During the election-season Republican National Convention, then-candidate Donald Trump said he’d “do everything in my power to protect our LGBT citizens.” But if his transgender military ban weren’t enough to convince you of his insincerity, then perhaps his latest move will.
His Department of Justice has just filed a friend-of-the-court brief (aka. an amicus brief) with the Supreme Court siding with the anti-gay bakers in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
And though the brief sets up a compelling argument against using public accommodation laws to force artists to create artworks against their beliefs, it undermines itself by saying that the government has more of an interest in eradicating racism than it does in eradicating homophobia.
What is the Colorado anti-gay bakery case about?
The case stems from a 2012 incident in which Jack Phillips, owner of the Colorado bakery Masterpiece Cakeshop, refused to create a cake for the wedding reception of David Mullins and Charlie Craig, a same-sex couple that married in Massachusetts but wanted to celebrate with family and friends back home in Colorado.
Phillips refused to bake them a cake based on his religious beliefs against same-sex marriage: As a Christian, he had also refused to make cakes in the past that included alcohol as an ingredient or celebrated Halloween.
The gay couple in this case had not requested any specific design, decoration or message for the cake before Phillips’ refusal. Thus, the couple’s argument is that Phillips refused to serve them purely on the basis of their sexual orientation rather than any message on the cake.
The couple filed a discrimination charge against the bakery with the Colorado Civil Rights Commission — the state has a law barring discrimination in public businesses based on sexual orientation — and they won a victory before the commission and subsequently in the courts.
Phillips appealed the decision up to the Supreme Court. They will hear the case in October.
What does the Justice Department’s amicus brief say?
The Justice Department amicus basically says that Phillips’ baked goods constitute an artistic act of self-expression and, thus, the government cannot force him to create art that goes against his beliefs, even if he offers that art as a public business.
By forcing a bakery to provide goods to a same-sex marriage reception, the brief says, the public accommodation law requires Phillips’ “expressive association” and that’s grounds enough to allow the bakery to refuse service, even before specific decorations get discussed.
“An artist cannot be forced to paint, a musician cannot be forced to play and a poet cannot be forced to write,” the brief says, adding that public accommodations laws are supposed to apply only to goods and services (like dispensing pharmaceutical medicine or renting out a hotel room) and not to artistic creations that are “expressly communicative” like artworks and, in this case, wedding cakes.
If public accommodation laws require a baker to make a cake for a gay wedding, the brief argues, then they could also potentially force a freelance designer to design fliers for a neo-Nazi group or the Westboro Baptist Church.
The amicus brief fails because it calls racism worse than homophobia
While they actually raise an interesting point with all this, they then undermine it all with a final section that the government would never force a flier maker to make a neo-Nazi flier because the government has a compelling interest to help eradicate racial discrimination, a compelling interest that does not extend to homophobia.
And that’s where their argument ultimately fails.
They say that the Supreme Court has not found that “eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.” Yeah. Want to know why? Because it has only been legal nationwide for about two years. This bakery case starts to raise that very question and saying that it’s not an issue because the Court hasn’t declared it an issue is disingenuous and dumb.
Weirdly, the brief goes on to “prove” that discrimination against same-sex marriage is different from discrimination against racial minorities by quoting Supreme Court Justice Anthony Kennedy’s 2015 decision legalizing same-sex marriage nationwide. This quote in particular reads:
“Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”
The government should want to end both racism and homophobia
Let’s briefly sidestep the fact that Kennedy’s quote went on to say that court cases challenging the legality of same-sex marriage would likely continue and that the government should affirm the need for same-sex marriage….
The fact that lots of good people oppose same-sex marriage is no defense fostering such prejudice. Indeed, the view that black people are inferior to whites is also a view long has been held in good faith by reasonable and sincere people here and throughout the world. Hell, racism is supported by the Bible, a book that also supports slavery, polygamy and killing people who worship God incorrectly. That doesn’t mean we should protect people’s “right” to it.
The truth is that the government does have a compelling interest to ensure that businesses support same-sex marriages because challenging and denying them tears at the belief that same-sex couples deserve the same treatment as everyone else.
Sadly, because the U.S. Supreme Court currently has a 5-to-4 conservative majority, it’s entirely possible that it could rule in favor of the bakery, paving the way for other creative industries like printing, photography and non-creative ones like medical and child care to claim their work as acts of creative expression — healing and child rearing are an “art”, no? — and thus, legally deniable to same-sex couples.