Pro­tect­ing all Amer­i­cans from anti-re­li­gious hos­til­ity

What the Mas­ter­piece Cakeshop de­ci­sion means for the Ore­gon bak­ers who were pe­nal­ized $135,000

The Washington Times Daily - - OPINION - By Stephanie N. Taub Stephanie Taub is se­nior coun­sel to First Lib­erty In­sti­tute, FirstLib­

Seven jus­tices of the U.S. Supreme Court re­cently agreed that the Colorado Civil Rights Com­mis­sion was un­con­sti­tu­tion­ally bi­ased against the re­li­gious be­liefs of Jack Phillips, the owner of Mas­ter­piece Cakeshop.

This hold­ing is a win for all Amer­i­cans who be­lieve that they have a right to the fair ad­min­is­tra­tion of the law, with­out hos­til­ity to­ward their re­li­gious be­liefs and with­out be­ing the vic­tim of a le­gal dou­ble stan­dard.

Ac­cord­ing to the court, the com­mis­sion showed its anti-re­li­gious bias against Mr. Phillips in at least two ways. First, one com­mis­sioner — sup­pos­edly a neu­tral, un­bi­ased judge in the case — made mul­ti­ple com­ments dis­parag­ing Mr. Phillips’ re­li­gious be­liefs.

Jus­tice Kennedy was specif­i­cally crit­i­cal of state­ments by one of the mem­bers of the Colorado Civil Rights Com­mis­sion. Dur­ing one public meet­ing, the com­mis­sioner im­plied Mr. Phillips was “us[ing] his reli­gion” to hurt others, stat­ing that “[f]reedom of reli­gion has been used to jus­tify all kinds of dis­crim­i­na­tion” and that it is “one of the most de­spi­ca­ble pieces of rhetoric that peo­ple can use.”

In his ma­jor­ity opin­ion for the Supreme Court, Jus­tice Kennedy noted his dis­ap­point­ment in the lack of neu­tral­ity and re­spect em­ployed by the com­mis­sioner. “To de­scribe a man’s faith as ‘de­spi­ca­ble,’” said Jus­tice Kennedy, “is to dis­par­age his 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.”

Rightly, Jus­tice Kennedy con­cluded, “This sen­ti­ment is inap­pro­pri­ate for a com­mis­sion charged with the solemn re­spon­si­bil­ity of fair and neu­tral en­force­ment of Colorado’s an­tidis­crim­i­na­tion law.”

Not only did the court find that the com­mis­sion lacked neu­tral­ity and re­spect, Jus­tice Kennedy ob­served that, by us­ing a clear dou­ble stan­dard that stacked the deck against re­li­gious be­liev­ers, the com­mis­sion was guilty of re­li­gious hos­til­ity in vi­o­la­tion of the Free Ex­er­cise clause. On three sep­a­rate oc­ca­sions, the com­mis­sion con­cluded that other bak­ers have a right not to create cakes with re­li­gious mes­sages that the bak­ers found of­fen­sive, but Mr. Phillips did not have the same right to not create a cake with a mes­sage that vi­o­lates Mr. Phillips’ re­li­gious be­liefs.

The de­ci­sion has clear im­pli­ca­tions for Aaron and Melissa Klein, own­ers of a bak­ery in Ore­gon who suf­fered an egre­gious $135,000 dam­ages penalty for de­clin­ing to bake a cus­tom cake for a same­sex wed­ding and whose fam­ily bak­ery has since had to close its doors. My firm, First Lib­erty In­sti­tute, rep­re­sents the Kleins and is cur­rently seek­ing re­view be­fore the Supreme Court of Ore­gon. The case could one day reach the U.S. Supreme Court.

The sim­i­lar­i­ties be­tween the Phillips and Klein cases are strik­ing. Be­fore even hear­ing the case, an Ore­gon govern­ment of­fi­cial, Brad Avakian, who was sup­posed to be a neu­tral ar­biter, made public com­ments show­ing his bias against the Kleins.

For in­stance, in an ar­ti­cle about the Kleins, he was quoted as say­ing, “Every­one is en­ti­tled to their own be­liefs, but that doesn’t mean that folks have the right to dis­crim­i­nate,” sup­pos­edly speak­ing gen­er­ally. In the same ar­ti­cle, he also stated that his “goal is to re­ha­bil­i­tate.” Im­ply­ing that peo­ple with dis­fa­vored re­li­gious be­liefs need to be re­ha­bil­i­tated is a clear demon­stra­tion of anti-re­li­gious bias. If Mr. Avakian’s state­ments them­selves don’t demon­strate his anti-re­li­gious bias, the fact that he made them be­fore the Kleins even had their day in court should make it crys­tal clear.

Then, in his of­fi­cial de­ci­sion, the com­mis­sioner ac­cepted that the Kleins acted based on their re­li­gious be­liefs, but nev­er­the­less equated the Kleins’ de­nial to create a cus­tom cake with “big­otry” and a “clear and di­rect state­ment that [the cou­ple] lacked an iden­tity wor­thy of be­ing re­spected.”

Ac­cu­sa­tions of big­otry and ul­te­rior mo­tives are pre­cisely the op­po­site of the “neu­tral and re­spect­ful con­sid­er­a­tion” of re­li­gious be­liefs re­quired by the Mas­ter­piece opin­ion.

And, if that is not enough, it is sim­ply out­ra­geous to award $135,000 in dam­ages for caus­ing of­fense. The sheer mag­ni­tude of the dam­ages penalty for de­clin­ing to create a cus­tom cake and quot­ing a Bible verse is clear ev­i­dence of the type of anti-re­li­gious bias seven jus­tices of the U.S. Supreme Court de­clared un­law­ful.

In short, the Ore­gon de­ci­sion against the Kleins was pol­luted by the same anti-re­li­gious bias that caused the U.S. Supreme Court to rule for Mas­ter­piece Cakeshop on Free Ex­er­cise grounds. The Kleins and all Amer­i­cans de­serve the same pro­tec­tion from govern­ment anti-re­li­gious hos­til­ity that the Supreme Court af­forded Jack Phillips.

The Ore­gon de­ci­sion against the Kleins was pol­luted by the same an­tire­li­gious bias that caused the U.S. Supreme Court to rule for Mas­ter­piece Cakeshop.


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