Dispiriting signal on discrimination

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.