Photo: Taken by Diane Rufino on December 5, 2017, of Jack Phillips and his attorney, Kristin Waggoner, outside the Supreme Court building after Oral Arguments.
by Diane Rufino, March 9, 2018
We’ve all heard of the case of the Christian cake artist who declined to bake a wedding cake for a same-sex couple because of his deeply-held belief in the Biblical view of marriage. What most people don’t know are the details of the case.
For example, the cake artist is Jack Phillips and he and his cakeshop (Masterpiece Cakeshop) were found guilty of discrimination in Colorado, in violation of an anti-discrimination law, at a time not only when the state constitution defined lawful marriage as only between a man and a woman, but also the law stated that no other type of marriage would be legally recognized in the state.
Also, for example, Phillips himself was discriminated against on account of his particular religious views when the state granted multiple exceptions to other bakers to deny goods and services (ie, to “discriminate”) when themes offended their sensibilities.
You hear people refer to the man at the center of the case as a “Christian baker.” What you don’t hear is people referring to him as a cake “artist.” You will hear this case referred to as one addressing the baker’s free exercise of his religion; what you won’t hear is that this case is also about his freedom of speech and expression.
Most people hearing the limited facts gravitate to an issue that they are familiar with – religion v. gay rights – or the Right of one person to the Free Expression of Religion vs. Society’s interest in not having certain individuals suffer discrimination. They right away see that the right that the state of Colorado is violating in the case is Phillip’s right to live his life according to his religious beliefs. They see that Colorado is more interested in protecting the rights of homosexuals than in upholding the most essential right of all – the First Amendment’s religious liberty guarantee.
As it turns out, the case has not moved forward on that legal theory but rather on one most people would never have anticipated. Instead, the case is one about the scope of the Right to Free Speech and Expression. Under this umbrella of speech and expression, Phillips is bringing in his right to religious liberty by asserting that his religious beliefs, his creed, dictates how he will expresses himself.
This (long) article seeks to acquaint you with the details and the many issues involved, including its inquest before the Supreme Court.
The Supreme court must decide whether the First Amendment bars application of Colorado’s public accommodations law (aka, the Colorado Anti-Discrimination Act) to compel a person to create expression (here, a wedding cake) that conflicts with that person’s sincerely held religious beliefs about same-sex marriage. In other words, it must decide if Phillips deserves an religious exemption under the CADA.
On Tuesday morning. December 5, 2017, the Supreme Court heard oral arguments in the case (Phillips v. Colorado Civil Rights Commission). I traveled to Washington DC, to the Supreme Court building for this event because I wanted to hear the issues on both sides in order to fully understand this case. I heard the issues and now I believe I understand what the case boils down to, in the minds of the justices.
It was interesting to learn that the views and concerns of ordinary people are not necessarily the views held by the justices of the Supreme Court
I snapped the photo above as Jack Phillips emerged from the Supreme Court building with his attorney Kristin Waggoner from the Alliance Defending Freedom (ADF). In their comments to the media and to the groups there in support of their cause, they were optimistic and hopeful. They appreciated the justices’ questions and felt their case resonated with Justice Kennedy, the Court’s critical swing-vote member.
I hope the high Court will be able to weed out the critical issues at stake by the time it hands down its opinion next year, on June 26 or thereabouts.
I. FACTS
In July 2012, when same-sex marriage was still prohibited in the state of Colorado, residents Charlie Craig and David Mullins decided to get married in Massachusetts, where it was legal. They would return and celebrate with family and friends at a “wedding reception” for themselves in Lakewood, which is a suburb of Denver. When it came time to pick out a cake, they were referred by their wedding planner to the Masterpiece Cakeshop, also located in Lakewood. (The shop is located about 10 miles outside of Denver).
The founder, owner, and proprietor of Masterpiece Cakeshop is Jack Phillips, a skilled baker and a talented artist. He calls himself a cake artist, and that is what he is known as. But most important for this case, he is also a devout Christian. His religious beliefs guide him in every aspect of his life, including his profession. “My bakery, the work I get to do… they are gifts from God and I want to honor him in everything that I do, including my art. When I finish in this life, I want Him to say: ‘Well done. You’ve been a good and faithful servant.” The name “Masterpiece” has particular meaning for him. First, it refers to artistry. Masterpiece Cakeshop indicates that the artistry is in relation to cakes – his cakes are artistic, not mass-produced. Second, the name “Masterpiece” refers to his belief that each person is created as a masterpiece by God. And third, the name “Masterpiece” includes the term “Master” which, as Phillips explains, references the gospel of Matthew which says that ‘no man can serve two masters.” (Matt: 6:24).
Phillips believes he is serving Christ with each cake he makes. He especially believes so when it comes to creating wedding cakes. He sees a wedding as a religious sacred event and he knows the particular significance of the cake in the reception ceremony. The feeding of the cake to one another and sharing it with guests is probably the most significant part of the reception (with the giving of the toasts perhaps being the most entertaining!) Historically, the cake was a symbol of good luck, stemming back before Roman times – back to at least 1175 B.C. Of any form of cake, wedding cakes have the longest and richest history. In modern Western culture, the wedding cake serves a central expressive component at most wedding receptions; it not only communicates that the couple is now married, but forms the centerpiece of a ritual in which the couple celebrates their marriage by feeding each other cake and then sharing cake with their guests. Only a wedding cake communicates this special celebratory message; certainly the reception meal doesn’t do this, nor does the liquor. Wedding cakes are so essential to a modern wedding that one author suggests, “A memorable cake is almost as important as the bridal gown in creating the perfect wedding.” Because they are so important to creating the right celebratory mood, wedding cakes are uniquely personal to the newly married couple and require significant collaboration between the couple and the artist to create the perfect design.
And so, Phillips devoted himself to creating a special unique cake for each customer, helping to celebrate the religiously sacred union of a man and a woman, and integrating his faith into each creation.
The process of creating the perfect cake (the perfectly unique cake) involves input from the couple. Phillips meets with the soon-to-be man and wife to find out how they met, how he proposed marriage, what they love about each other, what their interests are… in short, what “their story is.” Listening to the couple, Phillips tries to figure out what the predominant theme is to their relationship…. What it is about them that will hold them together and strong throughout their marriage. He wants the cake to embody that message as a way to celebrate their special day, and that is where the creativity comes in. He combines what he has learned about the couple, with some research, and maybe some meaningful phrases or words, to create an artistic cake that “shares their story” with family and friends. With each cake project, Phillips pours himself into its design and creation, marshaling his time, energy, and creative talents to make a one-of-a-kind “masterpiece” celebrating the couple’s special day and reflecting his artistic interpretation of their special bond.
Phillips opened Masterpiece Cakeshop in 1993 and has joyfully served the community of Lakewood for 22 years. In his years of business, he has been a part of major milestone events for many in the community. He’s watched families grow from young couples requesting wedding cakes to parents requesting graduation cakes for their children.
Wedding cakes and graduation cakes are not the only cakes created at Masterpiece Cakeshop. All kinds of people and groups have requested cakes for their various parties and celebrations. But Phillips is always guided by his conscience and his beliefs. And that has caused him to decline to bake cakes in the past. In fact, he has declined to bake cakes on several occasions since he started the business. He has turned down requests to create Halloween-themed cakes, lewd bachelor-party cakes, cakes with any type of profanity on them, cakes disparaging the LBGT community, cakes with anti-American themes, and a cake celebrating a divorce. No one has ever complained about these restrictions nor has he never been reprimanded over those decisions. But it would be the cake requested by Craig and Mullins that would get him in trouble.
When the couple entered Masterpiece Cakeshop on that July afternoon in 2012, same-sex marriage was not allowed in Colorado; the Colorado Constitution stated that “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” It was before the Obergefell decision which struck down state bans on same-sex marriages and gave the red light on gay marriage. That opinion wasn’t handed down by the Supreme Court until 2015. Anyway, the couple arrived with Craig’s mother and a book of ideas. As soon as the couple told Phillips that the cake was to celebrate their wedding, he cut them short and explained that he could not create a cake celebrating a same-sex wedding. As acknowledged by all parties, Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t create cakes for same-sex weddings.” He recommended a baker who would certainly bake them a special cake. The couple became very angry, swore at Phillips, flipped him off, and stormed out of the bakery.
This point is very important: Phillips was willing to sell them any pastry, and any type of baked goods they wanted for their affair. And he was perfectly willing to sell them a cake, one suitable for a reception. But what he couldn’t do, due to his religious beliefs, was decorate it with a gay wedding theme or to custom design one specifically celebrating gay marriage. As Justice Alito emphasized strongly during oral arguments, the record was undisputed that Phillips did not refuse to sell the couple a wedding cake; he refused to “create” a special cake for them. Phillips was very careful to use the word “create.” (see pg. 67 of the transcript of Oral Arguments)
The couple, as anyone would understand, felt humiliated and demeaned. The outcome at the bakery bothered Mullins so much that he immediately took to Facebook, describing in a public post what happened. “If you feel like the treatment we received is wrong, please contact Masterpiece Cakeshop and let them know you feel their policy is discriminatory.”
[NOTE: Colorado’s state constitutional ban on same-sex marriage was struck down in the state district court on July 9, 2014, and by the U.S. District Court for the District of Colorado on July 23, 2014. Furthermore, the Tenth Circuit Court of Appeals had already made similar rulings with respect to such bans in Utah on June 25 and Oklahoma on July 18, which are binding precedents on courts in Colorado].
Pretty soon, newspapers started calling the couple. And almost immediately, members of the LGBT community and supporters began calling Masterpiece Cakeshop. Phillips, his daughter, and others were called all kinds of names and they began receiving death threats. According to Mullins, it was only after they were turned down service that they learned that Colorado has an Anti-Discrimination Act (the Colorado Anti-Discrimination Act, or “CADA”) which includes a provision banning discrimination, including based on sexual orientation, in public accommodations.
The pertinent part of that statute reads: “(2)(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation……”
Although Craig and Mullins easily obtained a wedding cake, and a free one at that, with a rainbow design from another bakery, they went ahead, on Sept. 4, and filed a charge of sexual orientation discrimination with the Civil Rights Division, the board created by CADA to review its complaints. Phillips responded in a timely manner and explained his refusal to bake the cake. Phillips argued that he did not discriminate based on sexual orientation in violation of CADA because his religious objection to creating custom wedding cakes for same-sex wedding ceremonies is based on the celebratory message those cakes promote. He explained that he serves all customers regardless of their sexual orientation. He simply believes that only marriage between a man and a woman should be celebrated. Thus, he declined to create custom art for a specific event because of the message it communicated, not because of the persons requesting it. In addition, he argued that CADA should be read narrowly to avoid a constitutional violation because requiring him to create custom wedding cakes to celebrate a same-sex wedding ceremony would violate the “Compelled Speech Doctrine” (an element of Free Speech) and his right to the Free Exercise of religion under the First and Fourteenth Amendments of the US Constitution.
The administrative law judge (“ALJ”) did not side with Phillips, declined to interpret CADA narrowly, and on May 2013, it filed a formal complaint against Phillips and Masterpiece Cakeshop alleging that the refusal to create a wedding cake celebrating Craig and Mullins’ wedding constituted sexual-orientation discrimination in violation of CADA. It disregarded his religious liberty argument. It further alleged that requiring Phillips to create custom cakes to celebrate same-sex weddings did not violate his rights under the First and Fourteenth Amendments. The ALJ reached this conclusion by not characterizing the cakes as “art” or “artistic creations”; in other words, because he did not characterize the products as “art” which implies creativity and expression, he avoided characterizing the cakes as speech and hence the First Amendment – and by incorporation to the States, the Fourteenth Amendment – do not apply.
Again, note that the Commission interpreted the law to be able to force a baker to bake a cake to celebrate a same-sex wedding even though the state constitution said that “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”
Finding that Phillips violated the Colorado Anti-Discrimination Act and rejecting his First Amendment defenses, the ALJ proceeded to order him to: (1) create custom wedding cakes celebrating same-sex marriages if he creates similar cakes for one-man-one-woman marriages, (2) retrain his staff to do likewise, and (3) report to the Commission every order he declines for any reason for a period of two years. In contrast, and this is especially important, while this case was still ongoing, the Commission found that three secular bakeries did not discriminate based on creed when they refused a Christian customer’s request for custom cakes that criticized same-sex marriage on religious grounds (despite “creed” under CADA encompassing “all aspects of religious beliefs, observances, and practices … including the beliefs or teachings of a particular religion”).
Phillips appealed these rulings to the Colorado Civil Rights Commission, a 7-member panel, which adopted the ALJ’s opinion in full. Phillips then appealed the Commission’s ruling to the Colorado Court of Appeals, asserting the same defenses made to the Colorado Civil Rights Division. The Colorado Court of Appeals, just as the ALJ did, declined to interpret the CADA narrowly, thus rejecting Phillips’ compelled-speech defense, and it also held that the ALJ’s order did not violate the Free Exercise Clause. It deemed CADA to be a neutral law of general applicability, despite the law’s broad exceptions and the Commission’s decision to target for punishment only expressive business owners who, like Phillips, oppose same-sex marriage on religious grounds. The Colorado Court of Appeals upheld the Commission’s ruling.
“Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage,” Judge Daniel Taubman wrote. “However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, the law prohibits it from picking and choosing customers based on their sexual orientation.”
Phillips, on the other hand, believes he has rights under the First Amendment that continue to protect him as a cake artist even in the face of Colorado’s Anti-Discrimination Act (CADA). He defends his position on two grounds: (1) First, he doesn’t believe he should have to compromise his deeply-held religious beliefs. He lives his faith and doesn’t just make a show of it at church on Sunday or exercise it in his home. And the Biblical view of religion is a central part of his religion, as it has always been. This is his “Free Exercise” defense (Free Exercise of Religion). (2) Second, he has rightfully characterized his cakes as “expression” which brings him under the umbrella of the First Amendment’s guarantee of Free Speech. The Right of Free Speech includes the right not to speak. He says to be forced to make a cake for a member of the LGBT community is akin to being forced or coerced to speak a viewpoint that the government demands but which violates his conscience.
