Department of Justice files amicus brief in gay marriage cake case

[Somerville]

The Department of Justice filed a brief on behalf of baker Jack Phillips, who was found to have violated the Colorado Anti-Discrimination Act when he refused to create a cake for the marriage of Charlie Craig and David Mullins in 2012. Phillips said it would violate his religious beliefs to bake wedding cakes for same-sex couples

The DoJ’s missive to the Supreme Court is not its finest work

LAST October, at a campaign event, Donald Trump proudly waved a rainbow flag a supporter had decorated with the words “LGBT for Trump”. If the image was puzzling then, it is jarring now. In his seven months in office, the 45th president has taken a number of steps to harm gay, lesbian, bisexual and transgender Americans. His Department of Justice (DoJ) recently argued, contrary to the position of the Equal Employment Opportunity Commission, that civil-rights laws do not protect gays and lesbians from being fired on the basis of their sexual orientation. He appointed a judge to Sixth Circuit Court of Appeals who has made homophobic comments and tosses around the word “faggot” in speeches. He withdrew an Obama-era policy instructing public schools to permit transgender students to use bathrooms matching their gender identity. And in July he said he planned to bar transgender soldiers from America’s military.

It is no great surprise, then, that Mr Trump’s DoJ has filed a brief in support of a Christian baker whose opposition to making wedding cakes for gay couples promises to be one of the biggest cases of the Supreme Court’s upcoming term, which begins October 2nd. The brief attempts to buttress Jack Phillips’ claim in Masterpiece Cakeshop v Colorado Civil Rights Commission that a Colorado public-accommodations law requiring him to serve gay and straight customers alike violates his First Amendment freedoms of speech and religion. A wedding cake is “not an ordinary baked good”, Jeffrey Wall, the acting solicitor general, writes. Its “function is more communicative and artistic than utilitarian”. Asking Mr Phillips to create a cake for a gay wedding is, the plaintiffs say, asking him to express ideas he opposes as a matter of faith. Louise Melling, deputy legal director of the American Civil Liberties Union, says the DoJ’s brief is, at bottom, support for “a constitutional right to discriminate”. The question in Masterpiece Cakeshop is “can a business that opens its doors to the public, put up a sign saying, ‘Wedding Cakes for Heterosexuals Only’. Our laws have long said businesses can't pick and choose who they will serve based on who the customer is”.

The last sentence in the article provides some clarity, I think, to the fallaciousness of the baker's refusal to bake a cake/

Mr Wall's, (the acting solicitor general) argument strangely recharacterises a religious conscience right as right not to have other people mistakenly attribute beliefs to you that you don’t have. That’s very far from what the First Amendment protects.

 

[Captain Adverse]

The Department of Justice filed a brief on behalf of baker Jack Phillips, who was found to have violated the Colorado Anti-Discrimination Act when he refused to create a cake for the marriage of Charlie Craig and David Mullins in 2012. Phillips said it would violate his religious beliefs to bake wedding cakes for same-sex couples

The last sentence in the article provides some clarity, I think, to the fallaciousness of the baker's refusal to bake a cake/

To discuss this issue we must first lay the foundation in law.

In 1964 Congress passed the Civil Rights Act, which prohibited discrimination in public accommodations on the basis of race, color, religion or national origin. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores. Nonprofit organizations such as churches are generally exempt from the law.

https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

The issue was challenged almost immediately and SCOTUS ruled in Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), that that the U.S. Congress could use the power granted to it by the Constitution's Commerce Clause to force private businesses to abide by the Civil Rights Act of 1964.

“We therefore conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years.”

https://www.law.cornell.edu/supremecourt/text/379/241

This protection was later extended to the disabled under the Americans with Disabilities Act of 1990. https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990

However, homosexual's are not a protected class listed under the Civil Rights Act, and as of yet SCOTUS has not ruled about such discrimination in their case.

Now it has agreed to hear a case that will determine such protection this year:

Masterpiece Cakeshop v. Colorado Civil Rights Commission is a pending case before the Supreme Court of the United States that will be heard in its 2017 term. The case centers on whether creative businesses can refuse service due to its First Amendment rights of free speech and free exercise of religion in light of public accommodation laws, in particular, by refusing to participate in same-sex marriage ceremonies on the basis of one's religious beliefs.

https://en.wikipedia.org/wiki/Masterpiece_Cakeshop_v._Colorado_Civil_Rights_Commission

The majority may hold that since there is no current Federal law listing sexual orientation as a protected class it is the purview of the Congress, and not the Court, to amend the law.

