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

    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).