DOJ seeks time to argue for anti-gay baker in Supreme Court case

The Justice Department under Attorney General Jeff Sessions is seeking time to argue before the Supreme Court on behalf of an anti-gay baker. (Photo by Gage Skidmore; courtesy Wikimedia Commons)

The U.S. Justice Department under U.S. Attorney General Jeff Sessions is seeking a time slot of 10 minutes before the U.S. Supreme Court to argue on behalf of a Colorado baker who wishes to refuse the sale of make wedding cakes for same-sex couples.

U.S. Solicitor General Noel Francisco filed the two-page request Wednesday before the Supreme Court in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The request says the Justice Department “has a substantial interest” in the case because the U.S. government has an interest in “the preservation of federal constitutional rights of free expression.”

Jack Phillips, the Colorado baker, bases the argument that he can defy Colorado’s non-discrimination law and refuse wedding cakes to same-sex couples based on the First Amendment right to freedom of expression.

The request also argues the U.S. government has an interest in the case because the scope of Colorado non-discrimination law, which bars anti-gay discrimination in public accommodations, is similar to Title II of the Civil Rights Act of 1964.

“The United States is thus well positioned to address the reconciliation of content-neutral public accommodations laws with federal constitutional freedoms of speech and expression,” the request says. “Participation by the United States in oral argument would therefore materially assist the Court in its consideration of this case.”

As noted in the request, the Justice Department has already filed a friend-of-the-court brief in the case arguing that baking a wedding cake is inherently an act of expression protected under the First Amendment. Therefore, the ability of a baker to deny a wedding cake to same-sex couples for religious reasons should trump any state non-discrimination law.

The case came about after Phillips refused to make a wedding cake for Charlie Craig and David Mullins, a Colorado same-sex couple, in 2012 for their wedding in Massachusetts. An administrative judge ruled in favor of the same-sex couple — a decision the Colorado Court of Appeals upheld in 2015.

Although the Colorado Supreme Court had declined to review these decisions and let them stand, the U.S. Supreme Court granted a writ of certiorari, or agreed to take up the case, in June.

Oral arguments are set for Dec. 5.

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