William B. Turner
Multiple reports have emerged indicating that the Trump administration has filed an amicus brief in the Supreme Court case of a baker who has challenged a Colorado civil rights law that threatened him with a penalty for refusing to bake a cake for a same sex wedding.
Taking this position requires his lawyers to dance a complicated legal gavotte. The brief starts out gushing about how the baker is a Christian who runs his business in a way that reflects his religious faith. It then describes how he goes about creating custom cakes by consulting closely with the couple and “in some cases, he also interacts with people at the wedding itself.”
It then gets into the weeds of the admittedly somewhat complicated question of when regulation of conduct violates the First Amendment protection of free speech. Somewhat amusingly, there are two important cases involving LGBT civil rights claims that are obvious precedents, both of which the LGBT civil rights claimants lost, but which cut in opposite directions in the current instance.
One is Hurley v. Irish Gay, Lesbian, and Bisexual Group of Boston, where the Court found that requiring the organizers of a St. Patrick’s Day parade to include a group of lesbian, gay, and bisexual marchers explicitly as such in their parade under the state’s nondiscrimination law violated the free speech of the organizers under the principle that, for free speech, government can no more require anyone to speak than it can prevent them from speaking.
The other is Rumsfeld v. FAIR, where the Court held that Congress did not violate the free speech rights of law schools by threatening to cut off all federal funds to their universities if they failed to provide the same access to military job recruiters they provided to everyone else on the grounds that job recruiting is not expressive conduct and any fool can distinguish between the message of the recruiter and the message of the university even when, or especially when, they conflict.
The question, then, is whether the conduct in question is, to borrow a quotation from the brief, “inherently expressive.” The administration, then must argue that baking a cake is inherently expressive conduct. They also argue that, by providing a cake, the baker offers his “personal endorsement” of the marriage.
The brief ends by trying to distinguish between discrimination on the basis of race and discrimination on the basis of sexual orientation, which the law does in the United States because of historical factors even though both forms of discrimination are equally invalid as an abstract moral proposition.
While this is true of federal law as the Supreme Court has construed it, manifestly it is not true of Colorado state law, which, as quoted in the brief, treats discrimination on the basis of “race, creed, color…national origin, or ancestry” as exactly the same as discrimination on the basis of sexual orientation: “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
This puts the administration in the difficult position of figuring out how to carve its permission for the cake baker to discriminate in a way that would not also allow for racial discrimination under the rule it wants to craft. Lucky for them, they can fall back on the federal hostility toward racial discrimination, which is entirely justified:
That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race based discrimination may survive heightened First Amendment scrutiny. As the Court recently observed, “racial bias” is “a familiar and recurring evil” that poses “unique historical, constitutional, and institutional concerns.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017). As such, “eradicating racial discrimination” in the private sphere is the most “compelling” of interests. Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983). A State’s “fundamental, overriding interest” in eliminating private racial discrimination—conduct that “violates deeply and widely accepted views of elementary justice”—may justify even those applications of a public accommodations law that infringe on First Amendment freedoms. Id. at 592, 604.
The problem here, for anyone who sees that discrimination on the basis of sexual orientation is no more valid than discrimination on the basis of race, is that it essentially sets up conservative Christians as the ultimate arbiters of nondiscrimination law.
Whether they really believe it or not, even the most conservative Christians now usually pay lip service to the idea that racial discrimination is completely unacceptable. Presumably they reflect the overwhelming policy consensus in the United States that we deplore and wish to prohibit racial discrimination.
Again, although public policy has not caught up, still discrimination on the basis of sexual orientation is no more morally valid than is discrimination on the basis of race. Conservative Christians still disagree. They are, of course, free to believe as they wish. They are not, however, free to impose their sectarian moral prejudice on the Republic as a whole. The same Amendment that ensures their right to freedom of religious belief and practice also prohibits the adoption of any official religion in the United States, which would undoubtedly be the result of causing the law to follow the moral prejudices of conservative Christians.
The Trump administration, that is, wants to carve out special right for conservative Christians.