Alliance Defending Freedom senior counsel David Cortman and American Civil Liberties Union attorney Ria Tabacco Mar faced off earlier this week in a mock Supreme Court debate previewing the case of Colorado Christian baker Jack Phillips of Masterpiece Cakeshop who refused to bake a cake for a same-sex wedding ceremony.
Phillips informed Charlie Craig and David Mullins in 2012 that he wouldn’t make a cake for their same-sex wedding due to his religious beliefs. They complained to the Colorado Civil Rights Commission who agreed that Phillips was violating the state’s anti-discrimination law. The Supreme Court agreed to hear the case in June.
Phillips is arguing that the Colorado ruling violates the Free Speech and Free Exercise Clauses of the First Amendment. He argues that, as an artist, he cannot be forced to make a cake in opposition to his views.
The debate, hosted at the Newseum in D.C., centered, for Cortman, around Phillips’ custom cakes being an expression of his free speech which the government cannot compel.
Mar argued that whether or not the cake was speech was irrelevant, focusing instead on the principal of non-discrimination for products made available to the public.
"I don't think it matters whether or not we think of the cake as speech,” Mar argued. “What we do is we look at the anti-discrimination act and we say, 'Is this a law that is targeting speech or expression or is instead a law that is regulating something else?' In this case, it is commercial conduct when you are involved in sales to the general public."
"It doesn't matter what the substance is or the product that is sold,” she emphasized. “It could be books, it could be newspapers, it could be fine art, any of those things. If you choose to make it available to the public at large, you can't discriminate based on those characteristics that have been enumerated."
Mar concluded that since Phillips offers custom wedding cakes to the general public the government can regulate that he cannot refuse to make them for a same-sex wedding.
"That's an incredible concession,” Cortman said. “What she basically just argued before this court that, even if it is speech, that the government can compel it."
"There is no case from this court that has ever held in any context — even the non-discrimination laws, even accommodation laws — that the government can compel speech," he emphasized. "In fact, there are half-a-dozen cases or more where the Supreme Court has held that if you compel speech, even if it is to a neutral law like this, that it strikes at the heart of the First Amendment."
Cortman also stressed the distinction between discriminating against somebody for their sexuality and objecting to same-sex marriage.
Mar argued that “the Supreme Court has already rejected that as a distinction.” She cited Lawrence v. Texas where “it struck down bans on sodomy and said this is nothing more than something that is directed towards gay persons as a class, it’s a ban on conduct but let’s face it only gay people engage it or pretty much.”
Cortman responded by pointing out that the Supreme Court recognized in another case that “an objection to abortion is not an objection to the class of women even though women are the only ones who have abortions.”
“The Court recognized that it’s not animus against the class, it’s a separate objection to abortion,” he said. “We have the same exact scenario here. It’s not an objection to sexual orientation because if it was, by definition, he [Phillips] would not serve the person.”
Earlier Cortman had pointed out that Phillips was perfectly willing to sell other items in his shop to the same-sex couple, it was just the custom cake celebrating the same-sex marriage that he objected to making.
The actual oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission will take place on December 5th and are highly anticipated by religious freedom advocates and progressives.