Gay Marriage

Justice Department Takes Baker's Side in Gay Wedding Cake Case Before Supreme Court

Trump administration argues the First Amendment protects right to decline.


Gay wedding cake

The Department of Justice under President Donald Trump is taking the side of a Colorado baker who declined to make a cake for a gay couple.

The baker, Jack Phillips of Masterpiece Bakeshop in Lakewood, Colorado, is the plaintiff in a case scheduled to be heard by the Supreme Court this fall. The state's civil rights commission ruled that Phillips violated Colorado's public accommodations law and engaged in discrimination for refusing to bake a wedding cake for a same-sex couple.

Phillips has argued that his religious beliefs oppose same-sex marriage recognition. Forcing him to make a wedding cake for a gay couple was compelling him to participate in the couple's wedding and that the act of crafting a wedding cake—not merely just selling one—is expressive activity protected by the First Amendment.

Trump's Justice Department agrees. In a filing with the Supreme Court today, the Justice Department argues that traditionally public accommodation laws had not in the past run afoul of the First Amendment because they were neutral to content and focused on conduct. A gas station couldn't refuse to sell fuel to a person because he or she is black, for example. But there's no message in the process of selling gas, so there's no compelled speech.

Here, the Justice Department argues, the making of a wedding cake is an expressive activity, and the court needs to engage in heightened scrutiny of the First Amendment issues:

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Read the brief here.

The Justice Department's argument is very narrow. It is not making a case for freedom of association, whereupon businesses would have a general right to decide with whom to do business. The filing is very specific that in this case and in similar cases involving expressive activity (photography, floral arrangements), the First Amendment of the business owners are violated if they're compelled by the law to participate by producing goods or offering their services.

And that's really what the Supreme Court will be considering in this case. Is the act of baking a cake a form of expressive activity and therefore protected by the First Amendment? We'll get a sense of what the justices think when they hear the case later this year.

The Reason Foundation (the non-profit think-tank that produces this site and publishes Reason magazine) is in agreement with the Justice Department in this case. They've submitted a brief asking the Supreme Court to consolidate this case with a petition by a florist in Washington State who is also being punished for declining to provide arrangements for a same-sex wedding. Read about that case here. Read the new, additional brief asking the Court to find in the bakery's favor here.

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  1. Why isn’t the ACLU all over this 1st Amendment case!

    1. Oh, they are! Just on … um … the other side.

      1. I guess they should change their name to the APRU: American Positive ‘Rights’ Association.

    2. This is about cakes, not speech. You can cook in silence you silly goose.

      1. Except there’s a pile of precedents a hundred feet high saying that speech doesn’t have to be speech.

        Seems like there would a 1st Amendment claim about being free to practice a religion too, and not being forced to participate in a ceremony you have religious objections to.

        1. Hi, I can tell we’ve never interacted here before.

      2. Then you haven’t observed me cooking. Believe me it’s full of OH CRAP THAT’S HOT and IT SMELLS LIKE BURNING

        1. Does it also taste like burning?

          1. Of course not, it tastes like chicken.

      3. This is about wedding cakes.

        While there are exceptions (people who have to do the wedding/reception on a shoestring budget) the vase majority of wedding cakes are one off custom edible art pieces.

        The is a ton of precedent that art such as paintings, statues and photographs are expressive “speech” protected by the first amendment. Why should wedding cakes be different?

        1. Unless the commenter is named Tony, assume all idiotic nonsense is sarcasm.

          1. Never assume, when you do, you make an ass out of you and me.

            1. I already know I’m an ass, so no loss to me there.

  2. There are so many problems that become infinitely more worse due to government intervention. This is absolutely one of those cases.

  3. “The Reason Foundation (the non-profit think-tank that produces this site and publishes Reason magazine) is in agreement with the Justice Department in this case. They’ve submitted a brief asking the Supreme Court to consolidate this case with a petition by a florist in Washington State who is also being punished for declining to provide arrangements for a same-sex wedding.”

    Yet so many of your writers have been taking the opposite side. I guess the foundation is less swayed by the need to be popular on metaphorical the DC cocktail circuit.

    1. Who? Because it seems to me that Reason’s been fairly consistent on this issue.

        1. Cucksistent!

      1. Oh come now. Reason writers don’t wail and scream about TEH GAY AGENDA DESTROYING THE YOUTH OF MURICA so clearly they are on Team Tyranny.

      2. Shack le-Ford has secretly been advocating for conscripting bakers for the Homosexual Agenda for years now. It is known.

        Probably other writers, too.

