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Jack Phillips, the Denver cake artist who is taking his case to the U.S. Supreme Court.

Cake baker fights for religious rights at Supreme Court

Below is a summary of the recent oral argument in the Supreme Court involving Masterpiece Cakeshop, Ltd.
Justices Engage the Wedding Wars
The Masterpiece Cakeshop case was billed as one of the most important religious liberty cases of our time.   Yet none of us in the Supreme Court on December 5, 2017, expected to witness one of the most intense courtroom dramas of our lifetime.

We were there because we had filed “amicus curiae” briefs in support of petitioner Jack Phillips, the Denver cake artist who serves any customer, but who does not do every event, e.g., custom wedding cakes for same-sex weddings.  We sat in the section for Supreme Court bar members, giving us a ringside seat for the judicial jousting that was to unfold.   (Michael was counsel for Southern Baptists and Missouri Baptists, along with some Christian colleges and other religious associations.  Jon had filed an amicus brief on behalf of 86 members of Congress, including Senators Cruz, Lankford and Sasse, and MO Rep. Vicky Hartzler.)

Filibuster
Oral argument is about answering the justices’ questions, so interruptions are expected.  But after her first sentence of introduction, Kirsten Waggoner was hit with a deluge of questions, statements and hypothetical examples by the Lady Justices and Justice Breyer.  A rapid-fire succession of examples was inter-mixed with long stories about a Mexican mole or a smashed cupcake.  It was like a 3-on-1 game of “keep away,” while the clock runs out.  At times Mrs. Waggoner would get 4-5 words out before her answer was cut off by the next hypothetical, the next question, or a terse command from Justice Sotomayor:  “Answer my question.”   Tr.  21   Forget the “please and thank you” niceties.  This is the Wedding Wars.   In the five-minute rebuttal, Justice Sotomayor seized the mic before Mrs. Waggoner got one word out and then filibustered with 371 words compared to Mrs. Waggoner’s 534 words. Tr. 96 ff.    A Supreme Smack Down. (References to the official transcript in this memo are indicated by “Tr. p#”.

 

Slippery Slope

Many of the hypothetical questions assumed that religious disapproval of same-sex marriage was morally equivalent to racism which some have tried to justify on religious grounds in our history.  The liberal justices worried that allowing Jack to discriminate against same-sex marriage based on religious conscience would create a slippery slope where many businesses would seek to justify race discrimination on religious grounds.   Chief Justice

Roberts suggested that the analogy to race did not fit.  He reminded the ACLU lawyer that the Obergefell decision, written by Justice Kennedy, “went out of its way to talk about the decent and honorable people who may have opposing views.  And to immediately lump them in the same group as people who are opposed to equality in relations with respect to race, I’m not sure that takes full account of that — of that concept in the Obergefell decision.”  Tr. 73-74.

Obergefell and Believers in Biblical Marriage

In the amicus brief we filed for Missouri Baptists and other Southern Baptists, we elaborated on the argument which the Chief made succinctly here.  We said Obergefell promised that religious believers and organizations would remain secure in their constitutional right to believe, teach and live out their sincere religious convictions that marriage is between a man and woman, and that same-sex marriage should not be condoned. The promise was unmistakable and unambiguous:

“Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held – and continues to be held – in good faith by reasonable and sincere people here and throughout the world. Id., 2594
“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. Id., 2602
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Id., 2607

Justice Kennedy, in writing the above words in Obergefell, seemed to be proclaiming his personal respect for traditional biblical views about marriage and giving his personal pledge that the Court would be tolerant of people who lived out this faith.  There was no condemnation of these religious views as being based on hatred or malice or animus.  He would not have used such affirming words had he been talking about racist views based on twisted scripture.

For this reason, perhaps it should not have been surprising that Justice Kennedy would take almost personal offense at the way the State of Colorado treated Jack Phillips and his biblical view of marriage.   But it did surprise us.  It surprised everyone.

Do you disavow?

Speaking to the Colorado Solicitor, Justice Kennedy asked about a statement in the record by the Colorado Civil Rights Commission.

“Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric.  Did the Commission ever disavow or disapprove of that statement?”  Tr. 51.
Mr. Yarger, somewhat awkwardly,  said no.
“Do you disavow or disapprove of that statement?” Kennedy pressed bluntly, noticeably irritated.
“I would not have counseled my client to make that statement,” a nervous solicitor equivocated.
“Do you now disavow or disapprove of that statement?” Kennedy asked in his best prosecutorial tone of voice.
“I — I do, yes, Your Honor,” Mr. Yarger said weakly, halting as if stunned by what had just happened.  Tr. 52.

And we all were.   We had never seen anything like this before in the Court.  The Justice with the swing vote had just forced the lawyer for Colorado to renounce his client’s bigoted statement.  Mr. Yarger may have been thinking to himself, “This is a bad day in the Supreme Court.  It can’t get much worse than this.”

But it did get worse.  A few minutes later, Justice Kennedy drops the bombshell.

Tolerance and respect

“Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy begins.   “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”  Tr. 62.No question.  Just a declaration of the Justice’s opinion that the State’s religious bias was showing.
Discrimination as to Religious Viewpoint

Justice Alito extended the argument about the State treating Jack’s views differently from those bakers who support same-sex marriage.     Tr. 58.

    “One thing that’s disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint.
“The — the Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and those — there were bakers who said no, we won’t do that because it is offensive.
“And the Commission said: That’s okay. It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”

Predictions and Prayers
Many legal observers, left and right, are predicting a 5-4 ruling in favor of Jack Phillips, with a narrow opinion that condemns state laws which fail to make reasonable accommodations for people with a biblical view of man-woman marriage.  We pray the opinion will protect the right to believe, teach and live out their sincere religious convictions that marriage is between a man and woman, and that same-sex marriage should not be condoned. That was the unmistakable and unambiguous promise of Obergefell.We expect a decision to be announced before the summer recess begins on June 30.  There is still time to pray.
–Provided by Whitehead Law, Kansas City, MO.
Mike@TheWhiteheadFirm.com
Jon@WhiteheadLawLLC.com