A three-judge panel of the Colorado Appeals Court ruled in 2015 Christian bakers cannot refuse to bake wedding cakes for same-sex couples, regardless of their own religious beliefs.
The ruling was against Jack C. Phillips, owner of Masterpiece Cakeshop in the Denver area. Phillips refused to bake the cake in 2012 — marriage licenses were not issued to same-sex couples in Colorado until 2014.
The U.S. Supreme Court announced in June it will hear the case against Phillips.
As reported by CNN on Friday, the Department of Justice has filed a friend-of-the-court brief with the court, urging it to side with Phillips.
In the brief, Acting Solicitor General Jeff Wall compared forcing Phillips to bake a cake with several other examples:
Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.
The government may not enact content-based laws commanding a speaker to engage in protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.
Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said while the Justice Department’s filing of an amicus brief isn’t unusual, the “substance” of this one is:
“It’s not unusual for the federal government to file an amicus brief in such an important constitutional case. What makes this brief unusual is its substance.
It’s practically unheard of for the Justice Department to argue in favor of a constitutional exemption to antidiscrimination laws — a constitutional right to discriminate. But that’s exactly what this brief is doing.”
In a 2014 “religious liberty” case, the Supreme Court ruled in favor of the Christian owners of Hobby Lobby, saying the Affordable Care Act provision requiring family-owned companies to pay for contraception violated a federal law protecting religious freedom.
Oral arguments in the case will likely be held during the court’s fall term.