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I have already written several times about the Supreme Court’s recent Masterpiece Cakeshop decision, in which the Court struck down Colorado’s discrimination charge against a Christian baker who declined to make a custom wedding cake for a same-sex couple. The majority’s ruling rested on its finding that the proceedings against baker Jack Phillips in Colorado were tainted by anti-religious bias. I described each of the five opinions written in the case here, and explained why media referred to a 7-2 decision as “narrow” (in its reasoning, not its margin) here.There is one more aspect of the Masterpiece case that I found interesting. The key parties to the case were the baker, Jack Phillips, and the same-sex couple, Charlie Craig and Dave Mullins. The experiences and perspectives of these men had been discussed and recounted repeatedly as the case made its way through Colorado’s adjudicatory process and then through the appeal to the Supreme Court.In the end, however, there were two lesser-known figures who played a key role in the outcome of the case. From the pro-family perspective supportive of the baker Phillips, one—a man named William Jack—helped to expose the hypocrisy of the Colorado Civil Rights Commission. The other—a woman named Diann Rice—may have unwittingly doomed the state’s case by verbalizing the anti-religious hostility that was fatal to their side.Diann Rice was a member of the Colorado Civil Rights Commission that heard the complaint against Masterpiece Cakeshop. During a July 25, 2014 meeting of the Commission, she made the following statement, which was recounted by U.S. Supreme Court Justice Anthony Kennedy in his majority opinion in the 2018 case:I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.The quote was originally found on an audio recording of the meeting, and a transcript from that recording only identified the speaker as a “female speaker.” It was not until six months later that Phillips’ attorneys with the Alliance Defending Freedom identified the speaker as Rice.Justice Kennedy explained the problem with this remark:To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.The sad thing is that the kind of contempt for “freedom of religion and religion” voiced by Rice, including the over-the-top comparison of a belief in one-man-one-woman marriage with defenses of slavery and the Holocaust, is not even considered extreme on the Left today. On the contrary, that view is utterly commonplace. For example, writer Zack Ford of ThinkProgress openly defended the remark. That is why it was so welcome to have the Supreme Court declare that such contempt is not permissible as a part of government decision-making.The other person who surprisingly proved central to the case was William Jack. (William Jack is not to be confused with Jack Phillips, the baker at the heart of the case.)Even after he was cited in the Court’s ruling, little has been written about Mr. Jack’s background. The liberal magazine Mother Jones wrote the most detailed article about him, referring to him as “a foot soldier in the religious-right evangelical movement.” They also linked to a brief he filed in the case in support of Phillips, which describes him as “a Colorado citizen and Christian educator who teaches nationally on issues of Christian worldview, apologetics, and leadership.”In a sort of reverse parallel of what happened to Craig and Mullins when they requested a wedding cake from Masterpiece Cakeshop, William Jack visited three Colorado bakeries requesting that they bake him cakes with a message of opposition to same-sex marriage. Justice Ruth Bader Ginsburg described Jack’s request most explicitly in her dissenting opinion. He wanted cakes:“made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He]requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’[Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”All three bakeries declined to bake the cakes requested by Mr. Jack, on the grounds that they considered the message (especially, it seems, the image of the grooms with the red “X” and the word “sin”) to be offensive. Mr. Jack brought discrimination charges against each of the bakeries, asserting that they had discriminated against him because of his “creed” (that is, religion), which is a protected category under Colorado’s public accommodations non-discrimination law. Yet the Colorado Civil Rights Commission in Mr. Jack’s case found the bakeries not to have been guilty of discrimination—in direct contrast to the outcome for Masterpiece Cakeshop.Mother Jones referred to Jack’s requests as a “stunt.” Jack himself admitted, according