Skip to main content

tv   Religious Freedom Anti- Discrimination Law  CSPAN  June 4, 2018 1:53pm-3:00pm EDT

1:53 pm
better and affairs. they will also work on legislation on water infrastructure projects. >> tonight author and gun holbrook talks about the second amendment. he successfully argued three gun l supreme court. you can watch this at 8:30 p.m. eastern on c-span2, online at or with the free c-span radio app. >> all right. >> earlier today the u.s. supreme court ruled in the case of masterpiece cake shop versus colorado civil rights commission. the state where a same-sex lack couple sued a bakery for refusing to make their wedding cake. the court ruled 7 - 2 in favor of the cake shop. there are remarks from the attorney representing the same-sex couple.
1:54 pm
held by the national constitution center, this is abt an hour. >> this is a superb magazine. it describes itself as a local magazine devoted to radical humanism and libertarianism. it is hard to categorize politically, but it is fierce in its defense of individual liberty and brendan is a distinguished commentator with defendelected he will be joined by stephanie barkley, the becket fund room for religious liberty. stephanie defended the young muslim woman discriminated in her employment or little sisters of the poor and other practitioners of religious liberty and finally paula is a partner of king and grayson. she represented the gay couple in this case starting at the trial level. she has been working with this case for six years and was a
1:55 pm
finalist for the case ofar awark behalf of the plaintiffs in craig versus masterpiece cake shop. please join me in welcoming brendan o'neill, stephanie barkley and paula grayson. [applause] >> wonderful. when we have formal debates of the constitution center, we vote before and after. because this is a case that will be decided by the court, i'd like to have a vote. i will state the constitutional question and i want you to vote not for the side you want to win politically but for the side you think should win constitutionally. in other words separate your political views from your constitutional views. you may think that's unfair for the gay couple in this case not to get the cake, but that the constitution protects
1:56 pm
the bakers right to refuse to sell it or could you think it's fine for him to refuse to sell the cake as a policy matter but the law requires it. the question i'm asking you to constitution protect the bakers right to refuse to sell a cake to a gay couple? in particular, to the religious freedom and free pressi provisions of the first amendment protects the bakers right. we will vote now and then you'll hear the debate. i want youo listen with an open mind. at the end we will vote again and the winner will not be the numerical winner but the side that shifts the most votes. i really want you to keep an open mind. this is the question. does the constitution, does the first amendment protects the bakers right to refuse the cell a cake to a gay couple who believes that it does
1:57 pm
protect his right? who believes that protects his right to refuse to sell the cak cake. a strong majority before the debate in favor of the gay couple on constitutional grounds. we have no better person to start us off them paula who has been represent t couple in this case for six years. paula, when you start us off by stating the facts of the case as they say and then defining the two constitutional issues, the religious freedom and the free speech issue for our audience. okay. it's very hard for me too sit down and talk but i will try. this case is about a couple, charlie and david who actually gotarried in massachusetts because at the time colorado law did not recognize same-sex lack marriage. th we planning a wedding celebration in colorado, little town outside the proper denver area and their wedding
1:58 pm
planner said go to masterpiece cake shop. they have really nice cakes there. charlie and david, along with charlie's mom came in from california. they were really excited about going and order a cake for their celebration. they got some ideas together in a folder and walked into the cake shop. they sat down at the table, the three of them and jack came up and said what can i do for you and they said we want a wedding cake. jack's response was for who and charlie and david were sitting there, they're very loving couple and it was pretty clear the cake was for them. they said it's for us. at that point jack said no, i
1:59 pm
don't do wedding cakes for same-sex couples. there was a stunned silence and charlie and david looked at each other and they stood up, along with their mom debbie and walked out of the store. they got the car, and on their way home charlie started to cry. david got upset that charlie was upset and went home and put it on his facebook page. can you believe this happened to us. we just wanted to cake. that started what you all know eventually came in from of the supreme court. the next day debbie was very upset so she called jack and
2:00 pm
said why did you do that. why did you refuse to make my son a wedding cake and jack again said i don't believe in same-sex lack marriage. it's not legal in colorado and it was against his religious belief. from that facebook page a kind of went viral. these support poured out for the couple and for jack. that's how we found ourselves, charlie and david were encouraged to file a complaint with the civil-rights division, they did, this colorado civil rights division agreed there was problems to believe there was discrimination based on sexual orientation which is a corado state statute and at that point the commission then took it to a hearing. i represented charlie and
2:01 pm
