When the US Supreme Court reconvenes in October, they will hear the case of Masterpiece Cakeshop and Jack Phillips. In a new development, however, the Trump administration is siding with the Colorado bakery’s right to discriminate.
As a refresher, in July 2012, Phillips refused to make a cake for Dave Mullins and Charlie Craig’s wedding due to his faith.
On Wednesday (6 September), Phillips’ legal team Alliance Defending Freedom (ADF) submitted their first defense brief.
They primarily cite the First Amendment and Phillips’ freedom of expression. They are arguing this right allows Phillips to deny his artistic talents to something that violates his faith.
Colorado courts and Colorado Civil Rights Commission ruled against Phillips. In the state of Colorado, public accommodation laws ban discrimination based on sexual orientation, including businesses serving the public.
However, the Supreme Court decided to hear the case and now the office of the president is siding with Phillips.
A First Amendment ‘intrusion’
The Department of Justice (DOJ) submitted an amicus brief supporting the petitioners of the case.
In it, they argue that ‘forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights’.
They refer to this public accommodations law as an ‘intrusion’ to the First Amendment and the rights it protects.
Perhaps most alarmingly, the brief compares racial and sexual orientation discrimination.
While the brief contends that racial discrimination ‘may survive heightened First Amendment scrutiny’ as a ‘familiar and recurring evil’, the same cannot be said for discrimination based on sexual orientation. This is because, it details, the Court has not deemed it subject to strict scrutiny or that ‘eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest’.
A constitutional right to discriminate
There are, of course, concerns to Trump’s DOJ taking a stance like this. It is primarily up to the Supreme Court to interpret the Constitution and how it applies to the law. The administration taking this stand is now adopting a bold and dangerous position.
As the ACLU wrote in a statement, this brief suggests ‘businesses have a constitutional right to discriminate against lesbian, gay, and bisexual people’.
The organization continues by outlining the scope a ruling for the bakery could have in the country. Should the Supreme Court side with Phillips, a floodgate of discrimination could open, despite state laws saying otherwise.