The Trump administration has asked the Supreme Court for time to speak in Masterpiece Cakeshop v. Colorado Civil Rights Commission — the case of a baker who refused to sell a wedding cake to a same-sex couple — on the side of the baker. This follows an amicus brief filed by Trump’s Department of Justice defending Jack Phillips’ claim that he has a right to discriminate.
The new motion, filed Wednesday, asks the Supreme Court for time to speak during oral arguments in December alongside the Alliance Defending Freedom, the anti-LGBTQ hate group representing Phillips. The United States should have room to participate, it argues, because of its unique perspective on the application of the First Amendment:
As a general matter, the United States has a substantial interest in the preservation of federal constitutional rights of free expression. In addition, the United States has a particular interest in the scope of such rights in the context of the Colorado statute here, which shares certain features with federal public accommodations laws, including Title II of the Civil Rights Act of 1964 and Title III of the Americans with Disabilities Act of 1990.
The United States is thus well positioned to address the reconciliation of content-neutral public accommodations laws with federal constitutional freedoms of speech and expression. Participation by the United States in oral argument would therefore materially assist the Court in its consideration of this case.
The Department of Justice’s reference here to laws that protect against discrimination on the basis of race, disability, and other categories here is notable. Earlier this week, the ACLU, representing couple Charlie Craig and David Mullins, and the Colorado Civil Rights Commission, argued in their response briefs that if the Court ruled in Phillips’ favor, it would open the door to using “free expression” to justify all kinds of other forms of discrimination.
The Department’s brief defending Phillips outwardly argued that states like Colorado do not have the same impetus to protect against discrimination on the basis of sexual orientation as they do on the basis of race.
“The State has not advanced a sufficient state interest to override petitioners’ weighty First Amendment interest in declining to create the expression at issue here,” they argued. Referencing the Civil Rights Act and Americans with Disabilities Act suggests the Department intends to answer questions from the Court as to why anti-gay discrimination is okay but other forms of discrimination are not.
Conservative radio host Hugh Hewitt was one of the first to catch wind that the United States might be asking for time at the Supreme Court, and he asked Attorney General Jeff Sessions about it in an interview Thursday morning. Sessions did not confirm whether Solicitor General Noel Francisco would be the delivering the arguments, but said, “We feel strongly about that case.”
“We ought to be more respectful of people, really, on both sides, perhaps, to express themselves without always ending up in court,” Sessions said, adding that he believes the law, “if properly enforced… protects expression of religion.”
Sessions echoed those sentiments Thursday afternoon in remarks to the Heritage Foundation. Referring to the Department’s amicus brief, Sessions again stated his belief that nondiscrimination laws can be overruled by an individual’s religious beliefs.
“Although public-accommodations laws serve important purposes, they –like other laws — cannot be interpreted to undermine the individual freedoms that the First Amendment guarantees,” he said. “That includes the freedom not to create expression for ceremonies that violate one’s religious beliefs.”
Sessions has repeatedly stated that he is advocating for Phillips’ religious freedom, but the Department of Justice did not make any such arguments, focusing instead only on “free speech” as a justification for discrimination. This suggests Sessions is telling religious conservatives what they want to hear while the Department of Justice is using a different argument it thinks will be more compelling to the Court.
Either way, the Trump administration will now be standing up before the highest court in the land to contend that it’s unconstitutional to protect gay, lesbian, and bisexual people from discrimination.
Oral arguments in the case are December 5.
UPDATE: Sarah Isgur Flores, Director of Public Affairs at the Department of Justice, confirmed that Solicitor General Noel Francisco will deliver the United States’ arguments.