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Conservative Legal Experts Agree: Bakers Can’t Discriminate Against Same-Sex Couples

First Amendment legal experts Eugene Volokh and Dale Carpenter join AUF brief supporting same-sex couple in Masterpiece case

Washington, D.C. (Oct. 27) – Conservative law professors Eugene Volokh and Dale Carpenter, both noted First Amendment experts, are joining American Unity Fund (AUF) in filing an amicus brief on behalf of the plaintiffs in the Masterpiece Cakeshop vs. Colorado Civil Rights Commission case. The plaintiffs are a same-sex couple who faced unlawful discrimination in Colorado when the owner of a local bakery refused to provide them with a cake for their civil wedding – despite Colorado’s existing statewide laws that protect gay people from discrimination in public places, including businesses.

In the brief, Volokh and Carpenter argue that there is no precedent for finding that baking a cake is an expressive act that should be protected by the First Amendment – an argument that echoes similar findings by both the Colorado Civil Rights Commission and the Colorado Supreme Court.

“The freedom of religion is one of our most cherished rights, and it’s accordingly protected in our Constitution, and in both state and federal laws,” said Margaret Hoover, President of American Unity Fund. “This case highlights the urgent need for lawmakers—not the courts—to strike the right balance between freedom and fairness for all Americans, regardless of religion, sexual orientation, or gender identity. The public square ought to be protected, without permitting any business to turn away their customers solely based on who they are.”

“There’s just no legal precedent to suggest that baking a cake, absent any written message or graphic symbolism, is an expressive activity,” said Dale Carpenter, a professor of Constitutional Law at SMU Dedman School of Law and AUF’s Senior Policy Advisor. “Put aside whatever your moral beliefs may be, the law is very clear on this issue: if you make a living baking cakes, the First Amendment does not protect your choice not to sell those cakes based on your customers’ sexual orientation. To argue otherwise would set us down a very slippery slope where a wide range of businesses – from caterers to limo drivers – could all pick and choose which laws they want to follow.”

In the brief, Volokh and Carpenter also warn that misinterpreting the First Amendment to provide bakers with a non-existent right to selectively turn away customers based on free-speech claims would risk “punching a hole through the center of the Nation’s anti-discrimination laws.” The brief warns:

“But antidiscrimination laws, like other laws, should not be stymied by attenuated claims of incidental burden, where no real constitutional problem is present… This Court must draw a line that properly respects both the First Amendment rights of those who are truly being compelled to create speech, and the legitimate interests of states that are trying to protect their citizens from discrimination. Bakers, including bakers of wedding cakes, are on the constitutionally unprotected side of the line.”

“Conservatives understand that the rule of law is critically important, and the law here is very clear,” said Tyler Deaton, Senior Advisor at American Unity Fund. “The First Amendment provides paramount protections, but those protections simply aren’t applicable to the act of baking a cake. The First Amendment is too important to be used as a shield or an excuse for disregarding laws, including nondiscrimination laws.”

The Supreme Court will hear oral argument in the Masterpiece case on Dec. 5. AUF’s full brief can be viewed here.

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