Yesterday, the U.S. Department of Justice told the Supreme Court that a Colorado bakery has a constitutional right to refuse to sell a cake to a same-sex couple for their wedding. You read that right—the Trump administration thinks there’s a constitutional right to discriminate.
In 2015, a Colorado state court said that the bakery violated Colorado’s nondiscrimination law—which bars discrimination on the basis of sexual orientation—and that requiring the bakery to follow the law did not violate its or its owner’s rights of free speech or free exercise of religion. That’s because religious freedom is about fairness. And it’s not fair for a business to use religion as an excuse to turn away a same-sex couple who wants to purchase the goods sold there.
But the Justice Department argues otherwise in a friend-of-the-court brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which the Supreme Court has agreed to hear in its upcoming term. The brief does not discuss the bakery’s arguments about free exercise of religion, perhaps because the Justice Department knows there is no good argument to be made. Instead, the Justice Department claims that, when a bakery bakes a cake, that cake communicates a message worthy of free-speech protections. Let’s get one thing straight—a cake doesn’t communicate anything. It is no more expressive than a loaf of bread, a batch of brownies, or a vegetable lasagna. And the Justice Department’s argument would essentially license any wedding business—from the flower shop to the photography studio to the caterer—to ignore nondiscrimination laws and treat same-sex couples differently than opposite-sex couples.
Religious freedom is a fundamental American value. For many, finding a partner and getting married are also fundamental parts of the American dream. Our country can and should deliver both. And that’s why Americans United will be filing a brief in this case in support of the couple who faced discrimination.