david at that hearing and we won at the hearing. the baker appealed to the court of appeals. we won at the court of appeals and the baker and his lawyers appealed to the u.s. supreme court and that's where we are now. >> wonderful. thank you so much for that. it's very helpful. stephanie, do you have anything to add? >> thank you for having me and thank you all for being here. as you mentioned we defend religious liberty for people from agency. i can't tell you how glad we were when we got that case. before then i did n it did not have the same ring to it. i think it's fair to generalize that this is a test case. this is a case where there are deep feelings and hurt feelings an important interest going on and i think that's
2:02 pm
why sometimes it can be difficult to talk about and i'm so grateful for the constitution center for having this important dialogue. jack, like many business owners made a decision about what sort of message or event he wanted to support talk about the facts more but i think it's important to step back and think about the ways in which, in our society business owners and individuals make these ntly there was a gayme. coffee shop owner in seattle that asked christian individuals to leave the premises when they had advocated for pro-life principles that he disagreed with. not too long ago tripoli decided they didn't want to cater to the boy scouts use ty disagree that the boy scouts position on their gay scout leaders. in colorado, there were gay bakers who are asked by a christian science to bake a
2:03 pm
bible themed cake that condemned homosexuality and those baker said no, we don't want to create a cake that expresses that message and then the colorado commission said that's right, you have the right to create something that to object to create something that you disagree with. before colorado and went up to the supreme court, jack said he's willing to sell anything off the shelf to anyone and he would have been willing to design all sorts of cakes for this coupl but he couldn't create a custom design wedding cake for an event that goes against his deeply held religious beliefs. by the way, that's not the only type of cake he would create pretty wouldn't create cakes celebrating racism, divorce, alcohol. these are cak that he has tually declined in the past. i understand that many people
2:04 pm
in this audience, and in fact i saw buyer vote that you probably disagree with the choices jack made about what message he should support and whether or not he should use his talent in that wayut that's not really the question in this case for the question is do we want to give the government the power to make on about important sensitive moral issues like sex, religion and politics and we want the government to say who's right and who's wrong and if you disagree you can be punished. that'shat'st stake when the supreme court will decide this case. >> great. >> we have the facts and the sense that the issue is truly joined. brendan, you are a defender of individual liberty and free speech. ill go out on the technical details, but how do
2:05 pm
you see the liberty issues in the case, and who do you think on a constitutional ground should win. >> i think it's actually, in my view it's fairly straightforward and i know the ins and outs of the case are complex ail go on for a long tim b the way see it is a business or an individual cake maker should not have the right to refuse to sell his goods to someone because of their sexual orientation. that would giveise to discrimination across society and a certain section of society would be unable to access goods and services in the same way other people could and that's wrong. however, an individual business and individual cake maker who describes himself as an artist should have the right to refuse to express something he doesn't believe in. if he had said to those, to this couple, i'm not selling you a cake because i hate you people, that to me what a been
2:06 pm
a straight forward instance of discrimination and would've been unacceptable and unconstitutional and illegal. but what he said is i to sl you a c and make yoe,ut i cannot express support for an institution that i don't believe in. i cannot say, whether it's with words or images or with my artistry, i cannot say that i support gay marriage. i think we have to defend his right to refuse to say those words. the reason i'm saying that is really simple. we have to reckon with how terrifying and unspeakable it would be if the government could compel you to say something you don't believe. if the government could make you express something that goes against every core of your belief system and every value that you hold. that is the first step in my view towards tyranny.
2:07 pm
i think that would be a far worse outcome than the fact that this couple were incapable of getting a wedding cake from a particular shop. in my view, the fact that they couldn't get the cake there but presumably there were many other places they could've gotten the cake is not particularly nice and i'm sure they were upset, but if we have a situation where the government can force individuals to say things they don't believe are true or to partake in ceremonies they think are wrong or to express views they think are repulsive or horrible or disgusting, which many of you probably disagree with, but if we have a situation where the government can make people do that that we n lger have freedom of speech and we no longer have freedom of conscience. we have government mandated correct thinking which anyone
2:08 pm
in this room could potentially fall victim to and be made to say things and i think that is infinitely worse from the perspective of liberty and choice and an open society than the fact that this couple cakerom the sky.uldn't get a >>ha you. >> brendan has put on the table with admirable clarity view that to force a baker to bake a cake would be a form of compelled speech. if you could, let's focus on this issue which is one of the two constitutional issues in the case. the trump administration has taken a position similar to the one he just embraced that someone cannot be forceo participaten an expressed event and two other sentiments with which they disagree. so, describe as precisely as you can what the compelled speech is and talk about the cases and why you think it's wrong.
