Courthouse Steps: Masterpiece Cakeshop v. Colorado CRC Decided

Religious Liberties Practice Group Teleforum

Listen & Download

Masterpiece Cakeshop v. Colorado CRC, one of the most highly publicized of the term, was decided 7-2 in favor of the petitioner.

The facts of the case are as follows: two men, Charlie Craig and David Mullins, were planning their wedding and sought a wedding cake from Jack Phillips, the owner of Masterpiece Cakeshop. Phillips told the men that he could not make them a cake, citing his religious beliefs. The Colorado Civil Rights Commission determined that Phillips was discriminating against the couple on the basis of sexual orientation. Phillips was told to “cease and desist” such discrimination and was ordered to provide “remedial measures.” As a result, Phillips stopped offering custom cakes entirely.

The case deals with the balance of religious liberties and equality through anti-discriminatory laws. It also involves the Free Speech Clause, as Phillips considers his custom cakes art and himself an artist. Phillips and many others see the “cease and desist” as a form of compelled speech, since he would be legally obligated to create art with a message he does not support.

Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law at the SMU Dedman School of Law and Kim Colby, Director at the Center for Law & Religious Freedom, Christian Legal Society, will join us to discuss this important decision.


Prof. Dale A. Carpenter, Judge William Hawley Atwell Chair of Constitutional Law; Professor of Law, SMU Dedman School of Law

Kim Colby, Director at the Center for Law & Religious Freedom, Christian Legal Society


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript

Speaker 1:                           Welcome to the Federalist Society's practice group podcast. The following podcast, hosted by the Federalist Society's Religious Liberties Practice Group, was recorded on Monday, June 4th, 2018 during a live courthouse [inaudible 00:00:13] tele form conference call.

Laura Flint:                          Welcome to the Federalist Society's tele form conference call. This afternoon our conversation is on the recent decision in Masterpiece Cake Shop V. Colorado CRC handed down by the Supreme Court Today. My name is Laura Flint, and I'm the deputy director of practice groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. Today we are happy to have with us professor Dale A. Carpenter, Judge William Holly Atwell Chair of Constitutional Law and Professor of Law at SMU Deedman School of Law, and Kim Colby, director at the Center for Law and Religious Freedom at the Christian Legal Society.

Laura Flint:                          After hearing from our speak-speakers we'll go to audience question and answer. Thank you for speaking with us, Kim. The floor is yours.

Kim Colby:                           Thank you, Laura, for inviting me to participate with Dale in this tele form to update listeners on the decision that came down this morning in the United States Supreme Court in Masterpiece Cake Shop versus Colorado Civil Rights Commission. The case is, I think, rightly considered one of the most important of the 2017 term, because it potentially could determine whether we live in a pluralistic society that provides breathing space for religious dissenters, or a less free society that, um, is not respectful of religious dissent. In a very real sense the case raises the question of whether our government will encourage a free civil society in which both religious individuals and LGBT individuals are allowed to live according to their self-determined identities and deepest values.

Kim Colby:                           And I think the, uh, just as a, a quick preview of the decision today, I do think that's what this decision was about, and is attempting to try to do, which is good news for all of us. Um, I just want to briefly review the facts of the case. I think many of the listeners will already know them, but just so we're all, all on the same page, and um, Dale, you should feel free to correct anything I leave out here. Uh, 24 years ago Jack Phillips set up his own bakery, and he named it Masterpiece Cake Shop because of the Bible verse that speaks of us being god's workmanship, or his masterpiece. He says that he tries to run his business to honor god in accordance with what Phillips understands the Bible to teach. He's not open on Sundays. He doesn't create cakes that contain alcohol or have derogatory messages. He doesn't create custom cakes for events that he believes are contrary to biblical teaching, such as Halloween celebrations or divorce celebrations.

Kim Colby:                           He doesn't design custom cakes that celebrate, um, marriage other than between a man and a woman. That's based on his religious beliefs that, uh, marriage is a sacred union between one man and one woman, and that there's a basic Christian understanding that marriage is symbolic of the relationship of Jesus Christ and his church.

Kim Colby:                           So we, we go back to July 2012. A same sex couple asked Phillips to create a cake for their wedding. Um, Phillips almost immediately told them, there was not much discussion, that he could not design a cake to celebrate a same sex wedding. He said that they were welcome to purchase anything that was already, uh, baked in his bakery. Um, the couple left unhappy. And um, they filed, eventually, a complaint of sexual orientation discrimination with the Colorado Civil Rights Commission, which after investigation, brought charges against Phillips for discriminating on the basis of sexual orientation. Um, it should be noted, and the court did actually make a quite bit of this in its decision today that in 2012 the state of Colorado did not legally recognize same sex marriages.

Kim Colby:                           Um, the Colorado commission, uh, found Phillips liable for sexual orientation discrimination, and it ordered him to either cease creating wedding cakes for any wedding, or else create cakes for all weddings, including same sex weddings. It also ordered him to train his staff, several of whom are family members, re-regarding the requirements of, uh, Colorado's public accomodation law, and to make quarterly com-compliance reports for two years. Uh, in response Phillips ceased making custom wedding cakes at all, which accounted for about 40% of his income, and he, his employees went from 10 to four today. Uh, he appealed the commission's decision to the Colorado Court of Appeals, which affirmed the decision. The Colorado Supreme Court denied review, but then of course, as we all know, the US Supreme Court granted review and heard oral argument in early December.

Kim Colby:                           So turning to today's decision, just to give a brief overview of what, uh, the court did, uh, the court in a seven to two decision reversed the Colorado Court of Appeals, and set aside the commission's order. Uh, the majority opinion, um, was joined in full by seven justices. It was written by Justice Kennedy, and joined by Chief Justice Roberts, and Justices Thomas, Breyer, Alito, Kagan, and Gorsuch. Now there are three separate concurrences, but all of the concurring opinions say at the outset that they join the majority opinion in full.

Kim Colby:                           One is by Justice Kagan. Uh, she's joined by Justice Breyer. And one is by Justice Gorsuch joined by Alito. And then the third is by Justice Thomas joined by Justice Gorsuch. Justice Ginsberg wrote a dissent that was joined by Sotomayer, and I'll come back to those in just a second. But turning to the majority opinion, the majority holds that when the Colorado Civil Rights Commission considered this case it did not do so with the religious neutrality that the Constitution requires, and therefore the commission's actions violated the free exercise clause. And I'm sure we'll discuss this more, uh, later, but what's one of the more interesting things about the majority opinion is that much of the briefing was spent on the compelled speech argument, and the free exercise clause was the secondary argument in the main brief on the merits.

