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

    But that argument is exceptionally misleading. The truth is that businesses aren't really open to the public and they certainly don't hire without discrimination. Bruce Springsteen, the Dixie Chicks, and other musicians and bands are in the business of providing musical entertainment. Yet they refuse to perform for audiences with whom they disagree with. Bruce Springsteen cancelled a concert in Greensboro, North Carolina, because he had a fundamental disagreement with a law enacted by the state's legislature - HB2 (the Transgender, or "anti-Transgender," Bathroom Bill) and he has refused to allow his music to be used by Republican politicians. Famous fashion designers refused to design clothes for Melanie Trump because of opposition to her husband's administration. Jack Phillips didn't and doesn't discriminate based on any immutable characteristics such as skin color, gender, or physical disability and so Jones' analogy is just liberal nonsense. He politely refuses service when he is asked to design and decorate a cake that makes a statement that is offensive to the core religious beliefs that define his faith. Faith is certainly much more than what an individual does on a Sunday or professes in his prayers. Faith is what provides the foundation for the way one thinks and how one conducts himself in every aspect of life.

    In an op-ed that he wrote for USA Today, Phillips explained why he couldn't bake a wedding cake for same-sex couples:

    What I didn't say was that I wouldn't sell them a cake. I'm happy to sell a cake to anyone, whatever his or her sexual identity. People should be free to make their own moral choices. I don't have to agree with them. But I am responsible for my own choices. And it was that responsibility that led me to decline when two gentlemen came into my shop and invited me to create a wedding cake for their same-sex ceremony.

    Designing a wedding cake is a very different thing from, say, baking a brownie. When people commission such a cake, they're requesting something that's designed to express something about the event and about the couple. What I design is not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event - a message telling all who see it that this event is a wedding and that it is an occasion for celebration. In this case, I couldn't. What a cake celebrating this event would communicate was a message that contradicts my deepest religious convictions, and as an artist, that's just not something I'm able to do, so I politely declined.

    But this wasn't just a business decision. More than anything else, it was a reflection of my commitment to my faith. My religious convictions on this are grounded in the biblical teaching that God designed marriage as the union of one man and one woman. Obviously, not everyone shares those convictions. I don't expect them to. Each of us makes our own choices; each of us decides how closely we will hold to, defend and live out those choices.

    The two men who came into my shop that day were living out their beliefs. All I did was attempt to live out mine. I respect their right to choose and hoped they would respect mine. But they did not. And, considering all of the hate mail, obscene calls and death threats my family has received since I was sued, a lot of other people don't see tolerance as a two-way street, either.

    But the Constitution does. The First Amendment defends my right to create custom cake art that is consistent with my faith, while declining requests that ask me to celebrate events or messages that conflict with my faith. As a cake artist, I can live out my faith in my day-to-day life, and make that faith the basis for my creative decisions.

    We live in a big, diverse nation. We don't all have to agree on religion. We don't have to agree on questions of sexual morality. We don't even have to agree on the meaning of marriage. What we should be able to agree on is our mutual freedom, as Americans, to live out the ideals that are most important to us. Just as I shouldn't be able to use the law to force others to design something that promotes my beliefs, others shouldn't be able to force me to design a cake that celebrates theirs.

    That, for me and those at Alliance Defending Freedom who are defending me, is what this case is about. I hope the U.S. Supreme Court affirms that basic freedom. And if those who oppose me would grant me a certain measure of respect - not as someone they agree with, but as a fellow citizen free to stand by my own moral choices, well ... that would be icing on the cake.

    [Reference: Jack Phillips, "Here's Why I Can't Custom-Design Cakes for Same-Sex Weddings"]

    This case is about that slippery slope whereby the very justices who sit on the Supreme Court, the highest court in the land, who hold the security of our essential and fundamental freedoms and liberties in their hands but who fail to appreciate the reason for those freedoms and liberties (as we had seen by the 5-4 decisions in the 2008 and 2009 Second Amendment cases of Heller and McDonald, respectively; the four liberal justices refused to recognize the original and historic meaning of the Second Amendment, the most critical of our rights to maintain our liberty) and who fail to even comprehend that people still live their lives completely in accordance to the dictates of their faith. How can religious freedom remain secure when half the Court believes that people "hide behind their faith" to break laws or that faith is merely a pre-text for their otherwise non-conforming conduct. How can religious freedom remain secure when half the Court believes that it is mere lip service when a person claims to have "deeply-held religious beliefs"? And how can religious freedom remain secure when half the Court believes that religion is an obstacle to social progress and therefore can, and should, be minimized?

