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

2. First Amendment: Free Speech and Expression

Masterpiece Cake Shop has faced government intervention and restraint for practicing its Fundamental Right to protest on its own property. Why should Masterpiece Cake Shop be denied the right to protest what it perceives as being an attack on its Religious Liberty? Masterpiece Cake Shop has a Fundamental Right to protest gay marriage through the denial of service even if people find their actions to be repugnant and repulsive. This type of speech is protected. In Snyder v. Phelps (2011) this Court held that a hateful and repugnant protest at the funeral of a military soldier was lawful. The difference between these two cases is that Snyder took place on public property. But shouldn’t persons be allowed to practice their religious liberty by showing their views, opinions, and personalities on their own property? This Court has always sided on the side of free speech and expression unless the state has a “compelling interest” to abridge that right: Flag Burning (Texas v. Johnson, 1989) and Cross Burning (R.A.V. v. St. Paul) are a few cases where despicable conduct was protected. Of course, the speech in this case is not even remotely controversial as the cases highlighted above.

A wise man said, “Where the First Amendment is implicated, the tie goes to the speaker, not the sensor” (FEC v. Wisconsin Right to Life, 2007). James Madison said, “the censorial power is in the people over the government, and not in the government over the people” [New York Times v. Sullivan, 1964]. We also know the speech conducted in this case by Masterpiece Cake Shop was of the public form. In Snyder v. Phelps the Court held, “Speech deals with matters of public concern when it can be ‘fairly considered as relating to any matter of political, social or other concern in the community’ [Connick v. Thompson, 2011] or when it ‘is subject of legitimate new interest; that is a subject of general interest and of value and concern to the public’ [San Diego v. Roe, 2004]”. Public speech has more protections than private speech since this Court said this of public places: “such space occupies a ‘special position in terms of First Amendment protections’” [United States v. Grace, 1983]. Furthermore “the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided or hurtful” [Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 1995]

I would also argue that the speech used by the Colorado Commission to enforce CADA has little Constitutional value because it is a false factual statement defaming a private citizen of being discriminatory when in fact they have no proof of any such conduct. The Court does not protect such speech: “There is no Constitutional value in false statements of fact” [Gertz v. Welch, 1974]; “The erroneous statement of fact is not worthy of Constitutional protection” [Time Inc v. Hill, 1967]; “False factual statements possess no intrinsic First Amendment value” [United States v. Alvarez, 2012]; and “of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements” [Herbert v. Lando, 1979]. The reason false statements are not protected is because “False statements of fact are particularly valueless; they interfere with truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot be easily repaired by counter speech, however persuasive or effective” [Keaton v. Hustler, 1984]. Also, religious groups or persons facing consequences from CADA “might well conclude that the safe course is to avoid controversy” which would “dampen the vigor and limits the variety of public debate” [NY Times v. Sullivan, 1964] cited in [Miami Herald v. Tornillo, 1974]. In other words, religious folks may not practice their free speech in fear of bad publicity of being labeled as a racist for defending their religious beliefs. No law should stifle free speech. After all, “The right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” [Stanley v. Georgia, 1969] Furthermore, Justice Marshall said, “Our whole constitutional heritage rebels at the thought of giving government the power to control our minds” [Stanley v. Georgia, 1969]. One can extrapolate the meaning of that statement to include legal actions or expressions such as a protest. Finally, “But whatever the reason, it boils down to the choice of the speaker not to propound a particular point of view, and that choice is presumed to lie beyond government’s power to control” [Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc., 1995]. Sure, “over time, the public accommodations laws have expanded to cover more places” [Boy Scouts of America v. Dale, 2000] and businesses of all kinds to prevent discrimination of protected groups. But these laws never considered the equal protection rights of business owners when customers express public speech opinions and viewpoints that differ from their creed. Accommodation laws never considered the Fundamental natural rights of business owners to protect themselves from customer political, social, and legal opinions.

In United States v. Stevens (2010) the Court outlined exceptions to free speech: Obscenity [Roth v. United States, 1957], defamation [Beauharnais v. Illinois, 1952], fraud [Virginia Pharmacy Board v. Virginia Citizens, 1976], incitement [Brandenburg v. Ohio, 1969], and speech integral to criminal conduct [Giboney v. Empire Storage and Ice Company, 1949]. The CADA civil rights commission, by making false factual statements defamed the character of a private citizen without any proof is certainly not protected by the First Amendment for two reasons: 1. False factual statements are not protected and 2. Statements that defame private citizens are not protected (Gertz v. Welsh, 1974).

The question is: do we want to live in a country dictated by social justice and political correctness or do we want to live in a country where the Constitution and tolerance are the rule of the land. “In public debate we must tolerate insulting, and outrageous speech in order to provide more ‘breathing space’ to the freedoms protected by the First Amendment” (Boos v. Barry, 1988). “Speech cannot be restricted simply because it is upsetting” (Snyder v. Phelps, 2010). “The government may not prohibit the expression of an idea simply because society find the idea itself offensive ore disagreeable” Texas v. Johnson, 2003).

