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 couple's 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 anti-discrimination 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 commission's decision, like courts around the country that have decided similar cases, with respect to florists, bakers, photographers, and others, colorado's 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 he's filed 200 briefs in the supreme court. he's the author of "religious liberties for corporations? hobby lobby, the affordable care act, and the constitution." he's 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. schnapper-casteras. 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. he's published on a range of international and domestic policy issues in the "washington post," "politico," and elsewhere. he co-authored the supreme court brief on behalf of lesbian and gay service members in the landmark u.s. v. windsor case. j.p. as he's known is currently a fellow at the georgetown university law center and co-chair of the constitution project's 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, harvard's 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 i'll have a couple of questions myself. we'll then take questions from the audience. we'll conclude at 5:30 in a reception in cato's winter garden. let's 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 last-minute tweets f you followed us all day it's 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 don't end up with yolk on my face, we'll 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. it's 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 same-sex 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. that's what this case is about. private actors in respecting people's 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 isn't 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 can't bring themselves to support same-sex weddings. it's about the freedom of speech. and recognizing that the awesome force of government shouldn't be brought to bear on stamping out dissenting views. from kennedy's majority opinion, it must be emphasized that religious and those who adhere to religious doctrines may continue to advocate with utmost sincere conviction that same-sex 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 same-sex 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 same-sex 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. that's 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. that's where we have all these rfra's federal and state. colorado does not have that. this anti-discrimination 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, i'll 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 can't see how there would be five votes for the religion one. regardless the reason why the free exercise claim remains is because the colorado anti-discrimination 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 wasn't 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 i'll 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. it's 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 it's 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 nation's 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. let's 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 jehovah's witnesses salute the flag and state pledge of allegiance. during wartime we had to be patriotic make sure that we , weren't supporting our enemies. nevertheless, that requirement was struck down. justice jackson wrote, if there is any fixed star in our constitutional constellation, it's 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 don't like the default slogan that's on that license plate in the district, it's 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 doesn't want to convey a particular message. not that he doesn't 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? it's a symbol of the two people who are getting married. it's 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. that's 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 doesn't 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. that's 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 expressive-nonexpressive line drawing. it's 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 what's going in there. i think it's much easier to artisan line between baking and non-expressive 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 wouldn't think would be michelangelo. things like flag burning and nude dancing. and animal crush videos, if you don't know what that is, don't 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 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 can't force a parade to include the speaker, then you can't force a speaker to join the parade, either. at the end of the day the government doesn't need to do this. we don't 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 couldn't 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. i'm 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 halloween or bachelor parties or divorce parties. he would also for that matter refuse to make a pro-gay 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. that's the knows common hypothetical that's tossed at those advocating the position where i stand now. i think you would be hard-pressed to find any example in history where someone opposes interracial marriage that is not otherwise racist. they would otherwise be ok with serving people of nonwhite -- people -- nonwhite people say. support for traditional marriage here is different as echoed in justice kennedy's opinion. trampling first amendment rights is a serious business. while rights aren't 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 same-sex weddings. advertise they will do it. and the closest one is less than a tent of a 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 let's celebrate party favors for divorce 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? i'll take that up with the h.r. department late. 