Kim Colby:                           Um, CLS actually filed a brief written by professor Doug [inaudible 00:07:09] and Professor Tom [inaudible 00:07:11] that focus on the free exercise clause claims actually much of how the court decided. But it is interesting that the court went, um, on the free exercise clause claim alone. Now it leaves open the compelled speech claims in future cases. It did not say that that was a claim that couldn't be brought, but it is a free exercise, uh, cla-, uh, decision. Not a compelled speech decision.

Kim Colby:                           Specifically what the majority holds, and I'll read some that are mostly quotes from the court, uh, the Colorado Civil Rights Commission's consideration of this case was inconsistent with the state's obligation or religious neutrality. The reason and motive for the baker's refusal were based on his sincere religious beliefs and convictions, but the neutral and respectful consideration to which Phillips was entitled was compromised here because the commission's treatment of this case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. And for, uh, its finding that there's a clear and impermissible hostility by the commission towards Phillip's religious beliefs, the court relies on two basic pieces of evidence.

Kim Colby:                           Uh, first, it relies on statements that were made by the two commissioners, by two of the commissioners ... there were seven commissioners on the Colorado commission ... uh, statements that they made during two of the hearings on Phillips' case. And I'll go into those in just a second. And then the second main evidence of hostility, uh, was that in the court's view the commission treated Phillips disparately from how it treated three other bakers who had refused to create cakes, uh, with the religious message, and when a complaint was brought before the commission, the commission had, uh, dismissed it.

Kim Colby:                           So those are the two pieces of hostility that this opinion, which is 18 pages, uh, relies upon. Um, the commission's, uh, mess-, uh, the commissioner's messages that were seen as hostile, um, were what we've become somewhat familiar with in public discourse in the past three to five years. And that is that religious freedom is just a screen for discrimination. Um, two of the comments are that one commissioner suggested that Phillips can believe what he wants to believe, but cannot act on his religious beliefs if he decides to do business in the state. These were, that's kind of reminiscent of some of the argument we saw in the Hobby Lobby case a few years ago.

Kim Colby:                           Um, another commissioner said that freedom of religion has been used to justify all kinds of discrimination throughout history, and to me it is one of the most despicable pieces of rhetoric that people can use, to use their religion to hurt others. That was seen by the majority, by the seven justices, as being a type of rhetoric, um, that um, disparages, and I'm here I'm quoting, "Phillips' 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."

Kim Colby:                           So um, as I mentioned earlier, besides what the commissioner said, uh, the court relied on the fact that the commission had had complaints brought by a religious individual who had gone to three different bakeries and asked them to bake a cake with a message, a religious message on it. It was an open Bible with some Bible verses, that the bakers refused to bake because they found those Bible verses to be offensive. There was also an image on the cake that was a same sex couple with a red X uh, on-, across it, which they also found to be offensive. And when this case became, came before the commission, uh, the cus-customer claimed that he'd been discriminated against based on his religious creed, which is a protected category under Colorado's non discrimination law, but the commission said that the bakers were justified in refusing to bake a cake with a message that they found offensive.

Kim Colby:                           Um, the court said that that was, um, disparate treatment of Phillips, because he also was refusing to bake a cake because he found that what he considered its message to be to be offensive. And that that disparate treatment, um, of his religious beliefs and understanding of what his message would be, uh, was therefore a violation, showed hostility towards Phillips religious beliefs. I'm just going to quickly, uh, I'm sure Dale will have more to say about the majority opinion, I'm just going to quickly run through Kagan, or the concurrences and the dissent just so we have a general picture. They're all pretty short, and to the point.

Kim Colby:                           Justice Kagan and Breyer concurred, and joined the majority in full, but they don't believe that the, uh, commission engaged in disparate treatment of the, uh, three bakers. They believe that because the three bakers were offended by the message, um, they were not, therefore the bakers were not, uh, discriminating against a protected class, uh, whereas Phillips was discriminating against a protected class in refusing to make the cake. But Gorsuch and Alito in their separate concurrence, which is largely aimed at rebutting, uh, Kagan and Breyer's concurrence, I think have the better argument that actually the bakers were, uh, discriminating on the basis of a protected class, which was religious creed, and that their, uh, uh, decision to not create a cake was an offensive message, and the government said, "Okay, we agree with you, that message is offensive," was unfair to Phillips and treated him in a way that violated the free exercise clause.

Kim Colby:                           Um, Thomas' concurrence, uh, is joined by Gorsuch. And Thomas says actually compelled speech is also involved here. Uh, that, uh, uh, Phillips has a compelled speech claim, um, that this was expression in creating this cake. But he says therefore the state has to do, survive strict scrutiny, its interest in-in compelling him to speak has to survive strict scrutiny. Interestingly, Thomas says he's not going to decide whether the state's interest does survive strict scrutiny, but he does say that state's cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. And then finally, just before I finish, uh, Justices Ginsberg and Sotomayor filed a surprisingly short dissent in which they also focus on the commission's disparate treatment of Phillips, and the three bakers and, and believe that the three bakers shouldn't have been forced to bake the cake, but Phillips should have, and that the two justices, uh, also would not use the comments of one or two commissioners as sufficient evidence of a tainted adjudication for purposes of the free exercise clause.

Kim Colby:                           So I, just before I turn it over to Dale, I do think this is a very important ruling. The court is basically hit a reset button on sort of the disrespect for religious freedom that we've been seeing in the last five years, um, we've been seeing religious freedom denigrated as a bad thing rather than as perhaps the most important gift that America's given the world, the ability to live in a pluralistic society with our individual religious beliefs. And I think today's decision is a call for a pluralistic society in which all Americans have the right to live according to their de-deepest beliefs, values, and convictions. And I'll turn it over to you, Dale, with that.

Dale Carpenter:                Sure. Thank you very much. Uh, and I, I'll just say at the outset that I agree with, I think, most of what Kim said and, by way of description of the various opinions, probably up until the, up until the very end, and I may actually agree with much of what she said at the end about respect for religion, uh, coming out of this decision. I probably would put a slightly different cast on what happened, and, and I think the headline from, uh, today's decision is that the court avoided what everybody thought was the major showdown here, the showdown between, uh, general right of business owners to be able to object to, uh, certain kinds of services and goods providing certain kinds of services and goods, in this case a wedding cake for a same sex marriage, um, and the rights of those couples to be free from discrimination in open markets.