to World magazine, that he made the requests in response to the Masterpiece case, “to see if those charging discrimination against gays would care about discrimination against Christians.” He never indicated that the cakes were intended for a particular social event. On the other hand, even Mother Jones admitted such experimentsaren’t uncommon among activist groups of all political leanings seeking changes in the legal system. Civil rights organizations use testers, for instance, to see whether a landlord is refusing to rent to people of color or a car dealer is charging them higher interest on auto loans. Activists who use wheelchairs visit businesses to see whether their buildings comply with the Americans With Disabilities Act, and file complaints if they don’t.The point, of course, is not that the Colorado Civil Rights Commission should have punished the bakers who refused to make cakes for Mr. Jack with a message opposing same-sex marriage. Instead, it is the opposite. They should have allowed Jack Phillips of Masterpiece Cakeshop the same freedom—to refuse cakes with messages to which he has a conscientious objection—that they allowed to the bakeries approached by William Jack.The message William Jack requested on his cakes may have seemed unusual, odd, or even, yes, offensive to some. But Justice Kennedy warned that “it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.”William Jack did not get his cakes, but he did prove a point—possibly turning the tide of a Supreme Court case in the process.
Dear Friends,A recent study reveals that loneliness has now reached epidemic levels in the United States. In a survey of over 20,000 adults 18 and over, the numbers are staggering:Nearly half of Americans report sometimes or always feeling alone (46 percent) or left out (47 percent).One in four Americans (27 percent) rarely or never feel as though there are people who really understand them.Two in five Americans sometimes or always feel that their relationships are not meaningful (43 percent) and that they are isolated from others (43 percent).One in five people report they rarely or never feel close to people (20 percent) or feel like there are people they can talk to (18 percent).Americans who live with others are less likely to be lonely (average loneliness score of 43.5) compared to those who live alone (46.4). However, this does not apply to single parents/guardians (average loneliness score of 48.2) – even though they live with children, they are more likely to be lonely.Only around half of Americans (53 percent) have meaningful in-person social interactions, such as having an extended conversation with a friend or spending quality time with family, on a daily basis.Generation Z (adults ages 18-22) is the loneliest generation and claims to be in worse health than older generations.Interestingly, the study notes that “Social media use alone is not a predictor of loneliness; respondents defined as very heavy users of social media have a loneliness score (43.5) that is not markedly different from the score of those who never use social media (41.7).” What is not being said here is that this statistic clearly indicates that increased social media use is affecting everyone, not just heavy users.I witnessed a perfect example of this last night at a restaurant. At the booth next to my wife and I, a large family had wedged themselves into both sides of the table. Despite this perfect opportunity for a great evening of quality family time, I couldn’t help but notice that large periods of time went by with the family sitting in silence. Why? Because half of the people at the table had their faces buried in their phones, while the other family members stared off into space. Is it any wonder that half of the country is not having any meaningful conversations with anyone when the people they are trying to talk to are staring down at a screen?This study should be a reminder to believers that we should always be ready and willing to give everyone we encounter our full attention, not just our family and friends. Phones and social media aren’t the only culprits here—often it is our own fear of looking abnormal that keeps us from spending a few moments talking with a homeless person on the street or our Uber driver. We must work on refocusing our priorities to giving everyone in our lives the time and attention they crave and rightfully deserve.God created us to love and to be loved. We all need to be constantly reminded of the timeless adage: “It is good that you exist.” When we spend quality time with our family members and everyone else the Lord puts in our path, we reaffirm this basic truth and help to