I dont know if your web but theres a very similar case about to go to the United Kingdom Supreme Court, ashes bakery, which is based in northern ireland. Gay marriage is still illegal. They fought issue in northern ireland, but what the bakery was refusing to do was to make a cake with a slogan on it saying support gay marriage, and they said that they were quite willing to serve gay customers. In fact, the customers they refused to serve a regular customers. They would have refused to make that cake for a heterosexual couple or whoever, what they were not prepared to convey that message. And yet they have been caught so far all the with the legal system on antidiscrimination legislation. So its discrimination against gays but indeed they are being forced to support one side of a very difficult legal debate in northern ireland. Because it causes squirted the issue of race right at the end. Right, the easy answer would be thats not this case but im not going to leave you with that. Thats an easier case for you, isnt it to decide with me . I theres no marriage involved. Just the message for gay marriage and the did want to say that in the cake im not similar with all the facts but we dont know what the underlying, they can muster the customers themselves are no, he said they wouldnt [inaudible] i see, i see, right. Because Justice Kennedy hasnt traveled yet to belfast to make the ruling. To be sure once theres writing on the cake doesnt become more expressive, does it raise different issues . Yes. Im not prepared, think the government has a compelling interest in forcing antidiscrimination laws across the board and i still think Small Businesses can make a choice about whether they will enter into certain markets and sell products to anyone or sell their products to no one. But again that is not what happened. They didnt need to know what they wanted to put on the cake. All they needed to know was that these two gentlemen are gay. This case has broader i cant believe youre fighting that hypothetical because that is purely political speech, juicing that a baker cant refuse to convey a message they dont agree with regarding of any Sexual Orientation or other if he said i wouldnt sell that cake to either straight couple or a gay couple i dont want to put messages on the support. Closer to the licensing im not in the market of making these cases, these cakes in general. Thats not what we have. He wouldnt sell than any cake. So i think this case i i thinke would agree have broader any type of cake that he would refuse to make. East is not going to sell this type of product to gave people at all. This gentleman right here on this side. Thank you. Ilya, he didnt fully respond about alternatives. What if youre in town thats 3. Another hypothetical a a small town with one professional photographer. Everyone gets their holiday pictures at that photographers place but he wont serve one family that has samesex parents. How would you feel any case like that . Sure. Traditional public accommodation laws are meant to precisely deal with natural monopoly situations like that, meaning that you have no alternatives. The rule i propose is not an absolute one. Just like traditional public accommodation laws, when after travelers ends are much like the jim crow era, if you couldnt stand the place should no place to go or stop, and you had to go for miles and miles beyond to find the next place. And so similar here, if theres really a situation where the only bakery thats a reasonable alternative, that would apply differently. I doubt the issue would arise both in terms of family places are so isolated we have one of types of establishments in a reasonable area, and yet would have demand for gay weddings. But i could see an exemption to the requirement there. Could be thats a a hard ca, an exception to the general and proposing that you should be forced to convey messages that you disagree with. The old common law had ways to address that. It was a public utility monopoly then they had to serve all customers with resell rights. And also for isolated inns and taverns but where you had a competitive market they did not impose any duty to serve. The gentleman way in the back. Basically i would like you to consider whether tolerance and affirmation are the same thing. I would suggest we all have to tolerate everybody but the minute we have to affirm something we give up our beliefs. The second thing is marriage is a a privilege, not a right. Its not endowed by god. Its a choice. Thats different from black people who god said a me too when they came into being. When you decide to get married you making a bow, a choice. Thats different from being born one person or another. Finally id like to ask why thee Cato Institution is not taking at this case, the impairment of contract. This is a case with the government is deciding that involve itself in the obligation of contracts. Whether youre forced to make a contract 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, and sure, i could argue for different kind of economic liberty grounds and it will be a very different case. If were due with a nonexpressive business like that caterer or the limo driver or the barbecue thing elisha building a sculpture for you as your centerpiece. In any event the case present squarely the free speech and some of the freedom of religion aspects, and thats why the focus is there. Im a a constitutional lawyer e not discussing the First Principles philosophically of what the law should be. [inaudible] thats the fundamental freedom of association case, which one thing. There were a lot of challenges in the Civil Rights Act was first passed to the constitutionality of the act. On commerce grounds, on freedom of association grounds. This is settled law. If there are folks who want to relitigate the constitutionality act or whether the freedom to marry