Good afternoon, welcome to the cato institute. I am the Vice President for legal affairs. Thethe Founding Member of Constitution Center founder of the Founding Member of the center for constitutional studies. Your host for this afternoons debate. I want to welcome also the people who are joining us through cspan and through catos live streaming. Were here to consider whether religious liberty can coexist alongside modern antidiscrimination law. Thats the question the Supreme Court will hear oral arguments on tomorrow when it hears the case of Masterpiece Cakeshop v. Colorado civil rights commission. The case arose when Charlie Craig and David Mullins, a gay couple who walked into the Masterpiece Cakeshop in lakewood, colorado, owned and operated by Jack Phillips, a devout christian. As with all of his customers, phillip said no problem with phillips had no problem with selling the couple anything off the shelf, but he declined to make a custom made cake to celebrate the couples wedding. Citing his religious convictions. He was willing to direct them to nearby bakeries and would design bakeries that would design a cake as he had done with others. Unsatisfied, craig and mullins filed a complaint with the Colorado Civil Rights Commission alleging that phillips had violated the colorado antidiscrimination act. Finding in their favor, the commission ordered phillips, among other things to conduct comprehensive staff training including his Family Members who worked at the bakery. After supporters of craig and mullins picketed the bakery, phillips lost 40 of his business and most of his employees. He appealed the commissions decision, but like courts around the country that have decided similar cases, with respect to florists, bakers, photographers, and others colorados court of , appeals upheld the commission and the colorado Supreme Court declined review. The u. S. Supreme court may now draw some lines or it may uphold the decision below. To debate this question we have two men who have written often about it. Let me introduce them to you. Ilya shapiro will speak first on behalf of the petitioner, Jack Phillips. Ilya is a senior fellow and constitutional studies here at cato and the editor in chief of the cato Supreme Court review. Before joining cato, he was a special assistant advisor to the Multinational Force in iraq on rule of law issues. He practiced patent bogs and cleary. Ilya is in the well regarded Amicus Program to which hes filed 200 briefs in the Supreme Court. Hes the author of religious liberties for corporations . Hobby lobby, the Affordable Care act, and the constitution. Hes contributed to a wide variety of academic, popular, and publications, including the wall street journal, harvard journal of law, and public policy. The l. A. Times, New York Times online, and more. He appears regularly on radio and tv. In 2015, the National Law Journal named ilya one of its 40 rising stars in the legal community. A graduate of princeton, London School of economic, and university of chicago law school, ilya clerked for judge e. Judge e. Grady jolly on the u. S. Court of appeals for the fifth circuit. Arguing for the respondents, charlie, craig, and David Mullins will be j. P. Schnappercasteras. Hes special counsel for appellate and Supreme Court advocacies. He works with l. D. F. Attorneys on Strategic Development and preparation of appellate and Supreme Court briefs. Prior to joining the l. D. F. , john worked as a associate at the Washington Firm of sydney, austin where he focused on appellate representation and complex commercial litigation. Hes published on a range of international and domestic policy issues in the Washington Post, politico, and elsewhere. He coauthored the Supreme Court brief on behalf of lesbian and Gay Service Members in the landmark u. S. V. Windsor case. J. P. As hes known is currently a fellow at the Georgetown University law center and cochair of the constitution projects young professional committee. In september, 2013, he was named one of the top 99 Foreign Policy leaders under 35 by diplomatic courier and led Young Professionals in Foreign Policy. A graduate of stanford, Harvards Kennedy school, and the stanford law school, j. P. Clerked for judge Roger Gregory on the u. S. Court of appeals for the Fourth Circuit and judge scott on the u. S. Court of appeals for the armed forces. Our speakers will each have 15 minutes to present their opening arguments and five minutes to respond. After which ill have a couple of questions myself. Well then take questions from the audience. Well conclude at 5 30 in a reception in catos Winter Garden. Lets begin. Please welcome shapiro. [applause] ilya , for those watching at home, i should add that there is a twitter for this event. Catoscotus. I was getting some lastminute tweets if you followed us all day its the battle of the gifs. Im not sure how to pronounce those. That is all fun, but it just shows that there are many ways to slice this case. I hope that you wont think that what i present is halfbaked as long as i dont end up with yolk on my face, well be all good. In seriousness this case has been misunderstood by a lot of people. It is not a case that ultimately the court is being asked to decide between competing rights or between competing peoples or whose interests are of more important in American Society. Its instead one where we can see the good that has come from the case that cato filed briefs in, supporting the challenges to the traditional marriage laws in many states. Of course it was about public action and what sorts of licenses states had to give and on which basis they could make those decisions. It also said the majority opinion by Justice Kennedy, many who deem samesex marriage to be wrong reach that conclusion placed conclusion based on decent honorable sacrilegious and philosophical premises and neither they or their beliefs are disparaged here. Thats what this case is about. Private actors in respecting peoples differences in living together in a pluralistic society. My friend here wants to make this case about bigotry and civil rights. About the next step to equality for a persecuted minority. Well, if we take obergefel, this isnt about bigotry or whether society has to tolerate distasteful views. But this is a case about civil rights for persecuted minorities. The very few american Small Businesses that cant bring themselves to support samesex weddings. Its about the freedom of speech. That the Awesome Force of government shouldnt be brought to bear on stamping out dissenting views. From kennedys majority opinion, it must be emphasized that religious and those who adhere to religious doctrines may continue to advocate with utmost sincere conviction that samesex marriage should not be condoned. The First Amendment ensures religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and central to their lives and faiths and to their own deep aspirations to continue the Family Structure they have long revered. The same is true of those who oppose samesex marriage for other reasons. So it allows lots of play in the joints. It understands that unlike in certain other context, those involving race, for example, there need not be animus driving those who disagree with the idea of samesex marriage. And so every last bit of dissent need not be stamped out. This is actually a speech case not, for the most part, a religion case. Thats because unlike say in hobby lobby or Little Sisters of the poor, there is no religious freedom restoration act here. That is the case of Employment Division versus smith that if there is a law that burdens religion, you must seek your exemption from the legislature. Thats where we have all these rfras federal and state. Colorado does not have that. This antidiscrimination law that does burden religious exercise, that should be the end of the game. But the reason why free exercise claims are still part of this case, ill lead with this even though i think the speech theories are stronger because most people think that this is a religious freedom case, although if there is not five votes for the speech argument, i cant see how there would be five votes for the religion one. Regardless the reason why the free exercise claim remains is because the colorado antidiscrimination act has not been used in a neutral and generally applicable way. In other words, several times religious patrons went to other secular bake earns requested certain religious cakes, some had messages that were not friendly to the lgbt community, and they were refused. And the Colorado Civil Rights Commission declined to pursue any actions against those bakeries saying that it wasnt the religious nature of the customers that was being discriminated against but rather the message. I find that a little rich. Not the cake but the legal argument. In that the same thing could be and is being said here. As ill go into in a bit. Mr. Phillips, Jack Phillips, the owner of Masterpiece Cakeshop, like all of these wedding vendor cases we have seen, none of these people turn back gay people at the front