The Colorado Civil Rights Commission's order to a baker to use his artistry to celebrate homosexual unions in violation of his Christian beliefs is under challenge, in part, because a commissioner likened Christians to slavers and Nazis.
"The commission's impartiality is in serious question," said a brief filed by a legal team with the Alliance Defending Freedom on behalf of Jack Phillips of Masterpiece Cakeshop.
Phillips appealed the commission's decision to uphold an administrative law judge's ruling against him. He was ordered to retrain himself and his staff to comply with the wishes of same-sex duos and report on his progress to the state.
"In its public deliberations, its members virtually ignored Phillips's constitution defenses. And at a later hearing on Phillips's motion to stay its order, one committee member candidly explained why," the brief explains.
The commission member was Diann Rice.
"I would also like to reiterate what we said in the hearing or the last meeting," Rice said. "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others."
Hear a recording of Rice's statement:
Continued ADF in its appeal brief to the Colorado Court of Appeals: "Such alarming bias and animus toward Phillips's religious beliefs, and toward religion in general, has no place in civil society. At least one commission member holds such beliefs. And her comment suggests that other members of the commission may share her view that people who believe marriage is only between a man and a woman are comparable to those who committed the Holocaust. This anti-religious bias undermines the integrity of the commission's process and final order.
"Moreover, such religious hostility is barred by the Free Exercise Clause and raises a serious question of whether the commission's analysis would have differed if Phillips's faith had not been the reason for the denial," the brief continues.
"Such alarming bias and hostility toward Jack’s religious beliefs – and toward religion in general – has no place in civil society, let alone on a governmental commission that sits in judgment of whether he may follow his faith in how he runs his business," said ADF Senior Legal Counsel Jeremy Tedesco. "Commissioner Rice compared a private citizen who owns a small bakery to slaveholders and Holocaust perpetrators merely for asking that the state respect his right to free speech and free exercise of religion. Her comments suggest that others on the commission may share her view."
WND messages left with the state agency seeking comment from the agency or from Rice were not returned.
During the same hearing, ADF reported, Rice also erroneously stated "the U.S. Supreme Court has found over and over that you cannot discriminate on the basis of race, and sexual orientation is a status absolutely like race."
ADF noted the U.S. Supreme Court has never found that sexual orientation is a status equivalent to race. In fact, the high court has twice held that the First Amendment bars the government from relying on sexual orientation nondiscrimination laws to force people or groups to speak messages with which they disagree.
"The First Amendment plainly forbids this type of religious bias, which together with the commission’s demonstrated misstatements of constitutional law raises serious questions about their judgment," added lead counsel Nicolle Martin, one of thousands of attorneys allied with ADF. "Jack should not be forced by the government – or by another citizen – to endorse or promote ideas with which he disagrees. But it's worse when he is forced to do so by one or more officials who make serious errors in their legal analysis and justify coercing the speech of a private citizen by citing their own hostility to religion."
The brief asks the appeals court to reverse the agency's order and "remand with instructions to grant respondents' cross motion for summary judgment, deny the government's and complainants' motion for summary judgment, enter declaratory judgment in respondents' favor, and vacate the [administrative law judge's] initial decision."
The state ruled against Phillips, who has run Masterpiece Cakeshop for more than two decades, after two homosexuals complained he would not make them a wedding cake.
"Phillips has dedicated his life's work to honoring his God. As a devout follower of Jesus, Phillips cannot use his gifts and artistic talents to create cakes that express messages contrary to his religious convictions. This is why Phillips will not create cakes celebrating same-sex unions, Halloween, or any other event that violates his conscience."
But there was no discrimination based on the sexual orientation of the duo, the brief explains.
"Phillips politely declined to design and create a cake celebrating complainants' same-sex wedding but assured complainants that he would design and create any other bakery product for them. Phillips did not make ugly comments, question the morality of complainants' decision to marry or utter any comment that evinced animus toward complainants," the brief states.
"The commission's final agency order compelling Phillips to make same-sex wedding cakes forces him to abandon his life's work or violate his conscience and celebrate same-sex weddings in order to make a living. This is no choice at all but a shameful and hostile use of the public accommodation statute that this court should condemn."
The brief argues that under Colorado law, the discrimination must be "because of" someone's sexual orientation. But Phillips' decision was based on the message, which violated his religious beliefs.
"Phillips did not decline to design and create complainants' wedding cake because of their sexual orientation, but because of the message about same-sex marriage they wished to convey, which is deeply at odds with his religious beliefs," the brief explains. "Phillips does not object to, nor does he refuse to serve, homosexuals."
It also contends the commission "wrongly presumed" Phillips had an intent to discriminate by ignoring "undisputed facts" in opposition to court precedent on the issue.
The Colorado agency also violates the compelled speech doctrine and the Colorado Constitution, the brief asserts.
"The First Amendment thus applies here because the items that the commission's order would require Phillips to design and create – wedding cakes – are inherently expressive. Freedom from government coercion is the hallmark of citizenship. The constitutional right to free speech extends beyond the spoken or written word. Indeed, for more than three-quarters of a century, symbolic speech has been protected under the First Amendment.
"What is more, the ALJ had to acknowledge that cakes are expressive when confronted with the government forcing a hypothetical black or Jewish cake artist to create a cake celebrating the Aryan Nations Church or a homosexual baker to design a cake celebrating the Westboro Baptist Church. The ALJ recognized that such 'explicit, unmistakable, offensive message[s] … give rise to the bakers' free speech right to refuse,'" the lawyers said.
"Plainly, the same is true here. Indeed, the only difference is a value judgment made by the ALJ. Such value judgments on speech have no place in a free society."
The attorneys noted that the complainants' admitted they wanted to impose their beliefs on Phillips when they said: "We're not trying to shut down Masterpiece Cake Shop. We want Masterpiece Cake Shop's policy toward gay weddings to change."
"In other w0rds, complainants seek to force Phillips to adopt their message about same-sex weddings. But this command by the government runs afoul of the First Amendment," they argue.
Colorado's ruling also violates the Free Exercise Clause of the First Amendment, the brief charges.
State officials had ordered Phillips to not only create same-sex wedding cakes in violation of his faith but to "re-educate" himself and his staff.
The case was launched by a complaint from Charlie Craig and David Mullins.
Spencer was wrong, ADF contended, because "the ALJ's recommendation that respondents '[c]ease and desist from discriminating against complainants and other same-sex couples by refusing to sell them wedding cakes or any other product respondents would provide to heterosexual couples' is overbroad and exceeds the scope of relief authorized [under state law]."
"Each one denied us service, and even used deviant insults and obscenities against us," he said.
"One baker even said that she would make me a cookie with a large phallus on it just to insult us because we are Christian. We recorded all of this in a video that will stun the American people as to how militant and intolerant the homosexual bakers were," said Shoebat.
Shoebat said that after the experiment, he received "a ton of hate messages saying that we were 'hateful' for simply giving them a taste of their own medicine."
See the video reports (Be forewarned of profane, objectionable speech):