The Trump administration has once again shown it’s not on the side of LGBT Americans, with the Department of Justice filing a friend-of-the-court brief in support of a Colorado baker who refused to provide a cake for a same-sex couple’s wedding.
The Colorado Civil Rights Commission and state courts have ruled that Jack Phillips of Masterpiece Cakeshop violated the state’s antidiscrimination law by refusing to provide the wedding cake for Charlie Craig and David Mullins in 2012. Phillips has appealed the ruling to the U.S. Supreme Court, which has decided to hear the case in the session that begins this fall.
Phillips cited his Christian beliefs in declining service for their wedding, and has contended that he should not be punished because he was exercising his right to free expression of religion, as protected by the First Amendment to the U.S. Constitution. The Justice Department agreed in its brief filed today, The Washington Post reports.
"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,” Acting Solicitor General Jeffrey B. Wall wrote in the brief. “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.”
The Colorado Court of Appeals, in upholding the ruling by the Civil Rights Commission and an earlier one by an administrative law judge, held that providing the cake was not an act of expression and therefore did not qualify for First Amendment protection. The Colorado Supreme Court declined to hear the appeals court’s decision, leading Phillips, represented by the anti-LGBT Alliance Defending Freedom, to appeal to the U.S. Supreme Court.
Louise Melling, deputy legal counsel for the American Civil Liberties Union, which is representing Craig and Mullins, said she was shocked that the Justice Department would take Phillips’s side. “This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear,” she said in a press release. “But this brief was shocking, even for this administration. What the Trump administration is advocating for is nothing short of a constitutional right to discriminate. We are confident that the Supreme Court will rule on the side of equal rights just as the lower courts have.”
Friend-of-the-court, or “amicus curiae” briefs, are submitted in court cases by people or institutions that are not directly involved in the case but wish to support the position of either side.
In another LGBT rights case, Zarda v. Altitude Express, the Justice Department in July filed a friend-of-the-court brief arguing that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, does not extend to discrimination based on sexual orientation. The case, being considered by the U.S. Court of Appeals for the Second Circuit, involves a gay man who said his employer committed illegal discrimination under Title VII by firing him after he came out to a customer.
Today’s action comes on top of Donald Trump’s planned reinstatement of the ban on military service by transgender people, the Justice and Education departments’ revocation of guidelines on equal treatment of transgender students, and the nomination of several anti-LGBT Cabinet members (including Attorney General Jeff Sessions, who heads the Justice Department), and federal judges. It is being called out by numerous civil rights groups.
“It is shameful that the Sessions Justice Department is advocating for a constitutional right to discriminate against LGBTQ people,” said Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, in a press release. “This disturbing action is counter to our Constitution, our anti-discrimination laws, and our core American values of justice, fairness, and inclusivity. This latest reversal, coming just two days before the 60th anniversary of the creation of the Justice Department’s Civil Rights Division, caps off a grim week in which the Trump-Pence administration launched a mean-spirited attack on immigrant youth and also demeaned sexual assault survivors.”
Another LGBT rights case was officially appealed to the Supreme Court today. Lambda Legal had announced in July that it would appeal the case of Jameka Evans, a Savannah, Ga., security guard who was harassed at work and forced out of her job because she is a lesbian, and it filed the request for Supreme Court review today, arguing that discrimination based on sexual orientation violates Title VII. A federal trial court and an appeals court have rejected her claim, so Lambda is taking her case to the highest court in the nation. Whether the Supreme Court will agree to hear it remains to be seen.
But, as the Post notes, “taking that case, along with Masterpiece Cakeshop v. Colorado Civil Rights Commission, would make the coming Supreme Court term the most important for gay rights issues since the justices voted 5 to 4 in 2015 to find a constitutional right for same-sex couples to marry.”