Dale Carpenter:                The court avoided that issue, which was an issue that I, uh, uh, wrote a brief about with Eugene Volokh on behalf of the two of us, and also the American Unity Fund, where we took the view that in fact this was not a case of compelled speech, that baking a cake is not an example of compelled speech, but that is not the issue, as Kim noted, that the court decided upon. What it decided was that the Colorado commission had targeted, um, this baker for a kind of animus. And what's interesting about that is, well, there's something uninteresting about that, and something interesting about that.

Dale Carpenter:                What's interesting about it is that that is the kind of decision which Justice Kennedy has given us in a series of opinions now over the past 20 years or so going back to Romer versus Evans, uh, and included United States versus Windsor, where he struck down the defense of marriage act, uh, in cases in which the result was, was uh, was pro gay, in the sense that it upheld the claims of the, uh, gay claimants. And here we have a decision, I think a narrow decision, a narrowly written decision in favor of the baker who objects, uh, to this marriage of a gay couple. So it's significant, I think, and interesting that Justice Kennedy has written this opinion.

Dale Carpenter:                What's uninteresting about the opinion is that it breaks no new doctrinal ground as best I can tell. I mean, I need to read it more closely and read the concurrences more closely, but at least on my initial read, um, there's nothing surprising in the conclusion that if the state targets religion for special disfavor or special mistreatment, uh, that that targeting is impermissible under the free exercise clause. Um, that's true even after the decision 30 years ago in Employment Division versus Smith, where the court held that generally applicable and otherwise neutral laws don't violate, uh, the Constitution simply because they burden the practice of someone's religion.

Dale Carpenter:                Uh, and it's true in light of the Lukumi decision also reaffirming the basic idea that government cannot target, uh, particular conduct because of its religious basis, or target it in a way that is not neutral towards religion. So there's nothing terrible new about that. It's just an application of that, of that principle at one level. There are, I think, some important things in this decision though, to take away. In a sense I take it good for this ride only, in the sense that you don't often have commissioners speaking out, perhaps, in the way that this commissioner did. Um, other commissions may defend the justifications for their decisions better than this particular commission did, and therefore won't fall within the specific factual boundaries of this case, so it's very fact bound in that sense.

Dale Carpenter:                But I do think there are some important nuggets from this decision that really each side can take away. And I would start, I think the headline for that is the concluding paragraph of the opinion where Justice Kennedy writes that "The outcome of cases like this in other circumstances must await further elaboration in the courts", and I would add in legislatures, "all in the context of recognizing that these disputes must be resolves with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." And I think, um, the, the, the respect for religious beliefs that comes out of this opinion is very clear. And I think Kim outlined that well.

Dale Carpenter:                But the respect for the dignity of gay people participating in open markets even when they encounter business persons with religious beliefs is also pretty clear in this, this decision. And I'm thinking especially of a, of a couple of passages, um, in the opinions section 2A, that starts section 2A, where the court says that we have, "Our society has recognized that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws in the Constitution can, and in some cases must, protect them in the exercises of, of exercise of their civil rights. That exercise of freedom must be given great weight and respect by the courts." A significant statement, I think, from the Supreme Court and from seven justices on the Supreme Court, and then if you add, of course, the two dissenters who would agree with it you've got a, basically a unanimous court saying that the ability of gay people to participate in markets on equal terms has to be given great weight and respect.

Dale Carpenter:                And here I think is the more important passage. After the court recognizes that some people have religious and philosophical objections to gay marriage, which is certainly true, the court says, "Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable accommodations law." And then the court cites a case from the era of racial discrimination, Newman versus Piggy Park Enterprises where it had been argued, that uh, a business owner did not have to serve people on the basis of their race because to do so would be interpreted as an endorsement of racial equality and integration. Uh, a very significant citation, I think, by the court.

Dale Carpenter:                So I think there's a bit here in this decision that both sides can take away. It seems like a very fact bound decision. And then the last thing I would say is that there's a hint in this opinion that when we do reach these larger, um, contests between, uh, the claims of business owners and the claims of gay people to dignity in the market, when we do reach those cases, um, those cases too are probably going to be very fact bound cases, so that the court suggests in the opening of the opinion that it would be one thing to deny a couple a cake if it contained words and images that had religious meaning, but it might be an entirely different thing at all to refuse them any kind of wedding cake, or any kind of cake celebrating their marriage. And with that I'll, uh, I'll leave it open to, I guess, uh, Kim if she wants to reply, or, uh, perhaps the questions.

Laura Flint:                          Kim, is there anything you'd like to add?

Kim Colby:                           No. I think it'd be good to go to questions.

Laura Flint:                          Let's go to audience questions. In a moment you'll hear a prompt indicating that the floor mode has been turned on. After that to request the floor enter star, then the pound key.

Laura Flint:                          When we get to your request, you will hear a prompt, and then you may ask your question. We will answer questions in the order in which they are received. Again, to ask a question please enter start, then the pound key on your telephone keypad. Let's go to our first question.

Bob Fitzpatrick:                 Hi, this is Bob Fitzpatrick in DC. Do I hear this correct, that seven justices say that two out of seven commissioners makes for what I'll call official action and adverse action, and the liberal two say that that ain't enough? Uh, am I ... I have not read the opinion, so, uh. I'm just curious.

Dale Carpenter:                Um, are we on for reply?

Laura Flint:                          Yes, go ahead.

Dale Carpenter:                Okay. Um, Kim can add to this. I think, uh, there were really two grounds, as Kim pointed out, for the decision. But the first one is the one that you suggest. There were some statements made during the proceedings of the Civil Rights Commission in which, uh, one of the commissioners said, I think quite equivocally, that business owners are going to have to compromise when they go into the open market. And actually the court recognized that that's a somewhat equivocal kind of statement. It's not an unambiguous statement of hostility toward religion. But there was a second statement by another commission member, one of the seven, who said that the views were despicable, the religious views were despicable, and it was a despicable basis for denying someone service, and compared it to denying, uh, to supporting slavery, and to arguments used for the Holocaust, and so forth.

Dale Carpenter:                I think that sort of inflammatory expression from the one, and then when you combine it with the other, uh, is what got the, the seven justices concerned. And then that was followed up by the fact, as the court noted, that nobody on the commission, despite the subsequent proceedings and the subsequent review, expressed any objection or any qualms or any rejection of, of that statement, particularly the most inflammatory one. And even the briefs for the commission before the Supreme Court did not disavow or distance themselves from those statements. I think that's what, that's part of what caused the court to be concerned.