2:09 pm
>> i'm a trial lawyer. very rarely and my sister linked but i'll try. i think it's important we talk about these cases. facts matter. the facts here are really important. in the example that stephanie used about the baker who would not bake a cake that had essentially hate speech on it, this is a baker who is asked to make a cake in the shape of a bible. she agreed. she had no problem with doing that. after she baked the cake, the omerhenaid i want you to take the icing and write on the cake god hates days and she said i won't do that. i find that offensive. you can have the icing ping and you c wri it ifou want but i'm not going to write those words for anyone on that cake. that's a big difference between asking for a cake and asking for somebody to write a hate message on the cake. the issue here isn'tth the government is compelling
2:10 pm
jack to say anything. in our society, we regularly regulate commercialivity. the law at issue just says to people you can't discriminate amongst your customers when you sell somng. besides telling jack what to say or what to think, it's letting jack express his religion and we all clearly know what he believes. i believe in the first amendmen amendment. the law isn't doing that. this law is an applicable law, it doesn't target speech, it doesn't say you must send this message or you must send that message. it's just that when we have commercial activity in this country, we decided as a nation and colorado is a state that were not going to let you pick and choose your customers.
2:11 pm
that there is something fundamentally wrong with that and that's what this law is saying. ot or you can't say anything, it simply saying you'veot sell to protected classes across the board. >> thank you. so as you respond stephanie, describe as precisely as you can, what the first amendment claim is and why it would protect the baker in this case but not allow makeup artists or jewelers or wedding invitation designers to refuse to participate in weddings as well. >> paul is right that facts matter and in oral argument, one of the facts that the justices were really disturbed by before the supreme court is that in fact colorado's rule would require jack to write words on a cakehat h disagreed with. the attorney for colorado admitted that under the rule that they're advocating and
2:12 pm
the ruling of the lower court below jack would have to create a cake that says god bless the union of this couple, whoever their names are. he would have to write words on a cake that say any number of things if he would write anything remotely similar for another event. so, the idea that words make a big distinguishing factor between jack's case in another case is contradicted by the record and what the supreme court says, but beyond that, in our country we recognize that a lot of things count as speech that aren't actually words that you write down, and i think that's a good thing. we say that speech includes things like burning flags and the color of an armband that you wear in protest and sometimes even really hurtful protests that the supremenot court unanimously upheld, and
2:13 pm
in this case, symbol, for example of the rainbow cake is what the couple ultimately received and that means that gay bakers or a black lives matter supporter could be forced to bake a cake with the confederate flag being a symbol on it for the white nations churches that was requested because that's a protected classification under colorado's law as well. we are absolutely dealing with a situation where all sorts of individuals could be forced to express something they disaith which both triggers free speech protections and also triggers in this case religious freedom protections. one thing that justice kennedy pointed out is that tolerance is really important in our society, but tolerance has to go both ways. colorado was not very tolerant of jack and his beliefs.
2:14 pm
that's what justice kennedy said at oral argument. if you think about justice kennedy and how he will be a defender of tolerance and his opinion where he vindicated the right for same-sex couples , what justice kennedy was saying was the problem was that the government was picking one right view of marriage and they were punishing or excluding those who had a different view, in that case same-sex couples. they talked about the fact that we live in a society where people of good faith have lots of different views about marriage and sometimes disagree on that fact. those views are worthy of protection for the problem is when the goverent gets involved in protects us person and punishes another. there has been vendors who stood up and said we remember what it was like to be the minori that was marginalized
2:15 pm
and treated poorly and we don't want to have a government that can punish us for our views so we don't think we should give the government that power. >> great. let's take one more round on free speech. brendan, the justices seem to think it was tough to draw the line. there were a lot of questions from justice or mayor saying what about this to what about a makeup artist and they said no, and artist is an artist and how do you limit this to wedding cake makers and photographers but not include the guy w didn' want to sell barbecue to the afghan american couple in the 1960s and how do you state the principal because the government says you can't be forced to participate in the ceremony. is that the place where the principal kicks in or is it writing on the cake at the time you're making it, a lot depends on exactly how the free speech was determined. >> i think stephanie's right
2:16 pm
there are, freedom of speech doesn't just cover words. there's many ways you can express yourself. there's the right to silence and the right to bn flags, there are many forms of expression which don't come down simply to words. it seems pretty clear to me that the creation of a cake which might have a rainbow flag on it or to mail statues or whatever else it might have on it which expresses support and conviction in the institution of game marriage, it strikes me that that is clearly an expressive act and we are facing a potential situation where someone will be forced to express themselves in a way they don't want to do. as to where the line comes between what is clearly a speech or expressive act and what isn't, that is a difficult area to decide, but i think a cake wedding cakes
2:17 pm
are expressive things. that's why you have them. you don't have them just to eat. you eat them eventually, but there is centerpiece and they say something about the wedding. i was at my brother's wedding recently and he has two children before he got married which many people would frown upon but on his cake there was a man and woman t and children on the top. that says something pretty now sure there might well be a baker would not like to make that cake because they don't believe in sex outside of marriage. fine. ey shodn't have to make that cake. that's an expressive cake. it says something about values and moralities so i think it's an expressive act. i think it's wrong to force someone to express themselves in a way they don't want too. one thing i think is really interesting in all these cases and there's been some cases in britain which have been taken
