Skip to main content

tv   Religious Freedom Anti- Discrimination Law  CSPAN  June 5, 2018 4:40am-5:47am EDT

4:40 am
from pre c-span'snd watch washington journal live at 7:00 a.m. this morning. next, debate about the supreme court case, masterpiece cake shop versus the colorado civil rights commission. sided monday with t colorado baker who refused to make a custom cake for a same-sex wedding. an attorney, representing the couple, the legal counsel for the beckett run for religious liberty as well as was the editor of a .ritish magazine the national constitution center held this event before the supreme court ruled on this case. >> it is time to introduce tonight's program, the together leading thinkers about this question about how to balance free speech in one of the biggest cases, masterpiece cake
4:41 am
shop versus colorado civil rights commission. i am so excited that our partners for this event are represented by, brendan o'neill, its editor-in-chief. it describes itself as a political magazine devoted to humanism and libertarianism. categorize what it is fierce in his defense of individual liberty. brendan is a distinguished commentator who is the author of a duty to offend selected essays. he will be joined by stephanie barkley, counsel at the becket fund for religious liberty. she has defended a young muslim woman discriminated against in her employment and other practitioners of religious liberty.
4:42 am
paula is one of the attorneys who represented the couple in this case. she has been working with this case for six years and was a finalist for the case of the year award on behalf of the plaintiffs. please join me in welcoming brendan o'neill, stephanie barclay, and paula greisen. [applause] wonderful. when we have formal debates, we vote before and after. because this is a case decided by the court, i would like to have a vote. i'm going to state the question and i want you to vote for the side you think should win
4:43 am
constitutionally. you could think it is unfair for the couple not to be able to get the cake but that the constitution protects the right to refuse to sell it or you could think it is fine for him to refuse but the law requires it. the question i am asking you to vote on is does the constitution , protect the baker's right to sell a cake to a gay couple, in particular, do the religious freedom and free expression provisions of the first amendment protect the baker's right to sell the cake? i want you to listen with an open mind. at the end, we're going to vote again and the winner will be the side that shifts the most votes. this is the question -- does the
4:44 am
first amendment to the constitution protect the baker's right to refuse to sell a cake to a gay couple? who believes it does protect his right? who believes it does not? a strong majority in favor of the couple on constitutional grounds. we have no better person to start us off than paula grison. why don't you start us off by stating the facts of the case and of finding the constitutional issues, the religious freedom issue and the free-speech issue for our audience? >> it is hard for me to sit down and talk but i'm going to try. this is about a couple, charlie and david, they got married in massachusetts because at the
4:45 am
time, colorado law did not recognize same-sex marriage. they were planning a wedding celebration in colorado at lakewood, a town outside denver, and their wedding planner said, go to masterpiece cake shop. they make nice cakes. charlie and david, along with charlie's mom, they were excited about going and ordering a cake. they got some ideas together in a folder and walked into the shop. they sat down at a table, the three of them, jack came up and what can i do for you? they said, we want a wedding cake. jack's response was for who? it was apparent, charlie and david were sitting there.
4:46 am
they are a loving couple. it was clear the cake was for them. they said, it is for us. at that point, jack said no. i do not do wedding cakes for same-sex couples. there was a silence. charlie and david looked at each other and they stood up, along with their mom, debbie, and walked out. got in 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 a cake.