is, in fact, a right, which goes back to loving v. Virginia, youre talking about throwing up in the air that gives a 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 protection which is a form of discrimination. Right over here. Im executive director National Association of subjectivity and science. A question for jp. What if two homosexuals when into the bakery and they requested, said we will have a huge orgy next week and have 20 men at this orgy and we would like you to prepare a cake for us to celebrate this orgy . Do you think the baker would be entitled to refuse in a situation . As opposed to what . Notwithstanding that it think that hypothetical bakes in certain assumptions about the sexual tendencies of lgbtq americans. If they said theyre going to have an orgy i mean, i suppose it could grayson imprint there still being turned away because they were gay. I mean, if he just said i dont make orgy cakes, whether its thats what he would say in this case. If you just as i dont make orgy cakes for straight people are gave people, that would probably define. Colorado antidiscrimination law, the focus on Sexual Orientation only . No. It includes race and gender. As far as homosexual goes. It doesnt focus on behavior. It focuses on Sexual Orientation, is that correct . Sexual orientation necessarily includes, necessarily means you have certain orientation that you can act on that. Submerges tweeted much every cato debate involving huge orgy question that the winning tweet. Do it anyone for a heroin in the vending machine . [laughing] cspan, we are libertarian. Theres a question right this gentleman has had his hand up for a wild. If a family member, a woman had come into the shop or telephone and said id like an identical cake to the one in the display case and didnt tell them anymore about it was going to be used, what would you think about that . Could ask, could they learn more . So theres a cake and the display case, or one from a catalog or something and say i want one of those. If they told him that it was very samesex ceremony, and by the way regardless of whether samesex marriages is legal or not i dont think this is the question of, to an earlier point i dont think the government should be involved in the marriage in the first place so it should just be ceremony whether state recognize or not. If the question was can you make this cake for my samesex wedding, i think you would be entitled to say no. [inaudible] he didnt say anything . [inaudible] that i dont know why he would oppose of that. And if he did, i dont know why he would oppose that unless he had some knowledge. But if he had no knowledge, then no. Then we go back to why would the refusal . Im not a lawyer, seems to me the issue is whether or not he is being forced to earn money in a way that doesnt discriminate between people. The Supreme Court itself you dont lose your First Amendment rights when theres a dollar sign attached to what you do, whether that nude dancing or commercial speech about the kinds so i dont think thats going to play a role in this. Up there in the back. So i think, we had some agreement actually about messages, a message cake. What if its not a message cake . Which is playing a game of hypos at this point so what if instead of a Confederate Flag cake its not decorated with anything but its for the and its a black baker . And that they could knows that the person requesting it is going to use it for [inaudible] so being a member, with the exception of a handful of jurisdiction i think you are confusing your White Supremacy groups. Being a member of the alienation is not a protected class under the statute. Arian nation. [inaudible] which what you think is likee jurisdictions in the country. We would have to look at whether the area nation is a a politicl party as opposed to just that organization at expressing ideas about why spencer but my general answer is in colorado and under federal law being a member is not a protected status. Its not covered by the statute. Hello. My new season averages of quick question pertaining to the question that was asked before but if two men walked into the shop and ask for cake was a clue whether its for a wedding, if the baker asked would the couple be required to disclose it was a gay wedding . If the couple was asked i dont think so. I mean, this is why i wouldnt want to be inquiring about this than the first place. If the baker doesnt want to convey a given message things should be able said i dont want to convey that message. You could have some sort of tricky situation where he doesnt know what its for my penny finds at halfway through making the cake and then stops production. At that point becomes a breach of contract sort of hypothetical and yes to make good and have someone else finish it. Its a weird situation, but again its a hard case. Typically, at least the way most custom bakers from what ive learned from the briefs 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, do you want words, no words, all that sort of thing. Its just not the runofthemill case for this type of baker to encounter that kind of situation. My Quick Response to you is, why would they need to know . Why would they need to know, right . A model the public accommodation laws, you walk into the shop, you buy the cake, you walk out. There isnt some long interrogation of will, what race are you . Are using this for an interracial speedy not just the cake for lots of different products. The old common law had we did with these kinds of cases. It was called an invitation to treat. Roger knows because he was around. [laughing] invitation to treat treatmeu walk into the emporium and since the business holds itself out as open to the public, then the businessman is held to that representation. You can enter into his emporium, and at that point you start negotiating about the terms of