Yesterday, the Department of Justice filed an amicus (friend of the court) brief on behalf of Jack Phillips, the baker who was found to have violated the Colorado Anti-Discrimination Act by refusing to create a cake to celebrate a gay marriage. Phillips said he doesn’t create wedding cakes for same-sex couples because to do so would violate his religious beliefs.
In court, Phillips argued that requiring him to create a cake for a gay wedding violates his First Amendment rights of freedom of expression and exercise of religion. His freedom of expression argument was rejected on the theory that Phillips “does not convey a message of supporting same-sex marriages merely by abiding by the law.”
That’s true. But neither is he able to convey without penalty his deeply rooted opposition to such marriages. One doesn’t convey support for American foreign policy by not burning the flag or by standing for the National Anthem. But a prohibition on flag-burning or a requirement of standing for the Anthem prevents an expression of the depth of one’s opposition.
The Trump Justice Department bases its argument on the fact that Phillips is being required “to participate through his creation in a ceremony that is deeply expressive in both religious and secular traditions.” It notes that “weddings are sacred rites in the religious realm and profoundly symbolic ceremonies in the secular one.” Thus, “when Phillips designs and creates a custom wedding cake for a specific couple and a specific wedding, he plays an active role in enabling that ritual, and he associates himself with the celebratory message conveyed.”
“Forcing Phillips to create expression for and participate in a ceremony that violates his religious beliefs invades his First Amendment rights,” the DOJ argues. Moreover, Colorado “has not offered, and could not reasonably offer, a sufficient justification for that compulsion here.”
In this connection, the DOJ brief distinguishes Phillips’ case from cases involving laws prohibiting racial discrimination. Such laws may survive heightened First Amendment scrutiny. However, the Supreme 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.”
From what I can tell, the DOJ chose to argue only the freedom of expression issue. It did not make a separate argument based on religious freedom.
Phillips’ wedding cake case is but one of several such actions that have roiled the courts. Others involve florists, dress shops, photographers (whose participation in the wedding is ongoing), etc.
How will the Supreme Court will resolve the matter? Justice Kennedy will be the swing vote. He, of course, is the author of the opinion that found a constitutional right to same-sex marriage.
In what may be his final term on the Court, it’s possible he will use the case to cement his legacy as a champion of gay rights and a jurist who was “on the right side of history.” It’s also possible that he will take the First Amendment rights of bakers, photographers, etc. very seriously.
I’m not going to hazard a guess until after oral argument, if then.