Kim Colby:                           Yeah, I would, um, add to that that, um, I think this is somewhat responsive to your question, that, uh, Justice Kennedy notes that in Lukumi, which was back in 1993, he and Justice Stevens, uh, would have gone ahead and, uh, found additional evidence ... they found a free exercise violation in Lukumi by a municipality that had treated, had kind of targeted a religious group by its, um, animal, um, killing laws. Um, but in that case Kennedy had written the majority opinion, like he does here today. He had wanted to go ahead and say that part of the evidence for that was that this legislative body, um, had made, uh, numerous remarks about, that were anti this particular religious group.

Kim Colby:                           But only Stevens at the time, this was 25 years ago, was willing to join that portion of the, um, court's opinion, and actually Justice Scalia wrote some against it in his concurrence, the idea that you would look at what legislators say in deciding whether you have, um, discrimination. But here, uh, Justice Kennedy says, "In Masterpiece the remarks were made in a very different context by an adjudicatory body deciding a particular case." And so what he's doing, of course, is treating the commission as more like a judge than like a lawmaking body. And, and I think that's part of what really troubles him here, is this is, these are people sitting in judgment, collective judgment of Jack Phillips. And clearly at least two were not respectful of his religious beliefs.

Laura Flint:                          We have a number of questions lined up. So let's go to our next question.

Brendan Curry:                  Hi, yeah, Brendan Curry from [inaudible 00:28:54] here. Thanks for doing the call. I guess the both of you, and you've sort of hinted at this, but uh, there's two ways that you have to view this. One that the court ruled narrowly because it didn't have to, to make a broader statement and was just resolving this case based on the facts. Do you see it more that way? And, and, and that, um, I guess a more fulsome expression of religious, um, liberty to be handed down in, in the future, or is this an indication that the case came up that was more neutral, and there weren't statements from commissioners to the effect that were made in this case, uh, that, that the decision would go the other way, which would obviously limit the impact.

Kim Colby:                           You want me to start, Dale?

Dale Carpenter:                Sure.

Brendan Curry:                  E-e-either one of you. Whichever one.

Kim Colby:                           Well, it is a narrow decision, but it's, it's an absolutely, um, essential win for religious freedom, so um, in that sense it's very important. And I don't, I think essentially when you read the opinion you see the court leaves open pretty much every option, okay? So uh, next person who brings a case, or the cases below that are in process involving compelled speech still have a very, uh, viable claim. Um, and other free exercise types of claims are also viable. They may or may not win. We don't know. This one won because of the hostility that was shown. Um, but I think it's important to focus on the fact that the court didn't shut doors here. And um, and so I think that's really good news for religious freedom. It may not be the extremely broad decision that we were, um, uh, possibly hoping for, or many of us would write if we were a justice, but it is still a, a very important win for, uh, religious freedom and, and uh, and a pluralistic society. Dale?

Dale Carpenter:                Sure. I-I-I-I I mean, I mostly agree with that. I certainly agree that the Constitution requires neutral and respectful consideration of the views of people of faith in these contexts, and in every context for that matter, and the court reaffirms that principle. Now I think you could disagree on whether there was actually a departure from that neutral and respectful consideration in this case, but that principle seems like a bedrock principle. And to the extent the court's reaffirming that that's both good and unexceptional. I think the interesting question is what beyond that does this case say, and there I think I lean toward, um, the idea that this a truly minimalist opinion, but minimalist with hints.

Dale Carpenter:                Uh, hints both to the sort of ACLU side, which would say a business can never make a claim, um, for kind of exemption or a compelled speech claim in this, uh, public accommodations world, a hint to them that that's not going to be the case, that there are reasonable claims that can be made, and a hint to the religious freedom side, if we want to call it that, that you're not going to win every case, you can't erect a barrier to service to gay people simply because you do so on the grounds that you have a religious justification for doing so.

Dale Carpenter:                And I note another passage in this opinion. I think it's on page 12 of the, um, of the opinion. The court writes that, "If there were to a be a decision in favor of the baker, that would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying, quote, no goods or services will be sold if they will be used for gay marriages, unquote, something that would impose a serious stigma on gay persons." So the, the outer reaches of the religious freedom claim here I, I think are not going to be accepted, at least on the basis of this opinion, but the outer reaches of the ACLU's view, which is you can never make a claim in a public accommodations context, uh, that would be a good claim, is also not going to be successful.

Laura Flint:                          Let's go to our next question.

Victoria:                               Hi, my name is Victoria, and I'm a recent law school graduate. And what I found interesting about this case, it was, um, interesting in irony that the court used the, um, Obergefell case, the very case that established the legality of gay marriage, against a gay couple, because the case of course sought the balance between the liberty rights of marriage and the liberty rights of expression. And this was totally missed by Colorado. And it really speaks to the larger historical legal principles that interplay with this, these abstract con-concepts founded in the Constitution.

Victoria:                               And I, the only way I could figure out why this, as, as the professor had said, not really groundbreaking, is I think because it's a larger societal issue here because I grew up taught, um, in r-religious education, and unfortunately there is those that have not, and when a religious person makes an argument based on their sincere religious beliefs it is totally not understood by those who do not have that sort of background. And what I think what happens, what I have observed, is that then those people without the religious backgrounds sort of plug in that rejection into a construct that they do understand, which is the discrimination construct. And it's simply like two sides just, well one side not understanding the other side's argument at all, and I think, as one of the, um, speakers said, it just sets up these confrontations which aren't really necessary because it's really all about tolerance on both sides.

Victoria:                               And what I'm, my last point is that I was surprised that the court didn't mention the establishment clause at all here. Um, it was really, again, um, a, uh, a expression, um, a freedom of expression issue, because w-when I read the facts and especially the commission's, um, hostility and, and not being neutral towards religion, they were actually favoring one ideology over the other, and I thought that was an interesting point that was not ruled at all. Thank you.

Laura Flint:                          Do either of you have a reaction to that?

Dale Carpenter:                Not really. I'm not sure that I-I ... so just on the Obergefell point, um, I'm not sure that, um, it's the case that the court uses Obergefell against the same sex couple in this case. The Obergefell decision did not that people of faith have rights, and that they can assert views in the public square. This decision is certainly consistent with what the court said in that, in that respect. Um, and I think the basic idea that the court expressed in Obergefell was that we need to respect one another, and we need to do so in a civil way. Um, and uh, not exhibit the kind of hostility that the court at least thinks that the state of Colorado exhibited toward the baker in this case. So in that sense I don't see it as really a, a departure from Obergefell. Uh, if anything it's part of the Obergefell settlement.

