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DOJ, gay groups differ on bias in cake case

by Lisa Keen

By one legal expert's assessment, the Trump administration's argument for allowing a baker to refuse service to a same-sex couple would lead to "anarchy."

In a nutshell, the Department of Justice brief to the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado - a case that will be before the court for oral argument Tuesday, December 5 - argues that selling cakes is like staging parades.

DOJ points back to a decision in the 1995 Hurley v. Irish-American Gay case in which the Supreme Court ruled that Massachusetts could not enforce its law against sexual orientation discrimination in public accommodations. The state had found the organizers of a St. Patrick's Day parade in Boston violated the state law when they refused to allow an openly gay contingent. The high court said enforcement of that law against the parade organizers violated the First Amendment right of the parade organizers to control the message of their event.

The DOJ equates the refusal of Jack Phillips, a Colorado baker, to sell a cake to a same-sex couple for their wedding reception to the refusal of parade organizers to allow an openly LGBT contingent in their public procession. (Ironically, just this year, the Boston parade organizers voted to let an LGBT contingent into the parade.)

Led by Jeffrey B. Wall, a former clerk of conservative Justice Clarence Thomas, the DOJ brief contends that, "Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights in a manner akin to the governmental intrusion in Hurley."

It's interesting to note that Phillips acknowledges on his shop's website that he took "less than 30 seconds" to refuse to sell a cake to Charlie Craig and David Mullins for their wedding reception. The 28 wedding cake designs featured on his website are beautiful and demonstrate an artistry, but only two include images that reference male-female couples and none conveys anything about anyone's religious beliefs.

Ryan Karerat, a spokesman for the American Civil Liberties Union, which is representing the couple, said the couple were "turned away before they could discuss designs ... as soon as [Phillips] realized the cake was for them."

Nevertheless, Phillips' attorneys at the Alliance Defending Freedom contend, "Phillips serves all people, but cannot convey all ideas or celebrate all events." And DOJ contends that selling any wedding cake to the same-sex couple compels Phillips to express a message and "participate" in an event that violates his religious beliefs.

Robert Post, the Sterling Professor of Law at Yale University Law School, said that DOJ's logic, if extended to other businesses, "would effectively undo anti-discrimination laws generally" and lead to "anarchy."

"Almost all our behavior carries a message," said Post, in a telephone press conference call last week. "If I went around claiming I could hit you because it's expressive - I can make anything I do expressive ... [and the] country becomes ungovernable."

Attorney Mary Bonauto said the DOJ is trying to "shift emphasis to the cake as opposed to the law obliging all businesses covered by the public accommodations law to serve customers."

The Colorado law prohibiting discrimination based on sexual orientation in public accommodations covers companies that are open to the public, and can include a wide variety of businesses - hotels, cabs, grocery stores, restaurants, medical offices, pharmacies, and day care centers.

"There is no exception for creative or beautiful products," said Bonauto, who argued for equal protection of LGBT couples in Obergefell v. Hodges. That case led to the 2015 decision that struck down state laws that banned recognition and licensing of marriage for same-sex couples.

Like Post, Bonauto said that, "If the court accepts the petitioners' views, then there will be barely a shred of anti-discrimination laws in place."

Previous decisions
Not surprisingly, attorneys for Colorado and the same-sex couple (the ACLU is representing Craig and Mullins) put their emphasis on different previous decisions by the Supreme Court.

Ria Tabacco Mar, counsel of record for Craig and Mullins, said in a telephone press conference for the National LGBT Bar Association, that Phillips' religious exercise claim is "really nothing but a recycled argument like we saw in the 1960s, when the owner of a barbecue restaurant called the Piggie Park claimed that his religious beliefs meant he could not serve black diners in the same space as white customers."

In Newman v. Piggie Park and a number of other decisions, states the ACLU's brief, the Supreme Court has "affirmed repeatedly the government's ability to prohibit discriminatory conduct over the freedom of expression, association, and religion objections of entities ranging from law firms and labor unions to private schools and universities to membership organizations open to the public, to restaurants, and newspapers. Retail bakeries should fare no differently."

The Supreme Court's 1968 decision in Piggie Park included a footnote that described as "patently frivolous" the restaurant owner's claim that "his religious beliefs compel him to oppose any integration of the races whatever."

