U.S. Solicitor General Noel Francisco of The Department of Justice submitted a motion for argument time to the high court on Wednesday in Masterpiece Cakeshop v. Colorado Commission on Civil Rights in support of a Colorado baker who refused on religious grounds to bake a wedding cake for a same-sex couple.
The National Law Journal reported in September that the Justice Department was internally divided over whether to participate at all in the case. U.S. Attorney General Jeff Sessions, overcoming objections, directed the filing of the amicus brief, according to lawyers with knowledge of the decision.
In its motion for argument time, Francisco told the justices: “As a general matter, the United States has a substantial interest in the preservation of federal constitutional rights of free expression. In addition, the United States has a particular interest in the scope of such rights in the context of the Colorado statute here, which shares certain features with federal public accommodations laws, including Title II of the Civil Rights Act of 1964, and Title III of the Americans with Disabilities Act of 1990.
Senators during Francisco’s confirmation process questioned his remarks at a Heritage Foundation event in which he spotlighted the plaintiffs in big social cases against the Obama administration. He noted plaintiffs challenging the Affordable Care Act included a group of nuns, Catholic Charities and “inner city” Catholic schools.
“On marriage,” Francisco said in the Heritage speech, “[we] need to do the same. Focus on the florist, on the baker, the sincere small businessmen under attack.”