      3. You know. Those ones. There’s so many of them, it’s impossible to name just one.

        1. The only reason it should be impossible to name just one is because there are none.

    2. Yeah, I fully expected this article to come out against the plaintiff, and am surprised to see otherwise.

    3. Just notice the brevity and clipped nature of the piece.

      That speaks volumes.

    1. And I demand that my candlesticks be made adorned with Swastikas. Now get out of my tub!

      1. That’s fine. The svastika is an ancient symbol of good fortune sacred to billions of Hindus, Buddhists and Jains.

  4. It is not making a case for freedom of association, whereupon businesses would have a general right to decide with whom to do business.

    So they aren’t asking that the 1964 Civil Rights Act be ruled unconstitutional. But that’s Reason’s position, yes?

    1. Only those of us with secret nazi haircuts.

      1. And matching Hugo Boss uniforms.

    2. Yes, and no.

      There are two kinds of constitutional challenges to laws, a facial challenge where you argue that the law as written is unconstitutional on its face and an “as applied” challenge, where you are arguing that it is unconstitutional to apply a given law to a given defendant and/or set of facts.

      A law will be declared void for unconstitutionality only in the case of a successful facial challenge.

      The case at hand is an “as applied” challenge arguing that because wedding cakes (and some other wedding related services) are inherently expressive art, it is unconstitutional to apply the civil right act to the provision of wedding cakes.

  5. Remember that burning the U. S. flag is a protected form of First Amendment expression – because it may not involve speaking or writing, but it sure communicates an idea.

    A wedding ceremony is (perhaps among other things) a form of expression, and I don’t think you can arbitrarily take one part of the ceremony and say, “well, *that* part isn’t expressive.” The whole thing is expressive.

    1. Would it be religious discrimination if a florist refused to make a birthday cake for, say, one of the Westboro Phelps people?

        1. A florist named Baker

  6. Analogy: Refusing to sell poster board to the members of a gay-rights march. The march is an expressive act, and the poster board is to put slogans on (even if “we only want you to sell us the poster board, we’ll write the slogans ourselves”).

    1. You know, blank posters, whatever you call them.

    2. Not really comparable to the wedding cake issue.

      You aren’t asking the store to actually make the finished signs (expressive content) for you, you are just buying off the shelf products available to anyone and everyone.

      Wedding cakes are different. While there may be exceptions for couples that need to get married on a shoe string budget, the vast majority of wedding cakes, including the requested cake in the specific case at issue are one off custom edible art pieces.

      You aren’t just asking a baker to give you generic supplies which you will use for expressive activity, you are asking the baker to engage in expressive activity on your behalf.

      1. My point is that helping someone else engage in expressive acts is protected by free expression, and so is refusing to help someone engage in expressive acts.

        If the organizers of a parade, wedding, political rally, etc., can conscript businesses into helping with their expression, that’s a limitation on free expression, i. e., a limitation on the right *not* to speak.

        1. Sports Reporter Charles Manson|9.7.17 @ 10:26PM|#
          “My point is that helping someone else engage in expressive acts is protected by free expression, and so is refusing to help someone engage in expressive acts.”

          Agreed, but it would have put the seller in the position of questioning every buyer of posterboard was going to do with it, so it sort of diluted the point by introducing all sorts of other issues.

          1. A case like this would arise if – whether in response to the seller or not – the would-be buyer mentions that the goods are to be used in some event the putative seller opposes.

            So the issue usually wouldn’t come up if some guy comes in to some office supply store and buys magic markers and other materials, but if they actually go up to the owner and say, “we’re doing a Long Live President Trump parade, can you show us where to get the materials for our posters,” then that would be when the owner would be in a position (assuming he’s a Proud Democrat) to say “I don’t believe in your cause and so I won’t help you.”

            The more they seek out individualized service, the more opportunities for the owner to consider, “do I want to help this particular cause?”

        2. The wedding cake is protected when the other case is not because the wedding cake in and of itself is expressive content.

          The baker isn’t being asked to help someone else engage in expressive acts* it’s asking the baker to engage in an expressive act on behalf of someone else.

          * I think it’s stretching things more than just a little to call the sale of generic art supplies “helping someone engage in expressive acts”. Sorry, that just doesn’t work.

          1. Once the buyer says “can you show me some art supplies I can use to express my support for Donald Trump, our savior,” then the seller could quite reasonably conclude that he (seller) would be participating in an expressive act he disagrees with.

            Or if the Baptist Central Committee (or whatever its called) wants to hire buses in its name to take people to a Faith and Family rally, a gaytheist bus company guy can say he doesn’t want to participate in such a rally hence he won’t rent out his buses to the Committee.