The Alliance Defending Freedom, an alliance-building legal ministry that advocates for religious freedom, contacted Jack Phillips and offered him free legal services to vindicate his beliefs and the protections afforded individuals like him under the US Constitution, thru the Bill of Rights. The ADF offers free counsel to those whose religious liberties have been violated; it seeks to preserve the right of people to freely live out their faith. On the other side of the conflict, the American Civil Liberties Union (ACLU), an organization determined to root out and destroy the Free Exercise of Religion, is defending Craig and Mullins. The ACLU, in typical form, sees this case only as a discrimination case.
Phillips, with the ADF, decided to appeal his case to the Supreme Court and submitted a Petition for Certiorari, which is a fancy legal term for the formal request submitted to the Court seeking review of the case and laying out the reasons for such review.
The Petition for Certiorari explained the issue for the Court: “The question presented is whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” In other words, can the state of Colorado force Jack Phillips, a Christian baker, to create a custom cake for a same-sex wedding against his deeply held religious beliefs?
The Petition sat with the justices for many months waiting for a decision. The Court had put off making a decision on whether to hear the case twice before, likely because a justice had not yet been appointed to replace Antonin Scalia, who died suddenly in February 2016. Shortly after this inauguration, Donald Trump nominated justice Neil Gorsuch, a conservative, to the bench, and in April, he was sworn in. Two months later, a majority of the justices agreed to “grant cert” (grant review) and hear the case. The argument that the Supreme Court found most compelling and the one it decided to grant review on was Phillips’ second defense (above). Indeed, it is a well-established principle of Free Speech, and one that the Supreme Court has upheld time and time again, that government cannot coerce a person to engage in speech that he or she finds offensive.
II. QUESTION PRESENTED:
The question presented to the Supreme Court is this: Does the application of Colorado’s public accommodations law (CADA) to compel a cake maker to design and make a cake that violates his sincerely-held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?
III. THE ARGUMENTS: (from The Heritage Foundation)
Undisputed: Jack Phillips is an evangelical Christian whose religion dictates that marriage is a union reserved only for a man and a woman. When Charlie Craig and David Mullins entered Masterpiece Cakeshop and requested a cake to celebrate their marriage, Phillips told them: “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”
The question is whether his religion, in the marketplace of “accommodations” (goods and services), will permit him to be excused from participating in same-sex marriages or celebrations of same-sex marriages. More specifically, as an artistic baker, will his deeply-held religious beliefs permit him to be excused from creating a cake that celebrates the marriage of a same-sex couple?
Attorneys for the Respondents (Charlie Craig and David Mullins) see this case as a pure discrimination case, in violation of the anti-discrimination law passed in Colorado to prevent discrimination against certain protected classes of persons (“It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation….”). Respondents are a protected class of persons (“sexual orientation”) under the statue. Their argument is that Jack Phillips discriminated against them and denied them services he would provide to other heterosexual couples because they are homosexual. They assert that Phillips shouldn’t be allowed to “hide behind his religion” to excuse his outright discrimination.
The ADF attorneys representing Phillips respond by asserting that his religion is NOT a pretext for intentional discrimination but rather a creed that guides the very way he thinks and the way he lives his life – at home, in the community, and at work.
The same-sex couple posit the issue as one involving public accommodations, not about religion or free speech. They argue that it is a pillar of American anti-discrimination law that, when a business opens itself to serve the general public, it cannot refuse to serve customers based on who they are. Phillips responds by emphasizing that he does not refuse to serve customers based on “identity” (who they are), but rather on the themes they seek to promote in the custom cakes they order. In other words, he believes he has the right, under the First Amendment’s guarantee of Free Speech, to articulate and express only those themes and messages that don’t conflict with his religious beliefs and his conscience.
The couple argues that permitting Phillips to refuse services to them would open the doors to other forms of discrimination that have long been prohibited by courts. They hypothesize that, if his position prevailed, a portrait photographer could refuse to conduct photo shoots with Hispanic families or that a banquet hall could refuse to host events for Jewish families. And, indeed, the entire inquiry that Phillips endorses – a judge deciding whether a religious belief is sincerely held – would result in an uncomfortable entanglement of the courts in matters of religion.
But regardless of how Craig and Mullins, and the ACLU, try to explain their view of anti-discrimination, Phillips and his attorneys see this case as one touching on his First Amendment guarantees to the Free Exercise of his religious beliefs and to the right NOT to be compelled to express views that he fundamentally disagrees with. Such would amount to an egregious violation of his essential right of conscience, the right at the very heart of most of our first amendment liberties. As Phillips’ Petition to the Supreme Court for Certiorari states: “This Court’s review is needed to alleviate the stark choice Colorado offers to those who, like Phillips, earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law.”
As explained above, Jack Phillips, has two arguments to support his position that the state of Colorado violated his constitutional rights by finding that he discriminated under the CADA: First, that the Free Exercise Clause of the First Amendment protects individuals in their right to live out their religious identity, including in the public square and in the marketplace; and second, that Colorado is forcing him to “create art” (expressive speech, which is protected by the First Amendment) which he finds repugnant to his religious beliefs. Just as the State cannot force children to recite the Pledge of Allegiance, or its drivers to display its motto on their license plate holders, so it cannot compel Phillips to express a message that offends his conscience (and which he repudiates).
As the ADF stated in its Petition, the Supreme Court’s review is needed to alleviate the stark choice Colorado offers to those who, like Phillips, earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law.
Furthermore, as the specific facts of this case show (ie, the exceptions that the Commission chose to recognize under the CADA, as well as the energy used to go after Masterpiece), Phillips himself has been the victim of targeted discrimination on the basis of his religion. Given the exceptions to the Colorado Anti-Discrimination Act (CADA) that state authorities have recognized for other cake artists, including three secular cake artists who refused to create custom cakes for customers seeking to criticize same-sex marriage on religious grounds, the Commission’s application of CADA targeted Phillips’ religious beliefs about marriage for punishment in violation of the Free Exercise Clause and coerced his speech in violated of the First Amendment’s guarantee of Free Speech and Expression. According to the CADA, bakers are free to refuse to bake a cake condemning same-sex marriage but MUST make a cake recognizing and celebrating it. It is a case of Viewpoint Discrimination, in violation of the First Amendment.
The ADF is asking the Supreme Court to address the targeted discrimination against religion by the CADA and the Colorado Civil Rights Commission and to protect the free exercise of his right to express (expressive “speech” under the First Amendment) only those messages that comport with his deeply-held religious beliefs, while still welcoming all customers into his store. Phillips believes that the First Amendment’s free speech and religious liberty clauses protect his freedoms to do just that. Conscience is something that we all want the right to life by. The Constitution guarantees that to us.
That’s the big picture.
To get a case reviewed by the Supreme Court, the Petitioner (in this, Jack Phillips) must find error with the decisions of the lower courts or lower rulings, and to that extend, the Alliance Defending Freedom has asserted two essential and glaring errors. First, the Colorado Civil Rights Commission and then the Colorado Court of Appeals refused to acknowledge Phillips as a cake “artist” who goes through a creative process to create wedding cakes. In other words, they held that his work comprises not speech or expression but rather conduct. And second, in denying Phillips a religious exemption from the CADA, the Commission and Court of Appeals applied the wrong standard of review. They applied the least stringent of all standards. When a law allows for individual exemptions or targets disfavored religious views for punishment, as was the case in Colorado under the CADA, strict scrutiny (the most stringent standard of review) must be applied under the Free Exercise Clause if a law allows for individualized exemptions or targets disfavored religious views for punishment.
Recognizing that Jack Phillips “speaks” and “expresses” messages and themes through his work is the cornerstone concept to his case. At least it’s the one that got him to the Supreme Court and before the Supreme Court.
Specifically, in their Petition to the Supreme Court requesting Certiorari, Phillips and the ADF made the following arguments:
A). The First Amendment prohibits the government from telling private citizens “what they must say.” It is undisputed that the Colorado Civil Rights Commission does not apply the Colorado Anti-Discrimination Act (CADA) to ban (1) an African-American cake artist from refusing to create a cake promoting white-supremacism for the Aryan Nation, (2) an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists from refusing to create cakes opposing same-sex marriage for a Christian patron. If the Commission can make exemptions such as these, then it should also exempt Phillips in his polite decision to decline to create wedding cakes celebrating same-sex marriages on religious grounds when he is happy to bake other items for gay and lesbian clients. The Supreme Court specifically recognized and made special note of in the Obergefell v. Hodges decision (2015) the fact that “those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” In other words, the Court made it clear that there are those who truly believe in the traditional and Biblical definition of marriage and that doesn’t make them discriminatory. But the Commission ruled that is exactly what the law requires – Phillips and his kind MUST accept and support gay and lesbian marriages despite deeply-held, “utmost, sincere convictions, by divine precepts” that teach him otherwise. The Colorado Court of Appeals upheld that mandate on appeal. In so doing, that court approved nothing less than the outright compulsion of speech.
The Colorado Court of Appeal’s reasoning turns the Compelled Speech doctrine on its head. All coerced speech results from “compliance with [a] law” – government compulsion of speech. But instead of concluding that forcing Phillips to create art violates the Free Speech Clause, the Colorado Court of Appeals held something stupid and ridiculous. It held that because the law requires Masterpiece to conform to its mandate and not discriminate when it comes to the certain “protected” classes of persons listed, any product created is not “artistic” but rather is “required conduct.” That explanation thus robs Phillips of ownership of any message sent by his art. In other words, the court upheld the compulsion of Phillip’s artistic expression because that speech was legally compelled, or required. Maybe that is what the Court intended when it made its ruling – to strip Phillips of any ownership of message. But the reasoning of the Court was circular (something they teach you to avoid in the first week of law school) and as the ADF argued, “threatens the continued vitality of the compelled speech doctrine and directly conflicts with this Court’s (the Supreme Court’s) Free Speech precedent.”
The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster an idea they find morally objectionable. That is when the First Amendment is most meaningful and most important. “The Right of Free Speech thus includes both the right to speak freely and the right to refrain from speaking at all.” (language taken from the Wooley v. Maynard case, 1977) This right extends “beyond written or spoken words as mediums of expression,” and applies both to individuals and “business corporations generally” (language taken from the Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos. case, 1995 – a case the attorneys representing Phillips’ position will cite heavily during oral arguments). The function of the First Amendment is to protect “’the sphere of intellect and spirit’ and ‘individual freedom of mind’ from all official control.” (Wooley) Under the Supreme Court’s Compelled-Speech precedent, the state invades this freedom of mind when it forces a private citizen to speak the government’s own message, or when it compels a citizen to speak the message of a third party. The First Amendment prohibits the government from telling private citizens “what they must say,” or forcing or coercing them to do so. Yet the Colorado Court of Appeals held that the state may compel Phillips to create a custom wedding cake promoting a morally objectionable message.
Colorado requires Phillips not only to interview the same-sex couple and develop a custom design celebrating their union, but to physically create their wedding cake with his own two hands. Colorado thus mandates that Phillips do far more than recite an offensive message. It requires him to first research and draft that message and then bring it to life in three dimensional form using a variety of artistic techniques that range from painting to sculpture. Moreover, the Commission significantly magnified the intrusiveness of its compelled-speech order by requiring Phillips to reeducate his employees and report to the Commission every order he declines for any reason for the next two years. If that is not compelled expression, nothing is.
The Supreme Court has made clear that public accommodation statutes are subject to the same First Amendment bounds as all other laws. When, in the Hurley case, an LGBT group sought to march as a unit in Boston’s St. Patrick’s Day Parade over the parade organizers’ objection, the Supreme Court held that Massachusetts’ public accommodation law could not be applied to grant them access. The Court held that the state “may not compel affirmance of a belief with which the speaker disagrees.” Yet Colorado did so based on the feeble justification that Phillips’ speech is legally required.
B). It is undisputed that CADA does not require other cake artists to create custom cakes promoting an unwelcome message. Yet the Colorado Court of Appeals upheld the Commission’s (and hence the State of Colorado’s) determination that Phillips violated the CADA by declining to create a custom cake for a same-sex wedding on religious grounds. This ruling squarely conflicts with the Supreme Court’s Free Exercise precedent and with decisions by the Third, Sixth, and Tenth Circuit Courts (Colorado comes under the jurisdiction of the Circuit Court of Appeals for the Tenth Circuit). Strict scrutiny applies under the Free Exercise Clause if a law allows for individualized exemptions or targets disfavored religious views for punishment. Colorado’s application of CADA does both, yet the Colorado Court of Appeals held that Phillips’ Free Exercise rights were not even implicated. That holding also conflicts with the Supreme Court’s precedent and decisions by the Third, Sixth, and Tenth Circuits. When a law allows for case-by-case exemptions, the government cannot deny a religious exemption without overcoming Strict Scrutiny. It is undisputed that CADA allows for such individualized exceptions. It has been undisputed throughout this case, that CADA permits other cake artists to decline to create cakes that convey an offensive message to THEM. For example, Craig and Mullins, their attorneys from the ACLU, and the state’s Solicitor General (attorney general) have conceded that a baker may decline a custom order if “the design requested” violates a “tastefulness policy.” The State has not defined exactly what that “tastefulness policy” includes and protects, but nevertheless refused Phillips’ request for a religious exemption based on his particular objection to same-sex marriage. The ALJ decision, for example, which was adopted in whole by the Colorado Civil Rights Commission, stated that CADA would allow “a black baker [to] refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation” and that “an Islamic baker could … refuse to make a cake denigrating the Koran for the Westboro Baptist Church.” Yet the Colorado Court of Appeals applied mere Rational Basis review (a very low standard of review, which basically allows any reason given by the State to justify its law to supersede or trump the individual’s particular civil liberty at stake) to the Commission’s decision to deny Phillips a religious exemption from CADA. (“Having concluded that CADA is neutral and generally applicable, we easily conclude that it is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation”). Again, that holding conflicts with the Supreme Court’s precedent. The ALJ reasoned that “the explicit, unmistakable, offensive message” communicated by these cakes gave “rise to the bakers’ free speech right to refuse.”
