Ria Tabacco Mar

>> I'm Margaret Hoover.

Wedding cakes, free speech, the Supreme Court, and the American Civil Liberties Union, next on "Firing Line."

♪♪ >> "Firing Line with Margaret Hoover" is made possible by... Corporate funding is provided by... Can I cake baker abstain from creating a cake for a gay couple's wedding because same-sex marriage is against his religion?

The United States Supreme Court dipped its toe into the extremely shallow end this week, and, in a technicality, decided in favor of the baker.

But they didn't answer any of the real questions, leaving both the religious community and LGBT activists claiming victory.

These issues are near and dear to my heart as the President of a conservative LGBT advocacy organization, the American Unity Fund.

We authored a brief in this case, arguing that cake-baking does not constitute protected speech.

But the Supreme Court refrained from deciding that matter at all, leaving it for future cases or legislative action.

So, the question is this -- Is there any circumstance in which individuals with sincerely held religious beliefs should be protected from serving LGBT Americans in a wedding or at all?

My guest today thinks the answer to that question is no.

Ria Tabacco Mar is an ACLU senior attorney that argued on behalf of the Colorado gay couple, David Mullins and Charlie Craig, who were denied a wedding cake in Masterpiece Cakeshop.

She is an expert in LGBT equality-rights litigation and religious discrimination.

She has worked at the NAACP, clerked in both federal district court and the Sixth Circuit.

A graduate of New York University Law School and Harvard College, Ria was named one of the best LGBT lawyers under 40 by the National LGBT Bar Association.

And I'm hoping that that honorific came with a lifetime supply of Ben & Jerry's.

Ria, thank you so much for joining me on "Firing Line."

>> Thank you so much for having me, Margaret.

>> I have to ask you this first question because, as we discussed, this case, which you argued in front of -- You argued for the Colorado Civil Rights Commission.

You argued on behalf of this couple, the respondents in this case.

Because this was dismissed on a technicality because it was viewed that there was bias on behalf of the commissioners, on behalf of the cake baker's religion, are you disappointed in the behavior of the commissioners?

>> Well, it's deeply disappointing that the court left the discrimination that our clients, Dave and Charlie, experienced go unchecked.

It's disappointing for them, it's disappointing for their families.

Remember, the Colorado Civil Rights Commission spent years investigating and adjudicating this case, beginning in 2012 when the incident occurred.

There was an investigation.

The division made a finding of probable cause to believe discrimination had occurred.

The case was then referred to an administrative law judge who heard evidence from both sides and made a finding that the bakery had discriminated and that there was no excuse for that conduct.

The bakery then appealed to the full seven-member Civil Rights Commission, which again unanimously affirmed the decision of the administrative law judge.

The bakery then asked for permission to continue to discriminate while it pursued its appeal in courts, and again the decision was unanimous.

And that proceeding was actually the context in which Commissioner Rice's comments came up.

So, whatever you think of those comments, it's hard to see how they infected the entire process that led up to that moment.

Clearly, some members of the court did.

But whatever you think of those comments, the court, at the same time, reaffirmed the ability of the Civil Rights Commission to do what it does -- to investigate these matters and to enforce Colorado's Anti-Discrimination Act.

>> Well, let's move on to what this case signaled and what the decision signaled to the LGBT community.

Because there were very clear parameters given, and I think there was a worst-case scenario that was feared, that the LGBT activist community worried about, that was answered in Justice Kennedy's opinion.

>> Well, the worst-case scenario certainly did not come to pass.

And it's important to realize that while the bakery did win this battle, it lost the war, and the court rejected the wholesale license to discriminate that the bakery and the Trump administration had asked for.

And recall, they had claimed that the freedom of speech gave them essentially a blank check to violate Colorado's Anti-Discrimination Act, and the majority of the court didn't engage with that claim at all.

>> Right.

So shouldn't LGBT activists and allies, especially in the states, be happy that the court has essentially said, "LGBT Americans have to be served in any public accommodation setting."

I mean, essentially, what they said is, they acknowledged the class-based denial of service was gonna be impermissible.

>> That's exactly right, Margaret, and there's a lot for LGBT activists to celebrate in this decision.

You see Justice Kennedy's journey, recognizing the common humanity of LGBT people.

What a long distance we've come.

And he says, at one point, writing for the court, you know, "It's unexceptional that Colorado can, of course, protect its LGBT citizens from discrimination just as everyone else."

>> I want to just put up on the screen exactly what Justice Kennedy said.

He said...

I mean, that's the piece that is the real breakthrough in this non-decision decision.

>> Absolutely.

>> What the court is signaling in this decision to LGBT activists is that "There is going to be a certain protection for you in the open marketplace."

But I think that the court is also signaling pretty clearly to the religious community that there may be some possibilities for certain services and expressive events to be protected as speech down the line.

I want to show a quote from the decision.

It seems to me, Ria, that the court is potentially leaving the door open to deciding that there are some expressive events that, when participated in by people of sincere religious belief that they may decide that that is speech and that is protected speech and that they might narrowly curtail a future decision in order to protect a cake baker or a florist or a photographer from compelling speech or participating in a wedding ceremony.