door and refuse to serve them. Its only when they are being asked to do something to convey a message relating to the celebration of their union that it starts becoming a federal issue. Moreover, the case here goes beyond what was happening in Employment Division versus smith. There it was a prohibition of a particular type of drug that native americans wanted to use for their religion. But here its someone who is being forced to do something against their religion. Which is a step beyond being stopped from doing something that your religion requires. The free exercise clause forbids coercing people of faith to celebrate events that they consider to be both religious and against their religion. So that is why the religion liberty argument is still there. I commend to you the brief by doug laycon at the university of virginia who is one of the nations foremost religious liberty scholars. He was on the other side in the Little Sisters case, i should add. Hes a very plays it down the middle talking about why colorado is not playing it down is the case with this law. Lets move to the main event. And thats this issue of compelled speech. In 1943, Justice Robert jackson, one of our most celebrated jurists, in whose seat Justice Gorsuch now sits. He wrote in the case of West Virginia versus barnett in 194 1943, which struck down a requirement that the kids of jehovahs witnesses salute the flag and say the pledge of allegiance. This is during war time. We had to be patriotic. Make sure that we werent supporting our enemies. Nevertheless, that requirement was struck down. Justice jackson wrote, if there is any fixed star in our constitutional constellation, its no official, high or petty, can prescribe which shall be orthodox in politics, national, religion, or other matters of opinion, or force citizens to confess by word or act, the faith therein. 30 years hence, 40 years ago, in the New Hampshire license plate case, the right to speak and the right to refrain from speaking are complementary components of the broader conception of individual freedom of mind. This involved the New Hampshire slogan, live free or die. And the court struck down that requirement. The reason why, wherever you live, whichever state or the district, if you dont like the default slogan thats on that license plate in the district, its no taxation without representation, can you ask for and have to be given some alternative because even though nobody would think that this is your message, that New Hampshire or d. C. Or whoever is conveying, still you cannot be forced to convey that message. Indeed, never has the court compelled expression in circumstances like these ones, even where there is a dignitary harm. That is someone is being offended or their feelings are being hurt or they feel like someone else is taking a decision to exercise their First Amendment rights. Ultimately this case involved the regulation and compulsion of speech, not conduct. This is not a rule about who has to sell to whom or when or hire whom or when. The key is that Jack Phillips doesnt want to convey a particular message, not that he doesnt want to do business with gay people, either individually or as a couple. He invited the couple here to buy cupcakes or other baked goods or anything else, a birthday cake. Now, you might say, well, what is a wedding cake . Its just its a symbol of the two people who are getting married. Its not a judgment on the baker. In fact, if a wedding cake is very plain it might not be saying much at all. The conversation here was cut off before there was talk of what kind of design the couple wanted or whether they wanted any words on it. Was it going to be rainbows . Ultimately they did get a rainbow cake made somewhere else. All that mr. Phillips said will i not make a custom cake for the gay wedding. Said i will not make a custom cake for the gay wedding. To qualify artistic expression need not contain a succinctly particularized message. Thats according to the case of hurley vs. Irish american gay and lesbian, Bisexual Group of boston where the Supreme Court upheld the right of parade organizers to exclude an lgbt group that wanted to march in the parade. The First Amendment also doesnt treat avoiding offense as enough to justify restricting or compelling speech. We have seen that in the cohen vs. California, the fuck the draft case during the vietnam war. We have seen that this past term, disparaging trademark, the slants case. Something being offensive is not enough to restrict it. And indeed cakes can have a different message in a different context. You could have a latin cross, beautiful latin cross made by a sculpture for a Lutheran Church or used to burn at an Aryan Nations event. Democratic bakers could make elephants for kids or they could make them for a trump rally say. Even the manufacturer of a cake which might not be expressive in all contexts, for a wedding certainly is. Thats why people pay such sums and commission them as a central part of their celebration. Once you accept that expressive activity can be protected and Courts Police that expressivenonexpressive line all the time, its merely a question of line drawing. Clearly there are certain traditional arts and functions that are protected by the First Amendment, writing, painting, photography, sculpture. What is cake making but sculpture using fondant and butter cream and what not. There are thousands of cake designs that have been copyrighted. Each one that phillips produces is unique. There is a brief that was filed deliciously by a law firm called baker botts that had 27 full color pictures of cakes and talked about the Artistic Design and merits whats going in there. I think its much easier to draw the line between artisanal baking and nonexpressive activities like limo driving or renting out a rent space. They might raise other types of constitutional or statutory claims, but they are not expressive activities. The Supreme Court has protected a whole broad swath of things that you wouldnt think would be michelangelo or james joyce. Things like flag burning and nude dancing and animal crush videos, if you dont know what that is, dont look it up. Violent video games all protected. Courts have recognized artistic expression as diverse as tattooing and stained glass windows. The couple of cases where the Supreme Court has taken up public accommodation laws in the context of First Amendment expression, the people who are challenging those laws won. For example, boy scouts of america versus dale. The boy scouts could not be compelled to have gay scout leaders because they are an expressive association, or as i said the parade. If you cant force a parade to include the speaker, then you cant force a speaker to join the parade either. At the end of the day, the government doesnt need to do this. We dont live in the world of jim crow, thank god, where we had state supported segregation, as well as cultural and social racism with violence ever in the offering. A black family couldnt get a place to stay or eat. Quite the reverse. We have a minority of businesses without market power taking an unpopular position and paying the price for it. This is not controlled by piggy park, the lead case that j. P. Will talk about. A restaurant that did barbecue restaurant that did not want to serve black people or told them they would serve them but they would be outside. Here Jack Phillips offered to sell cupcakes or other confections. He refused to make cakes for halloween or bachelor parties or divorce parties. He would also refuse to make a progay marriage cake for a straight couple. He would not want to do that. There is a unique history of Racial Discrimination and subordination in this country. And opposition to interracial marriage is a part of that. Thats the most common hypothetical thats tossed at those advocating the position where i stand now. I think you would be hardpressed to find any example in history where someone opposes interracial marriage but is not otherwise racist. They would otherwise be ok with serving people of nonwhite people say. Support for traditional marriage here is different as echoed in Justice Kennedys obergefell opinion. Trampling First Amendment rights is a serious business. While rights arent absolute, there is no justification for invading them here. There are more than 100 wedding photographers in the albuquerque area. That was a different case, involving a photographer. There are more than 67 bakeries in denver that specifically advertise cakes for samesex weddings. Specifically advertise they will do it. It,that the others wont do and the closest one is less than mile from Masterpiece Cakeshop. Only the most sincere believers would be willing to lose business over these beliefs and businesses now attract customers, even and especially straight customers, by advertising their gay friendliness. A ruling for colorado here would lead to a different kind of parade, a parade of horribles. We might have catholic artists being forced to make lets celebrate party favors for divorces if they do it for