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Colorado Baker Won't Make a Wedding Cake for
Gays. Case went to the U.S. Supreme Court!
Conflict over Attorney General's meeting.
Justice Dept. favors freedom to discriminate.
Part 2 of six parts.
Conflicting briefs filed by Alliance Defending Freedom (ADF) and the American Civil Liberties Union (ACLU):
The co-owner of the bakery, Jack Phillips,' is being represented by the ADF. Their lawyers also describe him as a "cake artist." In their brief to the U.S. Supreme Court they argued that a wedding cake:
"... forms the centerpiece of a ritual in which the couple celebrates their marriage. ... [It] communicates this special celebratory message." 1
They described two freedoms that are at stake in this case:
- The freedom to operate a business freely, according to your religious beliefs.
The freedom to express yourself artistically without endorsing a view with which you disagree. 2
I do not accept the validity of the second argument:
- A wedding cake for a same-sex couple is not necessarily different from a cake for an opposite-sex couple. Many wedding cakes may have two figurines on top which symbolize the married couple. If that was the design for this cake, Phillips could have made a plain cake, left the figurines off the cake, and allowed the couple to select figurines from a carton that they could later place on their cake themselves.
- Most wedding cakes do not contain a message. If the engaged couple had wanted a message, they could have arranged to do it themselves or have someone else add it later.
- If Phillips is allowed by the courts to discriminate against customers on the basis of their sexual orientation, then he and other owners of public accommodations in Colorado could refuse to serve customers who were divorced; of the "wrong" Christian denomination; who is an Agnostic, Atheist or a follower of another religion; of the wrong skin color; too young to be married in the owner's opinion; etc. Anybody could potentially be discriminated against and inconvenienced. That would be destabilizing to the culture.
Professor William Eskridge, Jr. at Yale Law School, who is himself openly gay, commented:
"It’s a very hard question. Doctrinally, it could go either way. ... Fundamentalist Protestants, Catholics, Orthodox Jews, Muslims, Mormons -- it’s a big chunk of America. Decent people. They feel they are under siege by government. Many have no problem with gay customers. They just don’t want to participate in the choreography of gay weddings. ..."
"Most Protestant churches in the South [once] believed slavery and, later, [that American] apartheid and anti-miscegenation laws were ordained by God. Presbyterians, Methodists, Southern Baptists -- [followers of] respectable religions. Maybe several million people still believe that."
The plaintiffs' lawyer is James Esseks, the director of the American Civil Liberties Union's LGBT rights project. He said that the state law is:
"... not forcing you to say anything. You can say to whomever, ‘I think gay people shouldn’t be able to get married. It’s a sin.’ [As an owner of -- or a worker at -- a retail outlet] you just can’t turn people away [as customers] because of who they are." 1
Roger Parloff, writing for the New Yorker, said:
"For all Phillips knew at the time," an administrative-law judge ruled, in 2013 -- in a decision later adopted by the Colorado Civil Rights Commission and upheld by the state appeals court -- Craig and Mullins 'may have wanted a nondescript cake suitable for consumption at any wedding.' The commission has conceded that Phillips could have lawfully declined to write messages that he disagreed with on the cake, and it has previously allowed bakers to refuse to adorn cakes with white-supremacist and anti-Muslim messages.
Phillips’s attorneys argue that the couple was asking him to 'design and create' a unique cake, and that, even if they weren't, any cake would convey the "unconscionable' message" that:
"... a wedding has occurred, a marriage has begun, and the couple should be celebrated." 1
The case was appealed to the Colorado Court of Appeals, which also ruled against the baker. The court noted that he:
"... does not convey a message supporting same-sex marriages merely by abiding by the law." 3
The case was further appealed to the Colorado Supreme Court which refused to take the case. Finally, it was appealed to the Justices of the U.S. Supreme Court during 2016-JUL.
Robert Barnes, writing for the Denver Post, said:
"Phillips’s petition to the high court, Masterpiece Cakeshop v. Colorado Civil Rights Commission, lingered for months. It was re-listed 14 times on the court’s private conference schedule, where the justices consider whether to accept a case. Four of the nine justices must vote to accept a case, and when a case is listed so many times, it usually means that requirement has not been met, and some justice is working on a dissent.
On 2017-JUN-26, they finally accepted the appeal. 2,4 The hearing by the High Court was scheduled for 2017-DEC-05. 5
Family Research Council Action sent a mass email to their mailing list asking that people sign a digital prayer card. It said:
"Dear Heavenly Father,
Today, I lift up Jack Phillips to you.
