Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part I)

The Colorado Civil Rights Commission enforcing the Colorado Anti-Discrimination Act (CADA) fails to meet its burden of proof when it decided Masterpiece Cake Shop discriminated against a gay couple wanting a wedding cake for five reasons (other than those reasons being contended on behalf of the Cake Shop’s legal counsel: Free speech cannot be compelled and free speech covers artistic views).

First, the actions of Masterpiece Cake Shop were not discriminatory in any way. It is instead an example of social justice and political correctness gone horribly wrong. Unfortunately, it is not uncommon to have discrimination claims over simple moral and ethical disagreements. If Masterpiece Cake Shop is discriminating than it can be easily conferred that CADA is also discriminatory.

Secondly, this case is about clashing Fundamental Rights. The elevated Fundamental Right of gay marriage and equal protection versus free speech and religious freedom. If there is no discrimination then equal protection does not apply. Hence, it becomes a case between a controversial and conflicting elevated right versus natural law enumerated rights.

Third, this is a case about a person’s First Amendment right to protest which cannot be abridged without a compelling government reason. CADA is flawed for several reasons. First, it only protects customers from discrimination and not business owners (only customers can claim discrimination). Secondly, CADA fails to address the issue of customers putting forth controversial opinions and viewpoints that are in direct violation of the religious beliefs or creed of business owners. Finally, since the Colorado Anti-Discrimination Commission is political their history is to side with the most perceived disenfranchised party and not the law. Their motive is to protect against discrimination and not protect Constitutional rights of unprotected classes. For this reason, the speech of the Colorado Commission is comprised of many false factual statements that can defame the character of private citizens. For instance, since Masterpiece Cake Shop practice of its religious and free speech liberties are classified in the same manner by the Colorado Commission as someone who truly discriminates, this is a false factual statement and can unnecessarily defame the character of a private citizen.

Fourth, Religious liberty is not truly protected by CADA and fears of unscrupulous use of religious freedom to deny protected classes their Fundamental Rights are unfounded. CADA fails to pass congruent and proportionality tests since the commission has a history of siding with the most disenfranchised group. Religious liberty cannot be denied without a compelling government reason.

Finally, CADA fails to meet a simple rationale basis test of undue burden when it should be required to meet strict scrutiny demonstrating a compelling state interest to abridge both freedom of speech and religious liberty.

1. Discrimination

The day after a horrific act of terror attack killed 49 persons at an Orlando Night Club I was watching CNN’s Anderson Cooper (he was on site covering the story). Cooper interviewed Florida Attorney General, Pam Bondi, and I am paraphrasing the conversation that followed. Cooper asked Bondi about the events and to reflect. Of course, Bondi responded in a shocked, surprised, and mournful manner. She was hurt and upset over both the hate and waste of life. Cooper followed up by asking Bondi “how can she be so upset over these events when she does not even support gay marriage?” That folks, is unfortunately where we are at in our society. We are so embroiled in our public debate over social issues we have become brainwashed into believing conservatives, religious followers, and Republicans who do not agree with gay marriage must want gay people to be slaughtered. It is extremely disconcerting that a respected news anchor would ask such a question. Does Cooper really believe that people disagreeing over gay marriage want the LBGT community slaughtered in cold blood? I do not think Cooper would be happy if someone shot up a Church even though they disagreed with his views over gay marriage. Can’t Cooper distinguish between a disagreement over moral and ethical standards and true hate and terrorism? I find it hard to believe that any true Christian would find any gratitude in the events that transpired in Orlando. I cannot name a single American who saw anything positive in that tragedy. I saw lots of tears, but not a single cheer. But this type of vitriol is not uncommon and exists in this case: a conflict between religious and social-civil rights. Many of the comments and remarks over this case have devolved calling Masterpiece Cake Shop racist, bigoted, and hateful. I have a growing concern that many in the LBGT community believe that the denial of a wedding cake is nothing more than some deep-rooted anger, hatred, racism, and bigotry by religious followers towards gays that simply does not exist. It a disagreement over moral and ethical standards between religious and social-civil rights, and that is it. The fact that the gay couple in this case could not see this difference and even filed a complaint is even more concerning. Why would the gay couple want to force the religious owner to alter their beliefs to accommodate their needs? This country has a history of following a vicious cycle of events. Generally protected classes of citizens in America have forgotten their struggles and over time commit the same types of discrimination on others. Shortly after feminist won suffrage they supported eugenics in the twenties and in the seventies tried to overturn laws providing veterans (men) better job opportunities and healthcare. The reason Proposition 8 failed in California was because the vast number of the religious African-American population sided against gay marriage. We fail to have self-awareness to understand that we are doing the same thing we did not like being done to us to someone else. Two wrongs do not make a right. Vengeance is never the answer. The answer is to have patience and tolerance and to understand that a lot of people will have different viewpoints and opinions that differ from our own and that does not mean they are discriminating. We need to accept our point of view is never 100% correct nor will ever be 100% accepted.