weddings. Muslim graphic designers making flyers celebrating the one true god also for jews. Should gay bakers be forced to bake cakes for the west Borough Baptist Church . Ideology can be a protected class. It is in d. C. , it is in seattle, several places around the country. I have always been curious about work at cato, a libertarian organization, what happens when we deny employment to a socialist because he or she is socialist . Ill take that up with the h. R. Department later. Ideology comes up in lots of context. Should black bakers be forced to bake a cake for the aryan nation . Or environmentalism is an ideology. Should environmentalist bakers be forced to make bear clause claws for job fairs and logging communities . Or a democratic painter who wants to paint a mural for the obama library. If he does so, will he be forced to do so for the Trump Library as well . This case originates in colorado. I dont know if mr. Phillips is a football fan, but should broncos fans make cakes celebrating the Kansas City Chiefs . Maybe not this year when the whole division is terrible, but in general. My wife is from kansas city. She is very concerned about this particular hypothetical. Finally, should fashion designers be forced to create dresses for Melania Trump . I think we can celebrate a whole range of freedom here if we just let bygones be bygones and celebrate everyones freedom. Justice kennedy could have forestalled some of this mischief by making clear his ruling protects not just the right to advocate and teach religion but also to exercise it and that regardless people on other side of the debate shouldnt be forced to convey messages they dont like. He didnt. Its left to the better angels of our pluralistic nature to respect views and lifestyles that we may not like. Thanks. [applause] john paul thank you for having me. We now have 18 minutes instead of 15. John paul thank you for having me. Its good to be back at cato, and i think its important to have candid and civil discussions like this. Id like to start off with two quick clarifications about the record in this case. The first is factually speaking. This is not just a case about the denial of a particular cake. The denial of a custom cake. This is a case about the denial of any wedding cake at all. Mr. Phillips was rejected he rejected the gay couple here out of hand after 20 seconds. There was no discussion as ilya alluded to. No discussion of what the color scheme of the cake would be. What the written message on the top might be. What other artistic motifs the couple might request. All mr. Phillips needed to know was that these were two gay men who wanted a wedding cake. For those of you following along at home, this is in the joint appendix at page 168 and 169. According to mr. Phillips own account, explaining in brief terms, all he needed to know was that he does not create wedding cakes for samesex weddings. As an aside, masterpiece also turned away several other gay customers, including an order for cupcakes. Im not so sure we could confidently say he would have sold them other items. Well leave that for another day. The second correction id like to make here is legally speaking. With all of ilyas impassioned oratory about free speech, this is also a case about free exercise and religion. You did allude, most people understand this to be a case about religion. Thats how it started out. Even though the legal theory has been retooled to focus on artistry, the perspective that we have now been sort of compelled to think about is compelled speech. Lets be honest. For most americans this is about religion. This is about religious exemption. At best this is a hybrid claim that fuses religion and compelled speech. By mr. Phillips own account, those two claims are two sides of the same coin. He says this in his brief that hes religious. Because of the religious significance of marriage, he would require he would say sacrilegious to express through his art about that marriage. And the religious context is very important because it changes the significance for a customer and shop owner alike. Its bound up in a belief system in judgment about moral disapproval. This is not just some abstract artists quarrel. You want cubism. I only sell impressionism, lets call the whole thing off. If we acknowledge there is a strong religious component here, lets back up for just a moment and talk about that and reexamine the familiar story were facing. We have three customers who walk into a Small Business that sells specialty foods. The owner is said to be an artist for his unique skills. He believes his religious convictions imbue all aspects of his work. The owner turns the customers away, entirely or denies them access to the full range of products, because his religious beliefs forbid it. In court the owner claims the First Amendment should abrogate public accommodation laws and immunize his refusal to provide service. I could be describing what happened in 2012 to mr. Craig and mr. Mullins and his mother. What i am actually describing is what happened in 1964. To three africanamerican customers at a barbecue restaurant in south carolina. That led to the Supreme Court seminal decision on race discrimination and public accommodations, newman vs. Piggy park, which ilya alluded to earlier. It is deja vu all over again. If that restaurant, piggy park, owned by a man named maurice, he was deeply religious and believed serving black customers, contributing to racial intermixing contravened a the will of god. When a black baptist minister sought to enter the restaurant. He stood in the door way to block him. When two other africanamericans park, hetronize piggy refused and only allowed them to purchase food if they refused to consume it on the premises. He would seldom some products but not others. The customers sued and allege that he violated title 2 of the Civil Rights Act of 1964. Which is very similar to i think we would all agree to the colorado law at issue here. When the case reached the Supreme Court, it unanimously affirmed holding that his conduct violated title 2. As the District Court explained, free exercise of ones beliefs as distinguished from the absolute right to a belief, is subject to regulation. When religious acts require accommodation to society. In a straightforward Decision Just 11 days after hearing oral argument, the Supreme Court stressed, quote, this is not even a border line case. It flatly rejected the owners defenses that is the Civil Rights Act was invalid because it, quote, contravenes the will of god. So piggy park shows us we have been here before. It controls the outcome of masterpiece. Stepping back further, i think its an important reminder that the crossroads of religious liberty and civil rights, the two strands of this case that are intersecting here, are historically complex and often contested. Where you have both the defenders and the opponents of equality or certain movements invoking theological principles. On the one hand, during the Civil Rights Movement, religious leaders from numerous faiths were at the forefront of this nations march towards equality. Catholic clergy actively supported the passage of the Civil Rights Act. Heschel locked arms with dr. King at the head of the selma procession. Archbishop oboyle delivered the invocation at the march on washington. Dr. King was a deeply religious man called to the ministry at the age of 19, named after martin luther, and ordained at the Ebenezer Baptist church. I could go on and on. On the other hand, we also know the facts of history. The facts are that theological arguments have been regularly offered to sustain blatant forms of discrimination. While that might seem outlandish or offensive to some today, the unfortunate truth is that those sorts of arguments were once quite common. I can give you a few examples. Religious arguments were extensively used, as ilya mentioned, to justify antidissemination loss, bans on interracial marriage. In loving vs. Virginia, the trial judge said quote, almighty god created the races, white, red, and hew, and placed them on separate continents. The fact he separated the races shows he did not intend for them to mix. Religious arguments were commonly used to justify school segregation. One year after brown vs. Board of education, justices of the florida Supreme Court criticize the segregation. When god created man he allotted each race to his own continent. Were advised gods plan was an error and must be reversed. Religion was used to justify discrimination in public accommodation in a challenge to segregated railroads. The pennsylvania Supreme Court held segregation, quote, is not prejudiced nor injustice of the any kind but to suffer men to follow the law of the races established by the creator himself. Even the Civil Rights Act of 1964, which includes title 2 on public accommodations, itself faced religion based resistance, West Virginia senator byrd cited multiple biblical passages, including the rules of interbreeding of cattle and sowing of mixed seed. Thankfully by the middle of the 20th century, courts generally stopped accepting these sorts of religious motivations. Loving versus virginia, piggy park, and Bob Jones University versus the United States. When we view the cases in their proper historical context, loving constitutes a major repudiation of nearly a century of Lower Court Decisions that had repeatedly drawn upon theology to ban interracial marriage. Just one year later in piggy park, the Supreme Court again unanimously rejects theological justification for discrimination in public accommodation. 