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 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 don't 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 division is terrible, but 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. we can celebrate a whole range of freedom here if we just let bygones be bygones and celebrate everyone's 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 exercise it and that regardless people on other side of the debate shouldn't be forced to convey mention they don't like. he didn't. it's left to the better angels of our pluralistic nature to respect views and lifestyles that we may not like. thank you. [applause] john paul: thank you for having me. it's good to be back at cato and i think it's important to have candid and civil discussions like this. i'd 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 me. the denial of a particular cake. denial of a custom cake. this is a case about the denial of any wedding cake at all. mr. phillips reject the gay couple here out of hand after 22nd. 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 same-sex weddings. and i might also add as the ride, masterpiece also turned away several other gay customers, including an order for cupcakes. i'm not sure we could confidently say, oh, he would have sold them other items. we'll leave that for another day. the second correction i'd like to make here is legally speaking. ride, masterpiece also turned with all of ilya's impassioned oratory about free speech. you might have forgotten that is also a case about free exercise and religion. you did allude, most people understand this to be a case about religion. that's 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. compelled speech. let's be honest. for most americans this is about religion. this is about religious exemption. at best this is hybrid claim that fuses religion and compelled speech. and by mr. phillips' own account, those two claims are two sides of the same coin. he says this in his brief that he's religious. because of the religious significance of marriage, he and by mr. phillips' own account, those two claims are two sides of the same coin. would consider 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. it's bound up in a belief system in judgment about moral disapproval. this is not just some abstract artist. you want cubism. i only sell impressionism, let's call the whole thing off. if we acknowledge there is a strong religious component here, back up for just a moment and talk about that and re-examine the familiar story we're facing. three customers who walk into a small business that sells disapproval. 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. but what i'm describe something -- but what i am actually describing is something that happened it in 1964 to three african-american 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 f -- at 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 will of god. when a black baptist minister sought to enter the restaurant. the owner's in the doorway to block him. stood in the hallway to block him. when two other patrons tried to come in. he refused and only allowed them to purchase food if they refused to eat it on the premises. the customers sued. alleging that he had 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 the holding that the owner's conduct violated title 2. as the district court explained, free exercise of one's 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, "this is not even a borderline case." it flatly rejected the owner's defense 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 it's 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 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. a rabbi locked arms with dr. king at the head of the selma procession. archbishop owe boil 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 thee logical arguments have been regularly -- theological arguments have been regularly offered the state 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 anti -- bans on interracial marriage. in loving vs. virginia, the trial justice said "almighty god black, the races, white, malay and read, and placed them on separate continents." the fact he separated the races shows did he not intend for them to mix. religious arguments were commonly used to justify school segregation. just one year after brown vs. board of education, justices of florida supreme court criticize school integration, asserting " when god created man he allotted each race to his own continent. we are now advised that god's land was an error and must be reversed." religion was used to justify public accommodation in a challenge to segregated railroads. and the pennsylvania supreme court held segregation, quote, "is not prejudiced, nor injustice of any kind, but simply to suffer men to follow the law of the races is established by the creator him elf." 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 levitical 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 motivations. as acceptable rationale, namely in a deep park, which you have a ready heard about, and bob jones university versus the united states. when we view the cases in their proper historical context, loving, for instance constitutes , a major repudiation of nearly a century of lower court decisions that had repeatedly drawn upon theology to ban loving, for 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 maintain its policy of prohibiting prospective or current students from engaging in interracial dating. and an 8-1 majority of the courts held that school's religious justification could not overcome congress' firm national policy for racial desegregation and racial discrimination in education. even the lone dissenter, 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 religion-based justifications. this applies to the context of lgbtq discrimination. today, no matter how sincerely felt or perhaps well-intentioned, religious belief simply cannot just if i differential treatment of lgbt individuals or couples in places of public accommodation. talk a little about speech because the briefs on either side don't talk about piggy park. they don't want to talk about piggy park. they don't try to cite it. i think because they are hard-pressed 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 complete religious beliefs prohibited spd speech claim and argued that his religious beliefs meant he considered it sacrilegious to express through his art, the missing magic words, that integration conflicts with his religious beliefs. oh, if mr. basinger had only styled himself to be more bernini than barbecue he would have won. that piggy park would have reached a different conclusion if mr. basinger would simply have tacked on the compelled speech. nothing suggests the discrimination underlying by the same beliefs is exempt from public accommodation laws so long as it's framed as free speech. rather than free exercise. many religious acts involve public expressions of faith and communicative symbolism. finally, i want to lay out some of the ways that i think ilya's position aside from being wrong on the law, that his position, the exception would swallow the rule. the solicitor general's brief, was problematic for several reasons that i hope we can get into, proposing this limited principle here. they say there should be religious exemption for artistic or custom product. but that would effectively eviscerate public accommodations law as we know it. first apply it to the case of piggy park. it's important to remember that mr. basinger himself was later described as, "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. so under the solicitor general's position, and i presume ilya's position, piggy park would be exempt. second, even under the sort of limiting principle, i think the implications would be drastic. perhaps more than we all appreciate at the beginning of the case it would not be limited to wedding cakes. petitioners already suggest it would apply to photographers, florists, website designers, d.j.'s. cato himself in his 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 all claiming and envisioning themselves as exempt under this new theory of the day. including a seamstress, a stage lighting designer, event planners, a knitter, paper crafter, it goes broadly. 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. that's 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. 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 22-1 refers to certain cooked meats at the wedding feast. is a designer of a wedding dress expressively or religiously different or the same as a tailor-made 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 anti-discrimination efforts across the board. this is the same threat that the court stared down and ultimately contained. i want to say also a word about ilya's final point which is that the government doesn't need to do this because there are alternatives. that misconceives of the entire purpose of public accommodations law. the purpose was not to provide -- there was already an alternative to the white restroom. it was the black rest room down the hall. piggy park there was already an alternative to getting a food in the restaurant, go around back. you go around back and you could still get the food, but you could not eat in a restaurant. so this is not about some alternative market for people who are being discriminated against. it's 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, it's only been in the last 60 years that african-americans 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. so i think it would be blinking at reality of the, to suggest -- here we're a block from k street. it is rather cosmopolitan to say, just go down the street to the other bakery. that's just simply not possible in many parts of the country. in 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. but that is the real world effect, i believe, of this argument. so ilya, i want to leave with you this basic question. because i am not sure if 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] [applause] roger: ilya, you have five minutes. five, ok? [laughter] ilya: piggy park was rightly decided but it's irrelevant to this case and that's why you don't see it discussed in the briefs. and most, not all, but most of the religious liberty doctrine that j.p. enumerated is 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. it's based on if the colorado civil rights commission had, indeed, applied its, what i consider to be overly -- both overly broad and underinclusive anti-discrimination act evenly, then there would be no viable free exercise claim here. for that matter, it doesn't matter why mr. phillips doesn't want to provide the cake. i would be here for mr. phillip jackson, the radical atheist who has other objections to same-sex marriage. it doesn't matter other than it provides that hybrid rights claim as j.p. said. hybrid rights means legalese for we don't 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 1960's era free exercise cases except now substitute blacks for gays. that's an easy case, and that's not what's going on. fundamentally, there is a difference between denying service to certain kinds of people and declining to convey a particular message. i don't even know why you would want to have a wedding vendor someone who can't in good faith literally, support your union. if progressives respect diversity, shouldn't 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 can't willy-nilly 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 that's 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 everyone's rights. so county clerks act on the state's 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, 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: i'll 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 don't think that's 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: re-education, literally. john paul: the injunction says if you're 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 you're 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 it's 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 we're going to get into hypotheticals later on, and we could argue about that all day. i have thoughts about how to draw lines. i'm not sure i'll 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 it's inconvenient or some of the parties briefs ignore it. i don't say it just to be provocative. i say it also to be promising. at the end of the day, cases like piggy park are a story of progress that should guide this court once again about how rulings about religion and expression and anti-discrimination are received and applied. by that i mean this, the court's 1968 ruling in piggy park didn't induce some major backlash or give rise to a new wave of religious disputes in the courts or in public life. it didn't impede religious institutions in their important and constitutionally protected activities. it didn't 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 court's unanimous ruling. and piggy park itself continues to operate a vibrant chain of stores, and the current owner, mr. bessinger's son, speaks openly about rising above his father's legacy on race. progress is possible. that's 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. anti-discrimination laws, public accommodation laws in particular, bolstered by the supreme court's 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. i'm 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 creator's 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. it's a food sculpture, if you will. it's 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 them the fillet or the salmon whatever you have at your or wedding. it's 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 it's a lot more fraught than simply providing cake for just dinner. as for participation, i'm not going to get into theological debates with anyone. i don't 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 that's why i back always on participation being the creation of the cake. you're kind of a lock-in sense, you're mixing your creative energies, your expression that secret ingredient called love, right, into the masterpiece that you're 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 isn't discriminating on the basis of sexual orientation, one of the recognized classes. if a black baker refuses a white customer's request to design a confederate flag cake, he's not discriminating on the basis of race, he's 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: i'm 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 didn't even get into -- mr. phillips and the gay couple here didn't even get into a conversation about what the design would be. the rainbow cake happened afterwards. it was donated. roger: wasn't that because as soon as he said he wasn't 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 fact-finding? >> i think what that tells you is he didn't need to know any more about them. he knew it was too gay men and -- two gay men in terms of -- ilya: celebrating a wedding. john paul: does that raise an inference it was because of in the words of the statute, because of their sexual orientation? sure, i think it does. if there are other situations where someone is discriminating because of someone's 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 wasn't 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 wasn't the issue. it was that extra step. john paul: maurice basinger was also perfectly prepared to offer other products to the african-american plaintiffs there. he would offer them food around back. take it to go. -- they could take it to go. i think that's a distinction without a difference. i think -- ilya: what about the message component? let's 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 wouldn't have to sell a rainbow cake to a gay couple either. if he said, i'm not in the market of making rainbow cakes, period. ilya: what if he would sell it for a kid's birthday party not for a marriage, straight or gay? john paul: we're getting a little bit -- we're 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: it's like me and eugene valg having this discussion. ucla law professor, has filed with me in the new mexico photography case, the kentucky t-shirt 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 has first amendment protection, the artisanal baking is not artistic. so, you agree with him? john paul: not entirely. i think he makes a number good -- a number of good points. also, with regard to the participation point you just asked about previously he says quite pithily, mr. phillips is not the cake. he's not himself the cake. he's not at the wedding ceremony. he's not at the venue. he's not there. he's not participating. and so i think there is a distinction if we're 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 what's religious, what's not, what's artistic, what's not? is this more expressive or less? you have to admit -- ilya: that's what they get paid for. you said there were 600,000 wedding businesses. i have seen three sur petitions thus far. i don't know how many more, but it's 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, we'll see copycat lawsuits -- you already invite this in your brief in the context of videography and dj's. 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 don't affirm the judgment of the colorado supreme court, and don't have to police a million different scenarios. >> then you would have to police and forcing the wedding singer and the complaint that he isn't fully emotional because he doesn't 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, that's for sure. [laughter] >> i can see that coming down the road. >> we can discuss our future partnership. >> let's 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 c-span can hear the question and give us your name and any affiliation you may have, and i'll 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. let's start with this gentleman right here in the second row in the center. anybody up here, please. >> i'm from the university of oxford. i don't know if you are aware, but there is a similar case going to the supreme court in the united kingdom. a bakery in northern ireland, gay marriage is still illegal in northern ireland but what the bakery was refusing to do was to bake a cake and with a slogan that said support gay marriage and they said they were willing to serve gay customers. they would have refused to make that cake for a heterosexual couple or whoever, but they were not prepared to convey that message, and yet they have gone up the system on anti-discrimination. -- antidiscrimination legislation. 