Phillips v. Colorado Civil Rights Commission: Will the Supreme Court Leave the First Amendment Intact? | Eastern North Carolina Now

    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.