2:18 pm
to court for refusing to make a wedding cake, there's been other cases in europe as well. what i find really interesting, and i can't quite pin down what's going on here is why it is that couples who have been upsetting that they can't get a cake from a particular baker, why don't they go to another baker. the reason this is important is because the majority of bakers will make a gay wedding cake and that's what we have in britain and i'm pretty sure it's the same situation here. it's not difficult for a couple, for a gay couple to get a wedding cake. that's not a difficult thing. it seems to me there's a punitive element to some of this were almost there is the idea that it's unacceptable for a bakery to existhich doesn't share the values of mainstream society. i find that slightly
2:19 pm
vindictive and almost veering on the edge of religious persecution where you go looking for the institutions that will serve you precisely so you can turn this into a public incident or legal incident. we've seen that in britain wherpeople are almost dirimination which theyof can turn into p spectacle. i find that really worrying. to me it comes down to what are the moral consequences of the decision? the moral consequences of not getting a cake and one bakery is they will be inconvenienced and upset and we should not undermine that but it can be rectified by them encouraging other people. that could be the consequence of that but the consequence of forcing every bakery in the country to say something or
2:20 pm
express something or do something that goes up against every grain and not believe, those consequences strike me as far more dire. the boosting of government power over expression and any small realm, i think those consequences are for worse than gay couples being put out because there's some bakeries who refuse to serve them. >> in the course of your response, if you could give the audience some case law because you've been living with this case for a long time. one of the big supreme court precedents is the hurley case where they said the boy scouts can be forced to allow gay scoutmasters to mark each in their parade because a parade is an expressive activity protected by the first amendment. what's the relevance of that and why don't you think they cover the first amendment
2:21 pm
claim. >> i will get into some cas law. first i want to clear u a few things. when you talk about a cake being expressive, whose viewpoint is it expressing? the person who orders the cake is expressing their viewpoint. it was your friend who said i want to couple with the two kids on the top. it wasn't bakers viewpoint. it was the customer's viewpoint. the argument that somehow everybody at that wedding would think that a wedding cake created by masterpiece cake shop somehow expressed theers viewpoint is one that i simply don't buy. it's the customer's view point. and that's important. this other concept of convenience, i find it very upsetting and i know that our editorials went down and i said this, but we don't make our constitutional laws based on convenience in this country. i don't think anybody here
2:22 pm
would have suggested that rosa parks should find another bus rather than move back a row or anything like that. yes, maybe in denver somebody dihen they saw the facebook offer to make them a certain type of cake which was not in their thought process initially. maybe you could in denver, but we have a lot of people in this country who live in small towns, that don't have 50 bakers to choose from, and even if you do, what do we say to those people? are we relegating them to second-class citizens to say keep going door-to-door to find someone will serve you. so many commercial activities in our country are expressive. think about a website designer. can a website designer than say i think women really should be in the home. that's my religious view. i'm not going to design a website for an all female owned business.
2:23 pm
how offensive would we find tha that? an interracial couple walks into a photography commercial business my photography is clearly within the first amendment. can they say i don't believe in interracial marriage therefore i'm not going to give you a service? business is slope, but once we go down and try to pick and choose, in the supreme court it was a makeup artist wasn't protected, a baker is, michael angelo wouldn't be but a chef would be, this is not a slope we want to go down as a countryo decide which businesses can pick and choose their customers. in front of the supreme court, the court said how is race different? how are you going to choose that you're just going to protect this religious view of
2:24 pm
this baker and the answer was races different. were not quite sure why but maybe because there's so much historical discrimination, but every other group may are fair game. people with disabilities, the veteran status, gender, all the other categories that we see as protected, those individuals can now be discriminated against in the name of religion including religious protections can be discriminated now. the supreme court talked about this issue back in the civil rights era when a barbecue restaurant objected, did not believe in the intermingling of andid not want to serve african-american people in the barbecue restaurant, and the supreme court just said no, that freedom of association, freedom of speech argument isn't going to fly. we will not constitutionalize freedom to discriminate in the
2:25 pm
name of protecting your first amendment rights. i think that's the president the court should continue to look a at. the parades different because it was a private expression of belief and a private expressive activity, this is different, this is somebody who was supposed to be open to the public for business and i think they should have to do so on a nondiscriminatory basis. >> the claim is he hself has expressive right rather than the boy scouts who are private association who have an expressive right, and why is race different? at the oral argument they conceded if the baker refuse to bake a cake for an afghan american couple that would be permissible. why is that the case? >> there are three responses
2:26 pm
for great points. first, as far as expression goe goes, sometimes it's hard to draw line as far as when what you're doing is expressive enough and when it's not anything it's important to keep in mind the supreme court and other courts deal with this question outside of this hot topic all the time. it might be expressive when someone burns their flag in protest but it's not expressive when that person burns their flag because they are throwing it out in the trash. it depends a lot on the context and the purpose and what was understood by those actions and those are always fascinating questions. it's also important to keep in mind that in the context of a wedding, weddings themselves are deeply expressive events.jut how important weddings are and how americans should be able to make deeply personal decisions about whether they
