4 Highlights from Christian Baker’s Wedding Cake Case at Supreme Court by Emilie Kao Daily Signal, 12/5/17
The Supreme Court heard oral
arguments on Tuesday in a closely watched case dealing with free speech,
religious liberty, and same-sex marriage.
Specifically, the justices
considered whether the state of Colorado can force Jack Phillips, a Christian
baker, to create a custom cake for a same-sex wedding against his deeply held
religious beliefs.
Attorneys for Phillips clearly explained
that he seeks to exercise his freedom only to speak messages that he agrees
with, while still welcoming all customers into his store. The First Amendment’s
free speech and religious liberty clauses protect his freedoms to do just that.
In a lengthy and charged oral
argument, 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. Here are some highlights of the argument.
1. 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.
2. Compelled Speech for Everyone
The irony of the comparison of
Phillips to a Nazi is that both the ACLU lawyer representing the gay couple
(David Cole) and the Colorado solicitor general admitted the state could
rightfully force cake artists to celebrate the racist ideals of white supremacy,
or one of the most infamous events in world history, the Holocaust.
At one point, Justice Stephen Breyer
followed up on a question from Justice Neil Gorsuch about whether a cake artist
could be forced to create a cross-shaped cake for a religious group that shared
the beliefs of the KKK. Cole responded that if the cake artist did so for the
Red Cross, then yes, the artist would have to do so for the religious group as
well.
Similarly, Justice Samuel Alito
asked Colorado if a cake artist who created a cake with words celebrating Nov.
9 for someone’s anniversary could also be forced to create the same cake to
celebrate Nov. 9, 1938.
On that infamous night, known as
“Kristallnacht,” the Nazis launched their pogrom against Jews by burning over
1,000 synagogues and damaging more than 7,000 Jewish businesses.
In the exchange with Alito, the
Colorado solicitor general said that cake artists could not discriminate on the
basis of identity, but could discriminate on the basis of messages. Gorsuch
later responded, saying that’s exactly what Phillips has argued.
3. Disagreement Does Not Equal
Discrimination
Kennedy also challenged Colorado and
the ACLU on their argument that Phillips discriminates on the basis of
identity, rather than his idea of what constitutes a marriage. In an exchange
with the ACLU attorney, Kennedy called the repeated attempts to characterize
Phillips as discriminating on the basis of identity “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 gays for the 24 years
his store has been in operation and welcomes their business to this day. He
does not discriminate against anybody because of their identity.
So comparisons to shopkeepers in the
Jim Crow South who sought to keep the races “separate but equal” are a smear
that divert attention from the real issue: Phillips simply disagrees with the
state on the issue of marriage.
Roberts appeared to recognize this
when chiding the ACLU for lumping in supporters of traditional marriage with
racists, noting that in Obergefell, the court had said support for traditional
marriage is rooted in “decent and honorable” premises.
4. Orthodoxy Determined by the
State
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 Roberts, 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 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, Phillips seeks
to work 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.
The Supreme Court should uphold the
rights of all Americans to work according to their religious beliefs and to be
free from government intrusion that would force them to speak messages in
violation of their deeply held beliefs.
After its decision in Roe v. Wade,
the court respected the freedoms of Americans on both sides of the abortion
debate. It rejected the argument that opposition to abortion is rooted in
animus toward women because it recognized that there are many other rational
reasons why people oppose abortion.
This is no different. There are many
Americans who support traditional marriage for reasons that have nothing to do
with animus toward gays. All Americans will benefit when free speech and
religious liberty are robustly protected.
The court’s decision in Masterpiece
Cake shop can help foster more civil dialogue on marriage so that we can all
live according to our consciences and in peace with one another.
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Comments
This case
is about the tyranny of the minority. Liberals have weaponized
anti-discrimination laws to impose their ideological “values”. Liberal “talking
points” are not the law.
Norb
Leahy, Dunwoody GA Tea Party Leader
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