4:47 am
that started what landed in front of the supreme court. the next day, debbie was upset so she called jack and said, why did you do that? why did you refuse to make my son a wedding cake? jack said, i do not believe in same-sex marriage, same-sex marriage is not legal in colorado and it was against his religious beliefs. from that facebook page, it went viral and the support poured out for charlie and david and a lot of support for jack, too. that is how we found ourselves, charlie and david were encouraged to file a complaint with the colorado civil rights division. the division agreed there was probable cause for
4:48 am
discrimination based on sexual orientation. at that point, the commission took it to a hearing. i represented charlie and david at that hearing and we won. the baker appealed it to the court of appeals. we won. the baker appealed it to the u.s. supreme court and that is where we are. >> thank you so much for that. a very helpful statement of the facts. stepni dyou have anything to add? >> thank you for having me and thank you for being here. i am from the becket fund where we defend religious liberty for people of all faiths, from anglican to zorastrian. this is a tough case, a case
4:49 am
where there are deep feelings and interests going on. that is why it can be difficult to talk about it. i am so grateful for the center for having this dialogue. jack, like many business owners, made a decision about what sort t he wanted toeven support. i will talk about that more. it is important to step back and think about the ways in which business owners and individuals make these decisions all the time. there was a gay coffee shop owner in seattle that asked christian individuals to leave his premises when they had been advocating pro-life principles he disagreed with. chipotle decided they did not want to cater to the boy scouts
4:50 am
because they disagreed with their position on gay scout leaders. in colorado, there were gay bakers who were asked by a christian client to bake a bible themed cake that condemned homosexuality and those bakers said no. in their scenario, the colorado commission said, you have right to object to create something that is a message you disagree with. in jack's case, he has said the evidence that is on the record at wasefore colorado and went to the supreme court, he is willing to sell anything to anyone and he would have been willing to design all sorts of cakes for this couple but he could not create a custom design wedding cake for an event that goes against his religious beliefs. that is not the only type of cake jack would not create.
4:51 am
he would not create a cake celebrating racism, divorce. has declinedes he in the past. i undepeoprstand in this audi probably disagree with the choice jack made about what message he should support and whether or not he should use his talents in that way. that is not the question in this case. the question is, do we want to give the government the power to make decisions about important issues like sex, religion, politics and do we want the government to be the one to say who is right and who is wrong beunished. disagree, you could that is what is at stake. >> great. we have had the facts and the sense that the issue is joined. brendan, you are a defender of
4:52 am
individual liberty and a defender of free speech. how do you see the liberty issues in the case and who do you think should win? >> in my view, it is straightforward. i know the ins and outs of the case are complex and it will go on for a long time, but the way i 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 give rise 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 toefuse to express something he doesn't
4:53 am
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 would have been a straightforward instance of discrimination and would've been unacceptable and unconstitual andllegal. but what he said is i'm happy to sell you a cake and make you a cake, but 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 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
4:54 am
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. 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'cod' 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
4:55 am
people do that we no longer have , freedom of speech and we no longer have freedom of conscience. we have government mandated correct thinking which anyone 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 unfortunately couldn't get a cake from this guy. >> thank you. brendan has put on the table with admirable clarity his view that to force the baker to sell the 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 forced to participate in a expressive sentiments with
4:56 am
which they disagree. describe as precisely as you can what the compelled speech is and talk about the cases and why you think it's wrong. >> i'm a trial lawyer. i think it is important when we talk about these, the facts do 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 customer then said i want you to take the icing and write on the cake god hates gays and she said i won't do that. i find that offensive. you can have the icing piping and you can write it if you want but i'm not going to write those words for anyone on that cake.
4:57 am
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't whether the government is compelling jack to say anything. in our society, we regul regulate commercial activity. the law at issue just says to people, you can't discriminate amongst your customers when you sell something. it is not telling jack what to say or think. it's letting jack express his religion and we all clearly know what he believes. i believe in the first 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
4:58 am
commercial activity in this country, we have decided as a a statend colorado as that we are not going to let you pick and choose your customers. that there is something fundamentally wrong with that and that's what this law is saying. it's not saying you can or you can't say anything, it simply saying you've got to sell to protected classes across the board. >> thank you. 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. >> facts matter and in oral argument, one of the facts that the justices were really disturbed by before the supreme
4:59 am
court, is that in fact colorado's rule would require jack to write words on a cake that he disagreed with. the attorney for colorado admitted that under the rule that they're advocating and the ruling of the lower court, 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 and another case is contradicted by the record. 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 we say that speech includes
5:00 am
things like burning flags and the color of an armband that you wear in protest and sometimes even really hurtful and offensive things like a nazi protest that the supreme court unanimously upheld, and 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 confederate flag themed symbol on it for the white aryan 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 disagree with which both triggers free speech protections and also triggers in this case religious freedom protections. one thing that justice kennedy
5:01 am
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. that's what justice kennedy said at oral argument. if you think about justice kennedy and how he has been 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 and had a different view, in that case same-sex couples. justice kennedy 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. the problem is when the government gets involved in
5:02 am
picks the correct view and punishes another. there have even been gay business owns who stood up for vendors and said we remember what it was like to be the minority that was marginalized and eated 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 question. brendan, the justices seem to think it was tough to draw the line. there were a lot of questions from justice sotomayor saying what about an artist to justice kagan saying what about a makeup artist, and they said and artist is an artist and how do you limit this to wedding cake makers and photographers but not include the guy who didn't want to sell barbecue to the african-american couple in the 1960s and how do you state the principal because the government
5:03 am
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 principle is stated. >> i think sp's right there are, freedom of speech doesn't just cover words. there's many ways you can express yourself. there are different forms of expression. there's the right to silence and the right to burn 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 two male stats or whatever else it might have on it which expresses supporand conviction in the institution of gay 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.