2:27 pm
will participate or not. even if we think about a cake, i don't know about you but i've never been to a wedding where i felt g that cake was delicious and i just want to eat a lot more. maybe you won't raise your hand because you're someoneo yog recently and that's okay, but i think we need to be honest ep eating bad cake aty do we weddings. it's part of the ceremony. as part of a tradition. it'sll cultural. one sociologist called at the secular sacrament of our time where the couple stand up together and sometimes feed each other the cake for show or if you're my husband he shoved it up my nostril as far as he could and this is in viewed with meaning and symbolism. it cannot be the case that marriage and weddings matter when were defending those rights to lgbt couples who want to participate in that
2:28 pm
but marriage and weddings and ceremonies surrounded by them don't matter and aren't symbolic for someone who doesn't want to dissipate in that. ho we draw line is a question i think a lot of the justices wrestled with that oral arguments. first it's important to keep in mind if it's expressive or if we have free exercise rights, thas jus the first part of the test. it doesn't mean that just because someone has an expressive belief that they get off scott free and they can deny people for doing whatever they want, that just means that now the government has to prove they have a good reason for trumping those first amendment rights and the supreme court has actually dealt with this conflict between public, bath accommodation laws and first sions going back fore decades. we have not resulted in the slippery slope scenario wee had disatio that looks like the jim crow south. we've had nothing like that. those cases still don't exist after decades of the supreme
2:29 pm
court balancing these rights. the factors they looked at are, how broad is the first amendment objection. the person in hurley, these are some of the factors they looked at, is the objection just to a particular message or discrete event that they're willing to include the individual or sell them hi ee in which case the government has a weaker interest for the other factor is the supreme court looked at the law, is there some sort of a market failure that the government has an interest in addressing? is there a monopoly or a wide number of business that will provide this business. they didn't introduce one iota of evidence about that. there were bakeries making for their business and offering to provide it for free. those are the factors that the
2:30 pm
supreme court has provided for us after something is expected for religious freedom to decide whether the cases will be meritorious or whether the government has an interest to trump the first amendment. the first amendment doesn't mean we always win but it means were not giving the government power to decide which view is right for our society. >> one last summation on the first memo question and then we will put out the religious liberty question on the table. there are a lot of cases building up in the lower courts. in kentucky, the state spring court is confronting it christian printer who didn't want to print t-shirts for a local gay pride festival. should they have been forced to create the shirts? others asked customers to leave their coffee shop because they were pro-life supporters. are you concerned about the difficulty the lower court
2:31 pm
will have if this pandora's box is open. >> i would like to live in a society that can absorb cases like that and live with the fact that there will be a minority of businesses and a minority of individuals who will not want to expre ceai thingsr hav peoe express certain things on their premise. if this was a widespread thing, if this was across american society or british or european society it would be a problem but these are small cases of individuals or companies who don't want particular things to be said or done and i think it's preferable for society to find a way to manage that situation then to by the government to say who you must associate with and wha you must express. i think living with it is preferable to that but the real contradiction in this particular case, because on the one hand were told the couple was deeply upset, and i have no reason to question that, i'm sure it's true they
2:32 pm
were deeply upset because the cake is incredibly important to them it was a very important part of what they wanted and of their ceremony and their life and on the other hand were told is just a cake and why is this guy so upset for just making a cake. i think it's a really interesting contradiction. you're either saying that cake is so incredibly important you're going to go all the way to the supreme court so they can have it, which suggests it's more than cream and jam and butter. there's something else going . it's very symbolic, important, expressive thing. that's precisely why we have to have a situation where people can refuse and certain circumstances to express another persons point of view on their behalf in creating a product or creating something for them. : : :
2:33 pm
so far as i know serve couples on the basis of sexual orientation. no one is defending the right of any company in the united states to refuse to serve on the basis of race, gender, orientation, so on. wsaying is ere are particular instances where a service becomes an expressive product and it becomes problematic for minorities. and that seems to me to be a very distinct from the kind of discrimination that was practiced and it doesn't offer any clarity except to try and boost the moral authority of one side to try
2:34 pm
to conflate those two things and one final point which we might want in the religious theme is that it's worth thinking about, the term discrimination. because we all think discrimination is a bad thing and it can be a bad thing but discrimination can ba good thing. you can be a discriminating person, a discriminating taste in art for example and this is a point cannot aren't made after some of the racial controversies. she makes a point that the right to discriminate is absolutely essential to the freedom of association and if you cannot at some level discriminate, particularly in private groups, not public life but in private groups, you cannot have freedom of association and that's a problem. then she raised the possibility between private
2:35 pm
