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Justice Sotomayor vs. Christian cake bakers across America

Justice Sonia Sotomayor is not a friend of Christian cake bakers who wish to express their religious beliefs through baking a cake, or not baking a cake, depending on the ceremony. The devotion of Christian bakers like Jack Phillips of Colorado does not allow him to bake a cake that celebrates gay or lesbian weddings. Instead of honoring that devotion, instead of respecting Phillips' Christian beliefs, the State of Colorado and Justice Sotomayor seem to want to stomp on the rights of Christians and ignore their religious expression through their work and business.

In July 2012, two men came into Phillips' cake shop requesting a custom wedding cake celebrating their same-sex marriage. He politely declined the request, but offered to design them cakes for other occasions. Phillips did not ask the two men to leave his store; he did not refuse to sell them other products at his store. Phillips has a long history of product service in his community; has designed cakes for generations of families in Lakewood, Colorado, since 1993.

“Soon after that (incident), Phillips started to receive phone calls from people threatening and harassing him because of his decision to not use his artistic talents to design a cake celebrating the couple’s same-sex marriage. Instead of responding in anger, Jack saw the calls as an invitation to prayer:  “[The phone calls] give me an opportunity to pray for people I wouldn’t know.” Alliance Defense Fund.

Although the couple filed a complaint with the Colorado Civil Rights Commission for sexual orientation discrimination, one would think that Phillips rights were as violated as the rights of the two men because the two men may have communicated their rejection to other people who may have called the store and threatened the store owners.

As supreme court presentations go, this one, held in December of 2017, was combative, with Sotomayor and other liberal justices seemed to oppose the counsel representing Jack Phillips, Kristin Waggoner of the Alliance Defense Fund.

in fact, it got so bad that during Waggoner's rebuttal time, Sotomayor took up at least half of that time with repeated interruptions. When Chief Justice John Roberts gave her a little more time, Sotomayor interrupted her again, making it difficult for Waggoner to get her closing point across.

An administrative judge in Colorado ruled against Phillips in December 2013, saying that “designing and creating cakes for same-sex wedding ceremonies are not speech protected by the First Amendment.” Armed with this edict, the commission ordered Phillips and his staff to either “violate his faith by designing the cake or stop designing all wedding cakes.”

The problem is that designing wedding cakes is or was, approximately 40 percent of this business. In addition, Phillips and his staff were ordered to go through a “re-education” program and file quarterly “compliance” reports telling the government every time that he declines a custom cake request and explaining the reasons why.

In July, 2016, ADF attorneys and allied attorneys petitioned the United State Supreme Court to take up Jack’s case. On June 26, 2017, the Supreme Court granted review of the case. On December 5, 2017, ADF argued on Jack's behalf.

Four justices: Alito, Kennedy, Gorsuch and Roberts seemed to favor Waggoner's position and the defense of the ability for one to practice one's religious expression in a business such as a bake shop. More than one justice thought the commission overstepped their authority and did not give equal protection to the Christian cake baker in this circumstance.

Kennedy said the commission wrote something in regard to the case that was disturbing. Commissioner Hess says, “Freedom of religion used to justify discrimination is a despicable piece of rhetoric.”

Kennedy: “Did the commission ever disavow or disapprove of that statement?”

He also suggested that this particular commissioner was hostile to the expression of religion.

Gorsuch added: a second commissioner said, “if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system . . .”

In other words, two commissioners were probably prejudiced against Masterpiece Bake Shop.

Breyer said Colorado, through the civil rights commission, did a poor job of balancing the different rights and interests: the interest of the bake shop, to protect its religious beliefs, and the rights of the people who wanted to purchase the cake.

“Where there are genuine, sincere religious views or whatever it is, and minimize the harm (the law) does to the principle of the statute while making some kind of compromise for people of sincere beliefs on the other side.”

“And my impression is that there wasn’t much effort in Colorado to do that,” Breyer said.

Justice Alito said there “is what appears to be a practice of discriminatory treatment based on viewpoint.”

