The nine justices on the U.S. Supreme Court now have in hand the arguments over whether Colorado can create a state requirement that overrules First Amendment rights.
It's the Jack Phillips' Masterpiece Cakeshop case in which a baker was sued by the state Civil Rights Commission after two homosexuals demanded he use his artistry to create a wedding cake for them, even though same-sex marriage was not legal in the state at the time.
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LGBT activists have portrayed the case as a dispute over being treated equally in public accommodations. In oral arguments Tuesday at the Supreme Court, justices heard that state "fairness" agendas can trump the U.S. Constitution.
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Reuters reported the arguments also focused on Phillips' free-speech claim.
"Several of the justices asked questions that suggested they are concerned about how far a ruling in favor of the baker might extend. Liberal Justice Elena Kagan wondered about whether a hairstylist, chef or a makeup artist could refuse service, claiming their services are also speech protected by the Constitution," the report said.
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"Why is there no speech in creating a wonderful hairdo?" Associate Justice Elena Kagan asked.
Associate Justice Anthony Kennedy commented on the implications of the decision for religious liberty.
Other critics of Colorado's actions have done the same, previously warning that if the homosexuals are supported by the ultimate court ruling, Muslim bakers could be forced to promote Jewish holidays and black bakers to promote a KKK message.
The homosexuals, Charlie Craig and David Mullins, base their complaint on state requirements for fairness in businesses. They claim that the state can force businesses to carry any message a customer wants.
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The Alliance Defending Freedom, which is defending Phillips, however, has pointed out in its arguments that the same Colorado commission that is punishing Phillips exonerated three other "cake artists who refused to express religious messages" with which they disagreed. Those rejected messages were all Christian messages.
"Had the commission applied the same rationale to those artists that it applied to Phillips, it would have punished them too. After all, [the law] forbids refusing service because of religious beliefs, and those cake artists admitted that they declined the requests because of the religious beliefs expressed on the cakes," the organization said in its brief.
Kennedy is believed to hold the swing vote. He's been conservative on some issues, such as free speech, and radically liberal on others, such as same-sex marriage.
He asked lawyers arguing before him Tuesday if Phillips, if he wins the case, could post a sign stating that cakes for gay weddings were not available. He was told yes.
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He "looked troubled," the New York Times reported.
However, he also pointed out that the Colorado commission was "neither … tolerant nor respectful of Mr. Phillips' religious beliefs."
In fact, the state commission's antagonism to Christian beliefs became evident at the outset of the case, when one member, Diann Rice, publicly exhibited bias against Phillips during a hearing, comparing him to a Nazi.
"I would also like to reiterate what we said in the hearing or the last meeting," Rice said during consideration of Phillips' case. "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:
The case is the sequel to the 2015 same-sex marriage decision in which the four dissenting justices opined that the ruling was unconnected to the Constitution.
Homosexuals claim allowing businesses to be operated by the faith of their owners undermines "equality."
But those same business owners say their right to practice their faith already is protected by the U.S. Constitution.
A number of similar lawsuits have been filed.
The issue already has been decided by the state courts in Kentucky, where the fight was over a T-shirt printer who declined to promote homosexuality.
The Lexington-Fayette Urban County Human Rights Commission sued the Lexington-based company Hands-On Originals.
Owner Blaine Adamson was accused of violating "fairness" rules.
But lower courts ruled that while Adamson was required to serve any customer, he was not required to promote any message.
The Kentucky Court of Appeals affirmed Fayette Circuit Judge James Ishmael's decision, stating, "Nothing in the fairness ordinance prohibits Hands-On Originals, a private business, from engaging in viewpoint or message censorship."
"Nothing of record demonstrates HOO, through Adamson, refused any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations it offered to everyone else because the individual in question had a specific sexual orientation or gender identity. Adamson testified he never learned of or asked about the sexual orientation or gender identity of Don Lowe, the only representative of GLSO with whom he spoke regarding the T-shirts.
"Don Lowe testified he never told Adamson anything regarding his sexual orientation or gender identity. The GLSO itself also has no sexual orientation or gender identity: it is a gender-neutral organization that functions as a support network and advocate for individuals who identify as gay, lesbian, bisexual, or transgendered," the court found.
"Also, nothing of record demonstrates HOO, through Adamson, refused any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations it offered to everyone else because the individual in question was engaging in an activity or conduct exclusively or predominantly by a protected class of people."
The ruling said: "The 'service' HOO offers is the promotion of messages. The 'conduct' HOO chose not to promote was pure speech. There is no contention that HOO is a public forum in addition to a public accommodation. Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship."
After the oral arguments Wednesday at the U.S. Supreme Court, Phillips released a statement.
"Though I serve everyone who comes into my shop, like many other creative professionals, I don't create custom designs for events or messages that conflict with my conscience. I don't create cakes that celebrate Halloween, promote sexual or anti-American themes, or disparage people, including individuals who identify as LGBT. For me, it's never about the person making the request. It's about the message the person wants the cake to communicate," he said.
"I am here at the Supreme Court today because I respectfully declined to create a custom cake that would celebrate a view of marriage in direct conflict with my faith's core teachings on marriage. I offered to sell the two gentlemen suing me anything else in my shop or to design a cake for them for another occasion.
"For that decision, which was guided by an established set of religious beliefs, I've endured a five-year court battle. It's been very hard on me and my family. There have been tears and many difficult days for us. We have faced death threats and harassment. I've had to stop creating the wedding art that I love, which means we've lost much of our business – so much so, that we are now struggling to pay our bills and keep the shop afloat.