Colorado's brief argues that Hurley does not apply here because the parade organizers were "a private, non-commercial association," not involved in a commercial enterprise, as is the baker. The state law regulates a business' "refusal of service," not its freedom of expression.

"Both Phillips and the United States ask the court to convert the doctrine [of freedom of expression] from 'a right of self-determination in matters that touch individual opinion and personal attitude' ... into a license for commercial entities to refuse sales and service because of their customers' protected characteristics. The doctrine does not apply so indiscriminately," states the Colorado brief, "and expanding it to apply here would cause profound doctrinal and practical problems."

Phillips has failed before the Colorado Civil Rights Commission, the Colorado Court of Appeals, and the Colorado Supreme Court. But in order to have his appeal taken up by the U.S. Supreme Court, his legal team's briefs had to convince at least four of the nine justices to give him a chance. Given the precedent of cases like Piggie Park, the strong pro-LGBT arc in Supreme Court decisions since Hurley, and the fact that just three years ago the Supreme Court refused to hear an appeal in a very similar case (Elane Photography) out of New Mexico, it's somewhat surprising that four did give Phillips a nod, observers noted.

Prior LGBT victories
Of the nine substantial LGBT-related decisions in front of the Supreme Court since Hurley, the LGBT side has won eight times. The only loss was in 2000 with Boy Scouts v. Dale. That case, too, involved a state law against discrimination based on sexual orientation in public accommodations. And there, too, the court ruled that enforcement of the law against the Boy Scouts was a violation of the group's First Amendment right to "expressive association." But like the parade organizers, the Boy Scouts group was identified as a "private" organization and not engaged in a commercial activity when it barred inclusion of gay scouts and leaders. (And like the Boston parade organizers, the Boy Scouts of America association has subsequently agreed to allow openly gay members and troop leaders.)

At the same time the Supreme Court held the Boy Scouts could exclude a gay Scout leader, it acknowledged its decisions in two cases involving public service organizations - decisions that held "states have a compelling interest in eliminating discrimination against women in public accommodations ..."

"We have held that the freedom [of expressive association] could be overridden 'by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms,'" the court stated.

But two non-LGBT related decisions in recent years could signal the court's willingness to carve out more exceptions for free exercise exemptions: Hobby Lobby and Trinity.

In the 2014 decision of Sebelius v. Hobby Lobby, a 5-4 majority ruled that a federal law may not require a closely held commercial employer to provide health insurance coverage for contraception if that employer claims that to do so violates his or her personal religious beliefs. LGBT activists took some comfort from the majority's statement that the ruling applies only to the contraception mandate, but they worried that the recent mistreatment of LGBT people in employment and other commercial settings made the decision very troubling.

And in June, a 7-2 majority ruled in Trinity Lutheran v. Comer that a state's denying funding to a school that "would have received [a state grant] but for the fact that Trinity Lutheran is a church" violates the free exercise clause of the First Amendment. LGBT activists had argued the school should be denied state funding because it exercised its religious beliefs against homosexuality and against other religions in determining which children it would exclude.

"For as long as we have had anti-discrimination laws we've had challenges," Samuel Bagenstos, a former DOJ official under the Obama administration, said during the ACLU's conference call on the Masterpiece case. "... You could imagine any white supremacist business saying they discriminate against blacks because it sends a message. ..."

In a brief to the Supreme Court on the Masterpiece case, Lambda Legal Defense and Education Fund, Equality California, and 11 other organizations detail numerous cases in which LGBT people have been discriminated against in the name of religion. They include a funeral home in Mississippi refusing to pick up the body of a deceased gay nursing home resident saying, "This goes against everything I believe in. I'm a Christian." Midwives who claimed their work was part of their ministry repeatedly turned down a lesbian couple in Tennessee, preparing to give birth to their child.

And "a California-resident lesbian couple was refused by a bed and breakfast in Hawaii, the owner telling them she 'felt uncomfortable renting a room to homosexuals, citing her personal religious views,'" the brief states.

"The risk of continued discrimination is particularly acute," stated the Lambda brief, "when those providing services to the public believe they are entitled, in the name of religion or free speech, to refuse service to others based on who they are."


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