Trump urges Supreme Court: Uphold right to refuse gay ‘wedding’ cakes

In a move that LGBT proponents are calling “shocking,” President  Trump’s Department of Justice (DOJ) filed an amicus brief with the U.S. Supreme Court on behalf of the Colorado baker who was found to have violated the state’s anti-discrimination act for declining to bake a cake to celebrate a “gay wedding.”

In 2012, a gay couple visited the Masterpiece Cakeshop in Lakewood, Colorado, seeking to commission the creation of a cake for their gay wedding. Owner Jack Phillips declined to make the cake because same-sex “marriage” stands in opposition to his religious beliefs. The two men were not seeking to buy an off-the-shelf product; they wanted Phillips to use his talent to create a unique product – a work of art.

Phillips directed the two men to other shops that could provide such a service for them, which they eventually did. But the angered men later engaged the American Civil Liberties Union (ACLU) to bring a punitive case against Phillips and his business that would compel him to act against his conscience.

Contrary to many news headlines and stories about the Masterpiece Cakeshop case, this issue isn’t about refusing to sell a product to gay customers. It’s about whether or not a state government has the right to compel an artist, under penalty of law, to use his artistry in way that violates his conscience.

In order not to be in violation of the law, Phillips has ceased his custom wedding cake services and has had to release six of his 10 employees.

DOJ’s pro-religious liberty defense of Jack Phillips & Masterpiece Cakeshop

From the outset of the new administration, the Trump White House and the DOJ have pledged to uphold religious liberty.

“Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” wrote Acting Solicitor General Jeffrey B. Wall, one of the authors of the Supreme Court brief.  “Weddings are sacred rites in the religious realm and profoundly symbolic ceremonies in the secular one.”

The brief, addressed to the nine Supreme Court justices, reminds them that even the majority opinion in the Obergfell case, which legalized same-sex “marriage” across the country, emphasized upholding First Amendment protections for religious objectors:

“[T]he Court has recognized that opposition to same-sex marriage ‘long has been held — and continues to be held — in good faith by reasonable and sincere people,’ and that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.”

The brief goes on to point out an important irony of the case: “Indeed, when Phillips declined to create a custom wedding cake for Craig and Mullins [the gay couple seeking to commission a wedding cake] in July 2012, Colorado refused to recognize either same-sex marriages or same-sex civil unions ... In other words, the State itself did not acknowledge the validity of the union it sought to compel petitioners to celebrate. It was not until October 2014, after federal courts had ruled that Colorado’s same-sex marriage laws were invalid, that the State began issuing marriage licenses to same-sex couples.”

The brief reflects statements made by Attorney General Jeff Sessions at an Alliance Defending Freedom conference in California in July: “The federal government will actively find ways to accommodate people of all faiths. The protections enshrined in the Constitution and our laws protect all Americans, including when we work together, speak in the public square, and when we interact with our government. We don’t waive our constitutional rights when we participate fully in public life and civic society.”

The Trump administration: moving forward, protecting religious liberty

Recently, the Trump White House has sought to prevent transgendered persons from serving in the military, undoing Obama-era pro-transgender military service policies.  

The administration, working through the Department of Education, has also eliminated Obama-era guidance on accommodating transgender students.

Pro-LGBT activists and organizations are unhappy with these moves perceived to be “anti-gay.”

“This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear ... But this brief was shocking,” said Louise Melling, deputy legal director for the ACLU.

Members of Congress also file a brief in support of Masterpiece Cakeshop

In addition to the DOJ, at least 86 members of Congress have filed their own amicus (friend of the court) brief in support of Jack Phillips and Masterpiece Cakeshop.

At a Capitol Hill press conference Thursday, Senator Mike Lee, R-Utah, a respected legal mind in his own right who clerked for Supreme Court Justice Samuel Alito, said, “This is a compelled-speech case. The Supreme Court has said that the First Amendment, in addition to doing all the things that it does, prohibits the government from requiring individuals from making a particular statement with which they disagree. The government cannot force you to speak where you would choose to remain silent.”

Creating a cake — or any type of creative artistry — is a form of speech, which should be protected under the First Amendment.

Senator Lee pointed out, “This isn’t a case where someone refused to sell a pre-made good to someone else, based on their sexuality or their orientation. It is instead one in which the couple at issue requested the cake baker make a specialty cake, not a pre-ordered, pre-made, pre-designed sort of thing. But [they were] asking the baker to use the baker’s talents and specialty to craft a cake carrying a message with which the baker disagrees. So these cases are different than cases involving public accommodations.”

Religious believers are not bigots to be purged from the public square

“Marriage laws should not treat religious believers as bigots to be purged from the public square,” noted Ryan T. Anderson and Leslie Ford as same-sex “marriage” cases challenging religious liberty were beginning to fill court dockets. “Under the newer laws, family businesses — especially photographers, bakers, florists, and others involved in the wedding industry — have been hauled into court because they declined to provide services for a same-sex ceremony that they viewed as a violation of their religious beliefs.”

“Yes, Americans must be free to live and love how they choose, but we should not use government to penalize those who think and act differently,” continued Anderson and Ford. “Protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedoms. All Americans should remain free in the public square to act in accordance with their beliefs about marriage without fear of government penalty.”