Colorado politicos react to Supreme Court hearing on Masterpiece Cakeshop case
Authors: Ernest Luning, Tom Ramstack - December 5, 2017 - Updated: December 8, 2017
Both sides agree it’s a question of rights but differ sharply whose rights should prevail under the law in a case argued Tuesday before the U.S. Supreme Court — whether it’s the baker and his religious beliefs or the same-sex couple and their right to be treated like any other customers.
As the divisive case had its day in court — pitting Masterpiece Cakeshop owner Jack Phillips against the married couple, Charlie Craig and David Mullins — Colorado politicians hewed mainly along partisan lines assessing the legal dispute.
When Phillips claimed it would violate his religious beliefs to create a custom wedding cake for the fiancés in 2012, the Colorado Civil Rights Commission found he had violated the Colorado Anti-Discrimination Act and disciplined Phillips and his business.
The Colorado Court of Appeals ruled that the baker had discriminated against Craig and Mullins because of their sexual orientation, which is protected by Colorado law. Earlier this year, the U.S. Supreme Court agreed to hear the case.
U.S. Rep. Diana DeGette, a Denver Democrat, spoke at a rally outside the high court in Washington, D.C. She tweeted a video clip of some of her remarks comparing the wedding cake case to the passage of the anti-LGBT Amendment 2 by Colorado voters 25 years ago.
“As a fourth-generation Coloradan and a strong supporter of LGBTQ rights, I was appalled at these actions, and I was appalled at my state,” DeGette said, referring to the state constitutional amendment adopted in 1992. “But I fought, my family fought, my friends fought, Coloradans and Americans fought day in and day out to stop this hate, and, you know what, we won.”
#SCOTUS hears #MasterpieceCakeshop oral arguments this a.m. At a rally supporting the respondents just now, I talked about the progress Colorado has made in #LGBTQ rights, from passing the anti-gay Amendment 2 the year I was elected to the State House to embracing equality today. pic.twitter.com/nNlq3uokQo
— Rep. Diana DeGette (@RepDianaDeGette) December 5, 2017
After the rally, she said in a second tweet, she met Mullins and Craig, who live in her congressional district.
“After speaking at a rally on their behalf, I was honored to meet my constituents David Mullins and Charlie Craig, who are at the heart of the #MasterpieceCakeshop case. I’m proud to represent these men who are fighting to ensure businesses are #OpenToAll,” DeGette wrote.
After speaking at a rally on their behalf, I was honored to meet my constituents David Mullins and Charlie Craig, who are at the heart of the #MasterpieceCakeshop case. I'm proud to represent these men who are fighting to ensure businesses are #OpenToAll. pic.twitter.com/NKWUa2I36X
— Rep. Diana DeGette (@RepDianaDeGette) December 5, 2017
Her sentiments were not shared by Colorado Rep. Doug Lamborn, who said Phillips was acting within his First Amendment rights to freedom of religion and free speech in denying service to Charlie Craig and David Mullins.
“I support Jack 100 percent on this issue,” said Lamborn, a Republican from Colorado Springs. “I believe the Constitution protects his right to refuse to use his artistic talents in a ceremony that he does not agree with religiously.”
If Phillips loses his Supreme Court case, “everyone’s freedom is at risk,” Lamborn said.
The legal battle also pits Colorado’s attorney general, Republican Cynthia Coffman, who is defending state law, against the Trump administration’s Justice Department, which weighed in on the side of the Lakewood baker.
Coffman, who is running for governor in next year’s election, said in a statement that it would be “a mistake” if the high court created an exception to anti-discrimination laws.
“After a long and careful debate, Colorado’s legislature in 2008 decided to extend the LGBT community the very same legal protections we use to fight all forms of discrimination, whether based on race, sex, or a person’s faith,” she said. “One critical part of those protections is the idea that when people walk into a retail store that is open to the public, they are not turned away because of who they are. Our State and our Constitution has deep respect for the right of all people to follow their faith and speak their minds. But it would be a mistake in deciding this case to create new exceptions to anti-discrimination laws that have never been applied to any other group of people. My office presented the Court with our strongest arguments today, based on many years of established legal precedent, and I look forward to receiving its ruling.”
State Rep. Leslie Herod, D-Denver, led a group of LGBTQ Coloradans who filed an amicus brief in the case.
“I applaud Colorado’s legal team today in their oral argument before the United States Supreme Court,” Herod said Tuesday. “They demonstrated that Colorado stands firmly in support of the free expression of religion while also protecting people from discrimination.
