October 30, 2017

ABA urges Supreme Court to uphold long-standing civil rights principles in gay wedding cake case

CHICAGO, Oct. 30, 2017 — The American Bar Association filed an amicus brief today, asking the U.S. Supreme Court to affirm a Colorado court decision that the state could constitutionally apply its public accommodations law to bar a bakeshop from refusing to sell wedding cakes to same-sex couples.

The widely watched case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, pits half-century civil rights principles dating back to the U.S. Civil Rights Act of 1964 against arguments that the Colorado and similar public accommodations statutes violate, as applied, individual liberties, including artistic freedom and religious rights under the First Amendment. The Trump administration has filed a brief siding with the plaintiff, the owner of a cake shop based in Lakewood, Colo.

The ABA amicus brief, in support of the Colorado Civil Rights Commission, was prepared on pro bono basis by the law firm of Munger, Tolles & Olson LLP and supervised by partner Donald B. Verrilli Jr., a former U.S. solicitor general during the Obama administration. The brief traces a half century of federal civil rights laws and Supreme Court decisions involving marriage equality for interracial and same-sex couples, particularly focusing on public accommodations. The brief, for instance, cited the high court’s Heart of Atlanta Motel decision (1964) that required private businesses to abide by the Civil Rights Act of 1964 and noted that the court in the past rejected opposition to the act based on religious rights and freedom of association grounds.

“There is … no principled basis for drawing a bright-line rule privileging opposition to same-sex marriage while disapproving opposition to interracial marriage,” the ABA brief said, referring to the 1967 Supreme Court decision in Loving v. Virginia, which struck down bans on interracial marriage. “The sincerity of the beliefs is certainly no ground for distinction: Many segregationists sincerely believed that white supremacy was religiously ordained and that marriages between persons of different races violated God’s plan.”

The brief also emphasizes the concept of “equal dignity under the law,” a prevalent theme in the majority opinion of Justice Anthony Kennedy in the landmark 2015 court decision extending to same-sex couples the constitutional right to get married.

“The (Trump administration) asks this court to privilege opposition to marriage by same-sex couples over the right itself,” the ABA brief said in its conclusion. “Doing so would effectively hold that this court’s decisions in Lawrence, Windsor and Obergefell are due less constitutional respect than Heart of Atlanta and Loving. This court should reject the government’s baseless attempt to consign gays and lesbians to second-class status under anti-discrimination laws.”

Oral arguments before the U.S. Supreme court are scheduled for Dec. 5. The ABA amicus brief in Masterpiece Cakeshop, Ltd, v. Colorado Civil Rights Commission can be found here.   

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