groups whether there should be the freedom of discrimination and public discrimination. there is a gray area which we would be foolish to invite the government to police >> thanks for that, you may want to respond. i do put on the table the religious freedom argument, the first amendment says congress shall make no law respecting able establishment of religion but prohibiting the free exercise thereof and the claim in this case is that the bakers rights to exercise religion are being violated and he is compelled to embrace, which she disagrees and described that claim and why you think it's wrong i'd like to respond to the notion that this is about the cake. it's no more about a piece of cake then rosa parks was about a seat on the bus. this is about human dignity and the reason why jack, the reason why charlie and dave filed this wasn't because of
2:36 pm
a piece of cake. it was about what it felt like to be huliated and degraded and treated like a second-class citizen. so when we start talking about the humiliation and pain of discrimination, we can't trivialize it by saying they'll accept service someplace else. i think that's really important to this debate. jack was the person who decided to continue appealing and appethisalg, mainly i think because the issue of same sex marriage isvery divisive . if this was a jewish person who walked in and asked for a cupcake for a bar mitzvah and had been refused, nobody in this room would have said that's okay but because of
2:37 pm
the association of gay marriage which is stillvery divisive, this has become a very polarizing issue . in fact, i believe it is a separation of once we start going down. the freedom of association argument that you referenced is the argument that was raised in part, violating our freespeech and freedom of association, the first amendment . by requiring us to associate with the black people sitting at our counters. that is an argument that we have rejected as long as there is a governmental interest in the commercial regulation . here, and i will disagree with this and i think colorado argued very successfully as allstate in this country would argue that the government does have an interest in eradicating discrimination. the overdeveloped decision which was referenced several
2:38 pm
times already, that justice kennedy talked about the historical discrimination by gay people in this country and for over a century, we used the outlaw same sex marriage. we criminalized it. he chronicled inition but stephanie's right, he said it's very important to be respectful of the legislative but this is a group that historically as opposed to characterization where it happens now and then, discrimination against the gay community has been systemic in our country. it has been fraught with violence and terror and i don't think this is an isolated situation by any stretch of imagination. so yes, we do need to be respectful of religion and the courtesy statute specifically exempts organizations or businesses
2:39 pm
that are primarily for religious purposes. so those businesses that operate primarily for religious purposes do not have to comply with this law and i believe that's how we are respecting read him of association and freedom of religion. >> ask for that. stephanie, we must really begin on the religious freedom claim which the second part is devoted to, describe the free exercise claim as precisely and constitutionally as you can, tell us the relevant cases and why do you think those cases support the bakers right to refuse to serve a couple on religious grounds? >> there's a lot of areas here between free-speech professions and history exercise rights. he's arguing that being forced to custom design something that he's creating that goes against his religious beliefs is
2:40 pm
something that the first amendment prohibits and the caller talk to earlier about it's not his method, the couples message and i think it's the couples message to when they have ca and their ceremony but its also think something significant about just the act of creation. it would be significant if we forced someone who believes in black lives matter to create a confederate flag cake. the very act of creating something that goes against their beliefs, i think it's something that should be protected for them and for jack, what he's objecting to is that actively being forced to create and design something that contradicts at hbelieves in. the way that the supreme court has protected free exercise rights is they had said if the government is going to provide protection to people for secular protect the gay in the to
2:41 pm
state who didn't want to create the bible cake that had a message that they rightly disagree with, i think they rightly chose not to create that message and kate. then it is a double standard and it is constitutionally dangerous to offer that same protection to jack. there's a couple other things going on here as well, in particular arerelevant . the free exercise case and the level of coercion the government is engaged in and isaac came up in a argument that if colorado wins, not only would jack be forced to create these kinds of cakes and as we discussed, cakes that have words saying god bless the union of these same-sex couples that he would have to give training to his family employees about why his religious beliefs are incorrect and why the government. >> i think you have to get
2:42 pm
training on these antidiscrimination laws he's not able to carry them out for his business. that came up in oral arguments. the attorneys for colorado admitted that he has to give that sort of training to his family employees. that's a troubling level of government coercion in this case. i want to go back to a few other things with the case he keeps referring to and that is a case where an unpublished decision and the footnote, the supreme court said there were the attorneys fees for a business owner who said he was never willing to serve because of his religious beliefs and i think it's important to think about the really painful history of our country has a race discrimination and the jim crow south and the fact that individuals in that era times when they travel across the country carry books with them so that they knew where they could stop to eat and how they could try and survive in
2:43 pm
our political and economic society and that something that was a serious problem in our country, something we created tools to address and is in dispute that this is a case where jackson is saying i'm not willing to serve people anything in my shop. i disagree with you as a class of individuals and i will not serve you, that would be a different case. the government would have a much stronger interest here. that's not what's going on. that is telling the couple i will design cakes for you for any other event. i just cannot create this custom-designed message and one last point to me is i think it's absolutely fair to recognize the interest and i think no one i know is happy that the feelings of this gay couple and we can understand that and if we want to talk about harm, think about the holocaust survivors and the supreme court case of silky.
