Dispir­it­ing sig­nal on dis­crim­i­na­tion

Business Day - - OPINION -

Should a Colorado baker have the right to turn away a gay cou­ple seek­ing a cus­tom wed­ding cake if he dis­ap­proves of their up­com­ing mar­riage? Ac­cord­ing to the US jus­tice de­part­ment, the an­swer is yes.

The Supreme Court will soon hear ar­gu­ments over the con­duct of this un­will­ing baker in Mas­ter­piece Cakeshop vs Colorado Civil Rights Com­mis­sion.

Though the fed­eral gov­ern­ment isn’t a party to the case, the jus­tice de­part­ment has made a point of weigh­ing in on the side of Jack Phillips, the “cake artist” whose re­li­gious op­po­si­tion to same-sex mar­riage led him to refuse to de­sign a cake for a gay cou­ple. (The pair even­tu­ally ob­tained a rain­bow-lay­ered cake.)

The de­part­ment’s le­gal brief has, rightly, faced crit­i­cism from civil rights groups ap­palled by the gov­ern­ment’s ar­gu­ment that Phillips’s re­li­gious be­liefs grant him a con­sti­tu­tional right to dis­crim­i­nate against gay cus­tomers, de­spite a Colorado pub­lic-ac­com­mo­da­tions law pro­hibit­ing un­equal treat­ment on the ba­sis of sex­ual ori­en­ta­tion.

In­deed, the brief is a dispir­it­ing sig­nal of at­tor­ney­gen­eral Jeff Ses­sions’s pri­or­i­ties. The gov­ern­ment went out of its way to side with Phillips, but it has been quiet on any num­ber of other sig­nif­i­cant cases be­fore the Supreme Court this term.

Be­cause Colorado lacks leg­is­la­tion rais­ing the stan­dard for state in­fringe­ment on re­li­gious be­lief — un­like many states and the fed­eral gov­ern­ment — Phillips is left with what’s likely a los­ing ar­gu­ment. That’s why both Phillips and the jus­tice de­part­ment fo­cus on the baker’s free­dom of ex­pres­sion, ar­gu­ing that craft­ing a cake for a same-sex wed­ding would force him to cel­e­brate a cer­e­mony of which he dis­ap­proves.

Phillips is pro­vid­ing a ser­vice to his cus­tomers for pay. While he does so, he should be sub­ject to an­tidis­crim­i­na­tion laws, like ev­ery other busi­ness. Wash­ing­ton, Septem­ber 13.

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