On the campaign trail last year, after a tragic attack on an Orlando nightclub left 49 people dead, Donald Trump went out of his way to thank the LGBT community, vowing to protect them from violence and tweeting, “I will fight for you.”
Years earlier, in an interview with a magazine that reaches a large gay audience, Trump told The Advocate that he supported gay people serving in the military.
If he were in charge, Trump said in 2000, “sexual orientation would be meaningless. I’m looking for brains and experience. If the best person for the job happens to be gay, I would certainly appoint them.”
Advocates for gay, lesbian, bisexual and transgender people are pointing to those remarks again this week, after the Trump administration filed court papers siding with a Colorado baker who refused to make a cake for a same-sex wedding celebration because he said it would violate his religious beliefs. The Supreme Court is scheduled to hear the case this fall.
“The Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear,” said Louise Melling, deputy legal director at the American Civil Liberties Union. “But this brief was shocking, even for this administration. What the Trump administration is advocating for is nothing short of a constitutional right to discriminate.”
To the Justice Department, however, the case known as Masterpiece Cakeshop v. Colorado Civil Rights Commission turns on its analysis of the First Amendment, and the cake-maker’s rights prevail.
“The government may not enact content-based laws commanding a speaker to engage in protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write,” acting Solicitor General Jeffrey Wall wrote in his court filing.
Public accommodations laws that bar discrimination by many businesses in Colorado and elsewhere serve an important purpose, but they, “like other laws, must yield to the individual freedoms that the First Amendment guarantees,” according to a statement from Justice Department spokeswoman Lauren Ehrsam. “That includes the freedom not to create expression for ceremonies that violate one’s religious beliefs.”
That point of view is backed by more than 80 congressional Republicans, who are filing their own brief with the Supreme Court. One of them, Utah Republican Sen. Mike Lee, appeared at a news conference outside the U.S. Capitol on Thursday with the owner of the Colorado cake shop, Jack Phillips.
But for LGBT advocates, the Justice Department’s stance in a dispute where gay rights clash with religious liberty marks the latest in a series of disappointments.
In July, the president abruptly announced via Twitter that he wanted to bar transgender people from serving in the military, apparently surprising top brass at the Pentagon. That same month, the Justice Department signed a court brief arguing that current anti-discrimination laws do not protect people on the basis of their sexual orientation in the workplace. In February, his administration revoked Obama-era guidance for schools on bathroom and locker room access for transgender students.
Sharon McGowan is a former official in the Obama Justice Department’s civil rights division. Now, she works on strategy issues at Lambda Legal, a group that advocates for the rights of gay, lesbian, bisexual and transgender people.
“The brief filed yesterday is just the latest example of how Donald Trump, Mike Pence and Jeff Sessions have placed a target on the backs of LGBT people in order to score political points with a shrinking base of supporters, and, for Pence and Sessions in particular, to impose their religious views on the rest of the country,” McGowan said.