            1. And for what reason do you imagine that your hypothetical idiot would say anything more than “can you show me some art supplies?”. He has no reason or requirement to tell the merchant what he wants to use the art supplies for.

    3. Sure. If you’re bigoted enough not to sell your goods to gays (and stupid enough to turn down their money), that’s your business.

      But that’s not the meat in this sandwich, is it? The bakers were being asked to be complicit in an expressive act to which they had strong personal objections.

      But we all know that’s just another way of saying, I don’t like your lifestyle and I don’t want you in my store. But that’s OK. You’re free to be a bigot in my book, and I’m free to boycott bigots.

      If SCOTUS were to agree this is protected under the First, it’ll be a nice win, and perhaps the thin end of the wedge. And no one should apologise for such a victory since that’s how the dirty stinking Liberals have been advancing their agenda for decades.

      1. Let me put it this way – what’s wrong with this claim:

        “We, the Grant Kouncil of the Knights of the KKK, want to exercise our 1st Amendment right to engage in an expressive act – namely, a party celebrating the founding of the Ku Klux Klan – and we want the government to conscript a black caterer into serving us dinner at the party. *We’re* engaging in expressive activity by holding the party, but the caterer *isn’t* engaging in expressive activity by participating in the party.”

        Can you detect a logical flaw in the KKK’s reasoning?

        1. Chaz, I think you and nuwanda are on the same side.

          1. On an issue like this, everyone here except maybe Tony is on the same side…but maybe the precise articulation of reasons is different.

            1. All that matters is that everyone on the side of freedom call a spade a spade, and not a fucking shovel.

              The facts is, legislation like the Civil Rights Act confuses state action with private action, and it’s why we end up with bakers and gays at loggerheads. But we have to be prepared to stand up and say, yes, if a racist store owner wants to put up a sign saying, “Blacks Not Allowed”, he’s entitled to. What can never be permitted is state compulsion or policy to put up such a sign.

              Having a right and being right ain’t the same thing.

              1. And of course we would also encourage another store owner to open up next door with a sign that says “All people welcome” and selling the same products for a few percent lower (which economically speaking he ought to be able to do given the increased volume he should have by not excluding 15% of the population (or perhaps a lot larger in lots of localities).

                I know I’d shop at the later rather than the former. Heck I’d shop at the later over the former even if prices were higher.

        2. No, and I’ve been kinda in a schadenfreude way wanting exactly this to happen until folks wise up.

  7. Baking a cake in not an expressive activity. However, decorating a cake is very much and expressive, artistic endeavor. Of course, who would want an undecorated wedding cake?

    1. The solution is to require that cake decorators be certified, but not bakers.

      1. In most small bakeries, it’s the same people doing both activities. What you suggest is no solution at all.

        And in any case, how would certification of cake decorators address the issue of forcing cake decorators into engaging in expressive activity they object to.

  8. The Reason Foundation (the non-profit thinkcuck-tank that produces this site and publishes Reason magazine)


    1. If that’s what you think of Reason, why are you here?

      1. They support his right to marry a chicken.

        1. Does the chicken have the right to say no?

    2. Stop trying to make “fetch” happen. It’s never going to happen.

    3. SIV|9.7.17 @ 9:44PM|#

      Like the hag, poor SIV is busted for being the miserable excuse for a human being that SIV is, and is still looking for someone else to blame.
      Sorry, SIV. You are a pathetic excuse for a human being. “Reason” didn’t do it; it’s you.
      Deal with it.

  9. It should be a matter if contract law not religious freedom. Buying a cake off the shelf is not the same as commissioning a specific cake, paying a deposit and so forth.

    1. I simply think it’s a tad contradictory for someone want to exercise their 1st amendment rights by holding, say, a wedding ceremony (and they’d complain rightly if the government tried to suppress such a ceremony), while demanding that the government conscript other people into helping with their First Amendment activity. If a wedding party is protected by the First Amendment, then accept the consequences: the participants (and nonparticipants) in this First Amendment exercise must be free from government coercion.

  10. This is really about taking sides. Either you are on the side of the baker who claims religious freedom to discriminate against customers, or you’re on the side of the customer who wants the right to participate in commerce without discrimination the same as straight people. Either outcome entails theoretical jackbooted government thugs. There is no small government side to this debate, just a rights conflict.

    I personally like expansive free expression rights, but can’t abide the inconsistency that would permit a baker to refuse to treat gay people in a way he’d never be permitted to treat black people. “My religion says I get to break the law” is a very specific exception that exists mostly for the Amish. And even their god loses in the contest between a dictate to ride in buggies and modern traffic laws.