Does the First Amendment prohibit discrimination? No, it does not. Most discrimination is protected speech. In fact, many groups of people depend on discrimination for their existence: female athletics, women’s groups and schools, men’s organizations and schools, military combat restrictions on women, age limits to qualify for certain activities and so forth. The equal protection clause of the Fourteenth Amendment and the Commerce Clause have been used by the Court to curb discrimination, not the First Amendment.

The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in public accommodations including businesses of all kinds. CADA defines discrimination against protected classes of citizens on the basis of color, national origin, marital status, creed, race, gender, religion, and sexual orientation. The dictionary defines discrimination similarly, “the unjust or prejudicial treatment of different categories of people or things especially on the grounds of race, age, religion, or sex.” CADA’s marital status designation conflicts with the Colorado Constitution which defines marriage as being between one man and one woman. CADA allows no exceptions to its statute and therefore, expects a business owner to forgo their Fundamental Religious Liberty and be compelled to uphold practices they do not believe. In this sense, CADA conflicts with the Religious Freedom and Restoration Act of 1993 (RFRA) which applies to all federal, state, and local laws. Masterpiece Cake Shop was merely practicing its ideals, which are the same ideals found in the Colorado Constitution and RFRA. Chief Justice Roberts said, “Congress had a reason for enacting RFRA, too” (Gonzales v. O Conto Espirita Beneficente Unioa do Vegetal, 2006). In today’s world of social justice and political correctness discrimination is a harsh label to apply to any one person or group. Being labeled as discriminatory is the same as being labeled as a bigot or racist by today’s standards even though that is not how the word is defined. Discrimination and labels that are associated to the word are often thrown around recklessly. To discriminate there must be a pattern and history of that behavior for definitive proof. Every instance of political correctness mistakenly places a label of discrimination, hate, bigotry, and racism on a person or group. For instance, someone referring to terrorism as “extreme Islamic terror” is labeled as an Islamaphobe bigot, racist, and hater of Muslims. Americans supporting actions against illegal immigrants are also considered bigots and racists. Americans supporting a temporary ban on immigration from Muslim countries are also all classified as haters by a vast number of our populous. Sure, some of the people supporting these measures may be true discriminators, but a vast majority are not. Most simply want to keep America safe from terrorism and see illegal immigration as a drain on our economy. We need definitive proof before we go around labeling someone as Hitler. This case is no different. The label of discrimination placed on the Masterpiece Cake Shop has devolved into other unfair labels and comparisons without any proof and without a history or pattern of any such behavior. Differing viewpoints, morals, or ethical standards does not necessarily constitute discrimination although it may violate what someone may perceive as being political correct. This case involves the conflict between two Fundamental Rights (Religious Liberty and Equal Protection), it is not a battle over discriminatory views. Maybe the word abridge can be used instead of discrimination. Abridge means to curtail rights or privileges, it does not mean to prohibit rights as discrimination implies.