“Colorado just argued one heck of a case,” said Representative Herod. “The state can support religious freedoms while also protecting Coloradans like me from discrimination. These are not mutually exclusive.”
Former U.S. Rep. Tom Tancredo, another Republican running for governor, took the opposite view. On Twitter, Tancredo linked to a video he posted recently, saying he had just attended a rally in support of Phillips and displays a T-shirt that reads, “I Stand with Masterpiece Cakeshop.”
After describing the case, Tancredo states his conclusion:
“Everybody wants freedom. Everybody wants the ability to extol the virtues of diversity, right? Well, great! Great! Part of being a diverse society is allowing people to express themselves, religiously — it’s not hurting anybody, not shooting anybody in the street, not creating a violent situation, but just living out their religious beliefs, even in their business,” Tancredo says. “That’s the way it should be. So I hope and pray that the Supreme Court will, in fact, reaffirm the concepts of individual liberty upon which this country was founded.”
Michael Dougherty, a prosecutor and one of five Democrats running for attorney general, declared the stakes high in a statement he issued just before the scheduled oral arguments.
“This case will have a wide-ranging impact, as it determines whether a business owner is allowed to refuse service to customers by simply claiming a justification under the First Amendment,” Dougherty said. “The stakes could not be higher when it comes to defending equal rights in our country. Should the Supreme Court overturn the Colorado Court of Appeals ruling it will have sanctioned discrimination. It is shameful that this principle continues to be tested – and it continues to remain critical that we have leaders who dispel racism, hate, and bigotry. I am hopeful that the high court will sustain Colorado’s decision.”
State Rep. Justin Everett, a Littleton Republican and candidate for state treasurer, said the argument is a lot simpler than the one some of Phillips’ defenders have been advancing.
“It’s forcing someone to produce the fruits of their labor they don’t want to do. That seems very un-American,” he told Colorado Politics. “Common sense has gone out the door at this point. The fact is, we’ve wasted tons of taxpayer money when this is a common-sense principle.”
“It puts a chilling effect on anybody. This is sort of PC run amok,” Everett added, using an abbreviation for “politically correct.”
Former state Sen. Mike Johnston, a Denver Democrat and candidate for governor, likewise maintained the case comes down to simple common sense but arrived at the opposite conclusion.
“The problem with the #MasterpieceCakeshop argument is that the case is not about what he refuses to sell,” Johnston tweeted. “It’s about who he refuses to sell it to. I hope #SCOTUS agrees – fast. #end discrimination @One_Colorado”
The problem with the #MasterpieceCakeshop argument is that the case is not about what he refuses to sell. It’s about who he refuses to sell it to. I hope #SCOTUS agrees – fast. #end discrimination @One_Colorado
— Mike Johnston (@MikeJohnstonCO) December 5, 2017
Jeff Hunt, president of Colorado Christian University’s Centennial Institute, told Colorado Politics he was encouraged by the course of the argument before the justices.
“It appears today that the Supreme Court understands the issues at stake when Justice Kennedy stated that ‘tolerance is essential in a free society.’ Justice Kennedy specifically honed in on the fact that the Colorado Civil Rights Commission acted out of malice and has not been tolerant of Jack Phillips’ religion. Furthermore, the Colorado Civil Rights Commission has not been consistent in penalizing Jack Phillips while allowing other bakers to refuse to create cakes that violated their conscience. Freedom of conscience, free speech, and freedom of religion are fundamental human rights to be protected. These rights are clearly spelled out in the Constitution, are essential to the health of our nation, and must be protected for all Americans,” Hunt said in a written statement.
ProgressNow Colorado executive director Ian Silverii told Colorado Politics that the legal principle is clear.
“The principle that business establishments open to the public must serve all members of the public equally is essential to a free and fair society,” he said in a statement. “Every person has the right to express their beliefs freely. What you can’t do is discriminate against some customers when your business is open to all customers. Allowing any business serving the public to exempt themselves from the nation’s laws against discrimination would be a massive step backward for our country.”
The case attracted more than 100 amicus, or friend-of-the-court, briefs. One of them came from Democrats in Congress, including Colorado lawmakers Sen. Michael Bennet and Reps. DeGette, Ed Perlmutter and Jared Polis.
It warned the Supreme Court against a ruling “inviting discrimination against historically marginalized communities, including but not limited to the lesbian, gay, bisexual, transgender and queer (LGBTQ) community.”
The Court’s ruling is expected before next June.