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

    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:

    PHILLIPS CASE (Before the Supreme Court, Dec. 5, 2017) - Signs.JPG

    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.