spread Christ’s Kingdom.Thank you for your prayers and for your continued support of FRC and the family.Sincerely,Dan Hart Managing Editor for Publications Family Research Council FRC ArticlesChristians can influence the world without being influenced – Tony PerkinsWomen & Pornography – Patrina MosleyDismemberment Abortion – Patrina MosleyFlocking to tend to our nation’s spiritual needs – Travis WeberPlanned Parenthood's tax dollar gravy train just got derailed – Cathy RuseImitating My Father – Dan HartGetting to Know Generation Z – Marion MealorGood But Not Great: Don’t Be Fooled by the Masterpiece Decision – Andrew RockWarning to Northern Ireland: Science Without Faith is Dead – Patrina MosleyMasterpiece Cakeshop: How Can a 7-2 Supreme Court Decision Be “Narrow?” – Peter SpriggPolitically Motivated Research Underestimates Risk of Suicide After Abortion – Martha ShupingMasterpiece Cakeshop: Summary of Each Supreme Court Opinion – Peter SpriggThe Ethical Imperative of Adult Stem Cell Research – Hannah BorchersSupreme Court Protects Jack Phillips’ Rights, Tells Colorado: “Not So Fast” – Travis Weber Religious LibertyReligious Liberty in the Public SquareSupreme Court Rules in Favor of Baker Who Declined to Make Same-Sex Wedding Cake – National Catholic RegisterState Judge Sides with Christian Baker – Rodney Pelletier, Church MilitantPhiladelphia Archdiocese sues city over foster care placements – Matthew Gambino, CruxValedictorian: “They Told Me I Had to Take Christ Out of My Speech” – ToddStarnes.comA tall Christian cross stood in a Michigan park for nearly 70 years. Now it's gone – Lisa Gutierrez, The Kansas City StarDemocrats introduce bill to counter Sen. Orrin Hatch's religious freedom law – Dennis Romboy, Deseret NewsIndiana high school accepts teacher's resignation over transgender policy – Kathleen Joyce, Fox NewsInternational Religious FreedomPence Meets Indonesia’s Top Muslim Leader After Church Attacks – Kate Shellnutt, Christianity Today'Human rights disaster': China's persecution of Christians at highest level since Mao – Bradford Richardson, The Washington TimesReligious War Looms in Nigeria as Christian Body Count Climbs – Lela Gilbert, NewsmaxCanada’s top court rules against Christian law school: LGBT rights trump religious freedom – Lianne Laurence, LifeSiteNewsPolice seizes 1,100 Bibles in China’s Shandong province – Madeeha Bakhsh, Christians in PakistanThe Radical Forgiveness One Egyptian Mother Has for Her Son’s Murderers – Lindy Lowry, Open DoorsSeveral Iranian Christians to Serve Time in Prison – Jeffrey Cimmino, The Washington Free BeaconInternational Religious Freedom Report for 2017 – U.S. Department of StateU.S. senator introduces bill for sanctions against Turkey – Hürriyet Daily News LifeAbortionWhat Happened When 3 Women Faced Deep Suffering Rather Than Abort Their Children – Maureen Mullarkey, The FederalistThe Silent Suffering of Fathers After Abortion – Victoria Robinson, The Daily SignalPresident Trump to cut Planned Parenthood funding – Cassy Fiano, Live ActionIreland votes to legalize abortion: ‘a tragedy of historic proportions’ – Claire Chretien, LifeSiteNewsSupreme Court Rejects Planned Parenthood Challenge to Arkansas Pro-Life Law That Could Close Two Abortion Clinics – Steven Ertelt, LifeNewsGirl with Down Syndrome stuns politicians with powerful speech about her ‘right to be alive’ – Jonathon Van Maren, LifeSiteNewsPro-life commercial from Herbal Essences stirs up controversy – Nancy Flanders, Live ActionAdoptionFoster Care Fanaticism in Philadelphia – Darel E. Paul, First Things3 Things We Learned While Waiting For Our Adopted Child – Kelly Cox, Her View From HomeI Chose Adoption For My Baby, But I Didn’t Let Go – Leah Outten, Her View From HomeObamacareObamacare Is Shrinking the Individual Health Insurance Market – Edmund Haislmaier, The Daily SignalConservative groups, congressional Republicans appear poised for another try at ObamaCare repeal – Joseph Weber, Fox News FamilyMarriageHow to Build a Healthy Marriage With Authentic Communication – Michelle Habel, Focus on the FamilyFive Myths About Fathers and Family – W. Bradford Wilcox, Family StudiesBaby Bust: Fertility is Declining the Most Among Minority Women – Lyman Stone, Family StudiesHere's why it matters that Americans are having fewer children than ever before – Jeremy Carl, Fox NewsMarriage Support Needs Time to Work – W. Bradford Wilcox, Family StudiesCouple with Down syndrome reveals secret to 23 years of wedded bliss – Cerith Gardiner, AleteiaGrandpa's 6 tips for a successful marriage – Jackie Pilossoph, Chicago TribuneNatural Rights, God, and Marriage in the American Founding – Vincent Phillip