Kim Colby:                           So I would, I think Victoria's made some really excellent points. And the one I would pick up on is I do think ... so this is a narrow decision, but I don't think that the Colorado commission, uh, is the only commission where the commissioners think the way that this, the two Colorado commissioners spoke. Um, unfortunately, uh, in a lot of sense, ways we've seen in the last five years, for example we saw the United States commission on civil rights issue a 306 page report that's basically a, a constant repeat of what these two commissioners said, which is that, and I'm quoting here from the chairman of the US Civil Rights Commission ... uh, he's no longer the chairman but he was in September 2016 when the report was released, "The phrases religious liberty and religious freedom will stand for nothing except hypocrisy so long as they remain codewords for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance."

Kim Colby:                           And, and that report had two dissenters, uh, [inaudible 00:38:33] and Harriett, but it had, I believe, six or seven commissioners who, uh, they distanced themselves from that particular paragraph but they bought into this idea that religious freedom has to give way whenever there's a challenge from someone else of their rights. So I do think, I do hope that this Masterpiece decision results in some, uh, sober reeducation of members of commissions in the States, and especially at the municipal level, but the state level as well, that they do have to respect religious people, and their beliefs. And there is a balance. There's not ... one side doesn't win every, every time, uh, every time there is a conflict.

Laura Flint:                          Let's go to our next question.

Dave:                                    This is Dave from Nevada. I'm more interested in, uh, part 2B where they talk about the other bakers. Maybe I'm, uh, focusing on that because the dissent, uh, spend so much time on it, but uh, he says that there has to be a principled rationale for not finding that the other bakers violated the ordinance or law at issue here. I was wondering if you could give me your thoughts on that?

Dale Carpenter:                Kim, do you want to start?

Kim Colby:                           Okay, I'll take it first. Well, um, some of that comes from the CLS brief, which you can find on our website. Uh, where basically, uh, the general idea is that the three bakers were allowed by the state of Colorado to turn away a message that they found offensive. And the state of Colorado understood why they found it offensive, and agreed with their finding it offensive, so they were off the hook, even though they were discriminating on the basis of religious creed, because it was a religious customer. Um, but Jack Phillips, um, is a baker who does not get to turn away a cake that offends his religious convictions. And that's the, um, problem that Justice Kennedy I think rightly honed into, is that basically the state was saying, "Yes, we agree with you three bakers that this is an offensive message and you shouldn't have to write it. Uh, Jack Phillips, we don't agree with you that this is an offensive message as you view a wedding cake for a ceremony that violates your religious beliefs."

Kim Colby:                           And so Kennedy is saying you have to have neutrality ... he keeps using that word neutrality ... and respect for the religious beliefs, even when you, the government, he's talking to the government, um, even when you disagree with those beliefs. And there's quite a bit which you're probably seeing if you're reading the concurrences and, um, the dissent ... there's quite a bit in the majority opinion as well as the, uh, Gorsuch, uh, and Thomas, uh, concurrences that draws on this idea that the government can't determine that some speech is offensive and some isn't, and draws on West Virginia V. Barnett and Matal V. Tam from last term, the trademark case, so um, you know, how there's, how Kennedy is seeing this is that the government is deciding what is and isn't offensive. That's basically what he's saying. Dale?

Dale Carpenter:                Yeah, I, yes. No, I think that's right. Justice Kennedy says you can't, uh, the government can't make that determination and then uphold the rights of one but deny the rights of the other, and that was an example of the way in which there had been this ... I think I agree with that, I agree with that point. The interesting exchange, I think, in this decision on that point comes between Justices Kagan and Gorsuch in their concurring opinion. So these are two of the justices who made up the majority, and they each have a justice joining them. Breyer joins Kagan, and I think Alito joins Gorsuch.

Dale Carpenter:                And their exchange in the concurring opinions is the one that I would turn, turn you to if you're interested in this kind of sub issue. And that is an attempt to answer the question, "Okay, the government couldn't come up, didn't have an adequate justification for distinguishing the three anti gay baker requests, or request to, um, uh, uh make three anti gay cakes from the Phillips decision not to bake a cake for the gay couple." Offensiveness wouldn't work, but could the government come up with something? Could the government come up with a rationale for distinguishing the anti gay cakes from the same sex marriage cakes? Um, and Kagan's answer to that is yes, it's obvious. There's an obvious answer to that, which is to say, um, that in denying the three cakes, um, uh, um, the anti gay cakes, the ones that denigrated gay people and then also denigrated same sex marriage, uh, the bakers were not singling out the customer because of his religion. In fact, they would have treated anyone who made that request in exactly the same way.

Dale Carpenter:                And the, so the Colorado law does not require bakers to print any and all messages. It simply requires them not to discriminate on a prohibited basis. Um, and so there's no discrimination at the outset. So there can be no claim that they can be required to bake the anti gay cake or place the anti gay messages on them. Now the Gorsuch response, which I think Kim finds, uh, very persuasive, I think she indicated earlier, um, is basically, well, in this case Gorsuch would not have, uh, provided a cake to a same sex wedding regardless of the sexual orientation of the people who requested the cake. So he never violated, uh, the baker in this case never violated the Colorado law either. And so he is really being treated differently. Um, and that's where I think the real disagreement comes on that sub issue in the case.

Laura Flint:                          Let's go to our next audience question.

Mark:                                    Hey yeah, this is Mark from Colorado. Um, thanks for your, uh, great thoughtful analysis. Um, I have a question and maybe this overlaps a little bit with the last question that was asked, and that is, um, the court cites two reasons for finding. The first one is hostility towards religion by the, um, by the Colorado Civil Rights Commission. One, that there statements made to that effect, that this was just a subterfuge for some kind of animus towards, uh, gay people. And two, that the, the distinguishing between, um, uh, the treatment of the people who turned down the message, the anti gay message versus the bake shop. My question is, if only that second piece of evidence had been in the record, in other words if the Colorado Civil Rights Commission had been completely humane and dignified and respectful of, um, the uh, cake shop owner's religious rights, do you think this decision would've been decided the same way?