    1. Engaging in commerce is a voluntary contract between two parties. Just because party A has money and party B has stuff does not mean that are compelled to interact. Party A can offer money (or substitute) Party B if free to accept or not. Party A is free to find someone willing to accept his terms. There is no conflict of rights among free actors.

      1. ^^^ A thousand times this

        I don’t know why this is a 1A issue inasmuch as it’s a freedom of association issue. If I’m forced to engage in commerce with anybody that the government deems worthy, then I’m a slave to the state.

        The only reason that this is being pursued under 1A is that it’s more likely to win on that grounds.

        1. The Freedom of Association is an important part of the First Amendment.

          That could be the reason this is a First Amendment issue.

          1. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

            1A doesn’t say anything about freedom to associate and conduct business. If 1A applies, it’s in defining expression through making a good as speech, OR defining participating in an activity that is against your religious beliefs as establishment.

            I think both could be stretched to apply, but the more clear application of the constitution, IMO, is that people are free to associate and transact business because of the 9th amendment. The framers thought that freedom of association is so obvious that they didn’t even bother to enumerate it. That tells you just how far govt overreach has gone.

            1. I should have said: “OR defining compulsory participation in an activity….”

          2. There is no right to “free association,” whatever the fuck that’s supposed to mean, anywhere in the constitution.

            1. 9th Amendment. It’s there.

      2. Then there’s the actual world we live in where people are humans and not unemotional cogs in a great economic machine.

        1. cogs don’t make choices they are compelled to be cogs. People make choises -sometimes bad- but are free.. the only thing that keeps all of our nightmare sceinrios a specter, is people makeing free choices regardless of compulsion. True GOV sponcered cruelity can only happen when GOV takes away Choice.

    2. “There is no small government side to this debate, just a rights conflict.”

      You have a right to be able to buy whatever you want from whomever you want?

      Are signs that store owners put up saying they have a right to refuse service to anyone unconstitutional?

      1. You have a right not to be discriminated against because of your race, religion, sex, etc., when doing business with a “pubic accommodation” type business. Owners actually aren’t as free as those signs would suggest.

        There’s no right answer written in the fabric of the cosmos. Just remember, if you had it your way, that would mean armed government goons dragging customers out of shops for being black. We did try it that way once, and the inhumanity of that system is what led to the anti-discrimination laws in the first place.

        1. I disagree. If I had it my way, it would mean that businesses who were bigots would be protested as they should be, and lose business as they should. We live in a much different world than we did in 1964. Institutionalized racism is rightly shunned today by everyone except for government.

          It’s government that has the force to implement racism (see the police dept) and they are nearing monopoly status at least from a real persecution standpoint.

    3. I personally like expansive free expression rights, but can’t abide the inconsistency that would permit a baker to refuse to treat gay people in a way he’d never be permitted to treat black people. “My religion says I get to break the law” is a very specific exception that exists mostly for the Amish. And even their god loses in the contest between a dictate to ride in buggies and modern traffic laws.

      If a baker said “I don’t want to bake a ‘WHITE POWER’ cake!”, I’d support them completely.

      I do not see how this case is any different.

      These bakers have sold to gay folks for years. They don’t want to make a custom cake for them. C’est la vie.

      1. And I’m comfortable drawing a line between simply making the product and writing a specific message on it.

        1. So, do painters have to paint things they don’t want to do so?

    4. Sadly, the wedding party never wanted the cake, they wanted the lawsuit. Their wedding was more about the pushing of the legal standing than about their day. The baker told them that they had some lovely pre-made cakes that they were welcomed to, but they were not interested. There were several bakers in the area that would have gladly baked for them, but they specifically chose this baker due to his religious beliefs. Of course, they did not choose the Muslim baker…

      It was about shoving his nose in the fact that they had a right to do something that he didn’t want to materially participate in, and they wanted him to pay.

  11. Steven Crowder talk about this in his recent Louder with Crowdercolumn and also posted a video back in 2015.

  12. I know this will make sound like a cranky old “git off mah lawn” type, but this whole controversy just seems ridiculous to me.

    I don’t understand why any businessman would willingly turn down a paying customer.

    And I don’t understand why anybody, gay or straight or whatever the fuck people claim to be nowadays, would want what is supposed to be the happiest day of their lives to be stained by forcing strangers to participate at gunpoint. Don’t you want everything to be as perfect as possible? Why would you want your cake baked by somebody who didn’t want to do it?

    Is our society really in such a state of collapse that nothing can be accomplished without the intervention of some shitbird politician?

    1. I don’t understand why any businessman would willingly turn down a paying customer.

      I do. If I considered involvement to be immoral, I’d refuse. If I was in Nazi Germany and they were paying for information on the whereabouts of jews, I wouldn’t supply any info no matter how much they were paying.