Jack is standing up for his Christian faith, and he’s fighting on behalf of all Americans who value religious freedom.
We are grateful for the right granted by you, Lord, to peacefully adhere to the tenets of our faith without government interference.
I ask you to help the Supreme Court justices to do what is right, to side with Jack Phillips, and to protect religious liberty and our freedom to live our lives in accordance with our religious convictions.
Please be with Jack as he goes before the nation’s highest court in the land. Stand with him and carry him when he needs your support.
In Jesus’ name we pray. Amen." 5
All of the statements that we have seen that support Phillips, do not differentiate among:
- Religious-based discrimination against others and
- The established religious freedoms of belief, assembly, and proselytizing.
The High Court's ruling was issued on 2018-JUN-04. The court upheld the actions of the baker.
2018-JUN-04: The potential impact of the U.S. Supreme Court's ruling:
The ruling by the High Court could have a profound affect on potential customers' freedom from discrimination by public accommodations throughout the U.S. and most of the six U.S. territories on the basis of the customer's disability status, race, creed, color, sex, marital status, national origin, ancestry and perhaps other grounds, including sexual orientation and gender identity. Public accommodations could refuse to sell goods and services to Catholics, women, divorced people, unmarried people, blacks, etc. on the basis of the owner's religious beliefs. This could range from refusing to sell contraceptives to unmarried persons, to refusing to rent venues, or sell goods and services for a Jewish meeting.
The core question to be answered by the U.S. Supreme Court is whether the First Amendment to the U.S. Constitution:
Only protects religious beliefs, religious assembly, religious speech, and proselytizing, or
Whether it also protects the rights of an owner of a public accommodation to apply her or his religious beliefs by discriminating against potential customers.
Adam Liptak, writing for the New York Times, said:
"The Supreme Court’s decision, expected next year (2018-JUN), will again take the justices into a heated battle in the culture wars. On one side are gay and lesbian couples along with human rights promoters who say all groups are entitled to equal treatment from businesses that choose to serve the general public. On the other are religious people and companies who say the government should not force them to choose between the discriminatory requirements of their faiths and their livelihoods." 4
Basically, the matter under debate is whether the First Amendment of the U.S. Constitution -- which guarantees freedom of religious speech, writing, assembly, proselyzing, etc. -- also extends to the religious freedom by public accommodations to discriminate against customers.
SPLC, ABC News, and NBC News articles generate controversy:
The Southern Poverty Law Center [SPLC] monitors anti-semitic, anti-LGBT, white supremacist, terrorist, and similar groups throughout the U.S. They posted an article on their web site that describes the Alliance Defending Freedom -- the legal defense group representing the defendant in the Colorado bakery case. They refer to it as an "extremist group," with an "Anti-LGBT ideology," and state:
"Founded by some 30 leaders of the Christian Right, the Alliance Defending Freedom is a legal advocacy and training group that specializes in supporting the recriminalization of homosexuality abroad, ending same-sex marriage, and generally making life as difficult as possible for LGBT communities in the U.S. and internationally. ... Using its international platforms, the ADF works with policymakers and other organizations to outlaw abortion, deny equality and marriage to LGBT people worldwide, and continue to push for a hard-right Christian theocratic world view that is reflected in legislation and policies." 6
During 2017-APR, Heidi Beirich, speaking for the SPLC, told NBC News that her group had good reason when it classified ADF as a hate group. She said:
"We don’t put a group on the hate list because they are against gay marriage. Where the rubber hits the road is when ADF attorneys engage in model legislation and litigation that attacks the LGBT community." 7
Conflict over the presence of the Attorney General at the meeting of a hate group.
Pete Madden & Erin Galloway wrote an article on the ABC News web site that was titled:
"[Attorney General] Jeff Sessions addresses 'anti-LGBT hate group but DOJ won't release his remarks." 6
"Sessions addressed members of the Alliance Defending Freedom, which was designated an 'anti-LGBT hate group' by the Southern Poverty Law Center in 2016, at the Summit on Religious Liberty at the Ritz-Carlton, Laguna Niguel, in Dana Point, California. ..."
"In a recent blog post on its website titled 'Hate-group labelers are the ones spreading hate,' the Alliance Defending Freedom called the Southern Poverty Law Center’s 'hate group' designation a:
'... lie. We at ADF condemn all such manifestations of true hate. ... They have no place in our society.'
