in August, the justices must resolve whether “applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the free-speech or free-exercise clauses of the First Amendment.”

By contrast, lawyers for Craig and Mullins, assert that a “neutral state law that does not target speech” implicates the free-speech clause and a “state law that is neutral and generally applicable” does not violate free-expression. Colorado maintains that the issue is not really about compelling expression because Phillips “refuses to sell a wedding cake of any kind to any same-sex couple.”

The Supreme Court has long held the First Amendment to prohibit the government from forcing individuals to express ideas that they disagree with. In rejecting compulsory flag salutes by public school students in 1943, Justice Robert Jackson famously noted that ‘‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In Cohen v California, 1971, the court found that a California statute prohibiting the display of offensive messages violated freedom of expression.

But Phillips’ did not object to creating a cake bearing any particular message or image. He told the men he had a blanket policy of not making any cakes to be consumed at same-sex weddings. His flat-out rejection sounds more like a refusal to serve gay and lesbian couples rather than a conscientious objection to creating a particular “expression.”

Should the Supreme Court sides with Phillips, a decision that prioritizes religious views over fair-dealing in the marketplace, it will have to account for the foreseeable consequences.

If there is a constitutional right for a Christian proprietor not to bake a cake for two men getting married, then a similar right for a photographer or a caterer could turn away interracial couples or Muslims whose beliefs or lifestyles are at odds with his religion.

Spending money counts as free speech according to Citizens United v Federal Elections Commission, the ruling that struck down some campaign-finance restrictions in 2010. If any business transaction is to be construed as expression, Masterpiece Cakeshop could engender something far broader than lawful discrimination against gays and lesbians. It could establish the precedent for religious views increasingly encroaching on laws intended to make society free, open and civil.

Constitutionally sanctioned discrimination would not end with wedding cakes. Other products and services may be withheld under the name of religious freedom, such as emergency health care or vaccines or contraception. Imagine a Jewish child turned away by a Christian day care facility, Christian children not admitted by a Muslim grade school principal, a volunteer fire fighter declining to respond to a burning temple or a gay bar or a swinging couples’ party because his sincerely held religious beliefs do not support such lifestyle or form of worship.


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