Trump-administration lawyers want Masterpiece Cakeshop owner Jack Phillips to know they’ve got his back. Few plain civilians will remember Phillips, who has run a small bakery in Denver’s suburbs for nearly 25 years, but there’s an excellent chance they remember the drama caused by his refusal to bake a wedding cake back in 2012: David Mullins and Charlie Craig wanted a cake for their reception, Phillips said their request conflicted with his Christian beliefs, they went elsewhere, and the state of Colorado eventually ruled that he’d broken its anti-discrimination laws. Phillips appealed, taking the case all the way to the Supreme Court, which declined 11 times to hear it, but then reversed course in June.
The Justice Department, now under an administration with different ideas about gay rights, yesterday filed a brief on Phillips’s behalf, agreeing that his pro fondant skills are free speech. “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” the DOJ’s acting solicitor general wrote. Various critics — at the ACLU and elsewhere — called it “nothing short of shocking” to openly side with Phillips, although not necessarily surprising given the administration’s record on other LGBTQ matters lately. So far, the courts have mostly disagreed that pastries are a form of self-expression, just like they’ve generally failed to recognize establishments’ rights to refuse business to customers simply for being gay. In Phillips’s case, the court said that “merely abiding by the law” doesn’t mean he supports same-sex marriage. Especially since he was making money selling wedding cakes, which made it about commerce, too, not just his First Amendment rights.
When the Supreme Court agreed to hear his case, Phillips put out a statement again defending his position:
I’ve always had to operate my cake shop in a manner that honors God. I gladly welcome and serve everyone who comes into my shop, and would sell anyone any pre-made baked goods. I’m closed on Sundays. I don’t take orders for cakes with messages or designs commemorating events or ideas in conflict with my beliefs, including messages that are anti-American, celebrate atheism, racism, or indecency.
He’s long maintained that publicity has been “devastating” for his business — he says Masterpiece’s sales have fallen about 40 percent since the controversy began, and his website no longer even takes custom wedding-cake orders.