"It’s hard to believe that the government is forcing me to choose between providing for my family and employees and violating my relationship with God. That is not freedom. That is not tolerance."
The homosexuals said they were "mortified" when they realized they could not force Phillips' to violate his faith and promote their lifestyle choice.
They won their fight at the state level, but at the Supreme Court, the issue is whether the First Amendment's protections for free speech and free exercise of religion can be overridden by a state regulation purporting to promote nondiscrimination.
The American Civil Liberties Union insisted a decision for the baker would let florists, photographers, tailors, choreographers, hair stylists and others live by their own faith.
There is another factor in the decision that affects not the plaintiffs but the court itself.
WND reported in 2015 shortly after the justices created same-sex marriage that James Dobson, the high-profile Christian commentator, author and broadcaster who concluded the dispute really isn't about marriage at all.
Fundamentally, he contends, it's a way to open up vast new avenues to attack Christianity.
Dobson, who founded the highly influential groups Family Research Council and Focus on the Family, and now runs Family Talk. charged in his monthly newsletter that the Supreme Court's Obergefell decision is "an expression of hostility toward people who take their Christianity seriously."
He says the decision by five justices, including two who effectively endorsed "same-sex marriage" while the case was pending, will prove disastrous for America.
His view was supported by the four dissenting justices, who warned that the decision had no connection to the U.S. Constitution and likely will be used to attack Christianity.
Dobson wrote: "We are convinced that this unconstitutional decision, issued by five unelected, unaccountable and imperious justices, will ultimately prove to be as catastrophic as Dred Scott v. Sanford in 1857 and Roe v. Wade in 1973. It will touch every dimension of culture."
He is referring to the decisions that said blacks were not fully human and that society has a right to kill unborn children for any reason.
"This court decision is not about same-sex marriage, except only tangentially. Many gay and lesbian groups have admitted that marriage has never been their primary objective. Instead, it is about everything else," he wrote at the time.
"What's at stake is the entire culture war."
Check out James Dobson's "When God Doesn't Make Sense" from the WND Superstore.
Dobson called the Obergefell decision an "expression of hostility toward people who take their Christianity seriously."
"As you probably know, certain groups and organizations hate us. It is about weakening the church of Jesus Christ and limiting what pastors and ministers can say and do publicly," he said. "It is about undermining the religious liberties of Christians that are guaranteed by the Constitution. It is about attacking Christian schools, Christian non-profit organizations such as Family Talk, and Christian businesses, hospitals, charities, and seminaries. It is about Christian colleges and universities, and about whom their leaders choose as professors and what their students will be taught. It’s about government funding and accreditation.
"It is all at risk. You'll see."
In a contemporaneous column, Ambassador Alan Keyes went even further, calling for "Americans still loyal to the premises of right and justice" to "emphatically reject" the Obergefell decision.
"They must refuse to submit to it, just as in colonial times America's first patriots refused to submit to British taxes imposed without regard for the will of legislatures elected by the people; just as in the years before the last Civil War, people of good conscience refused to abide by the Fugitive Slave acts and the U.S. Supreme Court's Dred Scott decision; just as in the last century people committed to God's endowment of human justice opposed government sanctioned racial segregation and discrimination, enforced in disregard of the equality of nature conferred by the title of humanity."
He continued: "The Obergefell decision is a more directly treasonous betrayal of constitutional law and justice than any of those previous acts of tyranny. As ratified by the American people, the U.S. Constitution derives its authority from their sovereign will. In the Declaration of Independence they cite the authority of "the laws of nature and of Nature's God" and the will and judgment of the Creator and Judge of all the world, as the basis for their claim of sovereignty. By purporting to extend the name of marriage to acts and relations that make no imperative contribution to the common good of human nature as endowed by the Creator, God, the U.S. Supreme Court challenges that will and judgment, treating it as of no account."
Phillips, who has generated a tidal wave of support, shares the Christian belief that the standard for marriage was established by God, and no earthly court, including the U.S. Supreme Court, can change it.
That position was stated emphatically by Rabbi Jonathan Cahn, author of the New York Times best-seller "The Harbinger" and the inspiration behind the "Isaiah 9:10 Judgment" movie. His most recent book, "The Paradigm," is just out.
He was addressing the Washington: A Man of Prayer event in the U.S. Capitol in 2015, just before the Supreme Court released its marriage opinion, which four justices criticized as unconnected to the Constitution.
"The justices of the Supreme Court took up their seats [in a hearing] on whether they should strike down the biblical and historic definition of marriage. That the event should even take place is a sign this is (the) America of (George) Washington's warning … a nation at war against its own foundation," Cahn said.
"If this court should overrule the word of God and strike down the eternal rules of order and right that heaven itself ordained, how then will God save it? Justices, can you judge the ways of God? There is another court and there another judge, where all men and all judges will give account.
"If a nation's high court should pass judgment on the Almighty, should you then be surprised God will pass judgment on the court and that nation? We are doing that which Israel did on the altars of Baal," said Cahn.
See Jonathan’s Cahn’s message at Washington: Man of Prayer event at the Capitol:
Stunningly, the state of Colorado even claimed that Bible verses to which those discriminatory but unpunished bakers objected "are not 'closely associated' with religion."
But that claim "cannot be taken seriously," ADF explained.