15 years after that, in bob jones, the university sought a religious exemption from taxes that would have allowed its to maintain its policy of prohibiting prospective or current students from engaging in interracial dating. And an 81 majority of the court held that schools religious justification could not overcome congress Firm National policy for racial segregation and Racial Discrimination in education. Even the lone dissenter, Justice Rhenquist had expressed no disagreement with the finding there is a strong National Policy in this country opposed to Racial Discrimination. The overarching lesson of these cases is the Supreme Court has repeatedly rejected religionbased justifications for differential treatment, and this logic applies clearly to the context of lgbtq discrimination today. No matter how sincerely felt or perhaps wellintentioned, religious belief simply cannot justify differential treatment of lgbt individuals or couples in places of public accommodation. Now lets talk a little about speech because the briefs on either side dont talk about piggy park. They dont want to talk about piggy park. They dont try to cite it. I think because they are hardpressed to distinguish it, but the central importance of piggy park is unaltered by the fact that petitioners in the United States focus on this new speech theory. Under that theory, however, mr. Basinger would have succeeded if he simply relabeled his claims. Instead of arguing that religious beliefs prohibited integration, he raised a compelled speech claim and argue his religious beliefs meant he considered it sacrilegious to express through his art, the missing magic words, that integration conflicts with his religious beliefs. If mr. Basinger had only styled himself to be more bernini than barbecue, he would have won. But it cannot be that piggy park might have reached a different conclusion if he tacked on the theory of compelled speech. Nothing suggests the dissemination motivated by the same underlying by the same beliefs is exempt from public accommodation laws so long as its framed as free speech. Many religious acts involve public expressions of faith and communicative symbolism. Finally, i want to lay out some of the ways that i think ilyas position aside from being wrong on the law, that his position, the exception would swallow the rule. The solicitor generals brief, which is problematic for several reasons i hope we can get into, proposes this operative limiting principle here. They say there should be religious exemption for artistic or custom products. That would effectively eviscerate public accommodations law as we know it. First, apply it to the case of piggy park. Its important to remember that mr. Basinger himself was later described as, quote, an artist. Barbecue is commonly understood to be a form of art by federal entities, by historians, by culinary organizations. Moreover, his restaurant to this day continues to offer, quote, custom wedding catering. You can go online and see his customizable packages for weddings, church events, rehearsal dinners. Under the solicitor generals position, and i presume ilyas position, piggy park would be exempt. Second, even under the sort of fauxmodest limiting principle, i think the implications would be drastic. Perhaps more than we all appreciate at the beginning of this case. It would not be limited to wedding cakes. Petitioners already suggest it would apply to photographers, florists, website designers, djs. Cato itself in its brief talks about how there are 6,000 retail bakeries. 600,000 people employed there. The size of the wedding industry includes 1. 2 million americans. And 315,000 businesses at large. There is an amicus brief on behalf of 479 professionals envisioning themselves as exempt under this new theory of the day, including a seamstress, a Stage Lighting designer, event planners, a knitter, and paper crafter. It is quite broad. Ilya goes further, and his brief talks about how the legal issues here, quote, can apply to anyone who is in the business of selling products of their intellectual or artistic expression on page 12. Thats a quantum leap in terms of the sort of exemptions that the law currently envisions. It would usher in, truly usher in scores of First Amendment challenges. The net result here would be to embroil the judiciary into adjudicating a flurry of difficult if not illusory questions at the intersection of expression and artistry and religion. Let me give you a few examples because you gave some lively examples as well. Is a custom made barbecue menu for a wedding any more or less artistic than a wedding cake . Who is to judge . Does it depend on the scriptural connection to the type of food that is served . For example cooked meats. Matthew 221 refers to certain serving cooked meats at the wedding feast. Is a designer of a Wedding Dress expressively or religiously different or the same as a tailormade garter belt . Would these same exemptions apply to other events, funerals, anniversaries, or birthday parties . The net effect of all this would be to seriously hobble antidiscrimination efforts across the board. This is the same threat that the court stared down and ultimately contained in piggy park. I want to say also a word about ilyas final point which is that the government doesnt need to do this because there are alternatives. That misconceives of the entire purpose of public accommodations law. The purpose was not that to provide there was already an alternative to the white rest room. It was the black rest room down the hall. At piggy park there was already an alternative to getting a food in the restaurant, go around back. You could still get the food but couldnt eat it in the restaurant. This isnt about some alternative market for people who are being discriminated against. Its about the ability to navigate the economy and American Society as a full and equal and dignified member of this country. As our director counsel often reminds me, its only been in the last 60 years that africanamericans in this country have been able to enjoy the full dignity and full economic participation in this country as a result of public accommodations law. Primarily federal public accommodations law. I think it would blink at reality also to suggest here were a block from k street. It is rather cosmopolitan to say, just go down the street to the other bakery. Thats just simply not possible in many parts of the country. Parts of the country where our clients live, there may be no other bakery. There may be no other wedding venue that will serve gay people. So the practical result will be that you cannot get married. That you cannot get a cake. That you are essentially shut out. Even though that is not what the spirit of public accommodations law required or its sole purpose. That is the real world effect, i believe, of this argument. So ilya, i want to leave with you this basic question. Im not sure i heard a firm answer. Was piggy park rightly decided, or can a baker today refuse to serve an interracial wedding because of their religion . Thank you. [applause] roger ilya, you have five minutes. Five, ok . [laughter] ilya piggy park was rightly decided, but its irrelevant to this case, and thats why you dont see it discussed in the amicus briefs. And most, not all, but most of the religious liberty doctrine that j. P. Enumerated is also irrelevant to the current question because this is not a straightforward attack saying i have a religious objection, therefore i want that exemption judicially. That was decided by Employment Division versus smith. And as i described, the religious exercise claim here is much different. Its based on if the Colorado Civil Rights Commission had, indeed, applied its, what i consider to be overly both overly broad and underinclusive antidiscrimination act evenly, then there would be no viable free exercise claim here. For that matter, it doesnt matter why mr. Phillips doesnt want to provide the cake. I would be here for mr. Phillip jackson, the radical atheist who has other objections to samesex marriage. It doesnt matter other than it provides that hybrid rights claim as j. P. Said. Hybrid rights means legalese for we dont know which doctrine to apply, but you have another bite at the apple, another claim to present to the court. This is not about that relitigating the 1960s era free exercise cases except now substitute blacks for gays. Thats an easy case, and thats not whats going on. Fundamentally, there is a difference between denying service to certain kinds