5:04 am
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 are expressive things. that's why you have them. you eathem eventually, buto eat. they are a 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 and two children on the top. that says something. bakerure there might be a who would not like to make that cake because they don't believe in sex outside of marriage. fine. they shouldn'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 to.
5:05 am
one thing i think is really interesting in all these cases and there's been some cases in britain which have been taken 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 goinon here is why it is that couples who have the inconvenience that they cannot get a cake in a particular baker, why do 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 where almost there is the idea
5:06 am
that it's unacceptable for a bakery to exist which doesn't share the values of mainstream society. i find that slightly vindictive and almost veering on the edge of religious persecution where you go looking for the institutions that will not serve you precisely so you can turn this into a public incident or legal incident. we've seen that in britain where people are almost trolling for incidents of discrimination which they can turn into a public 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 in one bakery is they will be inconvenienced and upset and we should not undermine that, but it can be rectified by them going to
5:07 am
another place and encouraging people by social media not to go to this bakery. that could be the consequence of that, but the consequence of forcing every bakery in the country to say something or express something or do something that goes up against every grain of their belief, those consequences strike as far more dire. those consequences will be the boosting of government power erasureession and the where peoplerealm hold views against the mainstream. i think those consequences are for worse than gay couples being put out because there's some bakeries who refuse to serve them. >> i want to respond to that. >> please do respond to that. 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
5:08 am
where they said the boy scouts can be forced to allow gay in theirers to march parade because 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 claim. >> i will get into some case law. first i want to clear up 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. wasn't the baker's viewpoint. it was the customer's vipoint. the argument that somehow everybody at that wedding would think that a wedding cake created by masterpiece cake shop somehow expressed the bakers viewpoint is one that i simply don't buy. i's thcustoms vint. and that's important. this other concept of convenience, i find it very upsetting and i know that our
5:09 am
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 would have suggested that ro should find another bus rather than move back a row or anything like that. yes, maybe in denver somebody did when 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? aren't we relegating em 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.
5:10 am
can a website designer then 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. how fense we find at? an interracial couple walks into a photography commercial business. photography is clearly within the first amendment. can the photographer say i don't believe in interracial marriage, therefore i'm not going to give you a service? this is a slope, 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, michaelangelo wouldn't be but a chef would be, this is not a slope we want to go down as a country to decide which businesses can pick and choose their customers. in front of the supreme court, the court said how is race
5:11 am
different? how are you going to choose that you're just going to protect this religious view of this baker and the answer was race is fferent. we're not quite sure why but maybe because there's so much historical discrimination, but every other group 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 mixes and did not want to serve african-american people in the barbecue restaurant, and the
5:12 am
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 name of protecting your first amendment rights. i think that is the precedent continue --ould look at this as the regulation of commercial speech. the parade is 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. >> stephanie, what you think about the distinction that here he himself has the expressive right other than the boy scouts you are a private association who have an expressive right,
5:13 am
and why is race different? at the oral argument they conceded if the baker refuse to bake a cake for an african-american couple that would not be permissible. why is that the case. i have three responses for the great points that have been raised. first, as far as expression goes 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 fact-specific questions. it's also important to keep in mind that in the context of a
5:14 am
wedding, weddings themselves are deeply expressive events. justice kennedy talked about how important weddings are and how americans should be able to make deeply personal decisions about whether they 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 gee that cake was delicious and i just want to eat a lot more. maybe you won't raise your hand because you're someone who you went to their wedding recently and that's okay, but i think we need to be honest about the fact about why do we keep eating bad cake at weddings. it's part of the ceremony. it is part of a tradition. it's really 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
5:15 am
embdis 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 but marriage and weddings and ceremonies surrounded by them don't matter and aren'olic for someone doesn't want to participate in that. how do 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, that's just 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 good reason for trumping those first amendment rights and the supreme court has actually dealt with this conflict between public accommodation laws, and first amendment rights on multiple occasions going back for decades. we have not resulted in the slippery slope scenario where
5:16 am
we've had discrimination that looks like the jim crow south. we've had nothing like that. those cases still don't exist after decades of the supreme court balancing these rights. the factors they looked at are, one, how broad is the first amendment jectio 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 anything else in which case the govement 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.