Similarly, when a Christian patron requested that three secular bakeries in Colorado—Azucar Bakery, Le Bakery Sensual, Inc., and Gateaux, Ltd.—create custom cakes disapproving of same-sex marriage on religious grounds, the Commission found no probable cause of discrimination based on creed. And it did so despite the fact that creed discrimination under CADA encompasses “all aspects of religious beliefs, observances, and practices … [including] the beliefs or teachings of a particular religion,” The Commission found an exception to CADA when the denial of service is “based on the explicit message that the [customer] wished to include on the cakes.” This offensive-message exception to CADA is expressly based on the Commission’s individualized assessment of a baker’s reasons for declining a cake order. If the Commission considers the denial based on the message of a cake, as it did for the African-American, Muslim, and three secular cake artists cited above, an exemption to CADA is made available. But if the Commission views the baker’s rationale differently, as it did Phillips’ religious objection to creating custom cakes honoring a same-sex marriage, no exception to CADA applies. Indeed, by deeming Phillips’ religious reasons for declining to create a custom cake to be of less importance than those of other cake artists, the Commission singled out Phillips’ religious practice for “discriminatory treatment.” In short, the Commission deemed every similarly-situated baker’s objection to creating an offensive cake “message based” and thus exempt from CADA. It held only Phillips in violation of state law.
That in and of itself was discrimination. It was blatant discrimination on Colorado’s part. Government discrimination. It was arbitrary. And arbitrary enforcement of the law is a violation of the 14th Amendment’s Equal Protection clause.
Regardless of how the State of Colorado, the Commission, and the Colorado Court of Appeals characterize Phillips’ religious objection, the Supreme Court’s controlling precedent holds that because a system of individualized exemptions exists, Colorado cannot deny an exemption to Phillips without first hurdling Strict Scrutiny. Strict Scrutiny is the proper form of judicial review that courts must use to determine the constitutionality of certain laws that burden fundamental rights and liberties. To pass Strict Scrutiny, the state legislature must be able to show that it passed the law to further a “compelling (very important) governmental interest,” and it was “narrowly tailored to achieve that interest.” Put another way, the legislature must show that it couldn’t further than same compelling interest by means less restrictive on the fundamental right or liberty at stake. Apparently because so many exemptions have been recognized by the State of Colorado with respect to the CADA, the law is overly-restrictive and thus could never survive Strict Scrutiny. “In circumstances in which individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of ‘religious hardship’ without a compelling reason.”
But beyond blatant discrimination by the State of Colorado, there was malice and animus towards Phillips and his religious beliefs. There was hostility.
The Commission, for example, found it critically important that the three secular cake artists who refused a Christian patron’s orders did so “based on the custom cakes’ explicit message,” although they were happy to create other items ordered by Christian customers. Phillips explained that he too declined to create a custom same-sex wedding cake based on its morally objectionable message and that he was happy to provide other baked goods for Craig and Mullins’ reception and is happy, in general, to create other items for gay clients. After all, a wedding cake is not a passive object but a central component of the wedding reception that celebrates the couple’s joining as one. Nonetheless, the Commission found Phillips in violation of CADA. The only explanation for this disparate treatment is the Commission’s disapproval of Phillips’ religious beliefs about same-sex marriage. Such hostility was apparent during the proceedings in Phillips’ case. One Commission member summarized the Commission’s logic, during the course of an administrative hearing, as follows:
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”
The Commission thus disfavored Phillips’ request for an exemption from CADA based on its religious nature. In so doing, the Commission violated the essential Free Exercise principle that “government, in pursuit of legitimate interests, cannot, in a selective manner, impose burdens only on conduct motivated by religious belief.” Yet the Colorado Court of Appeals ignored CADA’s real operation and declined to address the evidence showing the Commission’s targeting of Phillips’ religious views.
[Reference: Petition for Certiorari – http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-cert-petition.pdf
(Note: This overview is not meant to exclude other arguments made, including the one highlighting the fact that the different Circuit Courts (federal courts of appeals) are in conflict as to which legal standard controls whether a product such as Phillips’ custom cakes is to be considered “expressive” or not. One of the specific reasons the Supreme Court will hear a case is when the various Circuit Courts are in disagreement, so that it can establish uniformity).
As you can see, the Phillips case is complex and examines some very important and fundamental issues, including, ironically, discrimination against Phillips himself and his religion.
Again, the most successful approach that Jack Phillips and the Alliance Defending Freedom could take in addressing the violation to his rights as a Christian man, determined to live his life according to his deeply-held religious beliefs, and being engaged in as an artisan who designs custom celebratory cakes, is the “Compelled Speech” argument.
Luckily, it appeared that the justices of the Supreme Court agreed with Phillips that there is speech and expression involved in the work that he does to create wedding cakes.
IV. ORAL ARGUMENTS:
Perhaps indicative of the gravity of the issues at the center of the case, the justices of the Supreme Court extended the time for oral arguments for this case. It allotted almost 90 minutes instead of the usual hour.
The justices’ questioning at oral argument highlighted the difficult balance of interests in this case. Phillips has fundamental individual rights recognized since the before the founding of the country, memorialized in the First Amendment – rights to speech, thought, religion (a relationship with his Maker), and conscience – which should be respected to the highest degree by government, and Craig and Mullins, as homosexual men, have certain civil rights which should not be ignored to make them feel like second-class citizens. All sides were closely scrutinizing the questions asked by Justice Anthony Kennedy, who seems once again to be a critical vote in what could be a split decision. He expressed concerns for the rights of the same-sex couple, but he also noted that the commission had been “neither tolerant nor respectful of Phillips’ religious beliefs.” Justice Samuel Alito agreed with that latter point, stating that is was “disturbing” that the commission was apparently engaged in “a practice of discriminatory treatment based on viewpoint.”
Justice Kagan’s questioning expressed concerns about the difficulties in drawing lines. If a baker is allowed to refuse to bake a cake, would it not be true that make-up artists, hairstylists, tailors, caterers, florists, chefs, and the like could all refuse to provide services to same-sex couples planning their weddings? The baker’s counsel tried to distinguish Mr. Phillips’s work as an artist. Justice Elena Kagan pushed back. She asked on which side of the line chefs, florists, hairstylists, tailors and makeup artists would fall. According to Phillips’s position, he designs cakes as works of art that convey a message, and is therefore engaged in speech, whereas neither a chef nor a tailor are engaged in the same sort of artistic creation. Justice Stephen Breyer expressed concern that this position would “undermine every civil rights law.”
These questions highlight the toughest question in this case: Where is the line? The Supreme Court will likely try to thread that needle by issuing a narrow decision that does not massively unsettle either First Amendment or anti-discrimination rights.
On behalf of its client, the Alliance Defending Freedom (ADF) is ultimately asking the Supreme Court to alleviate the stark choice Colorado offers to those who, like Phillips, earn a living through artistic means, which is ‘Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law,’ and to find a solution that respects each parties’ rights.
In a lengthy and charged oral argument session (with time restrictions lifted!!), the nine justices wrestled with how Americans who hold different views on marriage in our post-Obergefell society can continue to live with each other in mutual respect. The arguments fell essentially into four issues, which the justices addressed or explored with the four representative attorneys engaging in oral arguments.
At oral argument, the following counsel were present:
(1) Kristin K. Waggoner, with the Alliance Defending Freedom, on behalf of Jack Phillips (the Petitioner – the one petitioning the Supreme Court to hear the case),
(2) General Noel J. Franscisco, on behalf of the federal government (as amicus curiae, or “Friend of the Court,” supporting Phillips),
(3) Frederick R. Yarger, Colorado Solicitor General, on behalf of the State of Colorado
(4) David D. Cole, with the ACLU, on behalf of Charlie Craig and David Mullins (the Respondents – those responding to the Petitioner)
This is also the order in which they went before the justices of the Supreme Court for questioning.
Note that the justices have different approaches to the interpretation of the Constitution and a different understanding of their roles on the Court:
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – are liberal justices (They believe they are not limited to the plain words and meaning of the Constitution and can expand its terms and meaning as the government needs or as social change requires. They are activist justices who look only to what a “modern” Constitution should read rather than rely on the commentary provided by those who wrote and ratified the document).
Justices Clarence Thomas, Neil Gorsuch, Samuel Alito, and Chief Justice John Roberts – are conservative justices (For the most part, they believe in the original meaning and intent of the Constitution when they are interpreting it to render an opinion. They don’t believe in arbitrarily expanding the powers of the federal government through a liberal reading of the Constitution, as the other justices do, but rather try to maintain the balance of power among the parties (the federal government, the States, and the People) as the Founders envisioned and as historical commentary supports. (The one glaring exception to this general description of these justices is the Obamacare case where Chief Justice Roberts committed judicial malfeasance to uphold the Affordable Care Act)
Neil Gorsuch, the most recent member to join the bench, has embraced an expansive view of religious rights in his past decisions from the Circuit Court of Appeals for the Tenth Circuit (the same jurisdiction that includes the state of Colorado!) Many wonder if this will have any implications for the case at hand.
Justice Anthony Kennedy is the historic “swing voter” on the Court, sometimes siding with the liberal justices and sometimes with the conservative ones. Kennedy often sides with the conservative justices on issues of the First and Second Amendment and States’ Rights under the Tenth Amendment. For example, it was Kennedy who provided the swing vote in the 5-4 decision of McDonald v. Chicago (2010), the seminal opinion defining the meaning and intent of the Second Amendment, including the individual right to have and bear arms for self-defense. It was also Kennedy who provided the swing vote in the Obergefell v. Hodges decision in 2015 to strike down state bans on same-sex marriage and to recognize the right of homosexuals to marry. It is Kennedy that counsel often has to convince during oral arguments.
In an unprecedented move, the Trump administration’s Justice Department publicly expressed its support of Phillips’ position in a “friend-of-the-court” (amicus curiae) brief submitted in September 2017.
I have broken this section on oral arguments down into the individual exchanges with each of the attorneys, first giving an overview of the issues that the justices chose to explore with that attorney, and then selecting portions from the actual dialogue to highlight the themes addressed and the types of questions asked. [The dialogue is taken directly from the transcript of the oral arguments before the Supreme Court on Dec. 5, 2017 – (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf),
1. When Is a Service Provider Considered an “Artist” Who “Speaks” Through His/Her Work ?
While the justices were open to the argument that Phillips, as a “cake artist,” engaged in protected speech when he “creates” his wedding cakes, the more liberal justices, Justices Ginsburg, Sotomayor, and Kagan tried to figure out which other businesses “speak” through their work. Indeed, they spent considerable time (almost all of Phillips’ attorney, Ms. Kristin Waggoner’s time) trying to pinpoint which occupations associated with weddings are “expressive” enough to enjoy free-speech protections. Justice Elena Kagan asked if a hair stylist would qualify, to which Ms. Waggoner responded, “Absolutely not.” But Kagan replied, “Why is there no speech in creating a wonderful hairdo?”
The concern of the justices is whether all sorts of providers – tailors, hair stylists, makeup artists, chefs, architects, photographers – could refuse to supply goods and services for same-sex weddings. Justice Stephen Breyer summed it up best: “The reason we’re asking these questions,” he said, “is because obviously we want some kind of distinction that will not undermine every civil rights law.” He also suggested that there was no way to rule for Mr. Phillips without inflicting grave damage on principles of equality. The conservative justices on the other hand countered that to rule in favor of the same-sex couple would inflict grave damage on someone as religiously-disciplined as Phillips and on our American notion of free speech.
In response to the questioning regarding “Who speaks?,” the threshold question, according to Ms. Waggoner, is whether a message is being conveyed through the creation. Is the service provider “engaged in speech”
The conservative justices considered whether artists can be required to convey messages with which they profoundly disagree, in light of laws requiring that they do so that persons are not discriminated against in the marketplace.
pp 4-25 —
MS. WAGGONER: (counsel for Mr. Jack Phillips; opening remarks to the Justices) Mr. Chief Justice, and may it please the Court: The First Amendment prohibits the government from forcing people to express messages that violate religious convictions. Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions. (“Compelled Speech”)
JUSTICE GINSBURG: What if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?
MS. WAGGONER: Absolutely not. The Compelled Speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech. Mr. Phillips is happy to sell anything in his store (that is pre-made). In the context of a product already made, it’s already been placed in the stream of commerce in a public accommodation setting. His speech has been completed. Any message he intended to convey in that particular cake (if any at all) was completed at the time he created it. The message, if any at all, was not unique or personal to the buyer….
JUSTICE SOTOMAYOR: But I thought that the couple was looking at his already pre-designed cakes that he appears to sell without any customization, and they sat down with him, and he said I don’t supply cakes of any kind to gay couples So I thought this cake was about his refusal to supply a cake for any same-sex wedding ceremony.
MS. WAGGONER: Justice Sotomayor, that’s not how he responded to the couple. The couple came in and they requested a custom cake for their wedding. At that point, they brought in a folder with all kinds of designs they wanted to discuss rainbow-layered cake. (That’s when Mr. Phillips explained that he could not create a cake celebrating a same-sex marriage. The couple ended up purchasing a rainbow-layered cake – or received one free). A rainbow-layered cake is certainly expression….. The order imposed by the Commission requires Mr. Phillips to make such a cake. It also requires him to include words and symbols on his cakes. It’s that broad. So if, for example, Mr. Phillips had used a Bible verse on a cake in the past, he would be compelled to use that Bible verse in a different context (for same-sex couples).
JUSTICE GINSBURG: Who else, besides the individuals getting married (and the cake artist) speaks at a wedding?
MS. WAGGONER: The artist speaks, Justice Ginsburg. It’s as much Mr. Phillips’s speech as it would be the couples’.
JUSTICE GINSBURG: Who else then? Who else as an artist? The person who does floral arranging, who owns a floral shop? Would that person also be speaking at the wedding? What about the person who designs the wedding invitations? Or the person who sets the menu for the wedding dinner? What about the jeweler? The hair stylist? The make-up artist?
JUSTICE KAGAN: — I’m quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they’re doing something that’s of great aesthetic importance to the wedding and that there’s a lot of skill and artistic vision that goes into making a — somebody look beautiful. And why wouldn’t that person or the hairstylist — why wouldn’t that also count?