of people and declining to convey a particular message. I dont even know why you would want to have a wedding vendor someone who cant in good faith literally support your union. If progressives respect diversity, shouldnt they refrain from bending the will of fellow americans toward prevailing pieties . This goes beyond gay weddings. Through an ever growing list of mandates and regulation, government compulsion squeezes out Civil Society and foments these types of social classes. Look at the battle over the Little Sisters of poor where even after the Supreme Court told the government to compromise, certain states continue to want to force the nuns to subvert their beliefs. The most basic principle of a free society is the government cant willynilly force us to do things that violate our beliefs. Some may argue in these wedding cases there is a conflict between the freedom of speech or religion and gay rights, and Marriage Equality is more important, but thats a false choice as president obama would say. There is no clash of individual rights in any circumstance other than when the government itself declines to consistently recognize and protect everyones rights. So county clerks act on the states behalf and so much issue must issue marriage licenses regardless of their beliefs, but bakers are not government agents and so should maintain the freedom of conscience. Ultimately again this is primarily a case about compelled speech. As Justice Jackson observed in barnett, freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right for difference to touch the heart of the existing order. Equally fundamental that the government has no authority to force individuals to engage in expressive acts even for a benign purpose. Well done. [applause] john paul ill just offer two closing thoughts. One, ilya, you said a couple different ways now that the risk here is the government is forcing mr. Phillips to do something. I just dont think thats right. You quote soviet dissident quite eloquently in your brief. No one is threatening to send mr. Phillips to a siberian gulag. No one is ilya reeducation, literally. John paul the injunction says if youre going to sell wedding cakes at all, you have to sell them to people on a nondiscriminatory basis. Two, the injunction says you need to refamiliarize yourself with colorado law because youre not obeying it. Three, if you still refuse to turn away certain customers, then you need to document that and give us an explanation on a quarterly basis. I think its a little overheated to suggest that someone is forcing mr. Phillips to say certain words or forcing him to engage in some sort of involuntary labor. Just as a final thought, i think were going to get into hypotheticals later on, and we could argue about that all day. I have thoughts about how to draw lines. Im not sure ill win everyone over here in the audience. I want to leave you with a broader point, which is i hope that i have at least convinced you that there is some relevance to cases like piggy park. That we have to reckon with. The law and facts here are too similar to ignore, even if its inconvenient or some of the parties briefs ignore it. I dont say it just to be provocative. I say it also to be promising. Cases like piggy park are a story of progress that should guide this court once again about how rulings about religion and expression and antidiscrimination are received and applied. By that i mean this, the courts 1968 ruling in piggy park didnt induce some major backlash or give rise to a new wave of religious disputes in the courts or in public life. It didnt impede religious institutions in their important and constitutionally protected activities. It didnt impinge upon the commercial success of culinary artists or barbecue specialist or other caterers. Rather people for the most part embraced the wisdom of this courts unanimous ruling. And piggy park itself continues to operate a vibrant chain of stores, and the current owner, bessingers son, speaks openly about rising above his fathers legacy on race. Progress is possible. Thats instructive for us today in the context of lgbtq protections. The courts and the country and commercial sector are entirely capable of operating under generally applicable neutral rules while also ensuring due respect to the personal religious views of individuals. Antidiscrimination laws, public accommodation laws in particular, bolstered by the Supreme Courts ruling, have undergirded the extraordinary advancements this country can make. Those sorts of advancements are not inevitable. And so the Supreme Court here, too, should preserve the critical protections of public accommodations law which shield us all, while also guarding individual religious liberty. Thank you. [applause] roger thank you, both. Im going to pose a couple of questions. I have not run these by either of our speakers, including ilya. And i have drawn them from recent commentary last week on this case. Ilya, in the Washington Post column last week, george will wrote that Jack Phillips was neither asked nor required to attend, let alone participate in the wedding, so his creation of the cake before the ceremony would not have constituted participation in any meaningful sense. Of course participation is one of the grounds on which the religious liberty folks are suggesting they should be excused. And on the creative issue, will added that a cake can be a medium for creativity, hence in some not too expansive sense, it can be food for thought. However, it certainly and primarily is food, and the creators involvement with it ends when he sends it away to those who consume it. Phillips ought to lose this case, george will said, but craig and mullins who sought his punishment have behaved abominably because they could have easily gone elsewhere for their cake rather than bring the force of the state down upon phillips. How do you respond to george will . Ilya sure. On the expressive cake bit, it would be news to my wife that a cake is primarily about the the wedding cake is primarily about food, and i guess we overpaid because we sure could have gotten that equivalent in calories for a lot less and little to do. Though i did enjoy the tasting that we had before our wedding. Look, a wedding cake is a unique product. Its a food sculpture, if you will. Its no different mr. Phillips expressive rights are no different in that he works in icing and buttermilk and butter cream than ink or paint or what have you. A cake is not simply there because you are expected to provide dessert or people will still be hungry after you served fillet or the salmon whatever you have at your or wedding. Its an important, symbolic totem and plays a role in the ceremony when the bride and groom traditionally slice it together and mash it in their face. All that, symbolic of their first meal together. So its a lot more fraught than simply providing cake for just dinner. As for participation, im not going to get into theological debates with anyone. I dont think george will was either about what constitutes being part of the chain of sin, if you will, religiously speaking. This is part of the reason why i think the free exercise claim is stronger than the religious exercise, at least under the law, not under First Principles. And so thats why i back always on participation being the creation of the cake. Youre kind of a lockin sense, youre mixing your creative energies, your expression that secret ingredient called love, right, into the masterpiece that youre creating for that special symbolic occasion. Roger j. P. , in a National Review online column this week, last week, david french wrote that Jack Phillips isnt discriminating on the basis of Sexual Orientation, one of the recognized classes. If a black baker refuses a white customers request to design a Confederate Flag cake, hes not discriminating on the basis of race, hes refusing to advance a message. French adds that craig and mullins eventually decided on a rainbow cake, which clearly and unmistakably sent a specific message. Sexual revolutionaries, french continues, are asking the court to overturn generations of constitutional precedent to allow the state to compel american citizens to advance ideas they find reprehensible. They believe that the cost of entering the marketplace is not just a loss of your distinct artistic voice, but the commandeering of that voice by your ideological foes to advance their ideological interests. How do you answer french . John paul first of all let me say, ilya, if you are making cakes, mixing in the secret ingredient of love, i would love to have your cakes any time. They sound great. You are welcome in our household to have any sort of cake. Ilya im actually better at the barbecue. Roger actually better at the bar. [laughter] john paul ok. Artisanal cocktails which would also be covered by this ruling. I think that just ignores the basic facts of this case. They didnt even get into mr. Phillips and the gay couple here didnt even get into a conversation about what the design would be. The rainbow cake happened