U.S. Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ ALM

U.S. Solicitor General Noel Francisco will make the government’s arguments in the U.S. Supreme Court in December in support of a Colorado baker who refused on religious grounds to bake a wedding cake for a same-sex couple.

Francisco submitted a motion for argument time to the high court on Wednesday in Masterpiece Cakeshop v. Colorado Commission on Civil Rights. The justices rarely reject such motions by the government. A U.S. Justice Department spokesperson confirmed that Francisco would argue the case. The argument is scheduled for Dec. 5.

In September, acting Solicitor General Jeffrey Wall filed an amicus brief supporting the baker, Jack Phillips, who creates and sells custom cakes and other baked goods. The government argued the First Amendment’s free speech clause bars the application of Colorado’s anti-discrimination public accommodations law to Phillips.

The National Law Journal reported in September that the Justice Department was internally divided over whether to participate at all in the case. U.S. Attorney General Jeff Sessions, overcoming objections, directed the filing of the amicus brief, according to lawyers with knowledge of the decision. The Justice Department has disputed the existence of any controversy.

In its motion for argument time, Francisco told the justices: “As a general matter, the United States has a substantial interest in the preservation of federal constitutional rights of free expression. In addition, the United States has a particular interest in the scope of such rights in the context of the Colorado statute here, which shares certain features with federal public accommodations laws, including Title II of the Civil Rights Act of 1964, and Title III of the Americans with Disabilities Act of 1990.”

Francisco said the United States is “well positioned” to reconcile content-neutral public accommodations laws with federal speech and expression guarantees. The government has asked for 10 minutes of the 30 minutes given to argument by the baker’s counsel, Kristen Waggoner of Alliance Defending Freedom.

A request for equally divided argument also has been filed in the high court by the other side of the case. Colorado Solicitor General Fred Yarger would argue on behalf of the Colorado Civil Rights Commission. Charlie Craig and David Mullins, the couple whose cake request was rejected, are represented by the American Civil Liberties Union, which has yet to decide who would share the podium time, a spokesman said. The ACLU’s Ria Tabacco Mar is listed as counsel of record on the couple’s high court brief.

Francisco joined the Justice Department in January from Jones Day, where he had been an appellate partner with experience arguing in the Supreme Court.

In private practice, Francisco had discussed publicly the need for conservative groups to find “sympathetic plaintiffs” in the mold of Phillips to build strong cases.

U.S. senators during the confirmation process questioned Francisco about his remarks at a Heritage Foundation event in which he spotlighted the plaintiffs in big social cases against the Obama administration. He noted plaintiffs challenging the Affordable Care Act included a group of nuns, Catholic Charities and “inner city” Catholic schools.

“On marriage,” Francisco said in the Heritage speech, “[we] need to do the same. Focus on the florist, on the baker, the sincere small businessmen under attack.”

Read more:

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The U.S. Justice Department’s request for argument time is posted below:

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