service. And if you can reach an agreement, then you do so. And if you cant, then the customer, with the customer leaves. Thats called the invitation to treat. Right here, please. I think that you have under addressed the issues of design and custom that are integral to what it think is the argument. In particular i would say by analogy as a muslim, if i wera baker, which im not, and some key minute set of what you did sign a cake for hindu holiday to celebrate the joys of policy is him, i would not have to discuss the details. I would say im not the want to do that, im not going to do that, i can do that. Its against my religion. While im not a baker i am a wordsmith, and so someone said i would like you to write an article for my blog about the beauties of policy. I do need to discuss afraid to say no, thank you. So lets if it might start with the baker, the baking and they will go to the writing. I think what you described right now would not be legal under current law. Because if youre turning someone away because of their religion, then thats, that violates public accommodation law because of religion. And i think a good reason to get a measure we would want a whole range of claims of i dont believe in interfaith marriages, i dont believe in certain version of christianity that you might. Im happy to count on such claims. Then your counting a lot of because of the message. Im not saying a catholic cant refuse to serve, can refuse to serve a baptist but a catholic can refuse to make a wedding cake for a baptist wedding because he believes that the perversion of theology or a catholic who doesnt want to get a second, remarriage. Not because of the religious objection to it but because of the conveyance of the method celebrate the wedding. The catholic could not in my view under the doctrine i am pushing refuse to serve and interfaith couple or are remarried couple or anything, or a baptist. At the wedding cake conveys a message of celebration of the marriage. And on that basis could refuse. Let me go back to the old common law dealt with this very nice to get elected to the parties to reach the deal if they could come if they could then they go their separate ways. If the lawyers decide [talking over each other] that means youre going to get some discrimination, for sure. But you live with a little bit of it because if youre in a decent society, we are well down the road from plessy v ferguson, we are long way from that. To be sure there still is racism. Their sexism. There is homophobia, but far less than they used to be. And if you leave these to the parties, then yes, you condemn those people. You condemn whatever it is as a private matter and you go get your barbecue somewhere else. I dont mean to quarrel with moderators prerogative but since you brought up on several occasions, were not operating under the common law. Thats the problem, exactly the problem. Okay but we passed the Civil Rights Act of 1964, thank goodness. We passed the colorado antidiscrimination act, think it is. We are dealing with actual laws and statutes and we had to grapple with. They 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 youre catholic but because of your catholic belief. What . Doesnt really make sense . Do we want let me step back. Do we want that . I think this is the real unspoken risk of this case. Its not just ldg g2 discrimination or all sort of interfaith, i dont surf mormons or i dont think that this come your tradition of christian is wrong. Do we want yes, and i will tell you why. Because we want 1000 flowers do you want to sit here . Go ahead. Did you see the point . With a Great Variety of values that people have, they sort themselves out they sort themselves out in the own little to. Heres the problem. It didnt sort itself out in the jim crow south. I wish it had. It took federal law to come in and stop the problem. And rightly so. But then Justice Oconnor said we hope we dont have to do this 25 years down that was a case about affirmative action. Were talking about a statue, words on the page, i can show you right here. They were codified in federal law and this is the core of civil rights canaan. So we can have our debates and ilya and i have but this is not affirmative action. This is the way we debate at cato, isnt it, fun . Roman has been waiting. I think what basically what im hearing right now is that this is a separation of church and state. You are entitled to deal 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. We are going as a nation and as a community the earth that people are beginning to accept one another for our differences, and those differences are what makes this nation and this world strong. It solved problems with disease, poverty, hate. So im a little annoyed that something so miniscule was take so much effort and time as a cake when people are being murdered or not getting medicine that they need. So im looking at it in a different context, but this is to me separation of religion and state, and the state shouldnt be involved in 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. Thats exactly right. And thats why you dont have to have this kind of compulsion against people who are not imposing the religion, they are just practicing their own. But more broadly as i said the expressive connotation of what they are doing is whats most important. Look, they you will not asserting the sorts of claims try to get exemptions. Its a whole lot of baba, a whole lot that you generally lose business. Its like the most sincere, devoted, the people think this is part of their core principle that they dont want to convey this message, the briefed by the law and econ scholars people talk about how, what that all means. But this is not the state imposing a religion on anyone a religion imposing itself honestly. To the contrary, were dealing with the world of private actors