5:17 am
there were bakeries making for their business and offering to provide it for free. those are the factors that the supreme court has provided for us after something is expected for religioufrdom 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. -- >> 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? a gay coffee owner in seattle asked customers to leave their coffee shop because they were pro-life supporters. are you concerned about the
5:18 am
difficulty the lower court 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 express certain things or have people express certain things on their premise.ifhis was a wides, 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 thatitti theno by the government to say who you must associate with and what you must express. i think living with it is preferable to that but the real
5:19 am
contradiction in this particular case, because on the one hand re tolthe coupleas deeply upset, and i have no reason to question tt, i'm sure it's true they 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 of 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 on. it's very symbolic, important, expressive thing. that's precisely why we have to have a situation where people can refuse in certain circumstances to express another persons point of view on their behalf in creating a product or creating something for them.
5:20 am
i think it is incredibly important in this argument and insinuation that anyone who is taking the side of the baker or cases similar, are the people that wanted rosa parks to stay at the back of the bus or the people that wanted -- her support this rumination against black people and diners in the 1950's and is so on. no one here is defending the right of any company in america to refuse to serve couples and 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. certainly i'm not. what we are saying is there are particular instances where a service becomes an expressive product and it becomes problematic for minorities. and that seems to me to be a
5:21 am
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 to conflate those two things and one final point which we might come onto in the original -- 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 ba d thing but discrination can be a good thing. you can be a discriminating person, a discriminating taste in art for example and this is a point made in the 1950's, she made the 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.
5:22 am
but then she raised the , possibility between private groups whether there should be the freedom of discrimination and public life weather shouldn't, -- where there shouldn't, 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 an establishment of religion or prohibiting the free exercise thereof and the claim in this case is that the bakers rights to exercise religion are being violated when he is compelled to embrace, which she disagrees and described that claim and why you think it is 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
5:23 am
the reason why jack, the reason why charlie and dave filed this complaint wasn't because of a piece of cake. it was about what it felt like to be humiliated 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 appealing this, mainly i think because the issue of same sex marriage is very divisive. if this was a jewish person who walked in and asked for a
5:24 am
and hadfor bat mitzvah , been refused, nobody in this room would have said that's okay but because of the association of gay marriage which is still very 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. you are violating our free speech 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 stephanie, and i think colorado argued very successfully as
5:25 am
most states in this country would argue that the government does have an interest in eradicating discrimination. the decisions which was referenced several 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 in addition but stephanie's right, he said it's very important to be respectful of religious beliefs, but this is the 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 fought with violence and terror and i don't think this is an isolated situation by any stretch of imagination.
