On Thursday, September 7, the administration of President Donald Trump formally involved itself in ongoing litigation over a wedding cake for a gay couple: or (if you prefer) litigation over the free speech rights of a baker who refused to sell such a cake.

That afternoon, the Department of Justice filed an amicus brief with the U.S. Supreme Court in the case of Masterpiece Cakeshop v. Civil Rights Commission.

The underlying facts are these: in 2012, two gay men in Colorado asked Jack Phillips, the owner of the Masterpiece Cakeshop, to bake a cake for their wedding. Phillips refused, expressly saying that he did so because he does not believe in homosexual marriages. The two grooms complained to their state’s Civil Rights Commission, and it ordered Phillips to stop discriminating against gays. He responded by bringing this lawsuit, alleging that the regulatory action violated his first amendment rights — both under  the freedom of speech and the free exercise of religion clause.

A related argument often made in analogous cases (not emphasized by either side in this one, though) is that a religious individual or entity ought to be exempt from the operation of a coercive statute regardless of the proper interpretation of the first amendment, because of the Religious Freedom Restoration Act (RFRA) of 1993.

Phillips lost in the state courts, but now he has the matter before the U.S. Supreme Court, which may have taken the case on the premise that it ought to clarify the reasoning it set out in one of its big Obamacare cases, the Hobby Lobby case of 2014. In that case, the high court used the RFRA to carve out an exemption from the general rule that closely held corporations, like other employers, must provide health insurance for their employees, including insurance that covers the use of FDA approved contraceptives by female employees. A closely held corporation was found to be exempt from that rule. because (in the words of the majority opinion), “Our responsibility is to enforce the RFRA as written, and under the standard that RFRA prescribes, the [Health and Human Services] contraceptive mandate is unlawful.”

Right Wing View

Legal arguments on behalf of Jack Phillips appear stronger if cake baking and decoration can be treated as an artistic and thus a highly expressive activity. Accordingly, a lawyer at the right-wing Alliance Defending Freedom has said that artistic liberty is precisely what this case is about. “Every American should be free to choose which art they will create and which art they won’t create without fear of being unjustly punished by the government,” he said.

But the rightward enthusiasm for Jack Phillips’ cause goes beyond the notion that it validates the artistry of bakers. After all, Hobby Lobby was and is a retailer, one that did NOT create the products it sold, and that had no analogous claim to artistic stature.

David French, writing for National Review, made the broader rightist points on this case. First, the baker wasn’t engaged in “status” discrimination, that is, discrimination against gay people, at all. He was discriminating on the basis of a message, the message of approval of gay marriage, one that any such cake would convey. The rightists agree with Phillips’ antipathy toward that message, so it is unsurprising that they believe he has a right to act on that antipathy, but in principle someone who disagrees with the antipathy should also embrace the existence of such a right.

One might also consider the hypothetical posited by Dr. John Eastman of Chapman University: consider if a black man running a back shop were asked to bake and decorate a cake celebrating the Ku Klux Klan. The notion that such a demand “doesn’t implicate free speech rights [of the baker]” would have people “howling,” Eastman said.

Left Wing View

On the other side, Mark Joseph Stern, writing in Slate, recently described the Department of Justice’s amicus brief in this matter as both cynical and embarrassing. It is cynical, in his view because the attorneys involved in preparing it could not possibly have believed their own arguments: they must simply have been pandering to the Trumpian base. It is embarrassing to anyone who cares about the practice of law as a craft because in doing so they have dressed their pandering up in “inane legalese.”

The case has given German Lopez, of Vox, the chance to make the point that most states, in contrast to Colorado, do not have laws in place that protect gays from discrimination by private businesses. In most states, then, a person “can be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity.” That is a situation that Lopez laments, and he would not want a reversion to that situation in such states, as Colorado, which are exceptions.

Back in June, writing in The New Republic, Stephanie Russell-Kraft said that the Supreme Court has been allowing religious groups to “have their cake and eat it too,” certainly a pertinent cliche given literal significance in this case.

She sees the baker’s demands as a request for “special treatment,” and the plausibility of his case in the present environment is proof that neutrality as to religion has turned into preference for religion in the U.S. courts.

We might well give the last word and the last link to Conor Friedersdorf, who wrote in The Atlantic that the very idea that Jesus Christ would want people to boycott weddings in order to express their Faith in Him is absurd, “obviously wrong;” they would be acting contrary to the Spirit of His teachings.