and thank god were not being with the world of jim crow where the only way to broke the social monopoly of hate and racism and statesupported segregation is by having a federal law that inverts the normal operation of the common law a lot of the freedom of association. I hear what you are saying and its an important question here i would just add, mr. Phillips has a number of other ways to express his opinions on this. He can write an oped. He can go to church. He can protest. He can wear a shirt with his views. Any number of things. No is saying he cant do that. No one is saying he is not fully untitled choose to his own parr religious beliefs about samesex marriage or anything else. When you enter this stream of commerce when you decide to sell a product to one person, you have to sell the same product to another. No one is talking about forcing anyone to believe Something Else beyond that. [inaudible] im a freshman at George Washington university. So what is at the free exercise clause in the First Amendment supersede the colorado civil rights law and wouldnt technically make it unconstitutional to force the bakery to make the cake . Do 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 heretical transhumanist secularist Antonin Scalia reversible was an anomaly about a 30 anomaly in the jurisprudence where for that about the time which encompass actually the 60 civil rights cases, courts would reagan religious exemptions from generally applicable laws. Employment Division Said that no, its a generally applicable law whether he be antidiscrimination or prohibition on drugs with a case can smith, a whole host of things, a law that doesnt target religion as long as it just has an incidental burden thats not its purpose, then if you want relief, the constitution doesnt provide. You have to go to the legislature and seek it there. Thats what we got the nearly unanimously passed religious freedom restoration act signed by president clinton led by that right wing zealot teddy can do anything at Chuck Schumer in the house at the time. Thats why we had about half the states getting their own states rights. That kind of consensus has changed over time but regardless, but it does not have that. Thats why the free exercise claim is being played out as i described with regard to the law either being drawn or applied in a a way that treats different religious claims differently. I think the words of Justice Scalia in the case are quite relevant. He said when you start granting the sorts of exceptions that one federal law of one state law of one religious practice or another, the unavoidable consequence of democratic government would be that each conscious is a law unto itself and elicit any society adopting such a system would be courting anarchy. Sounds pretty good. Thats why my proposed test relates to expressive activity as of the government, as do Jack Phillips. Way in the back. Could you put the microphone closer to . My question for you is you are making the argument you shouldnt force anybody to make a cake that was against her believe religion but dont you think that great a whole nother realm where people can make the decision not to serve people because of their skin color or anything regarding their beliefs . Dont you think thats counterproductive to what the Civil Rights Movement was going towards, like not having segregation, not allowing businesses to pick who they serve to . I can feel like you are dancing around the fact that i guess i was completely opaque and everything ive said thus far because i have clearly distinguished between serving people and conveying messages are working particular types of events. Thats what the distinction between if you wouldnt assert someone, if you would serve others, then you have to service to others, you know, a class of people you dont like. Lets say a baker is happy to sell a cake 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 turkey 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 he does not believe that a samesex wedding is something to be celebrated, and, therefore, will not create a cake for samesex wedding. But, or the progay rights case out of northern ireland. He doesnt want to have cake that says yes, gay marriage. Or for that matter may gay marriage. Its only when youre making a decision based on the status of the customer rather than the message being conveyed for the event towards the ghost that you get into problems. We are right up against our time limit. Just before the break, just for reception, there are restrooms on the first floor and downstairs on the lower lobby. But before we leave lets have a one round of applause for our speakers. [applause] [inaudible conversations] this is live picture outside u. S. Supreme court where people have been lined up and said yesterday, and overnight, to watch the oral argument in the case over he called about a bakery refused to create a wedding cake for samesex couples back in 2012. Masterpiece cakeshop owner Jack Phillips refused great a wedding reception for a gay couple who are planning to marry in massachusetts citing religious beliefs. Couple Charlie Craig and David Mullins pursue discrimination charges. They won before Civil Rights Commission and lower courts, and mr. Phillips appealed and the Supreme Court agreed to the case. That case will come before the court this morning at ten eastern when they ulcer from attorneys and others at the oral argument will be on cspan on friday at eight eastern. As the attorneys at all of those involved in the case are preparing to enter the court, were watching the scene outside of the court. Again, people have been lined up since yesterday to get an opportunity to sit in on the oral argument. We watched the scene outside the court until ten when the case gets underway. [background sounds]
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