Muñoz, Public DiscourseEconomics/EducationThe Left’s War Against Prosperity in Seattle – Jarrett Stepman, The Daily SignalFaith/Character/CultureThe Importance of Dads in an Increasingly Fatherless America – Virginia Allen, The Daily SignalOn Father’s Day, Remember the Fatherless – Alysse ElHage, Family StudiesThank You For Being a Dad Who Shows Up – Emily Solberg, Her View From HomeWhat Mothers Cannot Give to Their Sons – Anthony Esolen, Public DiscourseNo, Amazon Tribes Should Not Be Allowed To Kill Their Children – John Daniel Davidson, The FederalistWhat Anthony Bourdain Reveals About Living In The Age Of Loneliness – Ben Domenech, The FederalistHow Faith Communities Can Push Back the Darkness of Suicide – Emilie Kao, The Daily SignalHuman SexualitySchool Can Force Students to Share Bathrooms With Transgender Students, Federal Court Rules – Rachel del Guidice, The Daily SignalSan Diego Parents Pulling Their Kids From School Over Inappropriate Sex-Ed Curriculum – Grace Carr, The Daily SignalThe War Against Abstinence: Blockers, American Pie, and the Last Great Sexual Taboo – Daniel Ross Goodman, Public Discourse'The Dating Project' movie offers a 101-level course in courtship – AleteiaNearly 90 Percent of Public Opposed to Virginia County’s Sex Ed Changes – Rob Shimshock, The Daily CallerHuman TraffickingDOJ Arrests 2,300 Alleged Child Pornographers And Sex Traffickers – Jacob Airey, The Daily WirePornographyRadical Parenting – Protecting Our Kids from Pornography – GretaEskridge.comDoes Pornography Feed Sex Tourism? – Rose Brugger, Public DiscourseMore Americans Say Pornography Is Morally Acceptable – GallupPorn Addict Says 'Wrong Click Changed My Life' as a Teen, Exposing Her to Abusive, Animal-Like Sex – Stoyan Zaimov, The Christian Post
While it is wonderful that the Supreme Court gave Jack Phillips long-overdue justice in Masterpiece Cakeshop v. Colorado, the battle for religious liberty is far from over. The Court only held that the Colorado Civil Rights Commission’s obvious bias against Phillips violated his right to a neutral decision maker. This means that future cases could undermine religious liberty so long as the decision makers appear neutral. What we need is a decision or a law that explicitly protects business owners like Jack Phillips, or better still, a repeal of misguided laws passed under the guise of “antidiscrimination.”Jack Phillips runs Masterpiece Cakeshop in Colorado, and in 2012, he refused to create a cake for the wedding of a same-sex couple. The couple complained to the Colorado Civil Rights Commission, who sent the case to an Administrative Law Judge, who in turn found that Phillips had broken Colorado’s civil rights laws. The Supreme Court held that the Commission had violated Phillips’ rights under the First Amendment due to their blatant anti-faith bias.The Commission brusquely dismissed Phillips’ arguments that his faith precluded him from endorsing a same-sex wedding without thoughtfully addressing their substance or nuance. One commission member went so far as to compare Phillips’ arguments for religious liberty to those of slave owners and people complicit in the Holocaust. In addition, the Commission granted exemptions to bakers who refused to bake cakes with Bible verses opposing homosexual behavior, holding that this was not unlawful discrimination. The Court held that the flagrant anti-faith bias shown in the Commission’s comments and decision-making invalidated its judgment in Phillips’ case, because the First Amendment requires the government to remain neutral on religious issues.While it is good that the Court rebuked this blatant abuse of power, this decision does not bode well for future religious liberty cases. The Court merely held that someone like Phillips has the right to a hearing before a neutral decision maker, and if this occurs, outcomes in such cases “may well be different going forward.”This means that the next case could go poorly for a Christian business owner, provided that the deciding body maintains a pretense of neutrality. If a court or commission can restrain themselves enough to avoid comparing ordinary Christians to slave-owners and Nazis, and then finds that their freedom of conscience subjects “gay persons to indignities,” (which is vague and subjective enough to mean just about anything), they could easily punish someone for refusing to participate in a same-sex wedding through cake or floral design, photography, or other creative service. This is poor precedent, as it leaves Christian businesses vulnerable to biased decisions by courts and commissions sly enough to conceal their prejudice when they apply laws such as