Dale Carpenter:                Well that, I mean, so I don't know the answer to that question, and I think I'd have to do a much closer reading of this opinion to find out if these look like they're completely independent basis, or if the court was using the totality of them. Maybe Kim has a, has a closer reading. As I see the court, um, it's, it's using these things cumulatively, but it could be that either one of them independently would have gotten you there. Certainly the first one, the comments that the court took to be malignant or, um, some, evidence of some kind of animus probably would have been enough on their own. I don't know about, though, the rationale. I don't know whether the rationale would've been enough all by itself to get you there. I'm going to have to go back and read the case a little more closely.

Kim Colby:                           So I'll, uh, I'll look at it a little more broadly, because I do think, and I've already said this but I'll just reiterate it, that um, that the court left a lot of doors open. So if there had been perfectly respectful treatment of Jack Phillips by the commission, would the decision have come out against Phillips? I don't think we can say that. I don't think that's, that's like ... I-I personally think it would not. It would, it would be up to Justice Kennedy obviously, but um, I think the compelled speech argument, there was a strong compelled speech argument that was made to the court. And a lot of the argument was centered on the compelled speech argument.

Kim Colby:                           So I, I, you can't say that it's only because of the remarks of the commissioners or because of the other three bakers that the case came out the way it did. And one reason I would kind of put this case in context is the court decided unanimously in 2012 a case that involved the application of a federal law, the EEOC, uh, came in on a discrimination case against a religious school that had fired a teacher that the government had said had fired her in violation of the Americans with Disabilities Act. And so that's a major federal nondiscrimination law.

Kim Colby:                           And the court unanimously held that under the free exercise and establishment clause portions of the First Amendment that a religious school and church have a right to determine who their ministers will be, including teachers in this particular school's case. And just quickly I wanted to read the last paragraph of that unanimous decision. Uh, "The interest of society and the enforcement of employment discrimination statues is undoubtedly important, but so to is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way."

Kim Colby:                           Um, and, and surely that was a very compelling case, but the government argued that they had a right to intervene in the church's decisions there. It was that there was no free exercise right to protect at all, which Justice Kagan found remarkable. But still I think we have to look at this case also in the context of, of the Hosanna Tabor case, which is that there have, there's been another time when the court has said that nondiscrimination laws, uh, give way to exercise claims, or in Hurley and [Dale 00:50:10], uh, to free speech claims.

Dale Carpenter:                Um, yes. And I'm glad actually Kim reminds me when she raises the issue of the ministerial, um, exception, or exemption, that the court actually addressed that issue even in this Masterpiece case, where it said at least when it comes to weddings we can assume that a member of the clergy who objects to a gay marriage could not be compelled to perform that ceremony without a violation of their free exercise of reli-religion, that's well within our constitutional tradition, and well understood. Um, not surprising.

Dale Carpenter:                But then the court adds this. Yet if that exception ... and here we're talking about providing services for marriages ... if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons. Thus resulting in a community wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

Dale Carpenter:                So when we're talking about the ministerial capacity in which someone acts, that's extremely important to our constitutional order, and clearly pastors aren't required to perform ceremonies to which they object. But when we're extending that well beyond that context to businesses that provide goods and services, the court is very concerned that states be able to ensure that people have access in the public accommodations context. And that's straight out of this opinion.

Laura Flint:                          We still have a number of questions left, so let's go to the next one. Questioners, try to keep your questions brief.

Bob Davis:                           Thank you. This is Bob Davis in Maine. Did the court take cognizance at all of the fact that the baker was quite willing to sell them anything that was in the store available to the general public, but refused to create something that was contrary to his religious beliefs? And if they did not address that, could each of you address that? Might that prove significant in future cases?

Dale Carpenter:                Um, I believe the court did note that in the recitation of the facts, that the baker said he was willing to provide them with, um, other kinds of baked goods. Um, I think they also noted that there was at least an allegation in the case that he said also that he would not provide cupcakes to a lesbian couple, even ones that were not specially designed. I don't think that was part of the official record in the case, but the court did note that in its recitation of the facts as well.

Laura Flint:                          Kim, do you have anything to add?

Kim Colby:                           No, no. What Dale says is correct.

Laura Flint:                          Let's go to the next question.

Kenneth Jones:                 Hi, this is Kenneth Jones with Supreme Court Yearbook. I have a question, uh, about whether the constitutional rule announced today against impermissible hostility against sincerely held religious beliefs would apply to the president of the United States in issuing an executive order on immigration?

Kim Colby:                           I'll take a first stab at that, if you want. I'll be interested to say what Dale has to say. So that, um, comment that I read to, in response to an earlier question about, uh, Kennedy distinguishing the Lukumi city council lawmaker's remarks that wouldn't be taken into account from, uh, the fact that the commission was an adjudicatory body ... I-I did, the thought crossed my mind, is this kind of a preview of, uh, Trump V. Hawaii, um, and is it going to be that, um, you know, the president's not acting in an adjudicatory capacity? Or perhaps, you know, the uh, the executive branch is. Uh, it's a good question, and I, I can't read the tea leaves from ... you could go either way with this decision.

Dale Carpenter:                Yeah, I, I don't have anything to add to that.

Laura Flint:                          Let's go to our next question.

Chris Garvey:                     Hi, this is Chris Garvey. I'm the libertarian candidate for attorney general in New York, and one of my ancestors back in the 1600s fled Rhode Island in a snowstorm because he was arguing too strenuously that, uh, people shouldn't be forced to be Puritans. Um, and he founded Rhode Island. But it seems to me that in 1964 when they passed the Civil Rights Act to remedy the required discrimination of Jim Crow laws, a simple solution would've been just to stop all the Jim Crow laws from enforcing discrimination, uh, and then the market would have fixed things because those who decided to discriminate against groups of people would lose money.

Chris Garvey:                     Um, but instead they went much farther and started to compel people to do things that they might not want to do with their own time and creativity, in this case. So I'm just wondering, I, I don't see a quick reversal of that, or perhaps any reversal of that at any time, but uh, I wonder what you folks think about, um, going back to the, that simple remedy that would have, perhaps, fixed the entire discrimination problem?

Dale Carpenter:                Well, um, I, Kim will undoubtedly have something to add to this, but I'll just say that, um, I consider myself a sort of libertarian leaning conservative, but I myself am doubtful that in all places at all times the market would have corrected, um, in anything like an adequate amount of time, at least, the amount of pervasive, persistent, and insistent racial discrimination that was occurring in the United States up to and after, even, the 1960s. So I, I myself wouldn't, uh, go back to that, that time now, and I wouldn't necessarily just trust the market to correct all of the injustices.

