In Wedding Cake Case, ABA Says DOJ's Stance Undermines Anti-Discrimination Laws

American Bar Association offices in Washington, DC. Credit: Diego M. Radzinschi

The American Bar Association on Monday urged the U.S. Supreme Court to reject what it called a “baseless attempt” by the Trump administration to relegate gays and lesbians to second-class status under the nation’s anti-discrimination laws.

The lawyers’ association, in an amicus brief filed in Masterpiece Cakeshop v. Colorado Civil Rights Commission, said the government’s legal argument—in support of a baker who refused services to a gay couple—”threatens to cripple the effectiveness of the federal public accommodations laws that the Department of Justice is charged with enforcing, as well as comparable state and local laws.”

Donald Verrilli Jr. of Munger Tolles. Credit: Diego M. Radzinschi/ ALM

The amicus brief was written by former Obama administration solicitor general Donald Verrilli Jr. of Munger, Tolles & Olson, and signed by ABA president Hilarie Bass, who is counsel of record.

In the high court case, the Colorado baker, Jack Phillips, refused on religious grounds to bake a wedding cake for a same-sex couple. He was charged with violating the state’s public accommodations law. The Justice Department filed an amicus brief in September in support of Phillips.

Phillips, represented by Alliance Defending Freedom, and the Justice Department contend that applying the state law to the baker violates the First Amendment free speech clause because the law unconstitutionally compels speech. “Just as the government may not compel the dissemination of expression, it equally may not compel the creation of expression,” wrote then-acting Solicitor General Jeffrey Wall in the government’s amicus brief. “Compelling a creative process is no less an intrusion—and perhaps is a greater one—on the ‘individual freedom of mind’ that the First Amendment protects.”

Accepting that argument, said the ABA brief, would create a “gaping hole that 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.”

Verrilli wrote in the ABA’s brief:

Recognizing such an exemption would invite myriad challenges to the enforcement of public accommodations laws, as much business activity can be characterized as expressive. More broadly, there would be no principled way to recognize only compelled-speech exemptions while rejecting claims for exemptions based on the free exercise of religion or the freedom of association.

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.

Former Jones Day partner Noel Francisco is scheduled to make his debut as U.S. solicitor general in the Masterpiece Cakeshop arguments on Dec. 5.

Phillips also argued that applying the public accommodations law to his decision not to make a wedding cake for a gay couple violates his free exercise of religion right. The Justice Department’s brief did not address that argument. The ABA’s amicus brief criticized the government for not addressing the free exercise claim.

“The court has long held that a claimed free-exercise right, without more, does not justify an exemption to generally applicable laws that incidentally burden the exercise of that right,” Verrilli wrote. Recognizing Phillips’ free exercise claim would “throw into doubt decades of jurisprudence. Remarkably, the government fails to even to address this risk, simply stating in a footnote that it declines to address the free exercise clause.”

More than 40 amicus briefs from religious and conservative organizations, legal scholars, members of Congress and others have been filed in support of Phillips.

Besides the ABA amicus brief, the same-sex couple at the center of the case has drawn support from 37 corporations such as Apple and Marriott, more than 1,500 faith leaders, 200 members of Congress, more than 150 mayors and celebrity chefs, among others.

Colorado Solicitor General Frederick Yarger represents the Colorado Civil Rights Commission.  Ria Tabacco Mar of the American Civil Liberties Union is counsel of record for the same-sex couple, Charlie Craig and David Mullins.

The ABA’s amicus brief is posted below: