As with all of his customers, phillip said 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 a cake as he had done with others. Unsatisfied, craig and mullins filed a complaint with the Colorado Civil Rights Commission alleged that phillips had violated the colorado antidiscrimination act. Finding in their favor, the commission ordered phillips, among other things torques things to conduct comprehensive test training including 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, 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 in constitutional studies here at Cato Institute 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 the coordinator of 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 professional 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. Grady jolie on the u. S. Court of a heels for the fifth circuit. Arguing for the respondents, charlie, craig, and David Mullins will be j. P. Schnappercasteras. John is they Naacp Legal Defense Fund special counsel for appellant and Supreme Court advocacy. With l. D. F. He works 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 for this event, it is catoscotus. I was getting some lastminute tweets f you followed us all day its the battle of the gifts. Gifs. It just shows that there are many ways to slice this case. I hope you will not think that what i present is half baked 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 those in many dates. Traditional marriage laws in every state. 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 based on decent and honorable religious 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. And recognizing 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 the case allows necessarily 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 atheistic bakers and 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. He plays it down the middle talking about why colorado is , not playing it down the mid until this case with this law. Lets move to the main event. That is the issue of compelled speech. In 1943, Justice Robert jackson one of our most celebrated , jurists and whose seat Justice Gorsuch now sits. He referred to him in his nomination and both taking ceremonies, wrote in the case of West Virginia versus barnett in 194 which struck down a 1943, which struck down a requirement that the kids of jehovahs witnesses salute the flag and state pledge of allegiance. During wartime 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 act their confess my word or act to their faith therein. As the court would say 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 you can 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 when there is dignitary harm. That is someone is being offended or their feelings are being hurt or they feel like second class citizens because 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. Birthday cake. Now, you might say, well, what is a wedding cake . 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 plain it might not be saying much at all. The conversation here was cut off before there was talk of what kind of decision 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 once i will not make a custom cake for the gay wedding. But that is ok, it was enough to invoke the protections of the First Amendment, because 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 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 cakes can have a different message and different context. Could you 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 context 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 drawing. Its merely a question of line drawing. Clearly there are certain traditional arts and function that is are protected by the First Amendment writing. Painting, o photography, sculpture. What is cake making but sculpture using fondant and butter cream and what not. As a those to plaster. Indeed if there are thousands of cake designs which 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 artisan line between 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. 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 are protected. The circuit taking the Supreme Court lead, recognizes artistic expression as diverse as tattooing, custom painted clothing and stainedglass 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. Im sure we will talk about, the restaurant that did barbecue and did not want to serve back people or told them they would have to be outside. Here Jack Phillips offered to , sell cupcakes or other confections. He refused to make cakes for hallowe