MS. WAGGONER: Because it’s not speech. And that’s the first trigger point
JUSTICE SOTOMAYOR: But explain how baking a cake becomes expressive speech, how that medium becomes expressive speech.
MS. WAGGONER: Certainly not all cakes would be considered speech, but in the wedding context, Mr. Phillips is painting on a blank canvas. He is creating a painting on that canvas that expresses messages, and including words and symbols in those messages. We have someone that is sketching and sculpting and hand designing something, that is creating a temporary sculpture that serves as the centerpiece of what they believe to be a religious wedding celebration, that cake expresses a message.
JUSTICE BREYER: The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law, including those protecting African Americans and Hispanics, and including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, (education), and buildings. Now, I’ve tried to narrow it and specify it to get your answer.
MS. WAGGONER: Thank you, Justice Breyer. In terms of the test that would be applied, the Court would first ask under the speech analysis, is there speech? And by asking that, you are asking is there something that is being communicated and is it protected?
JUSTICE SOTOMAYOR: Well, your client was saying that providing a cake to a same-sex couple was against his free-expression rights because, and his free-exercise rights, because he cannot celebrate that kind of marriage.
MS. WAGGONER: Mr. Phillips is looking at not the “who” but the “what” in these instances, what the message is.
JUSTICE GORSUCH: Well, actually, counsel, that seems to be a point of contention. The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?
MS. WAGGONER: I would say that in footnote 8, the court applies an offensiveness policy, which allows the state the discretion to decide what speech is offensive and what is not, and it did not apply that in a fair way to Mr. Phillips, which creates Viewpoint Discrimination, as well as a violation of free exercise — the Free Exercise Clause. But what’s deeply concerning is that is not the theory that Respondents (Craig and Mullins) are submitting to this Court today. They believe that they can compel speech, of filmmakers, oil painters, and graphic designers in all kinds of context. If there are no further questions, I would like to reserve the balance of my time.
2. Compelled Speech for Everyone
In the exchange with General Francisco, council for the United States, the justices explored the boundaries of the First Amendment. The justices addressed the particular argument advanced by the government that the First Amendment provides “breathing space” (ie, protection) for business owners, including professional artists and those who provide creative and expressive products, to be free to engage in expressive events like a wedding and to be from the compulsion of law to engage in speech which fundamentally offends their religious beliefs and their conscience. Indeed, he pointed out the unique question presented to the Court – The constitutionality of a state law requiring somebody to create speech and contribute that speech to an expressive event to which they are deeply opposed.
At issue is the understanding and recognition that there is a difference between refusing to express an offensive message and refusing to serve an individual based on an identity (such as race, gender, religion, or sexual orientation).
Justice Kennedy commented: “If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings? Would that not be an affront to the gay community?” General Francisco responded that there are dignity issues at stake on both sides, not just for Mr. Craig and Mr. Mullins.
pp. 25-48 –
GENERAL FRANCISCO: (Council for the United States, as amicus curiae, or “Friend of the Court”) Mr. Chief Justice, and may it — may it please the Court: This case raises an important issue for a small group of individuals; namely, whether the state may compel business owners, including professional artists, to engage in speech in connection with an expressive event like a marriage celebration to which they’re deeply opposed. In those narrow circumstances, we believe the Free Speech Clause provides breathing space –
JUSTICE GINSBURG: How narrow is it? Consider Justice Kagan’s question. I mean, we’ve gotten the answer that the florist is in the same place as the cake-maker, so is the person who designs the invitations and the menus. I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist.
GENERAL FRANCISCO: Well, Your Honor, that’s, of course, the question that the Court has to answer at the threshold of every Free Speech Case. Is the thing that’s being regulated something we call protected speech? I think the problem for my friends on the other side is that they think the question doesn’t even matter. So they would compel an African American sculptor to sculpt a cross for a Klan service
JUSTICE KENNEDY: But the problem for you is that so many of these examples – and a photographer can be included — do involve speech. It means that there’s basically an ability to boycott gay marriages.
GENERAL FRANCISCO: Well, Your Honor, I think what it boils down to is that in a narrow category of services that do cross the threshold into protected speech — and I do think it’s a relatively narrow category that has protection. For example, I don’t think you could force the African American sculptor to sculpt a cross for the Klan service just because he’d do it for other religious groups.
JUSTICE KENNEDY: If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings?
GENERAL FRANCISCO: Your Honor, I think that he could say he does not make custom-made wedding cakes for gay weddings, but would offer most other cakes (non-custom-made cakes) and that would not cross the threshold.
JUSTICE KENNEDY: Do you think that would be an affront to the gay community?
GENERAL FRANCISCO: Well, Your Honor, I agree that there are dignity interests at stake here, and I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too.
JUSTICE SOTOMAYOR: We’ve always said in our public accommodations law we can’t change your private beliefs, we can’t compel you to like these people, we can’t compel you to bring them into your home, but if you want to be a part of our community, of our civic community, there’s certain behavior, conduct you can’t engage in.
GENERAL FRANCISCO: 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. As this Court made clear in the Bob Jones case, the IRS could withdraw tax-exempt status from a school that discriminated on the basis of interracial marriage, but I’m not at all sure that it would reach the same result if it were dealing with a Catholic school that limited married student housing to opposite-sex couples only. I think when you get to this case, if you agree with our test — and I know that I have a little bit of an uphill battle in convincing some of you of that. If you agree with our test, I think the heightened scrutiny standard is particularly easy because they’re the same interests at stake as were at stake in Hurley. [Hurley v. Irish-American GLB of Boston, 1995. Facts: In 1993, the South Boston Allied War Veterans Council was authorized by the city of Boston to organize the St. Patrick’s Day Parade. The Council refused a place in the event for the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB). The group attempted to join to express its members’ pride in their Irish heritage as openly gay, lesbian, and bisexual individuals. The Massachusetts State Court ordered the Veterans’ Council to include GLIB under a state law prohibiting discrimination on account of sexual orientation in public accommodations. The Veterans’ Council claimed that forced inclusion of GLIB members in their privately-organized parade violated their free speech. A unanimous Supreme Court held that the State Court’s ruling to require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey violates the First Amendment by making private speech subordinate to the public accommodation requirement. Such an action “violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.”]
JUSTICE GORSUCH: So General, what is the line? How would you have this Court draw the line?
GENERAL FRANCISCO: I think there are a couple of ways to draw that line, and this is something that the Court has to struggle with in a lot of cases. I think the first way to draw that line is you analogize it to something that everyone regards as traditional art and everyone agrees is protected speech.
JUSTICE GORSUCH: Like the Jackson Pollock?
GENERAL FRANCISCO: Exactly. And here you have a cake that is essentially synonymous with a traditional sculpture except for the medium used. But I also think that the Second Circuit’s decision in the Mastrovincenzo case provides a good and workable standard when you’ve got something that is part art and part utilitarian. And what the Second Circuit asks is it predominantly art or predominantly utilitarian? And here people pay very high prices for these highly sculpted cakes, not because they taste good, but because of their artistic qualities…. But I think the point is when you cross that threshold into free speech, the question is can you compel somebody to create and contribute speech to an expressive event.
JUSTICE KAGAN: What if somebody comes in, it’s a baker who’s an atheist and really can’t stand any religion, and somebody comes in and says I want one of your very, very special, special cakes for a First Communion or for a Bar Mitzvah. And the baker says no, I don’t do that. I don’t want my cakes to be used in the context of a religious ceremony.
GENERAL FRANCISCO: Well, if it rises to the level of speech, then I think he has a claim just like that same baker (Phillips) and he could refuse to sculpt that cake.
Justices refer to decisions of the Second Circuit looking at various factors when a product is both artistic and utilitarian? Is the product primarily artistic or utilitarian? Are people paying for the utilitarian side of it or are they paying for the artistic side of it? What about the price? Does the price reflect more the product’s utilitarian feature or its artistic quality?
JUSTICE BREYER: There’s a category of people called artisans. An artisan is a kind of artist. They are in many fields. They are also people who are discriminated against. And we’re in a country of minorities, there are many different groups that have been discriminated against. For many years Congress has passed laws saying, at least to the artisans: You cannot discriminate on the basis of race, religion, sexual orientation. If we were to write an opinion for you, what would we have done to that principle?
GENERAL FRANCISCO: Well, Your Honor, none of these Courts’ cases has ever involved requiring somebody to create speech and contribute that speech to an expressive event to which they are deeply opposed. And if I could go back to my example, when you force that African-American sculptor to sculpt that cross for a Klan service, you are transforming his message. 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.
JUSTICE KENNEDY: What would the government — what would the government’s position be if you prevail in this case, the baker prevails in this case, and then bakers all over the country received urgent requests: Please do not bake cakes for gay weddings. And more and more bakers began to comply.
GENERAL FRANCISCO: (The case before you) is a case for strict scrutiny because you’d be able to show that the application of the law is narrowly tailored to the government’s interests in ensuring access. Here, of course, you have these products that are widely available from many different sources. And I would submit, just to finish up, that if you were to disagree with our basic principle, putting aside the line about whether a cake falls on speech or non-speech side of the line, 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. And the problem is when you force somebody not only to speak, but to contribute that speech to an expressive event to which they are deeply opposed, you force them to use their speech to send a message that they fundamentally disagree with. And that is at the core of what the First Amendment protects our citizenry against
3. Mutual Tolerance Is Essential in a Free Society
In one of the most charged exchanges of the day, Justice Anthony M. Kennedy questioned Colorado Solicitor General Frederick Yarger about whether a member of the Colorado Civil Rights Commission who compared Phillips to a racist and a Nazi demonstrated anti-religious bias—and that, if he did so, whether the judgment against Masterpiece should stand.
After disavowing the commissioner’s comments, Yarger argued that the ruling should still stand. But Kennedy returned to the issue again, telling Yarger that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
Kennedy also pointed out there were other cake shops that would have accommodated Charlie Craig and David Mullins, the same-sex couple who requested a cake for their wedding.
In a similar line of questioning, Justice Samuel Alito pointed out that the state of Colorado had failed to demonstrate mutual tolerance when it only protected the freedom of cake artists who landed on one side of the gay marriage debate—namely, the state’s side.
When three religious customers went to cake artists to request cakes that were critical of same-sex marriage, those cake artists declined—yet Colorado did not apply its anti-discrimination statute to punish the artists. But when Phillips declined to create a cake to celebrate a same-sex marriage, Colorado imposed a three-pronged penalty that drove him out of the wedding cake business, causing him to lose 40 percent of his business.
pp. 51-66 —
MR. YARGER: (Counsel for the Colorado Civil Rights Commission) Mr. Chief Justice, and may it please — please the Court: A decade ago Colorado extended to LGBT people the same protections used to fight discrimination against race, sex and a person’s faith. Masterpiece Cakeshop is a retail bakery that is open to the public and subject to the Colorado Anti-Discrimination Act. Yet, Petitioners’ claim that they can refuse to sell a product, a wedding cake of any kind in any design to any same-sex couple.
JUSTICE KENNEDY: The Chief Justice has introduced the question of the Free Exercise Clause in this case. Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric. Suppose we thought that in significant part at least one member of the Commission based the commissioner’s decision on the grounds of hostility to religion. Suppose we thought there was a significant aspect of hostility to religion in this case?”
CHIEF JUSTICE ROBERTS: The one biased judge might have influenced the views of the other.
JUSTICE GORSUCH: Mr. Yarger, you actually have a second commissioner who also said that if someone has an issue with the laws impacting his personal belief system, he has to compromise that belief system.
JUSTICE ALITO: One thing that’s disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint. The Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and those — there were bakers who said no, we won’t do that because it is offensive. And the Commission said: ‘That’s okay. It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage.’ But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.
CHIEF JUSTICE ROBERTS: Maybe you could answer — maybe you could Justice Alito’s question.
JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs. And because accommodation is, quite possible…. we assume there were other shops. other good bakery shops, that were available.
MR. YARGER: Your Honor, I don’t agree that Colorado hasn’t taken very seriously the rights of those who wish to practice their faith.
JUSTICE BREYER: I’m asking can you do this? Can a baker say do this? Could the baker say, you know, there are a lot of people I don’t want to serve, so I’m going to affiliate with my friend, Smith, who’s down the street, and those people I don’t want to serve, Smith will serve. Is that legal? Would that be legal under Colorado law? That’d be a kind of accommodation, so they get the cake.
MR. YARGER: It would be, Your Honor…. I would say that there’s — there is a possibility that that does not violate the law…
CHIEF JUSTICE ROBERTS: Does it make a difference that same-sex marriage was not permitted in Colorado at the time of these events?
MR. YARGER: I don’t think it does, Your Honor.
CHIEF JUSTICE ROBERTS: Could he have said I am not going to make a cake for, you know, celebrating events that aren’t permitted in Colorado?
JUSTICE GINSBURG: Would Colorado be required to give full faith and credit to the Massachusetts marriage?
MR. YARGER: No it wouldn’t.
JUSTICE ALITO: It did not at the time. This is very odd. We’re thinking about this case as it might play out in 2017, soon to be 2018, but this took place in 2012. So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated. If they said: ‘Well, we want you to recognize our Massachusetts marriage,’ the state would say: ‘No, we won’t accommodate that.’ If the couple had said: ‘Well, we want a civil union,’ the state would say: ‘Well, we won’t accommodate that either.’ And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, no, I won’t do it, in part because same-sex marriage was not allowed in Colorado at the time, he’s created a grave wrong. How does that all fit together? (pg. 66)
pp. 69-71 —
JUSTICE GORSUCH: I have a quick question about the Commission’s remedy. As I understand it, Colorado ordered Mr. Phillips to provide comprehensive training to his staff. Why isn’t that compelled speech and possibly in violation of his free-exercise rights? Because presumably he has to tell his staff, including his family members, that his Christian beliefs are discriminatory. This order was ordering him to provide training and presumably compelling him to speak, therefore, and to speak in ways that maybe offend his religion and certainly compel him to speak. And given that, plus the discriminatory language in the Commission’s discussion, it concerns me.
