Trump's DOJ Sides With the Baker In Upcoming 'Gay Wedding Cake' SCOTUS Case

P. Gardner Goldsmith | September 8, 2017


I may disagree with numerous Trump administration policies, but this is a positive move – and one which will undoubtedly receive the umbrage of thousands of Social Justice Warriors and the pop press.

Yesterday, the Justice Department filed an argument in favor of Jack Phillips, a baker based in Lakewood, Colorado. Mr. Phillips was found guilty by the state of Colorado of “discrimination” for refusing to bake a cake for a gay wedding in 2012. Phillips had argued, rightly so, that the state law punishing people for “discrimination” was unconstitutional.

President Trump's Justice Department agrees.

But, as Scott Shackford points out for Reason, the administration is not arguing that the Colorado law is an unconstitutional breach of the freedom of association – which it is, of course, because the freedom to associate connotes the freedom to not associate.

Instead, the Trump team is arguing, along with Phillips' attorneys, that the Colorado statute is an infringement on his First Amendment-protected rights to speech and the free practice of his religion.

Phillips incorporates his religious views into his work. Gay marriage is not approved in his religion, so he, and the DOJ, are arguing that the Colorado law mandating he bake a cake for a ceremony he religiously objects to breaches his right to practice his faith.

Shackford offers a very clear explanation of the administration’s position. The DOJ is not trying to strike down the entire set of “public accommodations” laws in Colorado and the U.S. (though they should, and the U.S. Supreme Court, if its members bothered to acknowledge the right to self-ownership and private property, would also acknowledge that the laws are unjust). They are only focusing on the portion of the Venn Diagram where the law and this man’s religious rights overlap or conflict.

(T)he 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.

Their argument may win, simply because the religious issue at the heart of this whole debacle is such a sensitive and obvious one.

But, logically and ethically, keen observers might want to consider whether religious preferences and beliefs should carry any more gravitas than any other reason someone might not want to engage in labor for someone else.

For example, if a vegan works as a carpenter, and the owner of a slaughter shack asks him or her for labor services, should not the vegan be able to decline the order?

Shouldn’t anyone be able to decline the offer of employment for any reason? Otherwise, are we not all potential slaves? What if the actual amount of compensation for a service isn’t acceptable to us? Can we not decline, or would that be “discriminatory” against the potential customer who couldn’t, or wouldn’t, pay us what we asked?

Mandating association is enslavement, plain and simple. Whether people think these kinds of government mandates make a “better world” or not, such rationales never, ever justify threats of violence against our neighbors simply because they ask to be left alone. The way we find out if people are truly prejudiced, biased or hateful is by letting them show their true colors without threats by statute. Only then can we know, and we can go elsewhere to a person who will rise in the market based on his or her openness.

This case will be heard in the upcoming Supreme Court session. All supporters of freedom can do is hope that the “justices” vote the right way.