This Court would not have accepted this case if Masterpiece Cake Shop was not sincere about their Religious beliefs and rights. And let’s not forget that most people would not turn away business if it was not an important issue to them. If true, this would rule out discrimination or any equal protection violations that CADA may imply against Masterpiece Cake Shop.

Most customers going to places of business do not put forth social, racial, and political opinions. Customers generally go to businesses and buy their products without expressing any controversial opinion or viewpoints. But when customers place forth opinions that violate the creed of businesses, they should have the right to deny service. Equal protection of the laws should also apply to business owners, not just customers as specified in CADA. The Court made a similar decision in Boy Scouts of America (BSA) v. Dale (2000). Since Dale’s lifestyle conflicted with the creed of the BSA, the Court held the BSA was not discriminating by refusing a job to Dale. Although accommodation laws did not apply to the BSA case, it is still relevant since the customer is voicing an opinion in disagreement with the creed of the business in the Masterpiece Cake Shop case. Accommodation laws simply do not consider customer opinions and viewpoints, and that is wrong. And the Colorado Anti-Discrimination Commission is the wrong avenue to decide these cases because it is political and not legal panel. The commission has a history of siding with what they perceive as the most disenfranchised group. That is not justice, it is social justice and political correctness at work in our society denying business owners and unprotected classes of their Fundamental Rights.

3. First Amendment: Religious Freedom and the Free Exercise Clause

Social justice and political correctness have absolutely no tolerance for religious freedom of any kind. There is a simple reason for this: Controversial social and political Fundamental Rights elevated by this Court conflict with enumerated rights such as religious freedom. Should elevated rights conflict with enumerated rights? Perhaps it is a necessary evil. But laws and the Court have a sworn duty to protect religious liberty.

This country was founded on Religious freedom and it is “deep rooted in American history and tradition” (Glucksberg, 1997). Religion has been on the right side of discrimination issues throughout our history (slavery and woman’s suffrage). For these reasons, natural rights like the freedom of speech and religious liberty must be judged using strict scrutiny and therefore there must be a “compelling state interest” to abridge these rights.

This Court has routinely sided with both religious beliefs and conduct. The Court has recognized Saturday as the day of Sabbath (Sherbert v. Verner, 1963); the use of hallucinogens for religious customs (Church of Lukumi Babalo Aye v. City of Hialeah, 1993); and the right for animal sacrifices for religious customs (Gonzalez v. O Centro Espirita Beneficente Uniao do Vegeta, 2006). Hence, it is not uncommon for the Court to find exceptions to state and federal laws to accommodate religious liberty.

The defense argues: people will use religion to justify discrimination against sexual orientation. This argument has been refuted by this Court in Sheerbert and Gonzales. In Gonzales, Chief Justice Roberts said “in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as ‘no more than a possibility’ that the state’s speculation ‘that the filing of fraudulent claims by unscrupulous claimants feigning religious objection to ‘Saturday work’ would drain the unemployment fund”. Besides, most business owners would never turn away business, even on principle. Case in point, during the Jim Crow Period Southern businesses rarely turned away black customers, they had them accept “separate” accommodations. African-American money was acceptable, it was their skin color that was objectionable.

Justice Scalia outlined his fear of people using the guise of Religious liberty to avoid criminal laws in Human Resources of Oregon v. Smith (1990). Scalia’s fears do not apply to the Masterpiece Cake Shop case for several reasons. First, Gonzales does not overrule Smith but Chief Justice Roberts says the Courts are obligated to decide religious freedom cases one by one, not in general as Scalia did in Smith. Secondly, all the exceptions (fears) outlined by Justice Scalia are crimes, generally with the violator profiteering. Masterpiece Cakes is not profiting by turning away business. Finally, the Religious Freedom and Restoration Act (RFRA) was passed to supersede the precedent set in Smith.

The power of the RFRA is not absolute. In City of Boerne v. Flores (1997) the Court held a city statute to protect historic landmarks did not violate RFRA or the Religious Liberty of a Catholic Church being denied an opportunity to expand it facilities: “it does not follow that the person’s affected have been burdened anymore than other citizens, let alone burdened because of religious beliefs.” Furthermore, zoning laws “burden a large class of individuals”. In other words, the statute in Flores was both congruent and proportional because there was neither a pattern of discrimination and the penalty for failing to meet the statute was proportional for everyone. I would argue that CADA is neither congruent or proportional. CADA has been shown to discriminate against religious customers and finally is it proportional or fair for a religious person to be classified in exactly the same light as a white supremacist?

In Lee v. Weisman (1992) the Court held “The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise”. I would contend the opposite is also true that government policy cannot coerce person’s to abandoned their religious beliefs. In Van Order v. Perry (2005) the dissent contends “suing a state over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy; the risk of social ostracism can be a powerful deterrent.” The same applies to Masterpiece Cake Shop in this case. They are being criticized by a large populous of the public as being haters, racists, and bigots. They have received far more negative press than positive press for standing up for their Religious principles. And, of course, this case has not put a penny in Masterpiece Cake Shop’s registers.