5:26 am
so yes, we do need to be respectful of religion and the courtesy statute specifically exempts organizations or businesses 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. >> many thanks for that. stephanie, we must really dig into the rel freom cim 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 are a lot of similarities here between
5:27 am
free-speech protections and his exercise rights. he's arguing that being forced to custom design something that he's creating that goes against his religious beliefs is something that the first amendment prohibits and paula talk to earlier about it's not his method, the couples message and i think it's the couples message to when they have cake and their ceremony but it is also i thi something significant about just the act of creation. it would be significant if we forced someone who beliein 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, part of what he's objecting to is that actively being forced to create and design something that contradicts what he believes in. e way at the supremeou has protected free exercise
5:28 am
rights is they had said if the government is willing to provide protection to people for secular reasons, they're going to protect the gay bakers in the 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 that cake, then it is a double standard and it is constitutionally dangerous to not offer that same protection to jack. there's a couple other things going on here as well, in particular that are relevant. that is, it came up in oral arguments that if colorado wins, not only would jack be forced to create these kinds of cakes and as wdiscussed, cakes that have words saying god bless the union or celebrate the union, or these same-sex couples that he would
5:29 am
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 training on these antidiscrimination laws. beliefs are 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 that paul a talked about she keepsase 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 -- serve black people because of his religious beliefs and i think it's important to think shameful really history of our country has a race discrimination and the jim crow south and the fact that
5:30 am
individuals in that era times -- era, sometimes 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 suive in our political and economic society and that is something that was a serious problem in our country, sog wereated power toto addss and is in -- no one disputes that if this says i'm where jack 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. jack is telling the couple i will design cakes for you for any other event. i will sell you anything in my shop, but i just cannot create this custom-designed message and one last point to make is i think it's absolutely fair to dignitary interest and i think no one i know is happy that the feelings of this
5:31 am
gay couple and we can understand that and if we want to talk about the dignitary harm think , about the holocaust survivors in the supreme court case of silky. some of these individuals still had tattoos on their bodies and from the treatment that they received, during 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 nazi protesters to come to their town. their dignity was instate and that was a deeply offeive thing those protesters were doing, we can agree and we would never join the protest. but this the supreme court unanimously protected the first amendment 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 won't protect freedom there, then we are not able to protect freedom for all of us. we live in a society where the government can take those rights
5:32 am
away from anyone. >> on the religious point, are you by the religious claim freependently from thue ree speech claim? how that religion claim in 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? >> 'm worried about the state of religious freedom in the western world. we become too cavalier about it and i think we have become too cavalier about freedom of , the 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 foredom oreligion that hadn'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
5:33 am
slippery slope, i look at what's happening in britain with relation to the application of equality legislation to undermine people's freedom of expression and freedom of religion because once you go down this route of iiting 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 forced party called the british national party which is a horrible, racist organization to rewrite their constitution which said the party was only open to caucasian people on the basis that it was, it celebrated any -- any quality. that is the end of the must of
5:34 am
association and politi i marched against it many times when i was younger. there have been other instances where religious groups in the uk and in other parts of europe have been punished for and in some cases given prison sentences for expressing certain views as seen as pushing inequality. for exampleinequality. an example of sweden was giv a man was given a one month suspended prison sentence for describing homosexuality as a tumor 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 a poster warning if they didn't believe in god they were going to hell because that was seen as harassing and alarming and making
5:35 am
non-christians feel humiliated and bad and i think it is bad to base laws on what people feel rather than liberty. if you want to see a slippery slope, look at what's happening in europe with the use of equality legislation to undermine freedom of religion and freedom of an association. one other point i wanted to make in relation to this stuff, i have to reiterate how unhelpful it is that you are conflating the discrimination against black people which was widespread and horrendous with this case.
5:36 am
as i said before, i have never heard one rson, 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 conslyaraling them to your cause because you are suggesting that what rosa parks faced was similar to a couple who are incapable of getting a cake, when in fact, 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 akin 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,
5:37 am
you are automatically branded a bigot or a homophobe. i come from, i'm not religious, i'm an atheist. but, i come from a religious background so i know lots of people who think that marriage should be between men and women and i can tell you they are not bigots. they do not hate gay people. they simply have a religious belief about the institution of marriage and i'm worried about the constant creeping redefinition of belief as hate crime. of certain convictions as a form of abuse or bigoy. and i think it's woingrth go back to the actual definition of bigotry. bigotry means intolerance of someone who thinks differently than you. that's the meaning of bigotry. bigotry doesn't mean racism or sexist, it can be racism but the dictionary definition is intolerance of someone who has a differt opinion to yours. usually it is a different religious opinion, if you go back to the early definition of bigotry, 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 people with certain
5:38 am
religious views to express themselves or not express themselves. >> paula. you may want to respond to a bit of that. but, we have about five minutes and all of these great questions. so i'm going to pose one question as well. it is very straightforward. could you deduce anything from the justice question that the oral argument, based on the oral argument how do you expect the court to vote? >> going back to brendan's point, i believe in religious freedom. other a verligious rs. she's a christian. she accepts gay marriage. i'm not saying her belief is right and jack's belief is wrong. i think it's really interesting when we start trying to value the harm of discrimination
5:39 am
betwn 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 sexual orientation. this country does have a very pronounced history, anybody who knows the matthew 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, which he did five days later, it's not not an isolated incident and i don't start calibrating who's harmed dignity is more real or more important than somebody else's. i am not and never have questioned jack's sincerely held religious beliefs. i applaud him and i think he should be able to express them. and i'm not trying to conflate.
