Does anyone here contend that the persons who work on and decorate a cake for a certain event are personally participating in that event? No one here has suggested any such thing. I've never known a baker to inquire about the moral status of an event where the cake was to be served; I've never known a baker to suggest that by baking the requested cake s/he would be participating in that event. Have you?
Just to illustrate the sheer inanity of the DOJ's argument in its brief, it hinges on the claim that Phillips would have been participating in the wedding ceremony. Indeed, the brief quotes Phillips initial affidavit in noting that Phillips “believes that
to create a wedding cake celebrating a marriage that directly contradicts his religious convictions would be
'a personal endorsement and participation in [a] ceremony and relationship' that he does not condone.” (My underlining.) If Phillips ever overcomes this delusion, he will probably be disappointed to learn the Craig and Mullins never desired that he participate in either their ceremony or relationship.
The DOJ never gets around to explaining exactly how a baker who isn't invited to a wedding ceremony participates in the ceremony. What part does the absent baker play? No court has ever held that bakers or other vendors who are not present at an event are participants in the event, much less has any court ever held that such persons can assert Free Exercise or Free Speech rights on the basis of such a concept of participation.
Moreover, the DOJ brief is entirely disingenuous about the whole issue of Phillips somehow participating in the wedding “ceremony” (a term used nearly 20 times in 30 wide-margin pages). The wedding ceremony was to take place in Massachusetts--Colorado didn't recognize equal marriage rights for same-sex couples in 2012. The cake did not attend the ceremony. The cake was intended only for the later celebration in Colorado.
Again the DOJ's whole purpose in making these absurd statements about Phillips participating in the couple's ceremony and relationship is to argue for "heightened scrutiny" of Phillips' claim of compelled expressive activity. The DOJ never says exactly what standard of judicial review it is urging to the Court apply. Let's say the Court swallows the DOJ argument and decides to review the case under the strictest scrutiny, where the the law does not survive unless it achieves a compelling governmentall objective, is narrowly tailored so as not sweep up a lot of extraneous legal activity, and is the least restrictive sort of law.
In
Roberts v. US Jaycees (1984), the Court reviewed a case in which a couple of Minnesota chapters of the Jaycees sued the organization due to its rule that disallowed women to be regular members. The state chapters had been admitting women as regular members, and argued that to not do so would violation Minnesota's public accommodations law prohibiting sex discrimination. The national organization claimed that the First Amendment provided them with a right of association that allowed the organization to prohibit women as regular members. Here is what the Court said:
The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. E. g., Brown v. Socialist Workers '74 Campaign Committee, supra, at 91-92; Democratic Party of United States v. Wisconsin,450 U.S. 107, 124 (1981); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam); Cousins v. Wigoda, supra, at 489; American Party of Texas v. White, 415 U.S. 767, 780-781 (1974); NAACP v. Button, supra, at 438; Shelton v. Tucker, 364 U.S. 479, 486, 488 (1960). We are persuaded that Minnesota's compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members' associational freedoms.
On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to administer the statute on the basis of such constitutionally impressible criteria. See also infra, at 629-631. Nor does the Jaycees contend that the Act has been applied in this case for the purpose of hampering the organization's ability to express its views. Instead, as the Minnesota Supreme Court explained, the Act reflects the State's strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. See 305 N. W. 2d, at 766-768. That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order.
[. . .]
In any event, even if enforcement of the Act causes some incidental abridgment of the Jaycees' protected speech, that effect is no greater than is necessary to accomplish the State's legitimate purposes. As we have explained, acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent - wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection. Runyon v. McCrary, 427 U.S., at 175 -176. Compare NAACP v. Claiborne Hardware Co., 458 U.S., at 907 -909 (peaceful picketing), with id., at 916 (violence). In prohibiting such practices, the Minnesota Act therefore "responds precisely to the substantive problem which legitimately concerns" the State and abridges no more speech or associational freedom than is necessary to accomplish that purpose. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).
FindLaw's United States Supreme Court case and opinions.
Here the Court makes clear that the anti-discrimintation provisions of public accommodations law meet the requirements of strict scrutiny.