Colorado’s.Since a court that appears neutral could easily use these “antidiscrimination” laws to punish Christians who follow their conscience, religious freedom rights must be clarified in the context of these laws. Better yet, given the constant abuse of laws like Colorado’s to target anyone who disagrees with the politically correct orthodoxy, it would make sense to repeal them and avoid the problem entirely.Jack Phillips received well-deserved relief in this case, and there is now clear precedent against open bias on the part of courts and commissions in similar instances. However, there is still an enormous risk that decision makers will simply stay quiet about their anti-Christian biases and continue to produce biased and skewed decisions based on current “antidiscrimination” laws. This means that we need to either craft protections in the context of these laws or repeal them outright.Andrew Rock is a law student and an intern at Family Research Council.
On June 4, the U.S. Supreme Court overturned a decision by the Colorado Civil Rights Commission (upheld by Colorado courts) that had found baker Jack Phillips of Masterpiece Cakeshop guilty of unlawful discrimination for declining to make a wedding cake for a same-sex couple. The vote was 7-2—that is, seven justices voted to overturn the Colorado decision, while only two voted to uphold it.The New York Times’ online story about the ruling carried the headline, “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” The Washington Post editorialized, “The Supreme Court’s narrow ruling on a wedding cake is a step in the right direction.”Subsequently, I noticed some people on social media (especially conservative friends) grousing about the description of the 7-2 decision as “narrow,” as though the liberal media was trying to downplay Jack Phillips’ decisive victory. So I thought I would offer a short explanation.Masterpiece Cakeshop is being described as a “narrow” ruling not because of its margin, but because of its reasoning. Neither side in the case got everything that it wanted.Those supporting Colorado, and supporting Charlie Craig and Dave Mullins (the same-sex couple who had requested a cake from Phillips), wanted a broad ruling that 1) Phillips violated Colorado’s Anti-Discrimination Act by discriminating against the couple on the basis of “sexual orientation; and 2) that no claim of religious freedom or free speech can excuse that statutory violation by a business that qualifies as a “public accommodation.” In the end, only two justices (Ruth Bader Ginsburg, with Sonia Sotomayor joining her in dissent) adopted that view and considered it decisive.Those supporting the baker Phillips, on the other hand, wanted a broad ruling that his rights to freedom of speech and the free exercise of religion, because they are fundamental rights under the U.S. Constitution, must take precedence over the statutory provisions of Colorado law. Yet the Court’s ruling in favor of the free exercise claim was a narrow one, and only two justices expressed support for the free speech claim as well (Clarence Thomas, with Neil Gorsuch joining his concurrence in the judgment).(I should note as well that some key elements of the case remained in dispute. Phillips’ attorneys questioned whether the Anti-Discrimination Act even applied, arguing that Phillips did not, in fact, “discriminate” on the basis of “sexual orientation” at all, because he was happy to serve self-identified gay customers with products other than a wedding cake. Colorado’s attorneys questioned whether the First Amendment even applied, arguing that baking a cake cannot be considered a form of “speech” at all.)Instead of clearly explaining that Jack Phillips’ has robust constitutional rights regarding the cakes he designs, the majority opinion found that the Colorado Civil Rights Commission simply didn’t behave well enough in this case, due to: (1) the hostility aimed specifically at his religious beliefs (evidenced in comments of the Commission), and (2) the different treatment the Commission gave a parallel case (one in which the Commission allowed bakeries to refuse to make cakes criticizing same-sex marriage). It was only because the Commission exhibited anti-religious bias in its proceedings against Jack Phillips that the Supreme Court threw out its ruling, on free exercise grounds. Justice Gorsuch also wrote a strong concurrence, joined by Justice Alito, elaborating on the strength of the free exercise claim here.Although they joined the majority opinion, Justices Kagan and Breyer additionally wrote a concurrence explaining that their lukewarm support for Phillips was only based on the fact that