Colorado Baker's Defense for Denying Service to Gay Couple 'Upends' First Amendment, Legal Experts Argue

BY DREW HOWARD

Top legal experts and scholars joined the ACLU in a teleconference today to discuss the exploitation of the First Amendment in the Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Legal experts from Yale, the University of Michigan and the ACLU are asserting that a Colorado baker who denied service to a gay couple in 2012 is twisting the First Amendment to justify discrimination. Plaintiffs Charlie Craig and Dave Mullins visited Masterpiece Cakeshop in Colorado to purchase a cake for their wedding reception, only to be turned away when the owner said he wouldn't make cakes for homosexual weddings.
The baker argues that he's entitled to turn away gay couples due to his personal beliefs, and that being compelled to endorse a homosexual wedding is a violation of his First Amendment rights. Today's teleconference speakers agreed there is no room for discrimination in a business that's open to the public.
Robert Post, Sterling professor of law at Yale Law School, said the baker's claim is so broad that it would undo anti-discrimination laws altogether.
"If you allow an exception then you would have to put limits on the kinds of anarchy it would unleash," Post said. "If I went around and claimed I could hit you because I'm expressing myself, I can make anything I do expressive. If that's a limit then the country becomes ungovernable."
Post added that such laws are content neutral, meaning they're applied across the board with no exemptions.
Floyd Abrams, attorney at Cahill Gordon & Reindel, said this is a clear case of overt discrimination on the baker's part.
"This could be different if the facts were different, but they aren't," Abrams said. "This is a rather straightforward situation in which there was overt discrimination due to the fact that it was a same sex marriage. The First Amendment cannot be used as a defense."
Abrams compared the case conceptually to an artist who offers to paint people at a gallery but refused to service black people. He argued that a win for the baker would allow instances like this as they one in the same, and effectively upend the First Amendment.
Samuel Bagenstos, professor of law at the University of Michigan Law School, reminded listeners that the Supreme Court has previously ruled against defenses similar to the baker's leading up to the Civil Rights Act of 1964.
"This case comes as a different kind of discrimination, but it's the same set of principles and arguments," Bagenstos said. "These arguments should be rejected for the same reasons, as businesses open to the public do not have the right to discriminate."
"The real harm here is the sting of humiliation, and having to wonder all the time if you be turned away," he added.
Prominent voices in business and the LGBT community have filed amicus briefs in support of Craig and Mullins leading up to their Supreme Court appearance. The list includes more than 35 national business leaders, hundreds of celebrity chefs and restaurateurs, more than 200 members of Congress, as well as civil rights leader John Lewis, among others.