Civil Rights

ABA urges SCOTUS to rule against baker who refused to make wedding cake for gay couple

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Jack Phillips

Jack Phillips is a devout Christian who won’t make cakes for some celebrations. AP Photo

The ABA has filed an amicus brief supporting a gay couple and the Colorado Civil Rights Commission in their case against a Christian baker who refused to make a wedding cake for the couple. The ABA brief, filed Monday, urges the Supreme Court to rule that Colorado can constitutionally apply its public accommodations law to the baker and other commercial enterprises, according to a press release.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The baker, Jack Phillips, contends that applying the law to him violates his rights of free exercise and free speech under the First Amendment. The U.S. Justice Department has supported the baker in a brief that argues he can’t be forced to make a cake that violates his sincerely held religious beliefs. The ABA opposes those arguments.

The ABA says the court should “reject petitioners’ request for a constitutional exemption to public accommodations laws, just as it did a half-century ago when business owners sought similar exemptions from laws prohibiting race discrimination.” Many segregationists sincerely believed that white supremacy was religiously ordained, the ABA brief (PDF) says.

Recognizing a First Amendment exemption to the public accommodations law “would permit virtually any business to assert a First Amendment right to treat any group of persons as second-class citizens unworthy of full participation in the life of the community,” the ABA brief argues. “Many business activities—from serving meals to seating patrons to providing legal advice and counseling—can be recast as expressive in nature.”

Allowing such an exemption would “permit asserted expressive rights to eviscerate anti-discrimination laws,” the ABA brief says.

The ABA brief also counters a Justice Department argument that opposition to gay marriage is held in good faith by reasonable and sincere people. “But the ‘reasonableness’ or ‘decency’ of particular beliefs is not a sound basis for deciding whether anti-discrimination laws may be enforced in a particular case,” the ABA brief says.

Munger, Tolles & Olson prepared the brief for the ABA on a pro bono basis. The brief was supervised by law firm partner Donald Verrilli Jr., a former U.S. solicitor general during the Obama administration.

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