However, despite the current Court membership it is my hope (and belief) that they will decide such a refusal falls under the kind of prejudice-based reasoning that is prohibited under the Civil Rights Act of 1964.

Meanwhile, to address the OP point that the current Administration has filed an amicus brief supporting the right to refuse on the basis of religious belief, IMO that is just an example of the President honoring his word to the block of fundamentalist religious voters who were a key to his victory in November 2016. We know Pence supports the religious rights and so do several members of the cabinet including Sessions and Carson.

It is my opinion that this is the ONLY reason Mr. Trump is allowing this action. That he personally also hopes the Court will rule in favor of the gay couple.

If it does not, there is always the option of pushing Congress to amend the Civil Rights Act to include sexual orientation as a protected class. I would support any effort to accomplish this goal too.

 

[Bodi]

I love seeing the DOJ being used by the President as a personal attack dog... Obama set the standard but we see Trump using it too...

 

[wolfsgirl]

To discuss this issue we must first lay the foundation in law.

In 1964 Congress passed the Civil Rights Act, which prohibited discrimination in public accommodations on the basis of race, color, religion or national origin. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores. Nonprofit organizations such as churches are generally exempt from the law.

https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

The issue was challenged almost immediately and SCOTUS ruled in Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), that that the U.S. Congress could use the power granted to it by the Constitution's Commerce Clause to force private businesses to abide by the Civil Rights Act of 1964.

https://www.law.cornell.edu/supremecourt/text/379/241

This protection was later extended to the disabled under the Americans with Disabilities Act of 1990. https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990

However, homosexual's are not a protected class listed under the Civil Rights Act, and as of yet SCOTUS has not ruled about such discrimination in their case.

Now it has agreed to hear a case that will determine such protection this year:

https://en.wikipedia.org/wiki/Masterpiece_Cakeshop_v._Colorado_Civil_Rights_Commission

The majority may hold that since there is no current Federal law listing sexual orientation as a protected class it is the purview of the Congress, and not the Court, to amend the law.

However, despite the current Court membership it is my hope (and belief) that they will decide such a refusal falls under the kind of prejudice-based reasoning that is prohibited under the Civil Rights Act of 1964.

Meanwhile, to address the OP point that the current Administration has filed an amicus brief supporting the right to refuse on the basis of religious belief, IMO that is just an example of the President honoring his word to the block of fundamentalist religious voters who were a key to his victory in November 2016. We know Pence supports the religious rights and so do several members of the cabinet including Sessions and Carson.

It is my opinion that this is the ONLY reason Mr. Trump is allowing this action. That he personally also hopes the Court will rule in favor of the gay couple.

If it does not, there is always the option of pushing Congress to amend the Civil Rights Act to include sexual orientation as a protected class. I would support any effort to accomplish this goal too.

This case is not about federal law, it's about a state law. The baker is saying that his first amendment rights are violated by the public accommodation laws of CO. Per Employment div v Smith states can pass laws that are generally applicable and neutral. The law doesn't state that Christians must bake cakes for gays, it says that if you offer a good or service you can not discriminate based on the sexual orientation of the customer. This is a neutral and generally applicable law.

 

[Captain Adverse]

This case is not about federal law, it's about a state law. The baker is saying that his first amendment rights are violated by the public accommodation laws of CO. Per Employment div v Smith states can pass laws that are generally applicable and neutral. The law doesn't state that Christians must bake cakes for gays, it says that if you offer a good or service you can not discriminate based on the sexual orientation of the customer. This is a neutral and generally applicable law.

Federal law supersedes State law when the issue of the Constitutionality of the law is in question.

I am aware that in this case the challenge was raised by the plaintiffs because a State law forbids discrimination in public accommodations for a class not protected by Congress under it's commerce clause powers, thus allowing for a 1st Amendment religious rights challenge.

That the State's EEOC ruled they were a protected class under the State law and cannot be refused service, while the plaintiff is arguing that this is a violation of their First Amendment freedom of religion rights.

That is exactly why I posited this possible outcome:

...The majority may hold that since there is no current Federal law listing sexual orientation as a protected class it is the purview of the Congress, and not the Court, to amend the law.