MR. YARGER: It has nothing to do with a particular person’s belief. It has to do with ensuring that the conduct that was found discriminatory, and if that conduct can be regulated consistent with the First Amendment, I think that a training requirement like that can be imposed.
JUSTICE KENNEDY: Part of that speech is that state law, in this case, supersedes our religious beliefs, and he has to teach that to his family. He has to speak about that to his family, who are his employees.
MR. YARGER: He has to speak about that fact.
4. Disagreement Does Not Equal Discrimination
Justice Kennedy challenged the state of Colorado and the ACLU on their argument that Phillips discriminates on the basis of identity, rather than his deeply-held religious belief of what constitutes a rightful marriage. In an exchange with the ACLU attorney, Justice Kennedy called the repeated attempts to characterize Phillips as discriminating on the basis of identity as too easy of an accusation. (Kennedy’s term was “too facile”)
During the oral arguments, the court appeared to recognize what is patently obvious from the facts. Phillips welcomes all people into his store, encourages them to buy off-the-shelf items, and will make custom-designed cakes for them provided they don’t ask for items that violate his beliefs. He has served homosexuals for the 24 years his store has been in operation and welcomes their business to this day. He has not discriminated nor does he discriminate against anybody because of their identity.
While the ACLU attorney for Craig and Mullins, Mr. David Cole, continued to compare the conduct by Phillips to the conduct by shopkeepers in the Jim Crow South who sought to keep the races “separate but equal,” the conservative justices suggested the comparison was not sincere but rather part of a smear attack to divert attention from the real issue: Phillips simply disagrees with the state on the issue of marriage and that disagreement stems not from discrimination based on the identity of the individuals but from a view of the legitimacy of the institution as he understands it to be, according to the age old teachings of his faith. Chief Justice Roberts appeared to recognize this when chiding the ACLU for lumping in supporters of traditional marriage with racists, noting that in the Obergefell v. Hodges decision (the gay marriage opinion handed down by the Court in 2015), the Court had said support for traditional marriage is rooted in “decent and honorable” premises and not discrimination against the individual. What the Chief Justice was emphasizing was that the Court had acknowledged that there would, and will be, good-faith disagreements over gay unions based on firmly-entrenched religious doctrine.
Specifically, the key sections of the Obergefell that discuss “decent and honorable” religious opposition to gay marriage include:
“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here….” (from the majority opinion, written by Justice Kennedy)
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” (from the majority opinion, written by Justice Kennedy)
“This view [the traditional definition of marriage – as between a man and a woman] long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” (from the majority opinion, written by Justice Kennedy)
“Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is, unlike the right imagined by the majority, actually spelled out in the Constitution.” (Dissenting opinion, written by Chief Justice Roberts)
“Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.” (Dissenting opinion, written by Chief Justice Roberts)
Finally, the oral arguments revealed the scope of how far the state of Colorado is willing to go to impose its views of marriage on citizens. In one line of questioning from Chief Justice Roberts, both to Mr. Yarger and to Mr. Cole, Colorado admitted that it would force Catholic Legal Services to provide a same-sex couple with legal services related to their wedding even if it violates Catholic teachings on marriage. And in questioning from Justice Alito, the ACLU answered that the state could force a Christian college whose creed opposes same-sex marriage to perform a same-sex wedding in its chapel.
Like many Americans, Jack Phillips seeks to work in a craft that applies his talents and in a manner consistent with his deeply-held religious beliefs, including on marriage. In order to follow his conscience, he has turned down requests for cakes that contain messages expressing certain ideas: Halloween and divorce, anti-American themes, and even anti-gay messages. What he has never done is turn away anyone because of who they are.
pp. 72-92 —
MR. COLE: (counsel for Craig and Mullins; introductory remarks to the justices) Mr. Chief Justice, and may it please the Court: We don’t doubt the sincerity of Mr. Phillips’s convictions. But to accept his argument leads to unacceptable consequences. A bakery could refuse to sell a birthday cake to a black family if it objected to celebrating black lives. A corporate photography studio could refuse to take pictures of female CEOs if it believed that a woman’s place is in the home. And a florist could put a sign up on her storefront saying we don’t do gay funerals, if she objected to memorializing gay people. Now, both Petitioner and the United States recognize that these results are unacceptable with respect to race. And so they suggest that you draw a distinction between race discrimination and sexual orientation discrimination and the state’s ability to protect it. But to do that would be to constitutionally relegate gay and lesbian people to second class status, even when a state has chosen, as Colorado has done here, to extend them equal treatment.
CHIEF JUSTICE ROBERTS: When the Court upheld same-sex marriage in Obergefell (The Obergefell v. Hodges case, 2015), it went out of its way to talk about ‘the decent and honorable people who may have opposing views.’ And to immediately lump them in the same group as people who are opposed to equality in relations with respect to race, I’m not sure that takes full account of that concept in the Obergefell decision.
MR. COLE: So, Chief Justice Roberts, the Court in Obergefell did, indeed, say that individuals are free to express their disagreement through speech with the notion of same-sex marriage, but it did not say that businesses who make a choice to open themselves to the public can then turn away people because they are gay and lesbian. All the baker needed to know about my clients was that they were gay and lesbian. And, therefore, he wouldn’t sell them a wedding cake.
(The justices neglected to point out the error in Mr. Cole’s statement here, and hence, his argument. Justice Alito had emphasized earlier in oral arguments that the record is undisputed by all sides that Mr. Phillips did not refuse to provide Craig and Mullins a wedding cake; he explained that he could not “create” one celebrating same-sex marriage).
JUSTICE GINSBURG: Let’s say Craig and Mullins said we would like to have on this wedding cake of ours these words: ‘God bless the union of Craig and Mullins.’ The baker would not put that message on their cake. But he would not put that message (ie, ‘God bless the union of any two males, or any two females) on any other cake either. (Trying to determine if the discrimination was on the “identity” of the individuals, as homosexuals, or just on the message conveyed in the creation of the cake).
MR. COLE: If he made a cake that said ‘God bless the union of Dave and Craig’ the only difference between the two cakes is the identity of the customer who is seeking to purchase it.
JUSTICE BREYER: Well, you see, all custom goods, all custom goods have an element of expression. An artisan is not quite the same as an artist, but an artisan can be a great artisan and can produce good things. But where the clash is between an important public policy, the policy of opening the doors to everyone, including minorities, in the public commercial area, well, there the speech element of the artisan is not really sufficient to outweigh that. Now, that’s pretty straightforward. And they do have to leave open the instance where the speech goes farther than just preparing a specially-shaped cake. What the Court has done when it’s expressive conduct, because that’s what we have here at most is expressive conduct, we don’t ask is it expressive from the perspective of the baker or is it expressive from the perspective of the — of a customer. We ask what’s the state’s interest in regulating? What is the state doing? And if the state is regulating conduct because of what it expresses, well, now that’s strict scrutiny.
JUSTICE ALITO: Are the words on the cake expressive conduct or are they not speech?
MR. COLE: The conduct, Your Honor, that is regulated by Colorado here is not the words on the cake. The conduct that Colorado regulates is the sale by a business that opens itself to the public, invites everybody in, it’s regulating the conduct of refusing a transaction to somebody because of who they are… It doesn’t matter if it’s speech or it’s not speech.
JUSTICE ALITO: But you just said that someone can be compelled to write particular words with which that person strongly disagrees.
JUSTICE ALITO: There are services, I was somewhat surprised to learn this, but weddings have become so elaborate, that will write custom wedding vows for you and custom wedding speeches. So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a better place. And the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message. But you would say, well, it’s too bad because you’re a public accommodation. Am I right?
MR. COLE: What I would say, Your Honor, is that if that case were to arise, it would certainly be open to this Court to treat it differently, but……
JUSTICE KENNEDY: Differently on what basis? On what principle would we use to treat it differently?
JUSTICE GORSUCH: Well, let’s take a case a little bit more likes ours. It doesn’t involve words – just a cake. It is Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?
MR. COLE: It’s not identity-based discrimination. All Colorado law, and public accommodations law generally, requires is that you not discriminate on the basis of particular protected classes, sexual orientation, race, disability, religion, and the like.
JUSTICE GORSUCH: Well, why is that any different than our case? You say it’s not based on identity, but the baker might well say ‘I despise people who adhere to the creed of the KKK. That’s one way of characterizing it. Another way of characterizing it is saying I disagree with the message of the KKK. So too here. One could make the exact analogy, I would think, that you could either characterize it as: I don’t like people of a certain class OR I have a religious belief against this kind of union. So how do I distinguish those cases?
JUSTICE GINSBURG: I misunderstood your answer to Justice Gorsuch. Did you say you could refuse to sell the identical cake with the red cross?
MR. COLE: If he is not doing it on the basis of the identity — a protected identity. The Ku Klux Klan as an organization is not a protected class. So, yes, the public accommodations law does not say you must treat everybody; it just says you cannot discriminate on the basis of protected categories.
JUSTICE KENNEDY: Well, but this whole concept of identity…… Suppose the baker says: ‘Look, I have nothing against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not their identity; it’s what they’re doing. I think your identity thing is just too facile. (In other words, Kennedy wasn’t convinced that Phillips engaged in identity discrimination or that the couple’s argument that such conduct by Phillips is identify-based discrimination)
JUSTICE BREYER: Go back to Justice Gorsuch’s hypothetical and substitute a religious group for the KKK. Suppose his religious group, bizarre perhaps, has the same beliefs as the KKK. A baker would have to sell a cake to them, right?
MR. COLE: Yes, he can’t say no because he objects to the message.
CHIEF JUSTICE ROBERTS: Is your answer to my hypothetical about the religious legal services organization the same as Mr. Yarger’s? [Referring to the hypothetical he gave on pp. 47-49 of the Transcript: “There are many different faiths, but Catholic Legal Services provides pro bono legal representation to people who are too poor to afford it and they provide it to people of all different faiths. So let’s say a couple just like Craig and Mullins here (Craig and Mullins) is having a contract dispute with somebody in connection with their marriage, and they go into Catholic Legal Services and say we want you to take this case against Masterpiece Cakeshop. And the lawyers say ‘We can’t offer our services because we don’t support same-sex marriage.’ If a heterosexual couple comes in and says we need particular services in connection with our marriage, they would provide it. Would Catholic Legal Services be in violation of the Colorado law? They provide their services to all faiths. And there’s nothing in the law that I can see that says it’s limited to for-profit organizations.” Mr. Yarger responded that under the Colorado law, CLS would be put to the choice of either not providing any pro bono legal services or providing those services in connection with the same-sex marriage.]
MR. COLE: I think — I — I – I (rambles)
CHIEF JUSTICE ROBERTS: So, if someone had a problem in connection with their marriage, again, whatever it is, contract dispute, something like that, they would have to provide representative services to someone who had a similar problem in connection with a same-sex marriage? Even though they provide more than just speech. There is expressive conduct involved. Providing representation before a Court involves a lot more than simple speech (simple responses to questions or to answers). [In other words, the Chief Justice was noting that religious organizations would either succumb to Compelled Speech or shut their doors].
pp. 97-102 —
MS. WAGGONER: (Rebuttal opportunity) In the context of Masterpiece Cakeshop, this Court has found that corporations have free speech rights, and that closely family-held corporations have free exercise rights. I have three brief points in rebuttal:
First of all, the bias (anti-Catholic religion bias; anti-religion bias) of the Commission is evidenced in the unequal treatment of the cake designers, the three other cake designers who were on the squarely opposite sides of this issue. If the Court looks at the analysis that was provided by the Colorado Court of Appeals, line by line, they take the opposite approach to Mr. Phillips that they do to those who are unwilling to criticize same-sex marriage. The Colorado Court of Appeals said that they could have an offensiveness policy, and they said that those three cake designers were expressing their own message if they had to design that cake. In Mr. Phillips’s case, they said it wasn’t his message, that it was simply compliance with the law. In the other case, they said that the cake designers, because they served Christian customers in other contexts, that that was evidence it was a distinction based on the message, but in Mr. Phillips’s case, they ruled the opposite way. Professor Laycock’s brief provides a good analysis of that as well. It was filed in this case.
Second, the Compelled Speech Doctrine and the Free Exercise Clause is anchored in the concept of dignity and speaker autonomy. And in this case dignity cuts both ways. The record is clear on that. Demeaning Mr. Phillips’ honorable and decent religious beliefs about marriage, when he has served everyone and has a history of declining all kinds of cakes unaffiliated with sexual orientation because of the message, he should receive protection here as well. This law protects the lesbian graphic designer who doesn’t want to design for the Westboro Baptist Church, as much as it protects Mr. Phillips.
Lastly, political, religious, and moral opinions shift. We know that. And this Court’s dedication to Compelled Speech Doctrine and to free exercise should not shift.
JUSTICE SOTOMAYOR: Counsel, the problem is that America’s reaction to mixed marriages and to race didn’t change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights. It’s not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.
MS. WAGGONER: Justice Sotomayor, I think that the gravest offense to the First Amendment would be to compel a person who believes that marriage is sacred, to give voice to a different view of marriage and require them to celebrate that marriage.
JUSTICE SOTOMAYOR: Then don’t participate in weddings, or create a cake that is neutral, but you don’t have to take and offer goods to the public and choose not to sell to some because of a protected characteristic. That’s what the public anti-discrimination laws require.
MS. WAGGONER: A wedding cake expresses an inherent message that is that the union is a marriage and is to be celebrated, and that message violates Mr. Phillips’s religious convictions.
Again, all eyes were on Justice Kennedy, the likely swing-vote in this case, to see what the pivotal issue in the case was for him. The ‘Compelled Speech” argument, Phillips’ strongest argument in this case, may not have been the issue that resonated strongest with Kennedy. Instead, it may have been the outright, targeted hostility to religion by the state of Colorado. As he commented: The state “has been neither tolerant nor respectful of baker’s religious faith.”
Yet he focused on what might happen if artisans had the freedom not to create products for same-sex weddings. Could there be a virtual boycott of such weddings?
