Boldly Committed to Truth Telling in the False Face of Fakery
Phillips v. Colorado Civil Rights Commission: Will the Supreme Court Leave the First Amendment Intact?
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.
PHILLIPS CASE (Before the Supreme Court, Dec. 5, 2017) - Jack Phillips leaving the building after oral arguments ended (#5)
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."
Go Back
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.
PHILLIPS CASE (Before the Supreme Court, Dec. 5, 2017) - Jack Phillips leaving the building after oral arguments ended (#5)
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."
Comments
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Hello Antoinette, Hello Stan,
We need to get away from the mindset that the Supreme Court has the power to render decisions that are correct and that MUST be respected and enforced. As we all know, the federal judiciary, just like the other two branches of the federal government, occasionally abuses its power and interprets the Constitution incorrectly [usually for three reasons: (1) to give the federal government more power, as the government always believes it needs more power; (2) to make law from the bench when Congress refuses to do so; or (3) to effect the social change that voters are unwilling to vote for, or to effect it faster]. All of these reasons are unconstitutional. Technically, legally, constitutionally, an act of government (legislative, executive, or judicial) made in excess or abuse of delegated authority is null and void, and unenforceable. Thomas Jefferson, James Madison, Alexander Hamilton, and NC's James Iredell made this point very clear. The problem is this: The States and We the People give in. In the post-Lincoln era, in the post-Civil War era, the reigning sentiment is that the federal government can do whatever it wants, whenever it wants to, and to whoever it wants. Government knows best. "All tyranny needs to gain a foothold is for people of good conscience to remain silent." (attributable to Thomas Jefferson, although it is said that no one can actually find that statement among his papers). I am VERY critical of the Supreme Court and have written many articles on Judicial Activism and the many decisions from the federal courts that are clearly unconstitutional. In fact, I wrote a recent article (March 201  on the Obergefell v. Hodges decision (which is the gay marriage decision, emphasizing the dissenting opinions of the 4 conservative justices - Justices Scalia, Thomas, and Alito, and Chief Justice John Roberts - to prove that the decision is unconstitutional. Each explains WHY the decision is unconstitutional. The article is titled "OBERGEFELL v. HODGES: An Example of the Very Real Tendency of the Federal Courts to Render Unconstitutional Opinions," and can be found on my blogsite - www.forloveofgodandcountry.com. The direct link to the article is here:forloveofgodandcountry.com In the Phillips case, I'm pretty sure Kennedy will side with the conservatives. The conservatives do NOT analogize the plight and the discrimination of gays and lesbians to that of African-Americans during the Jim Crow and anti-civil rights era, thank God. You are absolutely right that the analogy is intellectually dishonest and fatally flawed. I think Kennedy will side with the conservatives for 2 reasons: (1) The Obergefell v. Hodges decision, written by Kennedy himself, made it ABSOLUTELY CLEAR, that people who have deeply-held religious beliefs about the definition of marriage must be respected and tolerated. (The Colorado Civil Rights Commission, as well as Colorado's Solicitor General, should have shown discretion according to the Obergefell case and recognized an exception to the Anti-Discrimination Act (CADA), just as it recognized exceptions for atheists, Muslims, and African-Americans; and (2) Kennedy made it clear through his questioning that "tolerance goes two ways" and that the homosexual couple, as well as the state of Colorado, were completely intolerance of the Christian baker, Jack Phillips. In fact, Kennedy pointed out that the Commission went out of its way to punish and prosecute Phillips. Thanks for your wonderful comments. Diane Rufino |
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Well said: Wonderful summary of an outstanding summary.
I pray that this Supreme Court will understand that the rights of all people are at stake here; not just those of this extra-protected class. |
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This is an excellent article laying out the facts and outcomes depending on how the SCOTUS rules in this case. To be quite honest, I don't think they have what it takes to render a just decision in this case because they either don't understand the full ramifications of a ruling against the baker, or they are unwilling to put their own political activism and bias aside to advance an agenda that will challenge the truth. I say this because I listened to the Oral Argument and surprisingly the justices kept comparing race to homosexuality as if they are equal and that is false. One is an immutable trait and the other is behavioral. They kept making the mistake again and again. This is also a court that found a right to same sex marriage in the Constitution when it is not even remotely part of the Constitution. I think they want Christians to be just as deceived as they are but that is not going to happen. Christianity is all about the truth and The People must hold SCOTUS accountable to the truth if they try to force people to accept lies as truth. I think at least five of the justices should be impeached for lying to America.
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Come to think on it, that should take a rather long post indeed.