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Trump Lawyer Compares Masterpiece Cakeshop to Forcing a Black Sculptor to Make a KKK Cross

Ku Klux Klan meeting burning cross

In oral arguments before the Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission Tuesday, President Trump's solicitor general, Noel Francisco, argued that Colorado forcing baker Jack Phillips to bake a same-sex wedding cake would be akin to forcing an African-American sculptor to make a cross for a Ku Klux Klan rally.

This shocking argument makes more sense than it might at first appear. The Colorado commission ruled that it could force Jack Phillips to bake a same-sex wedding cake, accusing him of discriminating against the homosexual couple who requested it. Phillips argued, however, that he had a free speech right to refuse that request, and that the government cannot compel him to speak through the artistry of a wedding cake.

Phillips testified that when he refused to bake the cake in 2012, he also offered the homosexual couple to sell them anything else in his shop, and even to bake something else for them. The problem wasn't the customers or their sexual orientation, but the nature of the event he would be supporting.

Francisco, Trump's lawyer, took up that claim.

"When you force an African-American sculptor to sculpt that cross for a Klan service, you are transforming his message," Francisco explained. "He may want his cross to send the message of peace and harmony. By forcing him to combine it with that expressive event, you force him to send a message of hate and division."

Trump's lawyer referenced the 1995 Supreme Court case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, in which the Court decided that a parade did not have to allow a speaker to join the parade.

"In Hurley, we couldn't force a parade to include a particular speaker," Francisco said. "And here, your Honor, we don't think you can force a speaker to join the parade. Because when you force a speaker to both engage in speech and contribute that speech to an expressive event that they disagree with, you fundamentally transform the nature of their message from one that they want to say to one that they don't want to say."

In his conclusion, Francisco said that "if you were to disagree with our basic principle, ... you really are envisioning a situation in which you could force, for example, a gay opera singer to perform at the Westboro Baptist Church just because that opera singer would be willing to perform at the National Cathedral."

The problem in Masterpiece Cakeshop, as in the case of the black sculptor or the gay opera singer, "is when you force somebody not only to speak, but to contribute that speech to an expressive event to which they are deeply opposed."