Social justice to put an end to discrimination is a necessity. But social justice can also be an evil by wrongly asserting every act of political correctness constitutes some form of discrimination. It is just as discriminatory to force or compel someone to practice what they do not lawfully believe. Discrimination claims in this case cut both ways. The only reason this is a complicated case is due to the fact that unfair labels associated with discrimination can make religious liberty conflicts with social or civil liberties ugly and polarizing on the national level. It would be prudent to have a fair definition of discrimination (maybe abridge). A definition that would not label most of our populous as haters, bigots, and racists, but one that distinguishes between real political and legal debates over morals and ethical standards and true acts of discrimination. Since Roe v. Wade, this Court has had to deal with conflicting civil or social Fundamental Rights with natural or traditional enumerated Fundamental Rights. This trend will continue with the Obergefell v. Hodges decision. I believe the Court has a right to elevate Fundamental Rights through the Ninth or Fourteenth Amendments (although I believe the privilege and immunities clause makes more sense to elevate rights over the due process clause, but that would take overruling the Slaughter House cases). The problem in this case, and others like it, is when elevated rights, that are not overwhelming supported by the public, conflict with other enumerated or elevated rights. This issue needs to be addressed by the Court.

Social justice and political correctness confuses anything that may “offend”, “annoy”, or “hurt feelings” with discrimination. Ruling against Masterpiece Cake Shop will open a flood gate of frivolous lawsuits confusing every act of political correctness with discrimination. In Bray v. Alexandria Health Clinic (1993) the Court faced a similar situation. In that case the Court held that the Ku Klux Klan Act of 1871 could not be used against anti-abortion protestors. The Court rightly understood the difference between discrimination against free African-Americans and the dispute between differing moral and ethical views about abortion. The Masterpiece Cake Shop case is no different, it is dispute over differing morals and ethics and is not discrimination. To discriminate Masterpiece Cakes must show a consistent pattern of denying service to gay persons for ANY reason, not just for wedding cakes. Masterpiece Cake Shop would also deny service to a customer wanting to promote anti-American or any anti-religious activity. Would anyone disagree if Masterpiece Cake Shop denied service to a communist group wanting a cake showing the American Flag in flames? Would this also be considered discriminatory against one’s creed?

Would a gay cake shop owner be allowed to deny making a cake for Nazi Parade celebration? A Nazi parade, if peaceful and with a lawful permit, is a legal activity. Would anyone blame the gay or even straight bakery owners for turning away that type of business? It is bad business to have your product associated with controversial groups that would yield bad publicity. But if CADA wants to treat all citizens equally, then the creed of White Supremacist should not be discriminated against either, right? Would a black baker be discriminating to deny making a Confederate Flag cake for a White Supremacist group? Would an Islamic baker be compelled to make a cake for a church group who wants to depict Allah in a bad manner? Would an Atheist cake maker discriminate by refusing to make a Ten Commandants Cake? Maybe not, based on how the CADA commission has ruled on some prior cases. Three Denver Cake bakers were found not guilty of violating creed discrimination of CADA for declining to bake a Christian Cake in opposition to same sex marriage. Social justice and political correctness hysteria in America has declared poor grades discriminate against the intellectually challenged; bad credit discriminates against the poor and unwise spender; and criminal laws discriminate against criminals. It seems everything discriminates.

Obergefell v. Hodges (2015) was a decision that went against the beliefs of a vast number of religious followers from many different religions. This is true for a number of reasons. First, the law changed the traditional definition of marriage found in the Bible that marriage is between a man and a woman. It is always hard to accept when something people believe in with strong conviction is altered. Secondly, Obergefell was not a case about love, but one about government entitlements attached to marriage. For religious follower’s marriage does not discriminate, instead it is the government entitlements attached to marriage are what discriminates. Would gay people still want to be married if government entitlements were not attached to marriage? This question was not answered satisfactorily to religious followers in Obergefell. Marriage is about love, and not about tax breaks. Marriages based on financial tax breaks will not last the test of time. Without love, marriages will eventually end in divorce. Finally, religious followers see Obergefell as a symbol of the Court using social justice and political correctness to justify its decision, not the law. For these reasons, one can understand why Masterpiece Cake Shop is protesting the elevated Fundamental Right of gay marriage.

In Roemer v. Evans, the Court held a Colorado referendum denying the gay community preferential treatment was unconstitutional. If this Court finds that someone who is offended or has hurt feelings deserves protection via social justice and political correctness, then the dissent in Roemer was correct. This would yield preferential treatment to one class of citizens at the expense of another class of citizens. Preferential treatment to protected classes of persons may have the unintended effect of discriminating against another group of unprotected classes.