Justice Dept. Supports Anti-Gay Baker – Says He Can Refuse to Make Wedding Cakes for Same-Sex Couples

DOJ Says ‘Forcing’ Baker to ‘Create Expression for and Participate in a Ceremony That Violates His Sincerely Held Religious Beliefs’ Violates the First Amendment

The Justice Department says baking a wedding cake is First Amendment protected expression. In a briefing filed Thursday for a pivotal Supreme Court case the DOJ says Jack Phillips (photo), owner of Colorado’s Masterpiece Cake Shop, has the right to refuse service to same-sex couples because same-sex violates 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 Justice Dept. amicus brief, as Buzzfeed reports.

Under Attorney General Jeff Sessions, the DOJ is using language taken directly from the religious right’s talking points, claiming that baking a wedding cake is “participating” in that wedding, and is an act of expression, rather that the creation of a cake. 

Earlier Thursday four Congressional Republicans joined Phillips, Washington State florist Barronnelle Stutzman who has a similar case, and their attorney from the Alliance Defending Freedom, on the steps of Capitol Hill. The group spoke at length on religious liberty, announcing that 86 Republicans had signed an amicus brief also siding with Phillips.

Phillips’ case, which will be heard by the U.S. Supreme Court this fall, began when he refused to bake a cake in 2012 for Charlie Craig and David Mullins. He was found to be in violation of Colorado’s Anti-Discrimination Act.

The Washington Post notes that the Dept. of Justice’s “decision to support Phillips is the latest in a series of steps the Trump administration has taken to rescind Obama administration positions favorable to gay rights and to advance new policies on the issue.”

But Louise Melling, the deputy legal counsel of the American Civil Liberties Union, which is representing the couple, said she was taken aback by the filing.

“Even in an administration that has already made its hostility” toward the gay community clear, Melling said, “I find this nothing short of shocking.”

Since taking office, President Trump has moved to block transgender Americans from serving in the military and his Department of Education has done away with guidance to schools on how they should accommodate transgender students.

Justice Department spokesperson Lauren Ehrsam told The Washington Blade “the First Amendment protects the right of free expression for all Americans.”

“Although public-accommodations laws serve important purposes, they — like other laws — must yield to the individual freedoms that the First Amendment guarantees,” Ehrsam added. “That includes the freedom not to create expression for ceremonies that violate one’s religious beliefs.”

Human Rights Campaign president Chad Griffin offered his thoughts via Twitter:

ThinkProgress’ Zack Ford highlights a portion of the DOJ’s 41-page amicus brief:

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