      And I don’t understand why anybody, gay or straight or whatever the fuck people claim to be nowadays, would want what is supposed to be the happiest day of their lives to be stained by forcing strangers to participate at gunpoint.

      I understand that too. Some people are not happy with mere coexistence. They insist that anyone guilty of wrong think has to be punished for their sins.

  13. Thing is, this nonsense has turned me against gay marriage.

    I don’t WANT to care about this bullshit. But activists are MAKING me care about this bullshit. So, I want the bullshit to end and the activists driving this to lose horrendously.

    1. This is not about gay marriage. Those making this about gay marriage are trying to draw on human emotion to further their cause.

      You can be entirely for gay marriage (I am) and entirely for the freedom of people to associate or not with each other as they see fit (I am).

      1. ^This

      2. It’s not so simple though. If you permit business owners to expel people for being gay, that means in theory they get to employ taxpayer-salaried government goons with guns to do the expelling for them.

        It’s not an illegitimate position, but don’t say it’s the smaller-government one.

        1. Refusing to bake a cake for a gay is not “expelling people for being gay”. If the person refuses to leave after being told “no”, then that person is a trespasser, pure and simple. It’s a separate transaction. Sexual orientation is irrelevant.

        2. I’ve never seen a “bouncer” in a bar… /sarc

        3. It’s no different than you being able to have a government goon expel people from your private property Tony. If you don’t want Trump supporters to assemble with tiki torches on your property, don’t you have the right to expel them with the force of the police department?

          Where does it end? Why do your “supposed” right to not be discriminated against overpower my property rights?

          1. When your property contains a business that caters to the public. Yes, we made that right up out of thin air, and it was a good thing. Yes it is an exception to hypothetical absolute property rights. But property rights have never been absolute. You can’t murder someone on your property and you can’t refuse to sell a sandwich to a customer because he’s black either. It’s just civilization.

            1. Could you refuse to sell a sandwich to David Duke?

            2. “No Shirt, No Shoes, No Service”

              I think I have seen that sign, and it offends my Appalachian heritage…

              Or, “Suit and tie required”.

              Tell me why that’s different.

  14. HyR bloggers are mostly about how bad Trump is, but when they report on what’s actually happening, it seems the Trump admin. is the best in many yrs. Many things the admin. is doing are as bad as usual, but not worse, so not cause to single out Trump as especially bad.

  15. So, Trump is better than Gary Johnson would have been on this crucial national issue? Not so much on spending, taxes, war and civil liberties though.

    1. In this issue the Trump admin is defending civil liberties.

      1. In this one issue the Trump admin is defending civil liberties.


        Given Trump’s justice department’s stance on most other civil liberties, I’d say this is more likely to either be the case of the blind squirrel finding a nut, or more likely, because the defendant shares the department’s view on gay marriage.

  16. I’m about 100% sure that we’d see a different response from the ACLU and the left if some city/state/Congress passed a law that decreed that the bacon cheeseburger is the official sandwich of the city/state/country and that any establishment that sells prepared food (restaurants, food trucks, delis, hot food bars in grocery stores…) MUST, BY LAW, include bacon cheeseburger on the menu.

    I feel that all the arguments Obama’s government used against Hobby Lobby and Little Sisters of the Poor vis-a-vis secular reason, no need for religious exemptions, etc. as no one is forcing Muslims, Jews, Hindus, or even vegans to actually eat the bacon cheeseburgers. They just have to prepare and serve them, perhaps to customers who do not share their religious (or even social) beliefs.

    I bet religious exemptions and conscientious opt-out rules would be supported post haste.

    Of course, the irony would be lost on them.

    As much as I despise them, I’ve really wanted the Westboro Baptist people to seek out every gay florist, baker, caterer, photographer, etc. to force them to work some WB events under the public accommodations laws that are supposed to prevent religious discrimination. At least until they understand that perhaps we don’t really need to force people to perform work they’d rather not do.

  17. I know I’m in the minority, but I do think public accommodation laws serve a necessary purpose in creating economic predictability (if I need a hammer I shouldn’t have to spend half a day finding a place that will sell it to me). Where things went wrong is in creating protective classes to whom those laws apply.

    Custom Services are a different matter since there is always a level of personal involvement so the businesses and people who provide them should be able to turn away clients for any reason.

    Basically – if you are selling something you already made, you should sell it to anyone. If you are offering to create something unique, you should be able to say no.

  18. Meh, at least they’re on the baker’s side, but, yeah, this would be better, and more appropriate as a freedom of association issue than a first amendment issue.

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