We all think that the Supreme Court, by a 5-4 decision (depending which side Justice Kennedy falls down on) will hand down an opinion either supporting Phillips and Free Speech (and furthering the right of Christians to live according to their beliefs) or supporting Craig and Mullins and the unfettered right of homosexuals not to be discriminated against in public accommodations. But Justice Kennedy’s concerns about the hostility towards Phillips and his religion by the state of Colorado just may leave open the possibility that the Supreme Court could return the case to the commission for a rehearing before an unbiased panel. That prospect actually seemed to intrigue Chief Justice Roberts.
We shall see. I personally don’t believe Phillips will lose this case.
The Alliance Defending Freedom seems confident that the decision will be in Phillips’ favor. Representatives of the ADF met in person with us about an hour after oral arguments and said they were reading through the newsfeed and most attorneys, from both sides, were giving the edge to Phillips.
V. WHAT THIS CASE IS ABOUT
David Mullins explains the case this way: “This case isn’t about Jack Phillips and it isn’t about us. It’s about the principle that gay people should be able to receive equal service at businesses open to the public. They shouldn’t have to look for another baker, like we did. The point of this case is that with this law we have in Colorado it is illegal to discriminate against and provide unequal service to gays in public accommodations.” (The Denver Post, Aug. 14, 2017)
Charlie Craig and David Mullins, the ACLU, and indeed, the entire LGBT community would have us believe this is a simple case of discrimination…. The same denial of services that African-Americans endured during the Jim Crow and Civil Rights era.
But this case is much more than that. As Kennedy pointed out during oral arguments: “It’s too facile.” If it were simply a case of outright discrimination, the case would simply revolve around the words and the legislative intent of the Colorado Anti-Discrimination Act.
Individuals are far more than the sum of their actions; they are the product of their conscience. Conduct can be compelled, conformed, but only to a certain extent. To go beyond would be to compel thought and speech in order to conform them as well.
This case is about the security and vitality of the First Amendment to recognize the right of an individual to exercise his or her religious beliefs and his right to express deeply-held views even when that individual leaves his or her home and church and ventures into the marketplace of goods and services, while also recognizing the equally important right of an individual not to be discriminated against based on an immutable or inherent characteristic such as skin color, disability, or biological gender. No respectable religion would teach its followers to hate based merely on characteristics the good Lord assigned at birth.
This case asks whether we still have the right to live according to our conscience and not be compelled into conduct or speech and expression that violates it.
To repeat myself once more, the case revolves around a man named Jack Phillips. Jack is a very devout Christian. And he is a baker. He makes and decorates cakes, as long as they don’t offend his core beliefs and conflict with his conscience. He has a simple rule: he’ll sell anyone a cake. Gay, straight, transgender, green. Anyone. But he won’t make a custom cake for every event – such as for Halloween (a pagan holiday), celebrating divorce (he doesn’t believe in divorce), having an adult theme (as for bachelor parties), having an anti-American message, celebrating atheism, or intentionally discriminating (such as baking a cake condemning same-sex marriage). The cakes he takes particular pride in are his wedding cakes. He doesn’t simple bake and decorate a wedding cake; he “creates” them. To him, they celebrate one of God’s most holiest of ceremonies – the joining of a man and a woman in holy matrimony. As a religious Christian, he sees it as sinful participation, on his part, to make a custom cake celebrating a same-sex wedding. He’ll sell a same-sex couple a pre-made cake, cookies, or any other product in his store. He’ll bake a cake for a same-sex wedding, but he won’t decorate it as such (no groom-groom wedding toppers, for example). Craig and Mullins wanted a 7-layer cake, in the colors of the rainbow, to symbolize their gay pride. The cake that they envisioned for their reception would be one that made a statement. The couple wasn’t just looking to celebrate their marriage as a union between themselves as individuals; more specifically and to the point, they wanted to celebrate that they married as two homosexual men. In other words, the cake, through its design, conveyed and expressed a very specific message.
Jack Phillips believes it is his Constitutional right to conduct himself, even in his trade, in accordance with the exercise of his religious beliefs. But the Leftists at the Colorado Civil Rights Commission didn’t think so. They don’t believe anyone engaged in business has the right to “hide behind their religion” and not serve customers in an equal manner.
According to the LGBT left, the case isn’t about religious liberty or the rights of conscience. They sum the case up in this way: What Phillips wants is for the law to weight his personal beliefs about a person’s intrinsic identity above that person’s right to access a business. As Sarah Jones wrote in New Republic: “Wedding vendors don’t run ministries. They run businesses that are open to the public. And while business owners do have some legal flexibility over who they do or do not serve, this isn’t a matter of no shoes, no shirt, no service. The action Jack Phillips wants to take is morally equivalent to rejecting a customer because they’re blind or female or black.”
But that argument is exceptionally misleading. The truth is that businesses aren’t really open to the public and they certainly don’t hire without discrimination. Bruce Springsteen, the Dixie Chicks, and other musicians and bands are in the business of providing musical entertainment. Yet they refuse to perform for audiences with whom they disagree with. Bruce Springsteen cancelled a concert in Greensboro, North Carolina, because he had a fundamental disagreement with a law enacted by the state’s legislature – HB2 (the Transgender, or “anti-Transgender,” Bathroom Bill) and he has refused to allow his music to be used by Republican politicians. Famous fashion designers refused to design clothes for Melanie Trump because of opposition to her husband’s administration. Jack Phillips didn’t and doesn’t discriminate based on any immutable characteristics such as skin color, gender, or physical disability and so Jones’ analogy is just liberal nonsense. He politely refuses service when he is asked to design and decorate a cake that makes a statement that is offensive to the core religious beliefs that define his faith. Faith is certainly much more than what an individual does on a Sunday or professes in his prayers. Faith is what provides the foundation for the way one thinks and how one conducts himself in every aspect of life.
In an op-ed that he wrote for USA Today, Phillips explained why he couldn’t bake a wedding cake for same-sex couples:
“What I didn’t say was that I wouldn’t sell them a cake. I’m happy to sell a cake to anyone, whatever his or her sexual identity. People should be free to make their own moral choices. I don’t have to agree with them. But I am responsible for my own choices. And it was that responsibility that led me to decline when two gentlemen came into my shop and invited me to create a wedding cake for their same-sex ceremony. Designing a wedding cake is a very different thing from, say, baking a brownie. When people commission such a cake, they’re requesting something that’s designed to express something about the event and about the couple. What I design is not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event — a message telling all who see it that this event is a wedding and that it is an occasion for celebration. In this case, I couldn’t. What a cake celebrating this event would communicate was a message that contradicts my deepest religious convictions, and as an artist, that’s just not something I’m able to do, so I politely declined.
But this wasn’t just a business decision. More than anything else, it was a reflection of my commitment to my faith. My religious convictions on this are grounded in the biblical teaching that God designed marriage as the union of one man and one woman. Obviously, not everyone shares those convictions. I don’t expect them to. Each of us makes our own choices; each of us decides how closely we will hold to, defend and live out those choices.
The two men who came into my shop that day were living out their beliefs. All I did was attempt to live out mine. I respect their right to choose and hoped they would respect mine. But they did not. And, considering all of the hate mail, obscene calls and death threats my family has received since I was sued, a lot of other people don’t see tolerance as a two-way street, either.
But the Constitution does. The First Amendment defends my right to create custom cake art that is consistent with my faith, while declining requests that ask me to celebrate events or messages that conflict with my faith. As a cake artist, I can live out my faith in my day-to-day life, and make that faith the basis for my creative decisions.
We live in a big, diverse nation. We don’t all have to agree on religion. We don’t have to agree on questions of sexual morality. We don’t even have to agree on the meaning of marriage. What we should be able to agree on is our mutual freedom, as Americans, to live out the ideals that are most important to us. Just as I shouldn’t be able to use the law to force others to design something that promotes my beliefs, others shouldn’t be able to force me to design a cake that celebrates theirs.
That, for me and those at Alliance Defending Freedom who are defending me, is what this case is about. I hope the U.S. Supreme Court affirms that basic freedom. And if those who oppose me would grant me a certain measure of respect — not as someone they agree with, but as a fellow citizen free to stand by my own moral choices, well … that would be icing on the cake.
[Reference: Jack Phillips, “Here’s Why I Can’t Custom-Design Cakes for Same-Sex Weddings”]
This case is about that slippery slope whereby the very justices who sit on the Supreme Court, the highest court in the land, who hold the security of our essential and fundamental freedoms and liberties in their hands but who fail to appreciate the reason for those freedoms and liberties (as we had seen by the 5-4 decisions in the 2008 and 2009 Second Amendment cases of Heller and McDonald, respectively; the four liberal justices refused to recognize the original and historic meaning of the Second Amendment, the most critical of our rights to maintain our liberty) and who fail to even comprehend that people still live their lives completely in accordance to the dictates of their faith. How can religious freedom remain secure when half the Court believes that people “hide behind their faith” to break laws or that faith is merely a pre-text for their otherwise non-conforming conduct. How can religious freedom remain secure when half the Court believes that it is mere lip service when a person claims to have “deeply-held religious beliefs”? And how can religious freedom remain secure when half the Court believes that religion is an obstacle to social progress and therefore can, and should, be minimized?
The LGBT community and Liberal justices ask the question “Should we allow business owners like Jack Phillips to discriminate by hiding behind his religion” because they themselves don’t know what it is like to have a deeply-held faith, to believe that that faith requires a person to conduct his or her life according to its dictates at all times, at home, in church, in school, in the public arena, and yes, in the workplace, and to suffer in their conscience when they are forced to act against their religious beliefs. To ask such a question or make such a statement evidences a general lack of understanding of what it means to have a strong faith. And this in and of itself is a very sad state of where our country is.
VI. PRACTICAL LOOK AT THE CASE
Jack Phillips made it clear from the outset that he, as the owner and the wedding cake designer for Masterpiece Cakeshop, does not discriminate based on the sexual orientation of a prospective customer. He will knowingly, willingly, and happily sell his products to any person, including any gay or lesbian person or couple, who wishes to purchase his baked goods. Nevertheless, Craig and Mullins, without any tolerance for a man who politely and kindly explained his religious beliefs or appreciation for the position he was in, and having already having found a suitable replacement baker and obtaining the very cake they desired, filed a discrimination claim under the CADA and then went to the ACLU to file suit against Phillips.
On December 6, 2012, administrative law Judge Robert N. Spencer handed down his decision: “The undisputed facts show that Respondents [Masterpiece Cakeshop] discriminated against Complainants [Craig and Mullins] because of their sexual orientation by refusing to sell them a wedding cake for their same-sex marriage, in violation of 24-34-601(2), C.R.S.” [ie, the pertinent section of the Colorado Anti-Discrimination Act, as codified in the Colorado Revised Statutes, or CRS.] As punishment, he and his employees (his family members) were required to do several things, as explained earlier, including being trained on how to conform with the CADA.
Thus, if Phillips wished to continue baking custom cakes in the State of Colorado, under penalty of fines and, potentially, jail:
- He was forced to participate in an event that the Colorado constitution explicitly prohibited (at the time).
- He was required do so against deeply held religious convictions.
- He must do so despite the fact that there are hundreds of other cake makers in the Denver area. (“Nothing says ‘my beliefs are being violated’ like going out of your way to violate the beliefs of others.” (twitter: @Education4Libs)
- He was required to train his family (his employees) on anti-discrimination law and practice, which included instructing his Christian family that their religious liberties, rights of conscience, and right to free expression must give way to the demands of the state legislature (As Justice Kennedy said: “He has to tell them that a state anti-discrimination law overrode their religious beliefs”)
Craig and Mullins believe Phillips should have no rights whatsoever to religion or conscience or speech once he opens his door for business, and their ACLU lawyer, David Cole, made the analogy to African-Americans during the Jim Crow and Civil Rights era a big part of their discrimination case, as it does in all cases of discrimination (including the Obergefell case). As Cole asked the justices of the Supreme Court: “What if, for example, someone’s religious principles prohibited interracial marriages? Should that individual be allowed to deny services to an interracial wedding?
Every decent human being, of course, would answer: “Of course not!” That would be a no-brainer, and should be a no-brainer for the Court.
Here’s why the ACLU’s argument is frivolous and not a legitimate one in this particular case:
- No religion practiced in America — indeed, no world religion — has ever banned interracial marriage. That some American Christians opposed interracial marriage is of no consequence. No one assumes that every position held by any member of a religion means that the religion holds that position.
- If opposition to same-sex marriage is not a legitimately held religious conviction, there is no such thing as a legitimately held religious position. Unlike opposition to interracial marriage, opposition to same-sex marriage has been the position of every religion in recorded history — as well as of every country and every American state until the 21st century.
- The Colorado baker made it clear to the gay couple — as acknowledged by the court — that he would be happy to bake and sell cakes to the homosexual couple any other time they wanted. Therefore, he is not discriminating against people based on their sexual orientation. He readily sells to people he knows to be homosexual. What he is unwilling to do is to participate in an event that he opposes for deeply-held and legitimate religious reasons. These fundamental religious beliefs, by the way, are nothing new and certainly not a surprise to the homosexual community. They have been at the core of almost every organized religion since the earliest days of human communities. Until, at the most, ten years ago, no one would have imagined that a person could be forced to provide goods or services for a same-sex wedding.
- If a baker refused on religious grounds to provide the wedding cake for a polygamous wedding, should the state force him to do so? If a baker refused to provide a cake to an atheist couple celebrating an abortion, should the state force him to do so?
As Dennis Prager commented: “In the name of tolerance, the left is eroding liberty in America.”
VII. ADDITIONAL ISSUES
In discussing the case with friends and former students, and even strangers I happened to talk to as we were leaving the Supreme Court building, several questions were asked. I took note of some of them, and I thought I would include them as a way to start finishing up this article, with an attempt at answer.
QUESTION: What did Chief Justice John Roberts likely mean, in the context of the case, when during oral arguments he said: “When the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about ‘the decent and honorable people who may have opposing views’”?
ANSWER: It could mean one of two things, at least. First, he could have brought that language up simply to make the point that the decision not to bake a custom cake to celebrate the marriage of the same-sex couple was not discrimination on “identity” (discrimination against Craig and Mullins as homosexuals) but merely the reaction of a “good and decent person” who “opposes same-sex marriage as a tenet of faith.” (which were his words in the Obergefell, dissenting opinion). The majority opinion, after all, does recognize the rights of believers: “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Second, it could indicate that his opinion is that a religious exemption should be made for Phillips and those like him with respect to the CADA (and other state anti-discrimination laws) because of what the Obergefell opinion recognized with respect to the divine precepts of religion and that decent and honorable people firmly adhere to such teachings. Phillips should not be compelled to speak or express a viewpoint that conflicts with his religious beliefs.