    The LGBT community and Liberal justices ask the question "Should we allow business owners like Jack Phillips to discriminate by hiding behind his religion" because they themselves don't know what it is like to have a deeply-held faith, to believe that that faith requires a person to conduct his or her life according to its dictates at all times, at home, in church, in school, in the public arena, and yes, in the workplace, and to suffer in their conscience when they are forced to act against their religious beliefs. To ask such a question or make such a statement evidences a general lack of understanding of what it means to have a strong faith. And this in and of itself is a very sad state of where our country is.

    VI. PRACTICAL LOOK AT THE CASE

    Jack Phillips made it clear from the outset that he, as the owner and the wedding cake designer for Masterpiece Cakeshop, does not discriminate based on the sexual orientation of a prospective customer. He will knowingly, willingly, and happily sell his products to any person, including any gay or lesbian person or couple, who wishes to purchase his baked goods. Nevertheless, Craig and Mullins, without any tolerance for a man who politely and kindly explained his religious beliefs or appreciation for the position he was in, and having already having found a suitable replacement baker and obtaining the very cake they desired, filed a discrimination claim under the CADA and then went to the ACLU to file suit against Phillips.

    On December 6, 2012, administrative law Judge Robert N. Spencer handed down his decision: "The undisputed facts show that Respondents [Masterpiece Cakeshop] discriminated against Complainants [Craig and Mullins] because of their sexual orientation by refusing to sell them a wedding cake for their same-sex marriage, in violation of 24-34-601(2), C.R.S." [ie, the pertinent section of the Colorado Anti-Discrimination Act, as codified in the Colorado Revised Statutes, or CRS.] As punishment, he and his employees (his family members) were required to do several things, as explained earlier, including being trained on how to conform with the CADA.

    Thus, if Phillips wished to continue baking custom cakes in the State of Colorado, under penalty of fines and, potentially, jail:

    He was forced to participate in an event that the Colorado constitution explicitly prohibited (at the time).

    He was required do so against deeply held religious convictions.

    He must do so despite the fact that there are hundreds of other cake makers in the Denver area. ("Nothing says 'my beliefs are being violated' like going out of your way to violate the beliefs of others." (twitter: @Education4Libs)

    He was required to train his family (his employees) on anti-discrimination law and practice, which included instructing his Christian family that their religious liberties, rights of conscience, and right to free expression must give way to the demands of the state legislature (As Justice Kennedy said: "He has to tell them that a state anti-discrimination law overrode their religious beliefs")

    Craig and Mullins believe Phillips should have no rights whatsoever to religion or conscience or speech once he opens his door for business, and their ACLU lawyer, David Cole, made the analogy to African-Americans during the Jim Crow and Civil Rights era a big part of their discrimination case, as it does in all cases of discrimination (including the Obergefell case). As Cole asked the justices of the Supreme Court: "What if, for example, someone's religious principles prohibited interracial marriages? Should that individual be allowed to deny services to an interracial wedding?

    Every decent human being, of course, would answer: "Of course not!" That would be a no-brainer, and should be a no-brainer for the Court.

    Here's why the ACLU's argument is frivolous and not a legitimate one in this particular case:

    No religion practiced in America - indeed, no world religion - has ever banned interracial marriage. That some American Christians opposed interracial marriage is of no consequence. No one assumes that every position held by any member of a religion means that the religion holds that position.

    If opposition to same-sex marriage is not a legitimately held religious conviction, there is no such thing as a legitimately held religious position. Unlike opposition to interracial marriage, opposition to same-sex marriage has been the position of every religion in recorded history - as well as of every country and every American state until the 21st century.

