Here (it was in the original post but pasting it here, too)
After this happened yesterday, the ACLU published this opinion by James Esseks:
President Trump and Attorney General Sessions Want to Enshrine a Business Right to Discriminate Into the Constitution
Thank you. I did look at that, but then I thought it must not be what you were talking about.
Frankly, the article begins somewhat deceptively, asserting: "Can businesses put up a sign that says, “We Don’t Sell To Gays?” President Trump says yes." The Court will undoubtedly not reach any issue about displaying signs--even though, as James Esseks is well aware, CADA does prohibit the display or dissemination of notices that a business will violate the law.
But Esseks eventually does make a couple of important points:
But consider what a ruling for the bakery could mean here — constitutional protection for discrimination based on freedom of religion or expression. That’s breathtaking in its scope and consequences. It would mean that a florist could refuse to sell flowers for the funeral of an interfaith couple, a dance studio could turn away the children of an interracial couple, an architect could put up a sign saying, “No Jews,” a doctor could turn away transgender people altogether. And each and every law that makes discrimination illegal would be overridden by the constitutional right to discriminate.
In fact, the consequences go far beyond nondiscrimination laws.
If any business has a constitutional right to express its views or its religion by refusing to comply with a nondiscrimination law, it could defy other government rules as well. Businesses could refuse to follow food safety rules because they want to express themselves through their refusal. Or a company could flout consumer protection regulations because they are inconsistent with its religious beliefs.
I do hope the ACLU includes and expands upon those points in its
amicus brief, which it surely will file. The ACLU hasn't filed one yet.
The DOJ's
amicus brief is highly unusual in arguing for a petitioner who is challenging the constitutionality of a very common type of public accommodations law. I doubt that any such thing has ever happened before. But it isn't going to change anyone's mind on the Court. The brief doesn't make good arguments -- in fact, a couple of times it gives reason to reject it's own argument. The purpose of its primary argument is to try to negate the fact that
Smith is the controlling case law, which does not apply strict scrutiny. Justices Kennedy and Roberts won't be going there.
I don't think I'm explaining myself well. I'll try again.
You might not think of decorating a cake as creative expression - it's certainly not high art - but let's say it is. It's a canvas, it gets decorated in a unique way that the decorator does it - so it's creative art.
I agree that it is a legal requirement to sell cakes to people who ask for them << not creative/expression
But how is it a legal requirement to create a design for something I disagree with?
So, if Craig's mother had walked into the store and asked for a white sheet cake decorated with purple and yellow flowers and little else, no writing or other images on it, what is that Phillips would disagree with? How would that impinge on his artistic expression? I feel certain we agree that it wouldn't.
Yet, when Phillips refused Craig and Mullins service, for all he knew that's all they wanted. And for all we know, that's the kind of cake they eventually got. That's why Phillips' claim of compelled expressive activity is fallacious. The facts of the case demonstrate that Phillips' reason for refusing service to Craig and Mullins was not because they wanted him to create a piece of artwork that offended his religion. He refused them service for no other reason than that the were a same-sex couple who were getting married and wanted a cake. And that is an odious violation of the law.