During oral arguments, Justice Kennedy said: “Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.” Tying together this statement with the comments in the Obergefell case about “the decent and honorable people who may have opposing views” (that is, believing that marriage is between a man and a woman), it may be that Kennedy holds a deeply-held belief that a tolerant society must leave room for good-faith dissent based on religious principles, especially when religious liberty is expressly protected and encouraged in our Bill of Rights. It may signal that Kennedy may side with the conservative justices.
QUESTION: What harm would likely come from allowing a baker like Jack Phillips (and Masterpiece Cakeshop) to decline to bake custom wedding cakes for same-sex couples. That is, what harm in the marketplace would likely result should Phillips be permitted a religious exemption from Colorado’s Anti-Discrimination Law (CADA)?
ANSWER: There are well over 100 bakeries in the Denver area. The likelihood that any harm will result to same-sex couples in their search for a wedding cake is very little to none at all. The solution to allow Phillips the exemption under the CADA is logical, would allow the law to meet a “Strict Scrutiny” standard of review (for constitutionality), and is in line with what the Colorado Civil Rights Commission is already doing – carving out certain exemptions. It is also the solution that honors another fundamental principle upon which our country was founded – a free market economy. Allowing Phillips and others similarly-situated to step out of the marketplace with respect to certain goods and services creates a market opportunity for another vendor. Let the marketplace – the free market – play out! And it will!
QUESTION: Wondering what would have happened if the cake maker had simply said he was booked up solid and wouldn’t be able to get it made. End of story. Find another bakery shop. Why such a big fuss?
Being in the welding business for 30 years I have seen jobs I didn’t want to do and didn’t! You can’t force me to do a job I don’t want to do nor should a baker be made to make a cake he doesn’t want to make. This whole mess makes no sense to me.
ANSWER: Then laws would remain in place that target those with deeply-held religious beliefs for discrimination but allow exceptions for other groups to decline services (to discriminate) based on their deeply-held views. At some point, there would be another Phillip. Same law; different Christian.
QUESTION: When the couple found another good baker to make their cake the very next day, why didn’t they just drop it? Why did they go ahead and file suit? Why did they insist on having Masterpiece Cakeshop driven out of business by the state of Colorado? And why did they have members of their community flood Phillips and his family with death threats?! When he lost his cake business, neither he nor his family, or supporters, made death threats on the gay couple?
ANSWER: One view of the case, as some people see it, is that Jack Phillips discriminated against gay/lesbian couples and no one should be made to feel less than dignified. As Justice Kagan pointed out during oral arguments: “LGBT people have been humiliated, disrespected, and treated uncivilly.” In this era where gays and lesbians are rapidly seeking equality rights, challenging Phillips’ decision not to bake a custom cake for them on religious grounds would seem like another step forward in trying to establish total equality and in removing obstacles that might stand in the way. Religion, of course, always stands in the way of progressive and unnatural social change. Of course, what the couple refuses to acknowledge is that Jack had a religious foundation for that discrimination. And what the couple also refuses to acknowledge is that when Jack explained his position and politely referred them to another excellent baker, they chose to persecute him in court and in his business rather than show tolerance for his wish to honor his religion.
The other view of the case is that the couple is intolerant of Christians. Rather than respect the dictates of his conscience (they are, after all, fully aware of the Biblical teachings on homosexuality), they chose to punish him for it. Unlike Phillips, they showed intolerance without any religious belief system (free exercise). They were simply motivated by the notion that they shouldn’t have been discriminated against. (By the way, the couple filed their discrimination claim against Phillips even before Colorado recognized same-sex marriage, so the question is; What did he actually discriminate against, legally?). I’m not taking one side over the other in this post. I’m merely pointing out what both sides see. But I do notice, by the nature of some of the questions that I’m getting, that the right of conscience (perhaps the most important of our God-Given rights and the one most valued by our founding generations) is apparently the one most under-appreciated and the one most willing to surrender.
QUESTION: Is it legitimate to compare the plight to overcome same-sex discrimination to the plight to overcome racial discrimination?
ANSWER: Over-coming same-sex discrimination is not the same as the black Civil rights movement, and the conservative justices acknowledged that. Discrimination on the basis of a dark skin color is discrimination based on a stereotype that arose hundreds of years ago and was continued in this country through its years of slavery and into the Reconstruction era. The discrimination that continued into the Jim Crow era and into the Civil Rights era was the worst kind of discrimination because the malicious and demeaning treatment of persons of the African race was based no longer on the stereotype but rather on the color of their skin, a biological feature that they happened to be born with and were incapable of changing. It’s like treating a midget like less of a dignified human being even though he or she had no control of the defect that resulted in the shorter statute. But the difference between the plight of African-Americans and homosexuals is that since the beginning of organized religion (5000 – 6000 years ago, going back to the laws handed down from God in the Old Testament), the God who created us has taught directly, through scripture, that only a man and a woman can marry and become joined as one. Anyone who has an unshakable and deep faith understands that he or she cannot cherry pick the laws handed down by God. One can’t look at the Ten Commandments and conclude that God only really commands us not to kill. A woman can’t accept the Commandment that says Thou Shalt Not Kill but then rationalize that it is OK to terminate the 4-month-old fetus growing inside her. For those who genuinely, deeply, unquestionably believe God handed down his laws and his rules in order to guide his people to a righteous life and to righteous communities, they believe lock, stock, and barrel in what God commanded through His prophets. And so, Justice Kennedy was genuine and reflective of the American people and the American experience when he wrote in Obergefell that belief in marriage as the union of husband and wife is held “in good faith by reasonable and sincere people here and throughout the world.” But there has been no religious tenet that taught people here in the United States to hate and demean African-Americans. Society did that. Keeping old stereotypes alive did that. And so, the plight to over-come same-sex discrimination cannot be equated to the black Civil rights movement because there will always be those who, in good faith, and because of a sincere belief in religious doctrines, cannot accept same-sex marriages. It does not mean that they think any less of the individual, the homosexual or the lesbian, or don’t believe they should be treated fairly and with dignity; it just means that when it comes to the institution of marriage (maybe even the term “marriage”), they have a deeply-held view as to which kind are truly legitimate.
QUESTION: Why didn’t Jack Phillips just bake the cake in order to spare his bakery and his fellow employees?
ANSWER: Phillips explains: “It has nothing to do with David and Charlie, it has everything to do with my faith in Jesus Christ and my following the teachings of the Bible…. I have been asked if I honestly hold those convictions, which I do. I have been asked if my actions, my position, really reflect a Christian approach to life? In situations, I ask myself: ‘What would Jesus do?’ If Jesus were faced with the same situation, this was my answer: ‘Jesus was a carpenter. I believe he wouldn’t have made a bed for their wedding. He would have never condoned something that he was against. He wouldn’t have acted in direct contradiction to the Bible’s teachings while at the same time instructing others to follow those teachings. But I believe he would have been kind and loving to them just the same.”
QUESTION: Why didn’t Craig and Mullins just go to a bakery that wants the business of the LGBT community?
ANSWER: The answer should be that they shouldn’t have to research to find a such a bakery. And again, they shouldn’t have to suffer the indignation of being refused service. But two groups of individuals, the homosexual couple looking to celebrate their same-sex marriage and the Christian, looking to adhere to the religious tenets that bind him to his God and his religion, have competing interests and each has rights. As General Francisco, counsel for the United States, commented during oral arguments: “I agree that there are dignity interests at stake here, and I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too.” And as Justice Kennedy said: “Tolerance is most meaningful when it’s mutual.” Neither tolerance nor respect was shown when it came to Jack Phillips’ religious beliefs yet Phillips was expected to show tolerance for a same-sex wedding celebration that conflicts in a very real way with his religious beliefs, just because the same-sex couple happens to be mentioned in a statute and identified as a protected class of patrons.
Mullins and Craig have endured the initial pain and humiliation of being turned away, of being discriminated against, while Phillips has lost most of his livelihood because of religious persecution. He lost 40% of his income by not being able to provide wedding cakes. As Craig explains: “I don’t feel like we asked him for a piece of art,” yet that is exactly what they asked for. Art doesn’t necessarily take the form of a Rodin or a Michelangelo. A rainbow-layered cake with two men on top is an expressive work of cake art that conveys the specific message that they are celebrating their marriage not only as two men but also celebrating their pride in being gay.
VIII. A DIFFERENT VIEW OF THE CASE
Respected author and distinguished fellow with The Heritage Foundation, Ryan T. Anderson, believes this case should have never ended up at the Supreme Court. He believes that course could have easily been avoided. Of course, we can assume that the LGBT community and the LGBT lobby WANTED the case to be heard as a discrimination case.
The question he asks is whether the Colorado Civil Rights Commission improperly, or recklessly, interpreted the law.
In his article, “The Christian Baker Need Not Have Ended Up at the Supreme Court,” Anderson asserts that not all disagreements over marriage are “discrimination” in the legal sense and require a legal remedy. He believes this to be an accurate statement based on, of all things, the Obergefell v. Hodges opinion.
“Phillips argued that making him create a cake that celebrates a same-sex wedding would violate his First Amendment rights to free speech and free exercise of religion, by forcing him to express a message and to celebrate an event, that runs against his beliefs. If the Court agrees, it will bar Colorado and other states from applying antidiscrimination statutes in such a way.
But Colorado should never have applied its statute this way to begin with. Indeed, states can avoid First Amendment showdowns by refusing to view support for traditional marriage as ‘discrimination.’
Part of the problem is that Colorado misunderstood the Supreme Court’s ruling in favor of same-sex marriage in Obergefell v. Hodges (2015). Colorado claims that the Court held “opposition to same-sex marriage” to be “tantamount to discrimination on the basis of sexual orientation.” In fact, as Chief Justice John Roberts pointed out during the Masterpiece oral arguments, the Court in Obergefell noted that belief in marriage as the union of husband and wife is held ‘in good faith by reasonable and sincere people here and throughout the world.’ The Court stated in its majority opinion that ‘many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.’”
Anderson argues that since the Supreme Court would not disparage well-meaning people who deem same-sex marriage to be wrong based on honorable religious and philosophical grounds, the state of Colorado (and the Colorado Civil Rights Commission) should not have either.
Anderson continues:
“Sexual-orientation antidiscrimination laws should serve as shields, not swords. They are meant to shield people from unjust discrimination that might prevent them from flourishing in society. They aren’t supposed to be swords used to punish people for acting on their reasonable beliefs.
You can see this when considering the history of Colorado’s law. Within a two-year span, Colorado citizens voted to define marriage as the union of husband and wife and to ban discrimination based on sexual orientation. Many other states, too, simultaneously enacted sexual-orientation nondiscrimination policies while insisting that the traditional understanding of marriage is not discriminatory.”
Justice Samuel Alito pointed to this reality during oral arguments. As pointed out earlier, at the time that Jack Phillips declined to bake a same-sex wedding cake, Colorado wouldn’t issue same-sex marriage licenses (let alone even recognize one already issued somewhere else. [Couldn’t the state of Colorado itself have been guilty under the anti-discrimination statute of discrimination?] Let the situation that existed back in July 2012 in Colorado sink in…… A same-sex couple did not have the right to get married in Colorado or have a marriage issued elsewhere recognized in the state. And that’s exactly what the reality was for Charlie Craig and David Mullins. Although residents of Colorado, they could not get married there so they went to Massachusetts. When they returned home to celebrate with family and friends, they were still unable to have their marriage recognized. Yet when they walked in the Masterpiece Cakeshop, all of a sudden, they expected that its owner, a resident and businessman in Colorado, should recognize their relationship as a marriage? How are state citizens expected to recognize a marriage that the State itself refuses to legally recognize? When Phillips, the baker said he would not bake a cake recognizing same-sex marriage, he may have done so based on his religious beliefs but he could have easily done so based on the law articulated in the state’s constitution. But because he gave the first reason, Colorado condemned him for discrimination and the couple sued. Justice Alito found the situation hard to make sense of. As he commented: “So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated…. And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, ‘No, I won’t do it,’ in part because same-sex marriage was not allowed in Colorado at the time, he’s created a grave wrong. How does that all that fit together?”
Colorado didn’t have to declare Phillips to be guilty of discrimination and should not have done so.
Anderson explains:
“We apply other anti-discrimination statutes in a more fair and nuanced way. Bans on religion-based discrimination are not used to force secular organizations to violate their beliefs. Religious antidiscrimination policies have not been used, for example, to force Planned Parenthood to hire pro-life Catholics. And the state of Colorado said it wasn’t religious discrimination when three different bakeries refused to bake cakes with religious anti-gay messages. Religion antidiscrimination laws simply do not seek to impose religious orthodoxy on the country.
But sexual orientation and gender identity (SOGI) antidiscrimination policies are used to impose sexual orthodoxy (conformity). They’re used to try to force Catholic schools to employ people who undermine their sexual values and to coerce Evangelical bakers to lend their artistic talents to messages about marriage with which they disagree. SOGI laws are used to punish people of good will who simply seek the freedom to lead their lives in accordance with their beliefs about human sexuality.”
During oral arguments, swing-Justice Anthony Kennedy appeared to reject the ACLU’s key argument that “opposition to same-sex marriage is discrimination against people who identify as gay.” He understood Phillips’ position. He understood that Phillips genuinely has no animus against gay people; He just doesn’t believe they can be united in marriage because of the core tenets of his faith. “It’s not their identity,” Kennedy explained to his fellow justices. “It’s what they’re doing.”
“United States has reached compromises on similarly difficult moral and cultural issues before. Following Roe v. Wade, Americans refused to use sex antidiscrimination law as a sword to punish pro-lifers. In 1993, in Bray v. Alexandria Women’s Health Clinic, the Supreme Court resolutely rejected the argument that pro-lifers are inherently discriminatory: ‘Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women.”
