Congressional Dems File Brief Opposing Bakers in Gay Wedding Cake Case

Claim that baker's argument no different from those against protecting African Americans

Sen. Tammy Baldwin / Getty Images

More than 200 congressional Democrats joined an amici curiae brief Wednesday in support of the same-sex couple who sued a Colorado-based baker after he refused to bake a cake for their wedding.

Led by Sen. Tammy Baldwin (Wisc.) and Rep. Sean Patrick Maloney, the first openly gay New Yorker elected to Congress, the brief was joined by 36 Senators and 175 members of the House of Representatives. Among the notable signatories are Senate Minority Leader Chuck Schumer (N.Y.) and House Minority Leader Nancy Pelosi (Calif.).

"I support religious freedom and the freedom of full equality for every American. Our religious beliefs don't entitle any of us to discriminate against others and I don't believe that any American should face discrimination based on race, gender, or sexual orientation—whether it's at a bakery, a hotel, or a doctor's office," said Baldwin. "It is simply wrong to discriminate against any American based on who they are or who they love. If an individual has the ability to pay for a service and is not in violation of the law, they should not be turned away."

The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, concerns cakeshop owner Jack Phillips, who refused to sell a cake to Charlie Craig and David Mullins for the two men's wedding. In response, Craig and Mullins filed charges in front of the Colorado Civil Rights Commission, contending that their civil rights had been denied.

The case centers around Phillips's First Amendment rights to both freedom of worship and to freedom of expression: Phillips sees his work as art, and thinks that the obligation to make cakes independent of their use contravenes his expression rights. Craig and Mullins, meanwhile, contend that Phillips's denial of service to them violates their civil rights to not be turned away in public simply because of their sexual orientation.

The case has drawn attention as the latest to deal with rights for gay Americans—following 2012's United States v. Windsor and 2015's Obergefell v. Hodges—and for Americans who oppose same-sex marriage for religious or moral reasons.

Ruling in favor of Phillips would be contrary to the history of antidiscrimination legislation, and would permit unchecked discrimination while blocking legislators from intervening, the Democrats said.

"To allow the exemptions sought by Petitioners would effectively create a constitutional rule condoning broad-based discriminatory conduct while hamstringing Congress from enacting comprehensive nondiscrimination legislation in the future," they write.

Rather, they contend, the religious concerns of Phillips and others are overruled by a need to practice equal treatment, the "cost" of doing business in an equal society. The exemption that Phillips seeks is incompatible with existing non-discrimination law, regardless of how much he engages in "expressive" conduct.

"At a minimum, the obligation to recognize basic civil rights and practice equal treatment is at least the ‘cost' of doing business. Put simply, doing business in a society of equals necessitates equal treatments," they write.

The Democrats also claim that Masterpiece's argument is reminiscent of those made against passage of title II of the Civil Rights Act of 1964, which banned discrimination against African Americans in restaurants, shops, and other "places of public accommodation."

"The very reasons once cited for the pervasive exclusion of African Americans from places of public accommodation … could be cited in support of conduct invoking this exemption," they write.

Eleven Senate Democrats, as well as Democrat-aligned independent Sen. Angus King (Maine), did not join the brief. Sen. Bernie Sanders (I., Vt.) did sign on. Among those who did not join the brief are several Senators who face tough reelection battles in 2018: Sens. Joe Donnelly (Ind.), Claire McCaskill (Mo.), Jon Tester (Mont.), Heidi Heitkamp (N.D.), and Joe Manchin (W.Va.).

An amici brief from congressional Republicans, led by Sen. Ted Cruz (Texas) and Reps. Vicky Hartzler (Miss.) and Mike Johnson (La.), was filed in September in support of Phillips and Masterpiece.