WASHINGTON — The U.S. Department of Justice has filed an amicus brief in the U.S. Supreme Court in support of a Colorado baker who was ordered to make a cake for an event celebrating the union of two homosexual men.
“The department filed an amicus brief in this case today because the First Amendment protects the right of free expression for all Americans,” spokesperson Lauren Ehrsam outlined in a statement on Thursday.
“Although public-accommodations laws serve important purposes, they—like other laws—must yield to the individual freedoms that the First Amendment guarantees,” she said. “That includes the freedom not to create expression for ceremonies that violate one’s religious beliefs.”
The government argued in the brief that creating a custom cake is indeed a form of artistic expression, and is also a mode of participation in the event.
“A custom wedding cake is a form of expression, whether pure speech or the product of expressive conduct. It is an artistic creation that is both subjectively intended and objectively perceived as a celebratory symbol of a marriage,” wrote Acting Solicitor General Jeff Wall.
“Like wedding rings, … a wedding cake is used in a ritual that signifies and celebrates the beginning of a marriage—namely, the ceremony in which the newlyweds cut the cake together and sometimes feed it to each other,” he noted. “This cake-cutting ceremony has ‘become one of the clearest and most essential rites of marrying’ in modern times, and ‘also one of the most potentially meaningful.’”
The Department argued, therefore, that forcing Masterpiece Cakeshop owner Jack Phillips, a Christian, to make a cake for a same-sex celebration causes him to join in the event as a participant, in violation of his religious convictions that homosexuality is a transgression of the law of God.
“By producing a custom wedding cake for that ritual, Phillips participates in the wedding celebration in a meaningful way. Even though he may not always remain physically present at the wedding, he crafts and delivers his creative expression to the event,” Wall wrote.
“In that sense, Colorado’s public accommodations law compels Phillips not just to create expression, but also to participate in a wedding celebration that conflicts with his sincerely held religious beliefs,” the government stated.
As previously reported, the case began in 2012 when Dave Mullin and Charlie Craig visited Masterpiece Cakeshop in Lakewood, Colorado to look for options for their upcoming same-sex ceremony celebration. As Colorado—at the time—had a constitutional amendment enshrining marriage as being between a man and a woman, the men planned to travel to Massachusetts and then return to Colorado for a separate celebration.
However, after their arrival at the cake shop, Mullin and Craig were advised by owner Jack Phillips that he does not make cakes for same-sex ceremonies.
“My first comment was, ‘We’re getting married,’ and he just shut that down immediately,” Craig stated.
Phillips told Christian News Network that he does not make cakes for such events because of his Christian convictions.
“I’m a follower of Jesus Christ, and I believe that the relationship is not something that He looks favorably on,” the master pastry chef stated. “If Jesus was a carpenter, He wouldn’t make a bed for this union.”
However, Phillips says that it is not just same-sex celebrations that he declines. He also doesn’t create custom baked goods for bachelor parties or Halloween events, and remarked in a recent video that sometimes in a day he will turn down more requests than he accepts.
Phillips, who attends a Baptist church, said that when he informed Mullin and Craig that his bakery does not make cakes for same-sex “weddings,” the men immediately left. He stated that one of them made a comment on his way out the door that the bakery was a “homophobic cake shop.”
Phillips said that he told the men that he would be happy to make them any other type of baked goods outside of having to facilitate the ceremony, which he believed was a form of personal participation. But Mullin and Craig complained to the Colorado Human Rights Commission with the help of the American Civil Liberties Union (ACLU), and have prevailed in their case ever since.
In December 2013, Judge Robert Spencer sided with the ACLU, contending that Phillips should have made the cake because he was not told that there would be any words or symbols written on it.
“Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage,” he wrote. “The act of preparing a cake is simply not ‘speech’ warranting First Amendment protection.”
In May 2014, the Colorado Civil Rights Commission upheld Spencer’s ruling, stating that Phillips violated the state’s civil rights law. The Commission then ordered that Phillips educate his staff in alignment with the Colorado Anti-Discrimination Act, to implement new policies in light of the ruling, and to file quarterly compliance reports for two years. The reports were to outline each pastry creation request that was declined and the reason why to prove that Phillips’ religious beliefs no longer influence his business decisions.
Phillips filed an appeal with the Colorado Court of Appeals, which upheld the lower court’s rulings in August 2015, asserting that providing the cake for the ceremony does not equal an endorsement of same-sex nuptials.
“Nothing in the record supports the conclusion that a reasonable observer would interpret Masterpiece’s providing a wedding cake for a same-sex couple as an endorsement of same-sex marriage rather than a reflection of its desire to conduct business in accordance with Colorado’s public accommodations law,” the court ruled.
The matter was appealed to the Colorado Supreme Court, which declined to hear the case last year. Therefore, Phillips took his case to the nation’s highest court, which agreed in June to be the arbiter of the issue.
In addition to the U.S. Department of Justice, 20 states and over 80 members of Congress have joined in amicus briefs supporting Phillips’ religious rights. Over 500 creative professionals have also filed a joint brief stating that those who engage in artistic expression should be free from compelled speech.
“Artistic speech, whether expressed through painting a picture, taking a photograph, or designing a cake, is constitutionally protected and should be treated as such,” they explained. “The expression should neither be silenced nor coerced. Though the concern is currently most pressing in the same-sex wedding context, it is not so limited. Creative professionals of all stripes stand to suffer from undue compulsion, depending on how this court rules here.”