Jack Phillips of Lakewood, Colorado, is a Christian baker. And like several Christian small business owners, Phillips is facing a civil rights lawsuit for refusing to provide his services for a same-sex wedding. The state of Colorado's civil rights commission said that Phillips's refusal to bake a wedding cake violated what is known as "public accommodations law," and that he had discriminated against Charlie Craig and David Mullins based on their sexual orientation.
As the Supreme Court is set to hear Phillips's case in the coming months, President Trump's Department of Justice (DOJ) has taken the side of the Colorado baker. The DOJ has filed a brief with the Supreme Court explaining why the Colorado Court of Appeals' ruling should change.
The DOJ's argument against the lower court's decision is that baking a cake is considered an "expressive activity." Meaning, there is a message, whether verbal or non-verbal, in the activity itself, and because a message is present, the state cannot compel an individual to express themselves in a particular manner. For example, Phillips should not be forced to write a message he does not agree with on a cake, and he should not be compelled to make a cake for an event he disagrees with as it would be as if he were participating in it or endorsing it.
The brief states:
A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.
The DOJ's position is not saying that Phillips has the right to deny service to whomever he wants, but that he has the right not to perform an "expressive activity." The brief illustrates the distinction between a non-expressive activity and an "expressive activity":
If, for example, a hotel is forced to provide a table and chairs-or, as in FAIR, a room-it acts as a mere conduit to effectuate another's expression. As a result, provision of that good or service does not suggest to a reasonable observer that the provider supports the ceremony or event at which the good or service is used. The opposite, however, is true of a musician hired to perform a love song at a wedding ceremony. His personalized contribution would reasonably be perceived as a signal that, at a minimum, he does not oppose the marriage. After all, he offers his service at the wedding itself; he blends his artistic vision with any guidance that the couple has offered; he creates the expression for use solely at this particular ceremony, channeling his creativity to that specific objective.
With the Supreme Court almost evenly split between conservative and liberal judges, predicting how the justices will rule is difficult. Justice Kennedy, who was rumored to be considering retirement over the summer, would most likely be the swing vote in this case. It is important to note that Justice Kennedy voted to legalize same-sex marriage nationwide in the 5-4 Obergefell v. Hodges decision in June 2015.