According to David Dinielli -- the deputy legal director for the Southern Poverty Law Center’s LGBT Rights Project -- the label for the ADF is 'rightfully earned,' and the [Attorney General's] speech raises questions about whether Sessions will uphold laws protecting LGBT people from discrimination. He wrote:
"How can we trust that the nation’s top law enforcement officer will protect all Americans when he’s willing to meet behind closed doors with a group that supports criminalizing homosexuality and marginalizing LGBT people around the world?'
If Attorney General Jeff Sessions doesn’t condone such beliefs, he should immediately make his remarks to the group public and be prepared to defend them. The LGBT community — as well as all [other] Americans — needs to know if he is capable of upholding our country’s fundamental promise of equal protection under the law ..."
The speech also prompted a statement from Democratic National Committee spokesman Joel Kasnetz condemning the Alliance Defending Freedom and Sessions’ choice to address it.
'You can judge a person by the company they keep, and tonight Attorney General Jeff Sessions is choosing to spend his time speaking in front of one of the country’s leading anti-LGBTQ hate groups. The Alliance Defending Freedom actively helped draft discriminatory legislation, worked to preserve laws criminalizing same-sex relations and attacked the separation of church and state. ADF has been previously designated a hate group, and Sessions’ appearance at this event, as the top law enforcement official in the country, brings in to question whether the attorney general intends to protect [the freedom of] all Americans'." 5
Tré Goins-Phillips, writing for The Blaze," a conservative Christian media outlet, said:
"The Alliance Defending Freedom, a Christian nonprofit dedicated to defending 'religious freedom, sanctity of life, and marriage and family,' is demanding an apology and a retraction from ABC News after the network labeled it a 'hate group'..."
"In response to the ABC News story, the ADF is calling out Madden and Golloway for 'journalistic malpractice,' slamming the reporters for using 'false charges against Alliance Defending Freedom by a radically partisan, violence-inciting organization like Southern Poverty Law Center' in their story'.
'Americans' trust in media is cratering, and the blatant bias and lack of professionalism that ABC attempted to pass off as news can only serve to confirm and intensify that distrust,' ADF spokeswoman Kerri Kupec said in a statement. 'Southern Poverty Law Center spends its time and money attacking veterans, nuns, Muslims who oppose terrorism, Catholics, Evangelicals, and anyone else who dares disagree with its fringe ideology'." 8
NBC News published a similar story and was also criticized. 7
Richard Cohen, the president of the Southern Poverty Law Center issued a statement on 2017-JUL-13, stating:
The Alliance Defending Freedom spreads demonizing lies about the LGBT community in this country and seeks to criminalize it abroad. If the ADF had its way, gay people would be back in the closet for fear of going to jail. It was inappropriate for Attorney General Sessions to lend his credibility to the group by appearing before it, and it was ironic that he would suggest that the rights of ADF sympathizers are under attack when the ADF is doing everything in its power to deny the equal protection of the laws to the LGBT community." 9
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission," SCOTUSblog, as on 2017-JUN-27, at: http://www.scotusblog.com/
- Symbol showing different types of marriage ownloaded from Pixabay. Status: CC0 Public Domain.
"Is virg in birth possible? Yes (unless you are a mammal)," The Conversation, 2015-DEC-17, at: http://theconversation.com/
Adam Liptak, "Justices to Hear Case on Religious Objections to Same-Sex Marriage," New York Times, 2017-JUN-26, at: https://www.nytimes.com/
Pete Madden & Erin Galloway, "Jeff Sessions addresses 'anti-LGBT hate group,' but DOJ won't release his remarks," ABC News, 2017-JUN-12, at: http://abcnews.go.com/
"Alliance Defending Freedom," Southern Poverty Law Center, undated, at: https://www.splcenter.org/
"Attorney General Jeff Sessions Criticized for Speaking to ‘Hate Group’," NBC News, 2017-JUL-12, at: http://www.nbcnews.com/
Tré Goins-Phillips, "ABC News smears prominent Christian nonprofit as ‘hate group’ in recent article," The Blaze, 2017-JUL-14, at: http://www.theblaze.com/
Richard Cohen, "Statement on Alliance Defending Freedom's attack on SPLC and ABC News." Southern Poverty Law Center, 2017-JUL-13, at: https://www.splcenter.org/
How you may have arrived here:
Copyright © Ontario Consultants on Religious Tolerance
Author: B.A. Robinson
Latest update: 2018-JUN-07