Dale Carpenter:                Now I think that the case that, uh, that, that needs to be made and can be made, um, is a, is a different one for sexual orientation and gender identity, and maybe some other classifications. Um, I think it can be made, but it needs to be made. And I think legislation along those lines could strike the right balance, the kind of balance that the court talked about today. But at least in terms of race I am absolutely certain that, for myself, that I wouldn't go back to simple, um, rule that said, um, people can be subjected even to private discrimination in goods and services based on their race.

Kim Colby:                           Um, I would agree with Dale. I would not have trusted the market forces to undo the Jim Crow laws and the segregation that was, uh, rampant. Um, but I also do think that that is one distinction, uh, between race and most other protected classes in nondiscrimination laws. And so in this case, for example, the market forces are very much in favor of, uh, providing cakes to same sex couples, and um, any services they want. Um, and it's, it's, the religious dissenters, uh, who aren't willing to, uh, put their economic best interest ahead of their religious convictions, are, are fairly few.

Kim Colby:                           And I think, um, uh, that is going to be the answer here, is that we, going forward we're going to see that actually if we want a pluralistic society in which everyone gets to live according to the deepest values and beliefs and convictions then we're going to have to protect the religious dissenters in some of the situations that are covered by nondiscrimination laws, such as occurred here today. Um, and that the market forces actually are doing a pretty good job of, um, making sure that everyone gets the services they needed. But there is, there's a difference between race and the other types of classes that are protected, and we can look to how the market's doing as a consideration in, in uh, in individual cases as to whether we punish a religious dissenter or we allow them, uh, to live according to their beliefs, and ask the customer to go to one of, you know, in this case I think there were 60 other bakeries.

Laura Flint:                          Um, looks like we're up on the hour. Do either of you have time for a few more questions?

Kim Colby:                           I do.

Dale Carpenter:                I've got a little time, sure.

Laura Flint:                          Okay, great. Let's go to our next caller.

Carlton:                                Hey, this is Carlton Crutchfield, uh, calling from Minnesota. I have three part, uh, three questions ... two questions, really. The first one with two parts. I'll preface my questions by saying I haven't read the opinion. But I'd like to know if you could help us understand, um, why the court sidestepped the compelled speech argument, if you could speculate on that? And then, and then sort of connected to that is the question, do you detected any hints in the majority opinion or in any of the concurring opinions in how, how the justices are going to view that compelled speech ar-argument, um, and when it does come in, in the cases that are on the pipeline. And then the third question is about the, the questions, the, the point that professor Carpenter raised about um, confining, um, the, the decision to, um, to certain individuals. For example, confining this, this freedom, um, uh, to ministers, uh, for example, as opposed to public ser-, other public service providers.

Carlton:                                And I would argue to some extent that marriage service is a public service. Um, um, and I would wonder if, if that's, how, how would we pick and choose that, and, and why? Especially if you want to give the provider a marriage service of itself, the minister for example, um, that is access to marriage itself. And if you, if you allow that to occur then are you actually foreclosing, to some extent, access to marriage? Um, so I, I just find it interesting that that would be allowed, but uh, other public service providers, I know, there's a different standard that might apply to them, and aren't they all, shouldn't they all be, be able to avail themselves of the same standard?

Dale Carpenter:                Uh, well, uh, let's see. On your first question, why did the court avoid the large constitutional questions, um, that most of the briefs largely address themselves to, including the one that I filed in the case, um, why did it do that? I, you know, it would just be speculation. My, you know, you, you, I'm sure you couldn't have gotten seven votes, um, on one of those larger issues. I think in general the court prefers to issue decisions, especially in the era of Chief Justice Roberts, I think the court probably prefers to issue minimalist decisions, the decisions that can be, can get the most agreement on the narrowest issue, and this appeared to be, uh, that issue.

Dale Carpenter:                Um, Chief Justice Roberts may have wanted to avoid, uh, the kind of narrow five to four cataclysm for one side that, um, a larger decision would have produced, but again, that's just speculation on my part. Um, why are ministers special? They've been special in our constitutional tradition for a very long time, as people who communicate religious beliefs in a way that is special, in a way that is uniquely important. Um, and uh, a society that values the free exercise of religion isn't going to say that, probably isn't going to say that people who have religious beliefs get an exemption from any law that they object to, but if it's going to say they have any exemptions it would surely say that those objections are most compelling in cases where, uh, the people entrusted with communicating religious beliefs have a, a degree of protection from government compulsion.

Kim Colby:                           So I would agree that they did not do the compelled speech because they went for the narrower grounds, and that they left the compelled speech argument open for another day. Um, on the second point I think it's kind of illustrative of one of the problems in oral argument for the state and the ACLU, who were arguing on behalf of the same sex couple. They took basically the broadest possible argument that they could make, and so they, they made two, uh, just relevant to this question the briefing was all about how, um, the state of Colorado could, should win because it was in the public accommodations sphere it was a business, it was not a not for profit. But in oral argument Chief Justice Roberts and Justice Alito asked the state and ACLU, uh, questions about how it would apply if it had been a religious college or a Catholic legal aid society.

Kim Colby:                           And rather than say, "Oh, it doesn't apply to nonprofits. Nonprofits are different." They, they just answered, uh, that basically those would be harder issues but they might lose too. And then in a question from Justice Ginsberg, uh, she asked whether, uh, uh, a baker could be required to write words on a cake saying "God bless this union of" ... uh, uh, uh, I think it was Charlie and David was the couple's name ... if the baker would write, "God bless the union of Marty and Ruth." And the ACLU attorney said yes, a baker could be compelled to write those words if he would write them for someone else.

Kim Colby:                           And I think, uh, we just saw that, that the lines that in the briefing the state claimed it would observe and respect religious nonprofits and respect not compelling speech, those lines disappeared in oral argument. And I think that hurt the state, and um, and the ACLU's argument.

Laura Flint:                          Looks like we have two questions left. Let's go to both of those quickly.

Chris:                                     Hi, this is Chris [inaudible 01:05:31] from Virginia Beach. Uh, I was just wondering if either of you have any concerns for, that perhaps this very narrowing tailored opinion, uh, leaves the door open for the state to regulate speech on religious grounds as long as they do it even handedly. It seems to be that, uh, the justices gave Colorado an out by saying, if you would equally discriminated against people with religious motivations, uh, then that's okay. And I would've liked to have seen an opinion that I guess has told the state they couldn't discriminate, or couldn't, uh, silence religious, uh, speech in any way.