Alito said bakers who did not want to bake cakes for heterosexual marriages were allowed to decline. But “when the tables are turned and you have a baker who opposes same-sex marriage, that bakers may be compelled to create a cake that expresses approval of same-sex marriage.”

Justice Kennedy: “Counselor, tolerance is essential in a free society.  And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs. And -- because accommodation is, quite possible, we assume there were other shops that -- other good bakery shops that were available.”

Yarber said it’s a matter of equal “protection.” He claims an exception was made for places of worship, that “we can’t make exceptions for same-sex people who “deserve the same protections” if we wouldn’t make this same exceptions for discrimination based on race and sex and religion.

But Yarber misses the point. Race and sex are not the same as tolerance for Mr. Phillips religious beliefs. The case does not have anything to do with race or sex. People of all races and sexes were served at this store. If a place of worship is important and respected, give the same consideration for how serious someone’s religious beliefs are.

There is only so much space in the gallery of people during the oral arguments. But the transcripts can easily be read. So we, the people, can easily get an idea of what the justices think about Christians like Phillips. Though the person arguing for Mr. Phillips, Kristen K. Waggoner, presented her case well, she had to endure numerous uninformed comments or questions from some of the justices.

Sotomayor, as well as other justices, simply did not know the circumstances of the case, that Phllips offered to sell other cakes that were more generic and did not involved the custom creation of a cake for the gay men’s wedding ceremony.

Sotomayor: But I thought -­ I'm a little bit surprised by what you’re saying because your briefs seem to suggest differently -- that the couple was looking at his already pre-designed cakes that he appears to sell without any customization, and they sat down with him, and he said I don't supply cakes of any kind to gay couples. So I thought this cake was about his refusal to supply a cake for any wedding ceremony.”

Here is Kristen K. Waggoner’s response:

Waggoner: J Sotomayor, that's not how he responded to the couple.  The couple came in and they requested a custom cake for their wedding.  At that point, they brought in a folder with all kinds of designs they wanted to discuss and ended up purchasing a rainbow-layered cake or -- or received a free rainbow-layered cake, which certainly is expression. The order (from the Colorado Civil Rights Commission) below requires Mr. Phillips also to include words and symbols on his cakes. It's that broad. So if, for example, Mr. Phillips had used a Bible verse on a cake in the past, he would be compelled to use the same Bible verse in a different context.

In other words, Mr. Phillips would be compelled to use or create a wedding cake with a Bible verse that sanctions or approves of a ceremony that violates his personal convictions. That is what the Colorado Civil Rights Commission ordered Mr. Philipps to do.

Chief Justice Roberts offered that it would seem to violate Phillips conscience.

Roberts: “There's no there's no compulsion of speech, but if he is required to sell a cake in the window with the message already on it, that is compelling him to associate that message with the ceremony. And I thought that was something to which you objected. 

Waggoner said it depends on how the court draws the line. If the line is drawn at a cake that’s already made, it could be included. “But the Court could draw that line at an earlier place and not force him to sell that cake.”

Justice Ginsburg also did not seem to know that Phillips offered to sell any other kind of product at the store.

Waggoner: “Not at all. And in fact, Mr. Phillips offered the couple anything in his store, as well as offered to sell additional cakes, custom cakes, that would express other messages.”

It seems that a number of the justices, again, do not understand that Mr. Phillips has no objection to the men who came into his store. They freely came into his store and were offered any number of products there.

Like Justice Sotomayor, Justice Kagan also seemed to express indifference to the fact that a Christian could make something like a cake that is a sacred message to him or her. She suggested that there are other trades that might be the same or just as sacred. In so expressing, they show their ignorance of Christianity and disrespect for devotion to Christianity.

Kagan: And I guess I'm wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?

Then, Kagan argued with Waggoner about the difference between the baker and the chef, which seems to suggest that she did not understand why there was an objection to baking a custom made cake in the first place. Is Justice Kagan suggesting that a chef would create a message on a beef stroganoff dish just like a written message on a cake?

Sotomayor continues.The two form something of an offensive tag team, trying to find any reasoning possible to disrespect Waggoner’s arguments.