2:44 pm
these individuals still had tattoos on their bodies and the treatment that they received, ring nazi germany. all the loved ones they love in some instances are gone and they were arguing to the supreme court their dignity to not allow no protesters to come to their town. their dignity was instate and that was a deeply offensive thing those protesters were doing, we can agree and we would never join the protest . but this the supreme court defended the rights in this case because the supreme court recognized if we are not willing to protect freedom even when we deeply disagree and it is hurtful and offensive, if we will protect freedom there, then we are not able to protect freedom for all of us. we live in a society where the government takethose rights away from anyone . >> on the religious point, are you by the religious claim independently from each claim? how that religion claim in
2:45 pm
britain which of course has no business freedom in the same ways and the first of our phenomenal audience questions on the table, should for for-profit religious companies be required to list all activities that violate their free exercise to be decided on a case-by-case basis? >> i'm worried about the state of religious freedom in the western world. we become too cavalier about it and freedom of conscience, read him all belief and act on your belief within reason without unduly harming other people. we forget that much of the modern life is built on the argument for freedom of religion that hasn't happened and we wouldn't be in this room having a session now, it's incredibly important. and if you want to see a slippery slope, i look at what's happening in britain with relation to the abrogation of equality legislation to undermine
2:46 pm
people's freedom of expression and freedom of religion because once you go down this route of advising the government to tell every company, and they could believe in other groups as well, once you invite the government to tell people they must prioritize equality in all instances of all their own convictions, you are subject to tyrannical behavior and in britain for example, the government equality legislation a few years ago force party called the british national party which is a horrible, racist organization to rewrite their constitution which said the person was only open to caucasians on the basis that it was, it celebrated any quality. theoretical, that is the end of the must of association and political organization, however much you might design despise thebritish national party . there have been other instances where religious groups in the uk and in other parts of europe have been
2:47 pm
punished for and in some cases given prison sentences for expressing certain views as seen and pushing any quality, an example of sweden was given a one month suspended prison sentence for describing homosexuality as you much on society. we will agree that that's a pretty impulsive view. but that is his deeply held religious view and it held counter to the crime and equality rules so therefore he was punished. a church in britain was made to take down the poster warning if they didn't believe in god they were going to hell because that was seen as harassin almi making non-christians feel humiliated and bad and i think it's back to base laws on what people feel rather than liberty. look at what's happening in your with the use of equality
2:48 pm
legislation to undermine freedom of religion and freedom of an association. one other point i wanted to make inrelation , i have to disagree how unhelpful i think it is that you are conflating the discrimination against black people which was widespread and horrendous with this case. and as i said before, i have never heard one person, not one single person including jack or anybody else say that they want to discriminate against gay people and they want to stop serving or associating with gay people and i genuinely believe that you risk minimizing the past by constantly marshaling them to your cause because you are suggesting that what rosa parks face was similar to a
2:49 pm
couple who are incapable of getting a cake when what she faced was the denigration of her entire life and her entire being and her ability to go about her life unmolested and in any way whatsoever. i think it's a profound problem to conflate those things and in relation to the freedom of religion thing, i'm worried about the way in which religious beliefs have been redefined by some people as a kid to bigotry. and if you hold a certain view on gay marriage and you think marriage between men and women, if you genuinely believe that, you are automatically branded a bigot or a homophobe. i come from, i'm not religious, i'm an atheist. i come from a religious background so i know lots of people who think that marriage could be between men and women and i can tell you they are not bigots. they do not hate gay people.