Dale Carpenter:                Well, I mean the, the ... so my reaction would be is that the, on its face the public accommodations law in Colorado is a regulation of conduct, that is, it is a requirement that you provide services and goods if you're a public accommodation, to individuals without discrimination on the basis of certain characteristics or traits or membership in certain, um, classes, or on the basis of certain classifications. Um, so it's not directly, at least, on its face a regulation of speech.

Dale Carpenter:                Now in application it could sometimes result in the indirect regulation of expressive activities, and I think that's when the questions arise, but typically the court says that in cases where the government is regulating conduct that may have an expressive component, the regulation is not constitutionally subject unless it is directed at speech in some way, or it's directed at the content or the viewpoint of the expression, or of the expressive conduct. And in this case it is not that. The court has repeatedly said that anti discrimination law is not directed at content or viewpoint of speech. So we don't ordinarily run into problems with the First Amendment when we're talking about public accommodations laws. Those laws have repeatedly been upheld.

Dale Carpenter:                And I think the court was pretty, as clear as it could be about something like this in its opinion today, that it is not going to allow an out from anti discrimination laws simply because someone rejects on religious grounds to complying with that public accommodations law. It's a different case, I think, in my view, and this is not a view that is shared universally among people who consider themselves LGBT advocates, but it's a different case when you have a, a service that is inherently expressive, um, in ways that have been recognized by the court where the law would actually compel, uh, the production of expression even through an an otherwise neutrally general, neutrally applicable law.

Dale Carpenter:                And that's something that we go into in some detail in our brief in the case. Uh, but that's a sort of exceptional case when it comes to public accommodations law. It's not the general rule.

Kim Colby:                           I'd just say that yes, I'd like a much broader decision, but I'm very happy with this decision, because often, um, it is possible to find secular conduct that the government is allowing while it's somehow punishing or penalizing the religious conduct. And that's what Lukumi is about. Um, that's what this decision is about. So um, it's not as hard as it might seem to find like conduct that's being treated disparately, and this decision says, uh, religious conduct can't be, uh, considered less legitimate than secular conduct.

Laura Flint:                          Well, it's already 10 past the hour. Dale, I know you need to head out soon. So feel free to do so. Kim, do you have time for the last question?

Kim Colby:                           Sure.

Laura Flint:                          Great. Let's go to this next caller.

Eddy Grime:                       This is Eddy Grime in Missouri. Following up on the last couple of questions here, um, eventually it looks like we will get a, an expressive conduct or a speech application of this, and we won't have a, sort of an easy slam dunk, um, religious discrimination issue. And so we'd have to go to kind of what Justice Thomas outlined in his concurrence. Question is, um, you know, where is, where do you think Justice Alito and the Chief Justice would be in all this? Justice Alito didn't join either of the concurrences. They kind of come out on the, you know, with Justice Gorsuch. I just wonder what your thought was, and if you thought that through.

Eddy Grime:                       This probably would be a good question for Mr. Carpenter. I know he's gone, but what do you think about, uh, those two justices the next time we have a speech application come up?

Kim Colby:                           Okay.

Dale Carpenter:                Well, actually I am, I am still here.

Eddy Grime:                       Oh.

Kim Colby:                           Go ahead, Dale.

Dale Carpenter:                And that's a, that's a great question. Actually, I think we know where, we know where Justice Gorsuch, uh, would stand, because he joined Justice Thomas' concurrence. I think he's quite favorable in general to the speech arguments, um, uh, the compelled speech arguments that were made in this case by the ADF on behalf of the baker, and by others on behalf of the baker in this case. Um, Alito I, I'm not, uh, I'm not sure about I ... it's curious that he didn't sign onto Justice Thomas' opinion. He did sign onto Justice Gorsuch's own separate opinion responding on the question of the disparate treatment of the Colorado standard. Uh, but he didn't sign onto the speech opinion on ... I'm not sure.

Dale Carpenter:                He's taken a, um, sometimes a, a, a narrower, I would say narrower view of, of, uh, the expansiveness of speech claims than I would take, at least in some circumstances ... a less libertarian view than I would take. I'm not sure if he would do so in this case. So that I think is still, uh, open to question. And the Chief Justice, I think the Chief Justice I think is a very careful jurist. And I think that he would ... I think he would probably be wary of signing onto a very broad, compelled speech case challenge to a public accommodations law. Um, he might be willing to parse cases based on the facts, and I think there's a suggestion, a suggestion in Justice Kennedy's opinion that that's exactly where Kennedy would come out, that those cases, just like this case in some way, in some ways, will depend very much on the facts.

Dale Carpenter:                If you simply deny someone a cake just because it's going to be used for a wedding, that's probably not a good, um, speech, compelled speech claim. On the other hand, if you say, "I'll provide you a cake for your wedding but I'm not going to write, uh, pro gay marriage messages or place symbols that suggest support for same sex marriage" that might be, they might be more favorable to that claim. I, I, I think a more nuanced decision might come from someone like Roberts in the future. And of course the real, um, the really interesting question coming up is what is going to happen at the end of this term?

Dale Carpenter:                Um, is Justice Kennedy going to stay on the court? Um, or is he going to leave, allowing President Trump to replace him, uh, with someone who might be more, uh, sympathetic to the views that Justice Thomas and Justice, uh, Gorsuch took on the speech issue?

Kim Colby:                           Um, I just would add to what Dale just said. I have pretty complete confidence that Chief Justice Roberts, and uh, Justice Alito, if they were presented with a compelled speech case in this context, and there are some in the lower courts rumbling around, tee shirts that a printer objected to printing, and wedding invitations, um, uh, that I think they would come alongside the, the compelled speech argument. I don't think that we can read this opinion as saying that they don't. And as, as uh, Dale pointed out we have the end of the term to come yet, and we do have two compelled speech cases still to be announced. One is the Janus compulsory union dues case, and one is, uh, the pregnancy resource case, the NIFLA case.

Kim Colby:                           I think in a couple of weeks we'll have a better understanding where the Chief and Justice Alito are on compelled speech, and maybe that's why they held back a bit, because they've written in those cases explaining their views more expansively. That's just a guess.

Laura Flint:                          On behalf of the Federalist Society I want to thank our experts for the benefit of their valuable time and expertise today, and especially for staying a little late to answer all the questions. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

Speaker 16:                         Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society's website at