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. it poses squarely the question we posed right at the end. >> the easy answer would be that's not this case, but i'm not going to leave you with that. >> that's an easier case, i think, to side with me. there's no marriage involved. there is no marriage involved. >> support gay marriage and didn't want to say that in the cake that they -- >> i'm not familiar with all the facts in the case. we don't if the underlying customers are themselves are a gay couple getting married. >> he said it doesn't matter if it was a gay couple or straight couple. [inaudible] >> justice kennedy hasn't 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. -- sell the products to anyone or no one. but that is not what happened here. they didn't 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 can't believe you are fighting that hypothetical because that is purely political speech, and you are saying that a baker can't refuse to convey a message they don't agree with regardless of sexual orientation? >> if he said, i wouldn't sell that cake to a straight couple or a gay couple. >> i don't want to put messages on that support. >> it would be closer to the line of saying i'm not in the market of making these cakes in general. that's not what we have here. he wouldn't 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. >> ilya, you didn't fully respond to jp's argument about alternatives. i was thinking of a hypothetical, a small town with one photographer. everyone gets their holiday pictures at that place. he won't serve the one family that has same-sex 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 -- went after traveler's 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 ways. that's a hard case, but the general rule is you shouldn't 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. also for isolated inns and taverns where you had a competitive market you didn't -- they did not impose any duty 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. it is not endowed by god. it's a choice. that's different from black people who said amen to when you -- when 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 was building a sculpture or something for you. the case presents free speech and freedom of religion aspect and that is why the focus is there. i'm 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 shouldn't forced to -- they should not be 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 rights act was first passed on 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 don't want to go there. >> justice o'connor did say 25 years in the case of affirmative action. which is a form of dissemination. -- discrimination. >> right over here. >> i'm 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 orgy next 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? [laughter] >> notwithstanding that i think that hypothetical bakes in certain assumptions the sexual -- assumptions about 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 don't make orgy cakes. that would probably be fine. >> the colorado antidiscrimination law, is it focused on sexual orientation only? >> it includes race and gender. >> as far as homosexual, it doesn't focus on behavior but sexual orientation? is that correct? >> sexual orientation necessarily means that you have a certain orientation and can act on that. >> someone just tweeted, must every cato debate involve a huge orgy questions? ? [laughter] >> do we have anyone for heroin 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 cake like the one in this display case and didn't tell them how it was going to be used, could they ask and learn more? >> if it's just a cake in the 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 of whether same-sex marriage is legal or not, i don't think this is the question. to the earlier point i don't think the government should be involved in marriage. it could be a ceremony. but if the question was could you make this cake for my same-sex wedding, i think he could say no. he didn't say anything? then i don't know why he would oppose that. if he did, i don't know why he would oppose it. if he had no knowledge, then, no, then we go back to why would the refusal come? >> i'm not a lawyer, but it seems to me that the issue is whether or not he is being forced to earn money that doesn't discriminate between people. >> the supreme court has held you don't lose your first amendment rights when there is a dollar sign, whether that's nude dancing or commercial speech of other kinds. i don't think that's 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 isn't a message cake, i guess we're just playing the game of hypotheticals at this point. what if it is not decorated, but it is for the area nations convention -- aryan nations 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. >> the aryan nations do not have rogues. 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. we'd have to look at whether the aryan nation is a political party or just an organization expressing views. -- expressing ideas about white supremacy. 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 walked into the shop and asked for a cake and wasn't 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 don't think so. this is why i wouldn't want to be inquiring about this in the first place. if the baker doesn't want to convey a given message, he should be able to say i don't want to convey that message. i mean you could have some tricky situation where he doesn't know what it's 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 it's 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. it's not the run of the mill case for this type of baker to encounter that kind of situation. >> my quick response to you, why would they need to know? why would they need to know? the model the public accommodation laws envision, you walk into the shop, buy the cake and walk out. there isn't some long interrogation. >> what design elements you want on something. >> it was called an invitation to treat. it means you walk into the emporium and the business holds itself out as open to the public. the businessman is held to that representation. you can enter into his and at that point, you start negotiating about the terms. if you can reach an agreement, you do so. if you cannot, then the customer leaves. that's 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 i'm not and someone came in and said i want you to design a cake for a hindu holiday double celebrate the -- holiday that will celebrate the joys of polytheism i would not have to discuss the details. i am not the one to do that. i'm not going to do that. i can't do that. it is against my religion. while i'm not a baker and someone said i would like you to write an article for my blog about the beauties of policyism. -- the beauties of polytheism. i would not discuss it further than to say, no thank you. >> let's start with a baker 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. i'm sure we want to countenance a whole range of claims. i don't believe in interfaith marriages, i don't believe in a version of christianity that you might. >> i am happy to countenance such claims. >> you