afterwards. It was donated. Roger wasnt that because as soon as he said he wasnt prepared to do that they walked out . John paul exactly. Roger the truncating of the conversation was not due to john paul are you going for a remand of factfinding . I think what that tells you is he didnt need to know any more about them. He knew it was too gay men and men in terms of ilya celebrating a wedding. John paul does that raise an inference it was because of in the words of the statue, because of their statute, because of their Sexual Orientation . Sure, i think it does. If there are other situations where someone is discriminating because of someones religion or because of their gender, then, sure. I think we should also take a look at those cases. Roger the point seems to me is that he wasnt discriminating on the basis of their Sexual Orientation insofar as he was prepared to serve them any of his goods off the shelf, so that wasnt the issue. It was that extra step. John paul maurice basinger was also perfectly prepared to offer other products to the africanamerican plaintiffs there. He would offer them food around back. Take it to go. I think thats a distinction without a difference. I think ilya what about the message component . Lets say they had a longer conversation, and they say they want the inside to look like a rainbow. Outside, we want it to say congrats and their names on your wedding. John paul i think the rule of thumb here should be if you would sell that same cake to a straight couple, you have to sell that same cake ilya what if he would not sell a rainbow cake to a straight couple . John paul he probably wouldnt have to sell a rainbow cake to a gay couple either. If he said, im not in the market of making rainbow cakes, period. Ilya what if he would sell it for a Kids Birthday Party not for a marriage, straight or gay . John paul were getting a little bit were splitting hairs about which market ilya apparently do you accept a line can be drawn to protect some expressive activity. John paul yes. I think there is a range of ilya its like me and eugene valg having this discussion. Ucla law professor, has filed with me in the new mexico photography case, the kentucky tshirt case, now going to the kentucky Supreme Court, but on the other side of this case. He still agrees with trying to align that expressive activity protection,endment the artisanal baking is not artistic. Do you agree with them . John paul not entirely. I think he makes a number good points. Also with regard to the participation point you just asked about previously he says quite pithily, mr. Phillips is not the cake. Hes not himself the cake. Hes not at the wedding ceremony. Hes not at the venue. Hes not there. Hes not participating. And so i think there is a distinction if were going to start drawing lines. I may have different ideas than you might about how precisely to draw these lines, different types of expression. There is range of different hypotheticals we can imagine. The bottom line is this. Your theory, ilya, although i realize it comes from libertarian First Principles, i think would open up a very wide range of challenges. First amendment challenges to all sorts of different conduct and businesses, not just winding wedding vendors. Do you really want courts in the business of adjudicating whats religious, whats not, whats artistic, whats not . Is this more expressive or less . You have to admit ilya thats what they get paid for. You said there were 600,000 wedding businesses. I have seen three sur petitions thus far. I dont know how many more, but its not a huge number. John paul i disagree. The signaling implications of this case are written on the wall. If this court reverses, the Supreme Court reverses colorado, well see copycat lawsuits you already invite this in your brief in the context of videography and djs. Ilya would you make a Wedding Singer sing and express themselves at a ceremony, forget the wedding, some ceremony they disagree with . John paul the Wedding Singer is certainly more expressive on the scale of things. How are you going to police this . That singer may sing off key if he is being forced to participate. The baker may bake a cake that falls and so on. Breach of contract. Impossibilities. The law has always looked askance at specific performance. I have an easy way to police this. Keep the law as it currently stands. You dont affirm the judgment of the colorado Supreme Court, and dont have to police a million different scenarios. Then you would have to police and forcing the Wedding Singer and the complaint that he isnt fully emotional because he doesnt agree. The court will have to make a judgment on the quality breach of contract. On the quality of the performance, and that is a separate suit. This is a full employment scheme for lawyers, thats for sure. I can see that coming down the road. We can discuss our future partnership. Lets turn it over to you folks in the audience. A couple of points here. Please wait until you are called on. Wait for the microphone so everyone in the room and our audience watching online and on cspan can hear the question and give us your name and any affiliation you may have, and ill go from both sides of the room. So as one person is speaking, please raise your hands on the other side and get as many questions in as possible. Lets start with this gentleman right here in the second row in the center. Anybody up here, please. Im from the university of oxford. I dont know if you are aware, but there is a similar case going to the Supreme Court in the united kingdom. A bakery in northern gay marriage is still illegal in Northern Ireland but what the bakery was refusing to do was to bake a cake and supportlogan that said gay marriage, and said they were willing to serve customers. They would have refused to make that cake for a heterosexual whoever, but they were not prepared to convey that message, and yet they have gone up the system on antidiscrimination. It is discrimination against gays, but they are saying no, it is what we are required to support. They are being forced to support one side of a very difficult political debate in Northern Ireland. That sounds like a question for you, j. P. Questionsquarely the we posed right at the end. The easy answer would be thats not this case, but im not going to leave you with that. Thats an easier case, i think, to side with me. Theres no marriage involved. Support gay marriage and didnt want to say that in the cake that they im not familiar with all the facts in the case. We dont if the underlying customers are themselves are a gay couple getting married. He said it doesnt matter if it was a gay couple or straight couple. [inaudible] Justice Kennedy hasnt yet traveled to belfast to make the ruling. Once there is writing on the cake, does it become more expressive, does it raise slightly different issues . Yes. I think the government has a compelling interest in enforcing antidiscrimination laws across the board, and i still think Small Businesses can make a choice whether they are going to enter into certain markets themselves or sell the products anyone or no one. But that is not what happened here. They didnt need to know what they wanted to put on the cake. All they needed was that these two gentlemen are gay. I think this case has brought a precedent. I cant believe you are fighting that hypothetical because that is purely political speech, and you are saying that a baker cant refuse to convey a message they dont agree with regardless of Sexual Orientation . If he said, i wouldnt sell that cake to a straight couple or a gay couple. I dont want to put messages ont support. It would be closer to the line of saying im not in the market of making these cakes in general. Thats not what we have here. He wouldnt sell them any cake. I think this case has broader precedential effects because it is any type of cake. He is not going to sell this type of product to gay people at all. This gentleman right here on the side. Didnt fully respond to jps argument about alternatives. I was thinking of a hypothetical, a small town with one photographer. Everyone gets their holiday pictures at that place. He wont serve the one family that has samesex parents. How would you feel in a case like that . Sure. Traditional public accommodation laws are meant to deal with natural monopoly situations like that, meaning you have no alternatives, and the rule i propose is not an absolute one. Just like traditional public accommodation laws went after to travelers inns. Very much like the jim crow era, you could not stay at that place , you would have nowhere else to stay. You had to go for miles and miles beyond to find the next place. Similarly here, if there is a situation where the only bakery that is a reasonable alternative, that would apply differently. I doubt the issue would arise both in terms of how many places are so isolated that you only have one of these types of establishments in a reasonable area and yet have demand for gay weddings, but i could see an exemption to the requirement