ACLU, Colorado file briefs for gay couple in Masterpiece Cakeshop case

By : Chris Johnson of the Washington Blade, courtesy of the National LGBT Media Association
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Lawyers advocating for the gay couple who insist they should be able to purchase a wedding cake from a baker under Colorado law — whether the baker has religious objections or not — fired their opening salvo before the U.S. Supreme Court on Monday.

In the Masterpiece Cakeshop case, a pair of opening briefs was submitted by Colorado Civil Rights Commission, which argues the court should uphold lower court decisions for Colorado’s Anti-Discrimination Law, and the American Civil Liberties Union, which is representing the same-sex couple in the lawsuit, Charlie Craig and David Mullins.

Both briefs argue the Supreme Court should reject the claim by Jack Phillips, the Christian baker who owns Masterpiece Cakeshop and says can he refuse a wedding cake to same-sex couples because the making of the cake is inherently an act of expression protected under the First Amendment.

The 70-page brief from the ACLU makes the case Phillip cannot be free to discriminate on the basis of his religious views because the Colorado non-discrimination law is generally applicable to all businesses.

“The bakery is not the first business to claim a First Amendment right to violate an anti-discrimination law because of its sincerely held religious or moral beliefs,” the brief says. “This court has never accepted that premise, and has, instead, affirmed repeatedly the government’s ability to prohibit discriminatory conduct over the freedom of expression, association, and religion objections of entities ranging from law firms, and labor unions; to private schools, and universities; to membership organizations open to the public; to restaurants, and newspapers. Retail bakeries should fare no differently.”

The brief also argues a ruling in favor of Masterpiece Cakeshop would lead to a slippery-slope of discrimination other than against same-sex couples and in capacities other than wedding cakes.

“If the First Amendment bars a state from applying an anti-discrimination law to the sale of wedding cakes because they involve artistry, then bakeries could refuse to provide cakes for an interracial or interfaith couple’s wedding, a Jewish boy’s bar mitzvah, an African-American child’s birthday, or a woman’s business school graduation party,” the brief says.

Mark Silverstein, legal director for the ACLU of Colorado, said in a statement a ruling in upholding Colorado’s non-discrimination law is essential.

“As a nation and as a state, we decided decades ago that businesses that are open to the public should be open to everyone on the same terms,” Silverstein said. “A ruling allowing discrimination in this case would have implications far beyond LGBT people. It would put in jeopardy longstanding protections against discrimination here in Colorado and across the country.”

The other 75-page brief filed by Colorado Civil Rights Commission, which determined Phillips violated the state law, asserts state laws like Colorado’s have prohibited discrimination in the United States for more than 150 years.

“Phillips demands respect for his religious beliefs, and that respect is secured by the Constitution,” the brief says. “But under that same Constitution, a religious belief is no justification for a State — or a business open to the general public — to treat a class of people as inferior simply because of who they are.”

Oral arguments will be held in the case on Dec. 5.

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