are counti -- countenancing a lot of lawsuits. >> because of the message. i am not saying a catholic can't refuse a baptist but he can refuse to make a cake because that is a perversion of theology. or interfaith, or a catholic it -- or a catholic who does not want to get a remarriage. not because of the religious objection to it, but the catholic and not in my opinion under this doctrine i'm 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 common-law dealt with this nicely. it left it 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, we are well down the road from plessy v. ferguson . we are a long way from that. to be sure, there still is racism, sexism, homophobia, but far less than they used to be. -- then there 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 don't me to quarrel with -- i don't mean 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. let's look at the words. the words say because of sexual orientation or because of religion. i think it's a distinction without a difference to say i'm 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 gbtqt is not just l discrimination. it is interfaith. i don't serve mormons or baptists or your interpretation of christianity is wrong. do we want? -- do we want that? >> yes. i tell you why. because we want 1000 flowers. >> you want 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. it's a federal law to come in and stop the problem. >> and rightly so and then justice o'connor says we hope you don't have to do this 25 years down the line. >> that was a case of affirmative statute. -- a case of affirmative action. 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. this woman has been waiting. >> i think what basically what i am hearing 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're not entitled to take those feelings and beliefs and for someone else -- force someone else into a corner. we are growing as a nation and as a community, that people are beginning to accept one another for differences. differences are what makes this nation and this world strong. it's saul's problems with disease, poverty, hate -- it solves problems with disease, poverty, hate. little annoyed that something so miniscule would take so much effort and time as a cake, when people are being murdered or not getting medicine that they need. i am 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. if you're 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 don't 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 they're doing is what is most important here. there is simply not going to be -- because there isn't people asserting these sorts of claims. trying to get exemptions. there is a lot of hassle. you generally lose business. it's only the most sincere, the most devoted, people who think this is part of their core principle that they do not want to convey this message. the brief by the law and 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. to the contrary. we are dealing with the world of private actors and thank god we are not dealing with the world of jim crow, where 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 common-law allowing the freedom of association. >> i will add to that quickly. i hear what you are saying and it's an important question. i would just add, mr. phillips has a number of other ways to express his opinion. he can write an op-ed, go to church, protests. he can wear a shirt with his views, any number of things. no one is saying he can't do that or that is not fully -- that he 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. >> i'm a freshman at george washington university. when is the free exercise clause under the first amendment supersede the colorado civil rights law and wouldn't 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 scalia reversed a 30-year anomaly in jurisprudence, which encompassed the 1960's civil rights cases. courts would read in religious exemptions. employment division said if i a generally applicable law, a 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. -- every referendum. -- eight referendum. that's 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 -- would be courting anarchy. >> sounds pretty good. >> that's why my proposed test as it relates to expensive activity, as does the government's 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. doesn't that create another realm not to serve them because of their skin color or against their beliefs? don't you think that is counterproductive for what the civil right 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 i was ok and everything i have said so far. i have clearly distinguished between serving people and conveying messages are working particular types of events. that is where the dissension -- the distinction between 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 don't like. let's say a baker is happy to seleka sang happy birthday to toto sing happy birthday anyone except black people. i would not excuse him from that because he is perfectly fine conveying the message happy birthday, but just doesn't 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 same-sex wedding or be pro gay rights case out of northern ireland. he doesn't want to have a cake that says yay gay marriage or nay gay marriage. that is fine. it is only when you are making that decision based on the status of the customer rather than the message being conveyed or the invent -- or the event that you get into problems. >> we're right up against our time limit. just before we break for a reception out in the winter garden, there are restrooms on the first floor and downstairs on the lower lobby. before we leave let's have a warm round of applause for our speakers. [applause] >> next, >> we will hear the supreme court oral argument in masterpiece cake shop versus the colorado civil rights commission. this is an hour and a half. >> we will hear argument this morning in case 16111. the masterpiece cake shop versus the colorado civil rights commission. >> the first amendment prohibits the government from forcing people to express messages that violate convictions. yet, the commission requires mr. phillips to do just that, ordering him to sketch and hand-make cakes that celebrate a view of marriage against his religious conviction. >> can i ask, if it is an item off the shelf, they don't commission a cake just for them but they walk in and they see a