there. It could be massaged in certain places. But thats a hard case, but the general rule is you shouldnt be forced to convey messages that you disagree with. The old common law had ways to address that, if it was a public utility or monopoly they had to come in with reasonable rates. And also for isolated inns and taverns where you had a competitive market you didnt have a burden to serve. The gentleman in the back. My name is liam. Basically, i would like to consider whether tolerance and affirmation are the same thing. I would suggest we all have to tolerate everybody, but when we affirm something, we give up our beliefs. Marriage is a privilege, not a right. Not endowed by god. Its a choice. Thats different from black people who said amen to when you they came into being. When you decide to get married, that is a choice. You are making about. Finally, i would like to ask why the Cato Institution is not taking this case on the rationale which would be the impairment of contract. The government is deciding that it can involve itself in the obligation of contract. Whether you are forced to make a contract or whether you are forced to abrogate a contract, that is not the role of government in our society. Thanks. You go to court with the law you have. I could argue for different kind of economic liberty grounds, and it would be a different case if this was dealing with a nonexpressive business like the limo driver or the barbecue thing, unless the barbecue baker was holding a sculpture or something for you. The case presents free speech and freedom of religion aspect and that is why the focus is there. Im a constitutional lawyer. We are not discussing the First Principles philosophically of what the law should be. I think expression concerns freedom of speech, does it not . [inaudible question] they shouldnt forced to agree to convey a message. That is the fundamental freedom of association case, which one thing, there were a lot of challenges when the civil passed ont was first freedom of association ground. This is settled law. If there are folks out there who want to relitigate the Civil Rights Act at large, or the freedom to marry is a right, you are talking about throwing up in the air decades of constitutional law which is even more drastic than what i think is going on in this case. We dont want to go there. Justice oconnor did say 25 years in the case of affirmative action. Which is a form of dissemination. Right over here. Im executive director of the National Association of objectivity and science. I have this question for jp. What if two homosexuals said we are going to have a huge week, we will have 20 men, and we would like you to prepare a cake for us, do you think the baker would be entitled to refuse in that situation . As opposed to what . Notwithstanding that i think that hypothetical bakes in certain assumptions the sexual tendencies of lgbtq americans, if they said they were going to have an orgy, i mean i suppose it could raise an inference that they were still being turned away because they were gay. If he just said, i dont make or g case orgy cakes thats what he would say in this case. If he said i dont make orgy cakes for straight people or gay people, that would be fine. The colorado antidiscrimination law, is it focused on Sexual Orientation only . It includes race and gender. As far as homosexual, it doesnt focus on behavior but Sexual Orientation . Is that correct . Sexual orientation necessarily means that you have a certain orientation and can act on that. Tweeted, mustt every cato debate involve a huge orgy questions . [laughter] heroine have anyone for in vending machines . We are libertarians. We are not libertine. We are libertarian. This gentleman has had his hand up for a while. If a Family Member of the couple had come into the shop or telephoned and said i would like an identical one like the one in this display case and didnt tell them how it was going to be used, could they ask and learn more . In thets just a cake display case or one from a catalog and say i want one of those, if they told him it was for a same sex ceremony, and regardless same sex marriage is legal or not, i dont think this is the question to the earlier point i dont think the government should be involved in marriage. Ceremony. Ould be a but if the question was could you make this cake for my samesex wedding, i think he could say no. He didnt say anything . Then i dont know why he would oppose that. If he did, i dont know why he would oppose it. If he had no knowledge, then, no, then we go back to why would the refusal come . Itim not a lawyer, but seems to me that the issue is whether or not he is being forced to earn money that doesnt discriminate between people. The Supreme Court has held you dont lose your First Amendment rights when there is a dollar sign, whether thats nude dancing or commercial speech of other on kind. So i dont think thats going to ultimately play a role in this. Up there in the back. So i think we had some agreement actually about messages, the cake is a message cake. What if it isnt a message cake, i guess were just playing the game of hypotheticals at this point. Decorated,is not and it is for the area nations nationson aryan convention and it is a black baker . And the person knows that the person requesting it so, being a member, with the exception of a handful of jurisdictions. Nationsrearyan doesnt have roads. That is the k. K. K. Being a member of the aryan nation is not a protected class under this statute. I think he is positing we are in a jurisdiction where it is. That is like three jurisdictions in the country. Wed have to look at whether the aryan nation is a Political Party or just an organization expressing views. In colorado and under federal law, being a member of that aryan nation is not a protective status and not covered by the statute. I just have a quick question pertaining to the question that was asked before if two men asked into the shop and for a cake and wasnt clear if it was for a wedding, if the baker asked would the couple be required to disclose if it was a gay wedding . I dont think so. This is why i wouldnt want to be inquiring about this in the first place. If the baker doesnt want to convey a given message, he should be able to say i dont want to convey that message. I mean you could have some tricky situation where he doesnt know what its for and finds out halfway through and then stops production, that would be a breach of contract sort of hypothetical and he has to make good and someone else has to finish. It is a weird situation, but its a hard case. And typically, the way that most custom bakers operate, you find out a lot about the couple and what sorts of things they are interested in and what kind of personalization you want, words, no words, all that sort of thing. Its not the run of the mill case for this type of baker to encounter that kind of my Quick Response to you, why would they need to know . Why would they need to know . The model the public accommodation lost envision as you walk into the shop, by the cake and walk out. There isnt in some long interrogation about what race argue. What Design Elements you want and something. Lots of different products. Deals commonlaw family of dealing with these kind of cases. It was called an invitation to treat. Roger nozick as he was around. Knows because he was around. It means you walk into the emimportantium and the business holds itself out as open to the public. The businessman is held to that representation. You can enter into his emimportantium and at that point you start negotiating about the terms of service. If you can reach an agreement, then you do so. And if you cant, then the wouldbe customer leaves. Thats called the invitation to treat. Right here please. I think you have underaddressed the issues of design and custom that are integral to the arguments. In particular, i would say by analogy as a muslim, if i were a baker, which im not and someone came in and said i want you to design a cake for a hindu holiday double celebrate the joys of polytheism i would not , discuss the details, im not the one to do that. Im not going to do that. I cant do that, its against my religion. While im not a baker and someone said i would like you to write an article for my blog about the beauties of policyism. Best polytheism. I would not discuss it further than to say, no thank you. Bakers start with a hypo. What you described right now would not be legal under current law because if you are turning someone away because of their religion then that violates public accommodation law because of religion, and i think for good reason. Im sure we want to countenance a whole range of claims. I dont believe in interfaith marriages, i dont believe in a version of christianity that you might. I am happy to countenance such claims. You are counti countenancing a lot of lawsuits. A catholic cant refuse a baptist but he can refuse to make a cake because that is a perversion of theology. Or interfaith, or a catholic it is knowledge every marriage. Not because