The Department of Justice backs a baker who refused to make a gay wedding cake

By S.M. | NEW YORK

LAST October, at a campaign event, Donald Trump proudly waved a rainbow flag a supporter had decorated with the words “LGBT for Trump”. If the image was puzzling then, it is jarring now. In his seven months in office, the 45th president has taken a number of steps to harm gay, lesbian, bisexual and transgender Americans. His Department of Justice (DoJ) recently argued, contrary to the position of the Equal Employment Opportunity Commission, that civil-rights laws do not protect gays and lesbians from being fired on the basis of their sexual orientation. He appointed a judge to Sixth Circuit Court of Appeals who has made homophobic comments and tosses around the word “faggot” in speeches. He withdrew an Obama-era policy instructing public schools to permit transgender students to use bathrooms matching their gender identity. And in July he said he planned to bar transgender soldiers from America’s military.

It is no great surprise, then, that Mr Trump’s DoJ has filed a brief in support of a Christian baker whose opposition to making wedding cakes for gay couples promises to be one of the biggest cases of the Supreme Court’s upcoming term, which begins October 2nd. The brief attempts to buttress Jack Phillips’ claim in Masterpiece Cakeshop v Colorado Civil Rights Commission that a Colorado public-accommodations law requiring him to serve gay and straight customers alike violates his First Amendment freedoms of speech and religion. A wedding cake is “not an ordinary baked good”, Jeffrey Wall, the acting solicitor general, writes. Its “function is more communicative and artistic than utilitarian”. Asking Mr Phillips to create a cake for a gay wedding is, the plaintiffs say, asking him to express ideas he opposes as a matter of faith. Louise Melling, deputy legal director of the American Civil Liberties Union, says the DoJ’s brief is, at bottom, support for “a constitutional right to discriminate”. The question in Masterpiece Cakeshop is “can a business that opens its doors to the public, put up a sign saying, ‘Wedding Cakes for Heterosexuals Only’. Our laws have long said businesses can't pick and choose who they will serve based on who the customer is”.