The Trump administration weighed into one of the marquee cases of the coming Supreme Court term Thursday, backing a Christian baker in a dispute over public accommodations laws and religious liberty.
The U.S. Department of Justice filed an amicus (or “friend-of-the-court”) brief supporting a Christian baker in Colorado who declined to create a wedding cake with a pro-LGBT message for a gay couple planning their nuptials. The baker, Jack Phillips, was sanctioned by the Colorado Civil Rights Commission for violating the state’s public accommodations law, which prohibits discrimination against certain protected classes in commercial transactions. The Justice Department argues the state is coercing Phillips into creating expression with which he disagrees, in violation of the First Amendment.
“The Department filed an amicus brief in this case today because the First Amendment protects the right of free expression for all Americans,” Justice Department spokeswoman Lauren Ehrsam said in a statement. “Although public-accommodations laws serve important purposes, they—like other laws—must yield to the individual freedoms that the First Amendment guarantees. That includes the freedom not to create expression for ceremonies that violate one’s religious beliefs.”
The administration’s filing came on the same day that over 80 congressional Republicans filed their own amicus brief in support of Phillips.
In the brief, the Department says that the high court has consistently ruled in favor of free expression where speech and general laws regulating conduct collide, and that requiring Phillips to create such expression intrudes upon his First Amendment rights.
“A custom wedding cake is a form of expression, whether pure speech or the product of expressive conduct,” the brief reads. “It is an artistic creation that is both subjectively intended and objectively perceived as a celebratory symbol of a marriage.”
“Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” it adds.
The brief also emphasizes that it’s arguments could not be leveraged in a challenge to an anti-discrimination law like the Civil Rights Act, which prohibits race and sex discrimination in the work place, private businesses, and public spaces.
“For the most part, individual First Amendment rights have coexisted comfortably with federal and state public accommodations laws,” DOJ argues. “That is because those laws generally focus on preventing discriminatory conduct rather than modifying the content of expression. Under ordinary circumstances, content-neutral laws that regulate conduct rather than speech receive no First Amendment scrutiny, even where they have ‘incidental’ effects on speech.”
The high court agreed to hear the dispute in June, though the case has not yet been scheduled for argument. The Supreme Court will reconvene from its summer recess on Oct. 2.