he was treated really badly by members of the Commission in this case. They argued that the disparate treatment between the two bakery cases could have been justified, were it not for the overt anti-religious hostility exhibited by the Commission.Justices Kennedy and Roberts—in writing and joining only the majority opinion, respectively—ruled in favor of Phillips, but not on the basis of a sweeping affirmation of his freedom of speech or of religion.A definitive Supreme Court precedent, resolving the underlying dispute between “non-discrimination” principles and freedom of speech and religion, will have to await another case and another decision. That is why many are calling Masterpiece a “narrow” decision.
In the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, finding by a 7-2 vote in favor of a baker who had declined to create a wedding cake for a same-sex wedding, there were five separate opinions written.Here, I offer a brief summary (not a detailed legal analysis) of what each of these opinions contained. (For more, see this blog post by FRC’s Travis Weber.) In the five opinions:Justice Anthony Kennedy wrote for the Court, joined by Chief Justice John Roberts, Justice Stephen Breyer, Justice Samuel Alito, Justice Elena Kagan, and Justice Neil Gorsuch (six Justices; Justice Clarence Thomas wrote separately “concurring in part and concurring in the judgment,” but did not join the Court’s opinion);Justice Kagan wrote a concurrence which Justice Breyer joined;Justice Gorsuch wrote a concurrence which Justice Alito joined;Justice Thomas wrote an opinion “concurring in part and concurring in the judgment,” with which Justice Gorsuch joined;Justice Ruth Bader Ginsburg wrote in dissent, joined by Justice Sonia Sotomayor.Here’s an overview of each opinion:Kennedy for the Court (joined by Roberts, Breyer, Alito, Kagan, and Gorsuch):Justice Kennedy ruled in favor of Masterpiece because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” He found this for two reasons:Comments made by members of the Commission in the course of its hearings, especially one notorious quote:“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”Kennedy noted that this statement disparages religion “in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”The difference in treatment between Phillips’ case and the cases of other bakers, who had refused to bake cakes communicating negative religious messages about same-sex marriage, but were found not to have discriminated against the customer (William Jack) on the basis of religion. He notes inconsistency in how the free speech claims were treated, but most notably in how the conscience objections were viewed, with the Commission accepting the secular objection to making anti-SSM cakes “because of the offensive nature of the requested message,” but rejecting Phillips’ religious objection to making a same-sex wedding cake. Kennedy says, “[I]t is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive,” yet the Colorado decision “elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”Kagan concurring, with Breyer joining:This short opinion (a little over three pages) concurs in the judgment—but goes out of its way to say that Colorado could have made a legitimate distinction between the Masterpiece case and the three cases of William Jack (who was refused cakes expressing opposition to same-sex marriage, but was not deemed a victim of discrimination). Kagan says explicitly that Jack Phillips of Masterpiece was guilty of discrimination:Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.However, she concurs because the State’s decisions must not be “infected by religious hostility or bias”—as in this case.Gorsuch concurring, with Alito joining:Gorsuch focused in specifically on the disparate treatment of the Masterpiece case as opposed to the three William Jack cases involving refusal to bake cakes opposing same-sex marriage. In contrast to both the Ginsburg/Sotomayor dissent and the narrow Kagan/Breyer concurrence, Gorsuch argued that there was a very close correspondence between the facts of the cases, saying that “the two cases share all legally salient features”:“bakers refused services to persons who bore a statutorily protected trait (religious faith or sexual orientation)”“they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else)”“the bakers in the first case [William Jack] were generally happy to sell to persons of faith, just as the baker in the second case [Jack Phillips/Masterpiece] was generally happy to sell to gay persons.”Gorsuch concludes that “the Commission failed to act neutrally by applying a consistent legal rule,” and warns that “the one thing