The same is true when it comes to marriage as the union of husband and wife: There are common and respectable reasons for supporting it that have nothing to do with hatred or condescension. But this is not true when it comes to opposition to interracial marriage — and this is where the analogies to racism break down. When the Supreme Court struck down bans on interracial marriage, it did NOT say that opposition to interracial marriage was based on ‘decent and honorable premises’ and held ‘in good faith by reasonable and sincere people here and throughout the world.’ It did not say it, because it could not say it.
Opposition to interracial marriage is discrimination based on the identity of the individual, on the immutable characteristic of race and skin color. It was intellectual and judicial dishonesty to agree with the petitioners (gay couple, Jim Obergefell and John Arthur, and other same-sex couples) in the Obergefell case that their plight for marriage equality was akin to those seeking the right to marry as an inter-racial couple.
“Opposition to interracial marriage developed as one aspect of a larger system of racism and white supremacy, as part of an effort to hold a race of people in a condition of economic and political inferiority and servitude. It was based on the idea that contact with African Americans on an equal plane is wrong.
That idea, and its premise of the supposed inferiority of African Americans, is the essence of bigotry. Bakers who declined to bake cakes for interracial weddings also declined to treat African Americans equally in a host of circumstances. Racists did not simply object to interracial marriage; they objected to contact with African Americans on an equal footing.
By contrast, marriage as the union of husband and wife has been a universal human practice until just recently, regardless of views about sexual orientation. This vision of marriage is based on the capacity that a man and a woman possess to unite as one-flesh, create new life, and unite that new life with both a mother and a father. Whether ultimately sound or not, this view of marriage is reasonable, based on decent and honorable premises, and disparaging of no one.
A lack of disparagement also explains why bakers like Jack Phillips have been serving gay customers faithfully for years.
Sparing people such as Phillips from the sword does not undermine the valid purposes of antidiscrimination law — eliminating the public effects of anti-gay bigotry — because support for conjugal marriage isn’t anti-gay. Protecting freedom here sends no message about the supposed inferiority of those identifying as gay; it sends no message about sexual orientation at all. It does say that citizens who support the historic understanding of sex and marriage are not bigots. It ensures their equal social status and opportunities. It protects their businesses, livelihoods, and professional vocations. And it benefits the rest of society by allowing these citizens to continue offering their services, especially social services, charities, and schools.”
During oral arguments, Chief Justice Roberts asked the solicitor general of Colorado how the state would apply its antidiscrimination law to the particular case of a pro-bono Catholic legal organization serving the poor. He asked what its fate would be under the law if it withheld services for same-sex couples that they would provide for husbands and wives. “So Catholic Legal Services would be put to the choice of either not providing any pro-bono legal services or providing those services in connection with the same-sex marriage?” The Solicitor General replied: “I think the answer is yes, your honor.”
Anderson concluded in his article with these thoughts:
“Catholic Legal Services, Catholic Charities, Catholic adoption agencies — and the faith-based social services of any religion that believes we are created male and female, and that male and female are created for each other — are at stake. A line of questioning on the comparisons to interracial marriage brought up the case of Bob Jones University, a school that lost its nonprofit tax status because it prohibited interracial dating and marriage. But do we really want to live in a country where acting on a belief about marriage that people have held throughout all of recorded history — that it’s a union of male and female — is treated as the functional and legal equivalent of racism?
All of us should work to prevent such an outcome. Which is why Phillips need not have ended up in court. We must refuse to use antidiscrimination laws as swords to impose sexual orthodoxy on the nation. As Americans continue to disagree about sex, we must refuse to weaponize the redefinition of marriage. Even Justice Kennedy seemed alert to this this in oral arguments for Masterpiece. ‘Tolerance is essential in a free society,’ he said. But, he continued, ‘It seems to me that the state in its position here has neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.’
Anti-gay bigotry exists and should be condemned. But support for marriage as the union of husband and wife isn’t anti-gay. Just as we’ve combatted sexism without treating pro-life medicine as sexist, we can combat anti-gay bigotry without treating Orthodox Jews, Roman Catholics, Muslims, Evangelicals, and Latter-day Saints as bigots.
Not every disagreement is discrimination. And our law shouldn’t say otherwise.”
[Reference: Ryan T. Anderson, “The Christian Baker Need Not Have Ended Up at the Supreme Court”]
IX. CONCLUSION
Matt Walsh wrote in a DailyWire article (“The Gay Couple In The Masterpiece Cakeshop Case Are Vindictive Bullies, Not Victims”) on the day of oral arguments:
The First Amendment is on trial, not Jack Phillips. If Phillips loses, free speech is effectively finished in this country. If a Christian business owner can be forced by the state to create something that goes against his deeply held religious beliefs — beliefs shared by a majority of the world, by the way — then what function does the First Amendment really serve?
Phillips doesn’t need the First Amendment when he makes a birthday cake. He doesn’t need it when he cooks a batch of brownies. He doesn’t need it when he’s doing innocuous things that no one — not even the LGBT lobby — could possibly find offensive or upsetting. He needs it precisely when he’s faced with the dilemma that Mullins and Craig presented. He needs it when he makes a decision, grounded in his religious convictions, which will be upsetting to a powerful group like the LGBT lobby. If he doesn’t have it then, he doesn’t have it at all.
If the Supreme Court decides in favor of the gay lobby, what next? If gays have a mystical right to force their fellow citizens to participate in their gay weddings, where does that right end? I’ll tell you: it doesn’t. If Phillips goes down, the churches will be next. And why not? If we’ve just established that gays are a special and superior class of human beings, and their desire for a cake decorated a particular way now must supersede everyone else’s First Amendment rights, why should the churches be exempt? Indeed, if Phillips doesn’t have the right to withhold his cake, why should the local priest have the right to withhold his church? He doesn’t, in that case. He won’t. Mark my words.
Phillips is not claiming any special rights. He is simply saying that he, like anyone, is entitled to use his artistic abilities in a way consistent with his personal and religious convictions. He doesn’t want to advance a message he doesn’t believe. It is his fundamental human right — not his Christian right, or his baker’s right, or any other kind of right — to refrain. It is his First Amendment right.
When First Amendment rights are pitted against LGBT rights, First Amendment rights should always win.
Mullins and Craig, on the other hand, are saying that a special exception must be made for them, specifically, because they’re gay. Notice how nobody is challenging (for now) Phillips’ right to continue turning down Halloween cakes and divorce cakes and lewd bachelorette party cakes, etc. Mullins and Craig are arguing that their situation is different because they’re gay. Whereas a man’s love for Halloween does not entitle him to special privileges and protections, a man’s sexual attraction to other men does. That’s the argument. It’s deranged, arbitrary, and un-American.
Let’s be clear about the real victim in this situation. Phillips — the decent, hardworking Christian business owner, who employed members of his community and provided a valuable service — is the victim. He did not seek out this notoriety. He did not want to be at the center of a national controversy. He just wanted to make his cakes and live his life. He was a decent, normal man, living a decent, normal, inconspicuous life. Until Mullins and Craig walked in the door. Their behavior is this case has been truly despicable.
There were many bakeries they could have chosen. They just so happened to walk into the one bakery run by an openly devout Christian, asking for a flamboyantly decorated cake for their impending gay wedding. Was this just a coincidence? Did these two gay men accidentally stumble into the one bakery in Colorado that would refuse to make their cake?
Well, if that’s the case, then their response to Phillips can only be described as psychotic. If all they wanted was a cake, and their request was completely innocent, and they truly did not expect to be turned away, then their behavior over the following five years is inexplicable and deranged to an unbelievable extreme. They have, by this version of events, spent half a decade angrily exacting revenge on a man because he didn’t want to put gay-themed decorations on a dessert pastry. They have put their whole life on hold to pursue legal penalties against the guy who politely declined to adorn a cake with a rainbow and two plastic grooms. It’s vengeful and spiteful to an unfathomable degree. These are possibly the pettiest human beings to have ever walked the face of the Earth.
OR, this was all calculated. They sought out Jack Phillips hoping to get exactly the response he gave them, and then they proceeded to use him as a pawn to advance their political agenda and destroy the rights of Christians in America. They are activists parading themselves around as an aggrieved and innocent married couple. I think this is the more accurate characterization. And it is entirely in keeping with how the gay lobby usually operates.
The LGBT community and the LGBT advocacy Left believes that religious freedom is a true threat to their “so-called” rights and it makes sense that they need to destroy the traditional notion that an individual has the right and the freedom in this country to exercise his or her religious beliefs outside of his or her home or church and even into the public square and marketplace. We all know that tolerance has never operated in both directions in the LGBT community.
Ben Shapiro wrote: “Freedom lives in the spaces where we acknowledge that we have no right to another’s labor or approval.” Freedom also lives in those spaces where we have no right to coerce one’s conscience, to silence one’s speech, or to require viewpoint compulsion. “Tyranny grows when we refuse to acknowledge those spaces.”
Shapiro makes a dire prediction depending on the outcome of this case. “If Masterpiece Cakeshop goes the wrong way, the country will only grow more polarized. That’s because religious people across America will be compelled to leave states in which anti-religious anti-discrimination regulations are promulgated, and move instead to red states. Red states will grow redder; blue states will grow bluer. The divide throughout the country will grow. And religious observance — and freedom of speech — will continue to wither on the vine.”
If the Court renders an “opinion” that upholds the decisions of the lower courts and requires that Christians refrain from their deeply-held beliefs when it comes to products and services in the marketplace, then we have an America without freedom of speech or the free exercise of religion. Our once precious “Freedom of Religion,” enshrined in the very first guarantee listed in the Bill of Rights, will be whittled away to mean only that individuals have the right to exercise their religion only while confined to their home and to their place of worship — that’s all. And our absolute essential “Right of Free Speech,” the very cornerstone of a free society and the most essential of tools to alert one another to abuses of government, will mean nothing more than speech that the government allows. We all know that if we are compelled by government to violate our conscience, and particularly the religious values that shape our lives and as we understand will further our communion with our Creator, and set us up for life eternal, then we live a life burdened by that conscience. America was founded on the very freedom to prevent that from happening. The Pilgrims and the Puritans settled Massachusetts on that very ideal.
Jack Phillips petitioned the Supreme Court for validation of our nation’s founding principles. He believes that in America, a man like himself has the right to freely practice his religion (Free Exercise), the right to have his conscience shaped by his beliefs (the Right of Conscience), the right to live his life according to the dictates of his conscience, and the right to be free from government-compelled speech (Free Speech). He believes these rights are the cornerstone of our liberties. And he wants the Supreme Court to acknowledge and remind us – all of us – of this. The question is, will the Supreme Court agree with his vision of America.
Matt Walsh wrote: “Jack Phillips is an innocent man fighting for his right to live and work in peace, and in accordance with his faith. May his cause prevail, for his sake and ours.”
References:
Ryan T. Anderson, “The Christian Baker Need Not Have Ended Up at the Supreme Court,” National Review, Dec. 7, 2017. Referenced at: http://www.nationalreview.com/article/454423/christian-bakers-refuse-bake-gay-wedding-cake-are-not-bigots [Ryan T. Anderson is the William E. Simon Senior Research Fellow at The Heritage Foundation and the co-author of Debating Religious Liberty and Discrimination]
Phillips v. Colorado Civil Rights Commission, Petition for Certiorari – http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-cert-petition.pdf
Transcript of Oral Arguments, Supreme Court – https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) – https://supreme.justia.com/cases/federal/us/576/14-556/opinion3.html
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), dissenting opinion by Chief Justice John Roberts – https://supreme.justia.com/cases/federal/us/576/14-556/dissent4.html
Jack Phillips, “Here’s Why I Can’t Custom-Design Cakes for Same-Sex “Weddings, USA Today, Dec. 4, 2017. Referenced at: https://www.usatoday.com/story/opinion/2017/12/04/supreme-court-masterpiece-why-jack-phillips-wont-custom-design-cakes-same-sex-weddings-column/917631001/
Dennis Prager, “Tolerance Now Means Government-Coerced Celebration,” Real Clear Politics, Dec. 17, 2013. Referenced at: https://www.realclearpolitics.com/articles/2013/12/17/tolerance_now_means_government-coerced_celebration__120970.html
Robert Barnes, “The Spurned Gay Couple, the Colorado Baker and the Years Spent Waiting for the Supreme Court,” The Denver Post, Aug. 14, 2017. Referenced at: http://www.denverpost.com/2017/08/14/colorado-gay-wedding-cake-case/
Emilie Kao, “4 Highlights from Christian Baker’s Wedding Cake Case at Supreme Court,” The Heritage Foundation, Dec. 6, 2017. Referenced at: http://www.heritage.org/religious-liberty/commentary/4-highlights-christian-bakers-wedding-cake-case-supreme-court
Jack Phillips video (In his own words) – https://www.youtube.com/watch?v=qssajSYRPGU
Stephen A. Miller and Leigh Ann Benson, “Masterpiece Cakeshop v. CCRC: A Difficult Balance for Justices,” The Legal Intelligencer,” Jan. 11, 2018. Referenced at: https://www.law.com/thelegalintelligencer/sites/thelegalintelligencer/2018/01/11/masterpiece-cakeshop-v-ccrv-a-difficult-balance-for-justices/?slreturn=20180123122736
Ben Shapiro, “One Of The Most Important Cases In Recent Supreme Court History Will Be Argued Tomorrow. Here’s What You Need To Know,” DailyWire, Dec. 4, 2017. Referenced at: https://www.dailywire.com/news/24267/one-most-important-cases-recent-supreme-court-ben-shapiro
Matt Walsh, “Walsh: The Gay Couple In The Masterpiece Cakeshop Case Are Vindictive Bullies, Not Victims,” DailyWire, Dec. 5, 2018. Referenced at: https://www.dailywire.com/news/24333/walsh-gay-couple-masterpiece-cakeshop-case-are-matt-walsh
Adam Liptak, “Justices Sharply Divided in Gay Rights Case,” NY Times, Dec. 5, 2017. Referenced at: https://www.nytimes.com/2017/12/05/us/politics/supreme-court-same-sex-marriage-cake.html
Tenth Amendment Keepers 