5:40 am
i've never called him the name or denigrated in any way, nobody has in this case, and certainly dave and charlie have never denigrated jack's belief. the question is in a society that is a pluralist society like ours, if you're going to open up a business, private associations are different, private parades are different, writing pamphlets but there are so many activities that are expressive and once we start 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 as the second amendment. so i'm not worried. most of the examples, preachers or religious organizations, the
5:41 am
law already exempts those organizations in our country. i think religious freedom can sit side-by-side with the government regulation if you're going to open for business, you're going to have to serve erybody equay and i completely forgot what the other f the tion was, jeffrey. >> i will pose it to stephanie. we should just get it on the table. the commentary noted many people think the case is up to justice kennedy that forces him to balance his commitment of 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. how do you think he is going to vote? >> it's a great question and it was an interesting oral argument. justice kennedy clear cares about the dignity of this gay couple and gay couples and all sorts of marginalized
5:42 am
groups and he take that very seriously and i think that paula it makes sensenk in this case that the couple did not experience hurt. and therbeen setimes in our country where we haven't treated lgbt individuals terribly. they faced all sort of injustice so it's clear that on justice kennedy's mind but what is also clear that he understands that if we 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 cannot provide custom service for a same-sex wedding. she would not only lose her business, but the state would come after her for millions of dollars and i think the dignity of those people is on justice kennedy's mind. he brought up the importance of tolerance and our country needs to be a two-way street.
5:43 am
he also talked about some concern that he and other justices worried about and some of the statements by the commissioners were quite hostile to religious beliefs and the ande of religion in society acted like if you open a business, you should not be able to have religious beliefs at all, you're going to have to compromise and said derogatory things about religion in general and that seem troubling to jack, or to justice kennedy that there seem to be animosity toward religion and also that there was this double standard between how they treated dave akers but not jack. i think that's going 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.
5:44 am
that's why the supreme court has protected the first amendment in cases, we talked about skokie, they protected protesters at funerals, said horrific 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 coercion is warranted. here the government hasn't made a case beyond dignity why they are justified in taking away jack's 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 theme done it for the white aryan nation church. you cannot give protection to that of baker and not give it to jack unless we're going to live in a society where the rule is we protect people we agree with
5:45 am
and no one else and that's no way to run a constitutional democracy. >> our panels, like supreme court arguments, have to end on time so therefore it is time for our final vote. before voting, i want you to reflect very carefully about the constitutional arguments we've heard on both sides. now having heard the arguments, please vote once again. do you believe that the first amendment to the constitution protects the baker's rights to refuse to sell a cake to the gay couple? who believes the first amenen 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?
5:46 am
after having heard the discussion. and how many people changed their votes from stephanie's side to paula's side? this was extremely imprecise 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] a wonderful job. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] journal"'s "washington live every day with news and policy issues that impact you. morning, nelson cunningham, a former white house general counsel discuss the latest in the robert mueller investigation and then dinesh desousa talks about his recent pardonpres fm ent trump.
5:47 am
be sure to watch "washington journal" live at 7:00 eastern this morning. join the discussion. onhere is what is live tuesday. for memberin at noon speeches and they will work on a number of interior department measures on national store trails, monuments, and heritage areas. on c-span two, the senate will continue debate on judicial nominations. c-span3, betsy devos testifies at a senate hearing about the 2019 budget request for her department. i will get started at 10:15 eastern. afternoon, a congressional panel investigates the sexual abuse of athletes. universityigan state president will be on capitol hill. watch that at 3:00 eastern.


info Stream Only

Uploaded by TV Archive on