    The Colorado baker made it clear to the gay couple - as acknowledged by the court - that he would be happy to bake and sell cakes to the homosexual couple any other time they wanted. Therefore, he is not discriminating against people based on their sexual orientation. He readily sells to people he knows to be homosexual. What he is unwilling to do is to participate in an event that he opposes for deeply-held and legitimate religious reasons. These fundamental religious beliefs, by the way, are nothing new and certainly not a surprise to the homosexual community. They have been at the core of almost every organized religion since the earliest days of human communities. Until, at the most, ten years ago, no one would have imagined that a person could be forced to provide goods or services for a same-sex wedding.

    If a baker refused on religious grounds to provide the wedding cake for a polygamous wedding, should the state force him to do so? If a baker refused to provide a cake to an atheist couple celebrating an abortion, should the state force him to do so?

    As Dennis Prager commented: "In the name of tolerance, the left is eroding liberty in America."

    VII. ADDITIONAL ISSUES

    In discussing the case with friends and former students, and even strangers I happened to talk to as we were leaving the Supreme Court building, several questions were asked. I took note of some of them, and I thought I would include them as a way to start finishing up this article, with an attempt at answer.

    QUESTION: What did Chief Justice John Roberts likely mean, in the context of the case, when during oral arguments he said: "When the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about 'the decent and honorable people who may have opposing views'"?

    ANSWER: It could mean one of two things, at least. First, he could have brought that language up simply to make the point that the decision not to bake a custom cake to celebrate the marriage of the same-sex couple was not discrimination on "identity" (discrimination against Craig and Mullins as homosexuals) but merely the reaction of a "good and decent person" who "opposes same-sex marriage as a tenet of faith." (which were his words in the Obergefell, dissenting opinion). The majority opinion, after all, does recognize the rights of believers: "Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."

    Second, it could indicate that his opinion is that a religious exemption should be made for Phillips and those like him with respect to the CADA (and other state anti-discrimination laws) because of what the Obergefell opinion recognized with respect to the divine precepts of religion and that decent and honorable people firmly adhere to such teachings. Phillips should not be compelled to speak or express a viewpoint that conflicts with his religious beliefs.

    During oral arguments, Justice Kennedy said: "Tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips's religious beliefs." Tying together this statement with the comments in the Obergefell case about "the decent and honorable people who may have opposing views" (that is, believing that marriage is between a man and a woman), it may be that Kennedy holds a deeply-held belief that a tolerant society must leave room for good-faith dissent based on religious principles, especially when religious liberty is expressly protected and encouraged in our Bill of Rights. It may signal that Kennedy may side with the conservative justices.

    QUESTION: What harm would likely come from allowing a baker like Jack Phillips (and Masterpiece Cakeshop) to decline to bake custom wedding cakes for same-sex couples. That is, what harm in the marketplace would likely result should Phillips be permitted a religious exemption from Colorado's Anti-Discrimination Law (CADA)?

    ANSWER: There are well over 100 bakeries in the Denver area. The likelihood that any harm will result to same-sex couples in their search for a wedding cake is very little to none at all. The solution to allow Phillips the exemption under the CADA is logical, would allow the law to meet a "Strict Scrutiny" standard of review (for constitutionality), and is in line with what the Colorado Civil Rights Commission is already doing - carving out certain exemptions. It is also the solution that honors another fundamental principle upon which our country was founded - a free market economy. Allowing Phillips and others similarly-situated to step out of the marketplace with respect to certain goods and services creates a market opportunity for another vendor. Let the marketplace - the free market - play out! And it will!

    QUESTION: Wondering what would have happened if the cake maker had simply said he was booked up solid and wouldn't be able to get it made. End of story. Find another bakery shop. Why such a big fuss?

    Being in the welding business for 30 years I have seen jobs I didn't want to do and didn't! You can't force me to do a job I don't want to do nor should a baker be made to make a cake he doesn't want to make. This whole mess makes no sense to me.

    ANSWER: Then laws would remain in place that target those with deeply-held religious beliefs for discrimination but allow exceptions for other groups to decline services (to discriminate) based on their deeply-held views. At some point, there would be another Phillip. Same law; different Christian.

    QUESTION: When the couple found another good baker to make their cake the very next day, why didn't they just drop it? Why did they go ahead and file suit? Why did they insist on having Masterpiece Cakeshop driven out of business by the state of Colorado? And why did they have members of their community flood Phillips and his family with death threats?! When he lost his cake business, neither he nor his family, or supporters, made death threats on the gay couple?