Kagan: "Now, some people might love the aesthetic appeal of a special desert, and look at it for a very long time, but in the end its only purpose is to be eaten. And the same with many of the things that you've mentioned.  A hairdo is to show of the person, not the artist.  When people at a wedding look at a wedding cake and they see words, as one of the amici here, the pastry chef said, there was a gentleman who had upset his wife and written some words that said “I'm sorry for what I did," something comparable, and the chef was asked, the cake maker was asked, was that affiliated with you? And she said no.  It's affiliated with the person who shows the cake at their wedding. It's what they wish to show. So how is this your client’s expression, and how can we find something whose predominant purpose is virtually always to be eaten?  Call it a medium for expression.  Mind you, I can see if they’ve create a cake and put it in a museum as an example of some work of art, that might be different because the circumstances would show that they want this to be affiliated with themselves. But explain how that becomes expressive speech, that medium becomes expressive speech.”

Sotomayor continues with a cup cake analogy. One gets smashed. People don’t want to eat the smashed one. The upshot: a wedding cake is no different than a bunch of cupcakes, smashed or not smashed. What's the big deal with the wedding cake?

For Waggoner, it’s about protecting individuals, citing the Hurley framework. Is the individual being compelled to speak objecting to the message that is contained in that speech or the person.

Sotomayor suggests that this right could extend to public accommodation laws against discrimination or protecting customers from race, suggesting that because of religious belief, another religious person might be opposed to serving blacks. The case was Newman vs. Piggie. But Phillips original objection to the creation of the cake had nothing to do with race.

Sotomayor: Oh, it didn't in Newman versus Piggie?

Sotomayor is really insulting religious expression in this case, suggesting that any one of these Christians would also refuse to all people of other races into his store because they are Christians. One wonders if she would act like this if it were a black Christian cake baker.

Kagan takes up where Sotomayor leaves off.

Kagan: Same case or not the same case, if your client instead objected to an interracial marriage? 

Sotomayor: So how about disability; I'm not going to serve cakes to two disabled people because God makes perfect creations, and there are some religions who believe that?

The other presenter for Phillips, General Francisco, was more direct in his approach. He said the state of Colorado has not considered other forms of expression that might be offensive for those creating the works, including that it might compel an African American person to sculpt something for a Klu Klux Klan memorial, or something like that.

Sotomayor suggests that it’s a matter of selling products to everyone, no matter their sexual orientation. But this is inaccurate, because the store was open to all people; the owners did not ask the about the customer's sexual orientation. Neither did the owner of the store kidnap them and drop them on the side of the road, as this justice recounted that people have been treated.

For Francisco, you can’t or should not force a speaker to join a parade against their will, or contribute to something they disagree with. Or how about a gay opera singer who is forced to perform at the Westboro Baptist Church because they perform at another venue.

Here is the problem, which should be obvious: When you force somebody not only to speak, but to contribute that speech to an expressive event to which they are deeply opposed. (Then) you force them to use their speech to send a message that they fundamentally disagree with.

“And that is at the core of what the First Amendment protects our citizenry against,” Francisco said.

David Cole, who presented for the two men as well, as co-counsel, skewed the issue as well. He suggested that because their religious belief caused them to refuse to celebrate something that their conscience does not allow them to do, it would lead to discriminating against people of different races.

But to suggest that means that Cole does not understand the objection to baking or creating the cake in the first place. As far as is known, there are no bakeries that refuse to sell cakes based on one’s race in the State of Colorado. To think so is to both confuse and contort the reasoning behind religious expression and belief in the first place. To suggest that honoring a religious belief would result in behaving meanly against another person is offensive and injurious in itself.

Further, if it were a matter of being or not being a Christian, many businesses celebrate the fact that they are Christian, and have a fish symbol displayed prominently somewhere. This does not mean that they are prone to thinking of some people less than others. It’s not a matter of treating some people as second class. It’s a matter of thinking of marriage as something that is to be celebrated as honoring to their beliefs - at least in this case.

What this means is that, rather than understand that some people have differing views on marriage and whether or not they should be the same sex or different sexes, let’s dismiss the beliefs of the people who operate this establishment, and treat them as though they were unimportant.