it can’t do is apply a more generous legal test to secular objections than religious ones.” In contrast to the four liberals, Gorsuch states explicitly that “the Commission must afford him [Jack Phillips/Masterpiece] the same result it afforded the bakers in Mr. Jack’s case.”Thomas, “concurring in part and concurring in the judgment,” Gorsuch joining:To me, one of the most notable facts of the decision is that at oral arguments, the ADF attorneys representing Masterpiece put their emphasis on arguments resting on First Amendment Free Speech grounds (not Free Exercise of Religion). They emphasized that designing custom wedding cakes is a form of artistic expression and therefore, requiring they be provided for same-sex weddings is an unconstitutional form of “compelled speech” by the government. This, however, turned out not to be the primary issue addressed by the court, which instead decided there was a Free Exercise violation because of the lack of religious neutrality.Justice Thomas’ opinion was the only one that addressed the Free Speech issues at length. He acknowledges that the issue here is “expressive conduct” rather than pure speech as such, but says under Court precedents, “Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.” He says that in this case, “Phillips’ creation of custom wedding cakes is expressive,” and concludes the following:Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.Although declining to decide whether Colorado’s law satisfies “strict scrutiny,” Thomas warns, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”Ginsburg dissenting, Sotomayor joining:Like the Gorsuch/Alito concurrence, the Ginsburg/Sotomayor dissent focused specifically on the differing results given by the Colorado Civil Rights Commission in the case involving Jack Phillips and Masterpiece Cakeshop (where refusing to provide the cake requested by the customer was found to be illegal discrimination) as opposed to the cases involving customer William Jack (where refusing to provide the cakes requested by the customer was found not to be illegal discrimination). However, Justice Ginsburg reaches the exact opposite conclusion from that of Justice Gorsuch.Ginsburg and Sotomayor agreed with their liberal colleagues Justices Kagan and Breyer in saying that the cases could be legitimately distinguished, but disagreed with the latter pair’s conclusion that anti-religious bias had impermissibly “infected” Colorado’s adjudication of the cases. Ginsburg writes:The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below. CommentaryThe problem I see with the dissent is this statement (which was repeated, in various ways, several times): “Phillips did . . . discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief.” Ginsburg argues that Phillips’ refusal of a same-sex wedding cake was “determined solely by the identity of the customer” whereas the refusal of William Jack’s request “was due to the demeaning message” he wanted displayed.Since Phillips regularly serves customers who identify as gay (but would refuse a cake to celebrate a same-sex wedding regardless of who requests it), the first conclusion is questionable. The latter conclusion, however, is nothing short of astonishing. What Ginsburg calls a “demeaning message” may have been crude (including, among other things, “an image of two groomsmen, holding hands, with a red ‘X’ over the image”), but combined with biblical verses and quotations, its essential content was that 1) homosexual conduct is sinful, and 2) God does not approve of same-sex sexual relationships or consider them to be “marriage.” I fail to see how this “message” (however “demeaning” some may find it) can be seen as not representing a “religious belief.”Note that this is not to say that the solution would be to force bakers to make cakes with messages they consider “demeaning,” as well as forcing them to make cakes for same-sex weddings. Instead, the opposite would be ideal. Baking cakes, whether to celebrate a specific event such as a same-sex wedding or to condemn that concept, is a form of expressive conduct that should not be compelled by the government. Even if Colorado believes that its Anti-Discrimination Act was violated, the provisions of this state statute cannot be allowed to override the bakers’ fundamental right to free speech under the U.S. Constitution.No baker should be forced to communicate a message with which he or she disagrees. Although Jack Phillips prevailed in the Masterpiece Cakeshop case, the ruling does not clearly apply the Court’s compelled speech precedents to that context. The debate continues.
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