DOJ’s cynical, embarrassing brief in the Supreme Court’s anti-gay baker case.

The DOJ’s Cynical, Embarrassing Brief in the Supreme Court’s Anti-Gay Baker Case

The DOJ’s Cynical, Embarrassing Brief in the Supreme Court’s Anti-Gay Baker Case

The law, lawyers, and the court.
Sept. 8 2017 5:03 PM

Cake Wreck

The Trump administration’s brief in the Supreme Court's anti-gay baker case is cynical, dishonest, and embarrassing.

U.S. Attorney General Jeff Sessions speaks at a news conference to address the Deferred Action for Childhood Arrivals (DACA) program at the Justice Department in Washington, U.S., September 5, 2017.
Attorney General Jeff Sessions speaks at a news conference in Washington on Tuesday.

Yuri Gripas/Reuters

On Thursday afternoon, the Department of Justice filed an amicus brief in Masterpiece Cakeshop v. Civil Rights Commission, a constitutional challenge to LGBTQ nondiscrimination laws. The DOJ urged the Supreme Court to rule that laws barring businesses from refusing to serve gay couples may violate the First Amendment’s free speech guarantee. Its brief is an exercise in cynical dishonesty, one that’s difficult to read as anything less than politicized bigotry dressed up in inane legalese.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Masterpiece Cakeshop centers around a Colorado statute that prohibits sexual orientation discrimination in public accommodations. In 2012, Charlie Craig and David Mullins asked Masterpiece Cakeshop owner Jack Phillips to make them a wedding cake. Phillips refused, explaining that he did not sell cakes to same-sex couples. Craig and Mullins filed a complaint with the Colorado Civil Rights Commission, which ordered Phillips to stop discriminating against gay people. Phillips appealed, alleging that the commission’s decision violated his First Amendment rights. The Colorado courts sided with the commission, but in June, the United States Supreme Court agreed to review the case.

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Phillips alleges that Colorado is violating both his right to free speech and his right to free exercise of religion. The latter claim is frivolous: For decades, the Supreme Court has held that a neutral law of general applicability does not run afoul of the First Amendment if it imposes incidental burdens on religious freedom. The former claim should be frivolous, too: Courts have long assumed that states have an overriding interest in eradicating discrimination, and may require businesses to treat all customers equally without violating freedom of expression. But in recent years, anti-gay activist groups like the Alliance Defending Freedom have asserted that nondiscrimination laws infringe on free speech when they are used to protect same-sex couples.

ADF is representing Phillips, which is no surprise: It opposes LGBTQ nondiscrimination laws and has also argued for the criminalization of homosexuality and the mandatory sterilization of transgender people. Masterpiece Cakeshop is just another chapter in its long-standing effort to strip LGBTQ people of all legal protections.

It’s more shocking that the Justice Department is weighing in on this case. The DOJ’s involvement is utterly gratuitous, likely a political ploy designed to shore up support among President Donald Trump’s anti-LGBTQ base. Indeed, a close reading of the DOJ’s brief reveals that it makes no sense as anything other than partisan pandering. If its goal is to persuade the court, it will likely backfire: The brief’s dismissive attitude toward the dignity of same-sex couples will certainly alienate Justice Anthony Kennedy, whose vote will be necessary for ADF to triumph.

The DOJ’s basic argument is twofold. First, it says that baking a cake in exchange for money is “expressive conduct” and “association” that raises First Amendment concerns, and a state’s interest in protecting gay residents is not strong enough to justify “compelling” this “creative process” for same-sex couples. Put differently, Phillips doesn’t want to create a cake for a same-sex couple or to be associated with that couple’s wedding, and the First Amendment protects his right not to do so.

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Even if we assume that baking a cake involves genuinely expressive conduct and association under the First Amendment—a highly contestable supposition—there’s a huge flaw in this logic. The Supreme Court has never held that for-profit businesses have a free speech right to discriminate against anybody. And for good reason: Carving out a First Amendment exception to nondiscrimination laws would blow a hole through the modern civil rights regime, fatally undermining legal protections for all minority groups.

Nondiscrimination laws, after all, regulate many forms of expression. Racist restaurateurs cannot put up a sign that reads “no blacks allowed.” Sexist bosses cannot make crude comments about women. Anti-Semitic professional photographers cannot refuse to shoot a bar mitzvah. The First Amendment protects freedom of association, but employers cannot refuse to associate with racial, religious, or sexual minorities. Private organizations like the Boy Scouts may have a constitutional right to discriminate against groups they dislike. For-profit businesses, though, must open their doors to everyone.

There is a principled libertarian argument to be made that nondiscrimination laws should not supersede businesses’ free speech rights. Barry Goldwater deployed this reasoning to explain his vote against the Civil Rights Act of 1964, insisting that the government should not force businesses to associate with certain people. But the courts have never adopted this argument, and the DOJ does not make it. Instead, the agency attempts to carve out a single exception to civil rights law to permit discrimination against same-sex couples.

Why? Homophobia, the brief asserts, is not as bad as racism. To bolster this claim, the brief cites a portion of Obergefell v. Hodges which states that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.”

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The brief conveniently excludes the remainder of this passage, probably because it contradicts the very argument the DOJ is attempting to make. Obergefell continues:

But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.

Ironically, were the court to adopt the DOJ’s position, it would inflict the kind of harm that Obergefell forbade, demeaning same-sex couples by subjecting them to discriminatory rules.

Even worse, the brief does not explain why homophobia deserves special respect under the law. The Supreme Court has said that homosexuality is immutable, like race. Why, then, should animus toward same-sex couples be treated differently from animus toward interracial couples? And what about religious bigotry? Can a devout baker refuse to sell a cake to an interfaith couple, and can an atheist one say a Christian can’t buy cupcakes for a christening? Can a sexist baker refuse to serve a female customer? What if his misogyny is derived from religion? And why stop at a cake? Shouldn’t the preparation of other foods qualify as expressive conduct, too? Doesn’t every good or service involve some measure of expressive conduct or association that the First Amendment could theoretically protect?

In its brief, the DOJ implicitly raises all of these questions without answering them because it can’t answer them—not honestly, at least. The reality is that the courts cannot, with any logical coherence or consistency, deny civil rights protections to some groups but not others. Either nondiscrimination laws are constitutional or they aren’t. The First Amendment does not grant greater rights to homophobic bakers than racist or sexist ones. Plenty of bigoted business owners wish they could assert a constitutional privilege not to associate with specific groups. If the courts open the door to one, they’ll open the door to all. Shopkeepers do not have a special right to turn away gays from their stores.

The brief strives to avoid this problem because it is, at bottom, a political document. Attorney General Jeff Sessions recently gave a speech to ADF thanking the organization for its “important work” defending “religious liberty.” Through Sessions, President Trump is discharging his obligation to appease the bigots in his base. The DOJ’s efforts, however, may prove counterproductive. This brief will delight the court’s reactionaries who favor religious supremacy and disdain gay rights. But it can only estrange Kennedy—who notably, has allowed an LGBTQ nondiscrimination policy to trump a First Amendment claim in the past. Kennedy is always eager to protect the “equal dignity” of same-sex couples; the DOJ now seeks to undermine it. The Trump administration might score political points with this brief, but it won’t win enough votes at the court.

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