Again, Phillips did not turn this couple away at the door. In fact, he would never have known that they were gay after they entered the store if they had not requested a wedding cake.

Cole thinks that Mr. Phillips should be forced to create a cake that says, “God bless the union of Dave and Craig.” Cole did admit that there was an instance of a religious ceremony that is against their religious commitment, then it’s different. But that is exactly the case.

Still, Cole admitted that an individual should not be compelled to engage in a religious ceremony that is against one’s deep religious commitment.

“We might treat that differently . . . “

Waggoner's points during her rebuttal tiime:

  • Members of the commission were biased against Masterpiece; this cake baker was treated differently than others; three other cake designers were expressing their own message if they ad to design the cake.
  • The decision of lower courts demeans Mr. Phillips honorable and decent religious beliefs about marriage, when he has served everyone and has a history of declining all kinds of cakes unaffiliated with sexual orientation because of the message, he should receive protection in this case; this law protects the lesbian graphic designer who doesn’t want to design for the Westboro Baptist Church, as much as it protects Mr. Phillips.

Her comments triggered Justice Sotomayor: she interrupted Waggoner two more times, taking up nearly half of her five minutes of rebuttal time in total.

“It's not denigrating someone by saying, as I mentioned earlier, to say:  If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not.  You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.”

Waggoner: Justice Sotomayor, I think that the gravest offense to the First Amendment would be to compel a person who believes that marriage is sacred, to give voice to a different view of marriage and require them to celebrate that marriage.  The First Amendment . . . “

Sotomayor again:

“Then don’t participate in weddings, or create a cake that is neutral, but you don't have to take and offer goods to the public and choose not to sell to some because of a protected characteristic. That's what the public anti-discrimination laws require.”

Waggoner has the final word:

“A wedding cake expresses an inherent message that is that the union is a marriage and is to be celebrated, and that message violates Mr. Phillips’s religious convictions. Thank you.  This Court should reverse.”

It seems that more liberal states like Washington, Oregon, California, Illinois and Colorado, are more than willing to stock government civil rights commissions, courts, with people and officials who want to take punitive action against Christian businesses, to allow gays and lesbians to take punitive action against Christian cake bakers like Phillips.

If this were any other religion other than Christianity, like Islam, Hindu, even atheism, the practice would be respected by the commission.

What is disturbing about Sotomayor and a few of the other justices (Kagan and Ginsburg), is that they do not seem to believe that Biblical belief in marriage between a man and a woman should have any standing of protection in society.

In states like Colorado and other liberal states, the rights of Christians, instead of being tolerated and respected, are trampled on. Instead of finding another bake shop that will accommodate them, activists try to set an example and harass the owners, forcing them to close their business. In many cases, cities and counties, afraid of activists, bow to extremists and activists. Instead of doing the right thing and defending the rights of the bake shop owners, they do nothing.

Unfortunately, it seems that we are becoming more and more intolerant as a society, respecting any objection to Christianity, even if it means trampling on the rights of sincere people who disagree, or simply want to express themselves through their businesses.

It should remind Christians everywhere of Shadrach, Meshach and Abednego who were threatened to be baked in an oven if they did not bow down to and worship a pagan God.

“King Nebuchadnezzar, we do not need to defend ourselves before you in this matter. 17 If we are thrown into the blazing furnace, the God we serve is able to deliver us from it, and he will deliver us[a] from Your Majesty’s hand. 18 But even if he does not, we want you to know, Your Majesty, that we will not serve your gods or worship the image of gold you have set up.”

Jack Phillips' message is the same: Despite all of the threats, protest and hostility, he will not bake a wedding cake that celebrates homosexuality. Unlike popular culture, the God of the Bible does not change like shifting sands, the direction of the wind, the culture. We should all thank God for courageous people like Jack Phillips and defenders of freedom at the Alliance Defense Fund. Let's also pray for Supreme Court justice who are not aware of the God of the Bible, and prefer any reason to oppose him and his followers.

© 2018 Larry Ingram

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