Report: Justice Department Divided Internally Over SCOTUS Religious Freedom Dispute

REUTERS/Denis Balibouse

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Kevin Daley Supreme Court correspondent
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Career officials at the Department of Justice are reportedly divided over the administration’s decision to intervene in a case at the Supreme Court in favor of a religious dissenter who declined to bake a wedding cake for a gay couple.

The U.S. Department of Justice (DOJ) filed an amicus (or “friend-of-the-court”) brief supporting a Christian baker in Colorado who declined to create a wedding cake with a pro-LGBT message for a gay couple planning their nuptials. The baker, Jack Phillips, was sanctioned by the Colorado Civil Rights Commission for violating the state’s public accommodations law, which prohibits discrimination against certain protected classes in commercial transactions. The DOJ filed a brief in early September arguing that the state is coercing Phillips into creating expression with which he disagrees, in violation of the First Amendment.

Unnamed sources told Marcia Coyle of the National Law Journal that senior lawyers in the DOJ’s civil and civil rights divisions urged the solicitor general, who represents the government before the Supreme Court, not to take a position in the case unless the justices solicit the DOJ’s views. Coyle notes that no career lawyers in the solicitor general’s office appear on the brief, as is usually the case when the Department files a brief at the Court.

In the brief, the Department says that the high court has consistently ruled in favor of free expression where speech and general laws regulating conduct collide, and that requiring Phillips to create such expression intrudes upon his First Amendment rights.

“A custom wedding cake is a form of expression, whether pure speech or the product of expressive conduct,” the brief reads. “It is an artistic creation that is both subjectively intended and objectively perceived as a celebratory symbol of a marriage.”

“Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” it adds.

The brief also emphasizes that its arguments could not be leveraged in a challenge to an anti-discrimination law like the Civil Rights Act, which prohibits race and sex discrimination in the workplace, private businesses, and public spaces.

A DOJ spokesperson denied that the Department was divided over the decision.

“Your information isn’t accurate. The Department has filed a powerful and well-reasoned brief, which was signed by political leadership and career attorneys in all three components,” a DOJ spokesperson said. “The Civil Rights Division, Civil Division, and Solicitor General’s Office all agreed on filing the brief.”

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