Such a ruling would be key to an argument that absent such protection, the First Amendment allows for discrimination on the basis of religion when the request for accommodations is directly related to religiously-related "ceremonies."

This is something that was left vague in the landmark Obergefell v. Hodges, 576 U.S. 2015, which only said:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

https://supreme.justia.com/cases/federal/us/576/14-556/opinion3.html

The question has not been settled...may people discriminated on the basis of religious tenets when the issue involves participation in a religious ceremony.

 

[AGENT J]

This case is not about federal law, it's about a state law. The baker is saying that his first amendment rights are violated by the public accommodation laws of CO. Per Employment div v Smith states can pass laws that are generally applicable and neutral. The law doesn't state that Christians must bake cakes for gays, it says that if you offer a good or service you can not discriminate based on the sexual orientation of the customer. This is a neutral and generally applicable law.

Common sense at its finest.:thumbs:

 

[wolfsgirl]

Federal law supersedes State law when the issue of the Constitutionality of the law is in question.

I am aware that in this case the challenge was raised by the plaintiffs because a State law forbids discrimination in public accommodations for a class not protected by Congress under it's commerce clause powers, thus allowing for a 1st Amendment religious rights challenge.

That the State's EEOC ruled they were a protected class under the State law and cannot be refused service, while the plaintiff is arguing that this is a violation of their First Amendment freedom of religion rights.

That is exactly why I posited this possible outcome:



Such a ruling would be key to an argument that absent such protection, the First Amendment allows for discrimination on the basis of religion when the request for accommodations is directly related to religiously-related "ceremonies."

This is something that was left vague in the landmark Obergefell v. Hodges, 576 U.S. 2015, which only said:

https://supreme.justia.com/cases/federal/us/576/14-556/opinion3.html

The question has not been settled...may people discriminated on the basis of religious tenets when the issue involves participation in a religious ceremony.

Employment div v smith ruled that state unemployment law regarding peyote use was valid even if it was done for religious purposes.

Baking a cake is not a religious ceremony.

Honestly how far do we go in religious freedom? Do we allow anyone to claim religious exemption from any law? The Piggy park case was a claim of religious belief, and that didn't allow him to refuse seating blacks. The Bob Jones U case was a claim of religious belief, but did not allow them to discriminate against blacks. How is this case any different? The baker is claiminf his religious beliefs should allow him to violate the anti discrimination law of the state.

 

[Absentglare]

To discuss this issue we must first lay the foundation in law.

In 1964 Congress passed the Civil Rights Act, which prohibited discrimination in public accommodations on the basis of race, color, religion or national origin. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores. Nonprofit organizations such as churches are generally exempt from the law.

https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

The issue was challenged almost immediately and SCOTUS ruled in Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), that that the U.S. Congress could use the power granted to it by the Constitution's Commerce Clause to force private businesses to abide by the Civil Rights Act of 1964.

https://www.law.cornell.edu/supremecourt/text/379/241

This protection was later extended to the disabled under the Americans with Disabilities Act of 1990. https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990

However, homosexual's are not a protected class listed under the Civil Rights Act, and as of yet SCOTUS has not ruled about such discrimination in their case.

Now it has agreed to hear a case that will determine such protection this year:

https://en.wikipedia.org/wiki/Masterpiece_Cakeshop_v._Colorado_Civil_Rights_Commission

The majority may hold that since there is no current Federal law listing sexual orientation as a protected class it is the purview of the Congress, and not the Court, to amend the law.

However, despite the current Court membership it is my hope (and belief) that they will decide such a refusal falls under the kind of prejudice-based reasoning that is prohibited under the Civil Rights Act of 1964.

Meanwhile, to address the OP point that the current Administration has filed an amicus brief supporting the right to refuse on the basis of religious belief, IMO that is just an example of the President honoring his word to the block of fundamentalist religious voters who were a key to his victory in November 2016. We know Pence supports the religious rights and so do several members of the cabinet including Sessions and Carson.

It is my opinion that this is the ONLY reason Mr. Trump is allowing this action. That he personally also hopes the Court will rule in favor of the gay couple.

If it does not, there is always the option of pushing Congress to amend the Civil Rights Act to include sexual orientation as a protected class. I would support any effort to accomplish this goal too.

There is no need to expand federally guaranteed rights in the context that the state secured such a right.

You seem to be arguing that the fourteenth amendment has no weight and the first amendment prevents any state from recognizing any other right.