of the religious objection to it, but the catholic and not in my opinion under this doctrine im pushing refuse to serve in interfaith couple already remarried couple or a baptist. But the wedding cake is a conveys a celebration of the marriage and on that basis could refuse. I go back to the old point. The commonlaw dealt with this nicely. Elected to the parties to reach a deal that they could. If they cannot, they go their separate ways. Lawyers decided what that means is that you are going to get some discrimination for sure. But you live with a little bit of it because if you were in a decent society, well down the road from plessy v. Ferguson and a long way from that. To be sure there still is , butm, sexism, homophobia far less than they used to be. And if you leave these to the parties, yes you condemn those people and condemn what is there is a private matter and go get your barbecue somewhere else. I dont me to quarrel with the moderators prerogative but since you brought it up on several occasions we are not , operating under the common law. That is exactly the problem. We passed the Civil Rights Act of 1964, thank goodness and we passed the colorado antidiscrimination act, think it is. Thank goodness. We are dealing with actual laws that we have to grapple with and include words. Lets look at the words. The words say because of Sexual Orientation or because of religion. I think its a distinction without a difference to say im not making the cake for you , not because you are catholic because of but because of your catholic belief even that makes sense . As a normative matter, do we want that . I think this is the real unspoken risk of this case. It is not just lbj dq discrimination, it is interfaith i dont serve mormons or baptists or your interpretation of christianity is wrong. Do we want . Yes. I tell you why. Flowers. E want 1000 you wan to sit here . Did you see the point . When a Great Variety of values that people have come of a sort themselves out. They sort themselves out in their own little platoons. It did not sort itself out in the jim crow south. I wish it had. Its a federal law to come in and stop the problem. And rightly so and then Justice Oconnor says we hope you dont have to do this 25 years down the line. That was a case of affirmative statute. We are talking about a real hard physical statute. Words on the page right here never codified as federal law and this is the core of civil rights. The core of the civil rights canon. We have our debates about affirmative action, but this is not affirmative action. This is fun. Element has been waiting. Basically what im here and right now is that this is separation of church and state. You are entitled to feel and have your opinions as a human being, but you are not entitled to take those feelings and beliefs and for someone else into a corner. Nation andling as a thatcommunity, the earth, people are beginning to accept one another for our differences. Those differences are what makes this nation and this world strong. It solves problems with disease, poverty, hate. Annoyed that something so miniscule would ase so much effort and time a cake when people are being murdered or not getting medicine that they need. Im looking at it in a different context. This is, to me a separation of religion and state and the state should not be involved in the religion. And if youre going to pick and choose who you want to sell something to, you would not have a business on main street america. That is exactly right and that is why you dont have to have this kind of compulsion against people who are not imposing their religion but just practicing their own. More broadly the expressive connotation of what theyre doing is what is most important here. There is simply not going to be because there isnt people asserting these sorts of claims. Trying to get exemptions. There is a lot of hassle. You generally lose business. Its only the most sincere, the most devoted, people who think this is part of their core principle that i dont want to convey this message. Law andf by the scholars talk about what that all means. This is not the state imposing a religion on anyone or a religion imposing itself on the state. We are dealing with the world of private actors and thank god we are not dealing with the world the jim crow were the only way to break the social monopoly of hate and racism and state supported segregation is by having a federal law that inverts the normal operation of the commonlaw allowing the freedom of association. I will add to that quickly. I hear what you are saying and its an important question. I would just add, mr. Phillips has a number of other ways to express his opinion. He can write an oped, go to church, protests. He can wear a shirt with his views, any number of things. No one is saying he cant do that or that is not fully entitled to his own particular religious beliefs about same sex marriage or anything else. When you enter the stream of commerce and decide to sell a product to one person, you have to sell the same product to another. But no one is talking about forcing anyone to believe Something Else beyond that. The lady in the center here. Im a freshman at George Washington university. When is the free exercise clause under the First Amendment supersede the colorado civil rights law and wouldnt that technically make it unconstitutional to force the bakery to make the cake . You want to explain it . As i mentioned in my opening remarks, in 1990, the case of Employment Division versus smith written by that radical justice transhumanist scalia reversed a 30year anomaly in jurisprudence, which encompassed the 1960s civil rights cases. Courts would reagan religious exemptions. Employment Division Said if i , aerally applicable law whole host of things applicable , law that does not target religion as long as it has an incidental burden, then if you want relief, the constitution does not provide it. You have to go to the legislature and seek it there. That is what we got the nearly unanimously passed religious freedom restoration act in congress, signed by president clinton and led by Teddy Kennedy and Chuck Schumer and half the states getting their own state that kind of consensus has changed over time. Colorado does not have a reference of. Thats why the free exercise claim is being played out as i described with regard to the law either being drawn or being applied in a way that treats different religious claims differently. I think the words of Justice Scalia are quite relevant. He said when you start granting these sorts of exemptions to one federal law or one state law, one religious practice or another the unavoidable , consequence of democratic government would be that each conscience is a law onto it self and any society adopting such a system with the courting anarchy. Sounds pretty good. Thats why my proposed test as it relates to expensive activity, as does the governments and Jack Phillips. Way in the back. Could you put the microphone closer . My question for you is you are making the argument you should not force anybody to make a cake first cake that is against their beliefs or their religion. Doesnt that create another realm not to serve them because or againstin color their beliefs . Isnt that counterproductive of what the Civil Rights Movement was going towards, like not having segregation or allowing businesses to pick who they served . I feel it you were dancing around the fact i guess it was completely opaque and every have said thus far. Ive clearly distinguish between conveyingople and messages are working particular types of events. That is where the dissension between if you would not serve someone, if you would serve others this, you have to service to others. The class of people that you dont like. Lets say a baker is happy to seleka sang happy birthday to anyone except black people. I would not excuse him from that because he is perfectly fine conveying the message happy birthday, but just doesnt like black people. On the other hand, he believes that a wedding cake celebrates a message celebrates an event, as it does and does not believe that same sex wedding is something to be celebrated and therefore will not create a cake for a samesex wedding or be pro gay rights case out of Northern Ireland. He doesnt want to have a cake that says yay gay marriage or nay gay marriage. Thats fervently fine. It it that is perfectly fine. It is only when youre making that decision based on the status of the customer rather than the message being conveyed or the event that you get into problems. Were right up against our time limit. Just before we break for a reception out in the Winter Garden there are rest rooms on the first floor and downstairs on the lower lobby. Leave lets have a warm round of applause for our speakers. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2017] [crowd noise] next week or the oral argument involving Masterpiece Cake shop and the Colorado Civil Rights Commission. It runs an hour and a half. Service for someones Sexual Orientation or gender