2:50 pm
they simply have a religious belief about the institution of marriage and i'm worried about the constant redefinition of belief as a crime. or certain convictions as a form of abuse orand i think it' back to the actual definition of bigotry.what bigotry means intolerance of someone who thinks differently than you. that's the meaning of bigotry. bigotry doesn't mean racism although it can be racism but the dictionary definition is intolerance of someone who has a different opinion to yours. usually it's religious opinion and i am worried about the way in which actually it's those who pose as warriors against bigotry in cases like this will are often enforcing a bigotry of their own through making it increasingly difficult for certain religious viewsto express themselves or not express themselves . >> you may want to respond to
2:51 pm
a bit of that. but we have about five minutes and only so many questions so i'mgoing to pose one question as well . could you deduce anything from the justice question that the oral argument, basically based on the oral argument how eective? >> going back to brendan! , i believe in religious freedom. my mother is a veryreligious person . she's a christian. she accepts gay marriage. i'm not saying or believe is right and jack's believe is wrong. i think it's really interesting when we start trying to value the harm of discrimination between different groups. to say the harm of discrimination from african-americans is somehow more important than the harm felt by other religious groups or by groups based in
2:52 pm
sexual orientation. this country does have a very pronounced history, anybody who knows the nancy shepard case and knows about that gay college student who was tortured because he was gay and tied to a fence and left to die, it's not not a nice way to end and i don't think we need to start calibrating who who's harmed dignity is more real or more important than somebody else's. i am not and never have questioned that sincerely held religious beliefs. i applaud him and i think he should be able to express them. and i'm not trying to conflate. i've never called him a name or denigrated in any way, nobody has yet david and charlie have never denigrated
2:53 pm
jack's belief. the question is in a society that's a closed society like ours, if you're going to open up, by association , by private traits, writing pamphlets but there's so many activities that are present once we art going down that road. we do open up the floodgates. we do have a bill of rights in this country. we do have the equal protection clause as well but i'm not worried. based on the examples about features or religious organizations, there are already organizations in our country so i think religious freedom can sit side-by-side with the governments regulation if you're going to open for business, you're going to have to serve everybody equally and i
2:54 pm
completely forgot what the other part of the question was, jeffrey . >> then i'll post it to stephanie. let's get it on the table. thk coentary, many people think the case by justice kennedy, has to balance its commitmentof equality for gays and lesbians against his passionate commitment to free expression and religious liberty and he expressed sympathy for both sides in the oral argument . >> it'sa great question and it was an interesting oral argument . justice kennedy really cares about the dignity of this gay couple and gay couples everywhere and in all six of martin marginalized groups and he take that very seriously and i also think that he is right that i don't think it makes sense in this case that the couple didn't experience her and there has
2:55 pm
been sometimes in our country where we haven't treated lgbt individuals unfairly. they faced all sort of injustice so it's clear that on justiendy mind t what is also clear is that he and his men live in a pluralistic society. we have to protect dignity on both sides. there's another case, one of these vendors is a 70-year-old grandmother who loses her case because she can provide custom service for a same-sex wedding. she would not only lose her business, the state would come after her for millions of dollars and i think the ability of both people is on justice kennedy's mind. he brought up the importance of tolerance and our country needs to be a two-way street. he also talked about some concern that he and other justices worried about and some of the statements by the commissioners rigged regard to religious police. and it sort of acted like
2:56 pm
you're open for business, if you're coming out here, you shouldn't be able to have religious beliefs at all, you're going to have to compromise in general and that seemed dely troling that there seems to be, city towards religion and also that there was this double standard between how they treated dave akers but not jack. i think that'sgoing to be important. i also think that the supreme court precedent in the first amendment area , it's been quite clear that while dignitary interests would matter and we don't want to minimize those, we have to look elsewhere when we decide whether or not the government has the power to force someone to express the message they disagree with or do something contrary to their religious beliefs. that's why the supreme court has protected the first amendment in cases , we talked about skokie, they protected protesters at funerals, said horrific
2:57 pm
things about those individuals going to hell which certainly hurt their dignity in that case and the supreme court said we have to look at other government interests in order to decide whether version is warranted. here the government hasn't made a case beyond digni why they are juie taking away that freedom and again, i haven't heard an answer why this case would be any different than if we were forcing black lives matter bakers to create a cake that had a veteran, a confederate flag the money or the white area nation. you cannot give protection to that maker and yet not give it to jack unless we're going to live in a society where the rule is we protect people we agree with and no one else and at nway to run the country. >> the national constitution panel center, supreme court arguments have to end on time sotherefore it is time for our final vote .
2:58 pm
to reflect very carefully about the constitutional arguments we've heard on both sides. now having heard the argumes, please vote once again. do you believe that the first amendment to the constitution protects the bakers rights to refuse to sell a cake? to the gay couple? do we believe the first amendment does protect the bakers rights? and who believes that it does not? who changed his or her vote as a result of the discussion? and how many people changed their votes from paula's side to stephanie's? >> how many people changed their votes from stephanie's sideto paula's side ?
2:59 pm
this was an extremely imprecise time but i'm going to call it a tie. and i want to thank our panelists for this extraordinary discussion. thank you very much. [applause] >> wonderful job. >> today the supreme court ruled 72 that a colorado bakers free exercise and religious freedom rights were violated colorado civil rights commission. after he said he broke state law and refuse to create a cake for a gay couple. watch the oral this case tonight at 9:15 p.m. eastern on c-span. >> the u.s. senate returns from its weeklong work period today to take the first of
3:00 pm
severaldistrict court nominations. more nominations along with the debate on an educational department nominee . senate is expected toconsider spending bills for 2019, finding energy and veterans affairs department .live coverage now of the u.s. senate here on c-span2. the presiding officer: the senate will come to order. the chaplain, dr. barry black, will lead the senate in prayer. the chaplain: let us pray.


info Stream Only

Uploaded by TV Archive on