Are you concerned that that's a signal they're sending to the religious-freedom community.

>> Well, the passage you read certainly leaves the door open, but I see that opening as far narrower than you do.

I mean, what Justice Kennedy is talking about in that passage is the fact that the refusal to make a particular product, in this case, actually wouldn't violate Colorado's Anti-Discrimination Act at all.

So we don't even have to reach these thorny constitutional questions.

The state's Anti-Discrimination Act is not the All Cakes Act.

Doesn't say a bakery's got to make any product for someone who walks in the door, doesn't tell the bakery how to design its cakes.

If it did, that might raise serious free-expression problems.

All it says is that, once the bakery has decided to sell a certain product -- in this case, wedding cakes -- to members of the general public, you can't refuse to sell the same product to somebody because of their sexual orientation or, for that matter, for their race or religion.

>> So in that case, what you're referring to specifically is the Colorado Anti-Discrimination Act.

>> Colorado is one of only 19 states and the District of Columbia that expressly prohibits discrimination against someone because they are LGBT.

And there's no question that LGBT people need those express protections at a national level.

>> Because you mentioned that, I'd like to pull up a map, and I'd like to show our viewers a map of exactly the states in this country where LGBT people are protected in full and where they are not.

Because I think it's very interesting and, frankly, shocking to many people to realize that there are 29 states where LGBT Americans can legally be fired.

They can go and get married on a Friday or a Saturday and come to work on a Monday and be fired, and there is absolutely no legal recourse for that.

I think individuals don't realize -- many people don't realize exactly how unlevel the playing field is when it comes to protections for LGBT people compared to other minorities, whether you're a religious minority, an ethnic minority, racial minority, suffer from a disability, or a woman -- all of these other protections that are afforded every other class of people but that LGBT Americans aren't a protected class in this country.

>> Margaret, it certainly is shocking that 60% of our states lack those express protections.

I do have to correct one thing, which is the notion that LGBT people can be fired with no recourse.

The fact of the matter is, is that federal courts are increasingly recognizing that laws that prohibit discrimination based on our sex also protect people from discrimination based on sexual orientation.

But the question is far from settled.

And, in fact, there are two cases currently on their way to the Supreme Court, and that very well may be the issue that we're here deciding at this time next year.

It's important for people to realize that they are protected, but the issue is not settled, and the courts have not spoken with an even voice, and that's why it's so critical that we do have those express protections at the state and federal level that call out LGBT people as members worthy of the same protection that we grant people on the basis of their race, their religion, their disability status.

>> Yeah, it's interesting, because you mention those two cases, and they are winding their way through the courts.

However, they aren't decided, and they won't be decided until they get to the Supreme Court, which is why I always prefer that we have strong, sort of comprehensive legislation passed at the federal level in order to protect LGBT Americans rather than relying on a series of court cases to wind their way through and end up sort of legislating from the bench.

It would be so much stronger if we were to pass a comprehensive non-discrimination protections for LGBT Americans at the federal level.

>> Well, I certainly think when the Supreme Court speaks, there's nothing less powerful about the right to marriage equality from the fact that it came from a Supreme Court decision, Obergefell, rather than the legislatures in many states.

Although, of course, in some states -- here in New York -- the legislature did give us marriage equality.

But I certainly agree that it is critical that we have the political and public support that legislation reflects.

>> Certainly the issues at play in this case are important, right?

It is important that your clients be able to receive the products that are available in the marketplace and not be discriminated against.

But there is an entire host of routine services that LGBT people are declined on a regular basis, from healthcare -- right?

They're kicked out of hospitals.

They're not allowed AIDS medication, anti-retrovirals, clinics turn them away -- to transportation services, even insofar as housing and credit.

Aren't those even more pressing than the question of being able to receive a wedding cake?

And might there be some other way of approaching this, or at least shedding light on those issues or forging ahead on those issues, in a way that helps people to understand the real, as you say, invidious discrimination that LGBT people are up against that, in most cases, is far more life-and-death oriented than the ability to buy a wedding cake?

>> One of the things that's been so important to Dave and Charlie throughout this case has been to lift up the voices of LGBT people who have experienced discrimination across a host of circumstances, like the ones you describe.

And it's so important to see that all of this discrimination is part and parcel of this same notion that LGBT people can be treated as second-class citizens.

It's not just a legal argument to address the question of why they couldn't go somewhere else.

Imagine that we said to someone, "Put up a sign in the window -- 'No Muslims,' 'No women,' 'No African-Americans.'"

We would find that patently unacceptable, even if the store right next door sold the exact same thing.

And the same thing is true when it comes to LGBT people.

This is not an America we want to live in where businesses are free to say, "We don't serve your kind here," and the majority of the court recognizes that.

>> Yeah, but just to be fair and to push back a little bit, a majority of Americans still empathize with somebody who is not a bigot, who is willing to serve LGBT people in other circumstances -- and, by the way, that might not be Jack Phillips -- but is willing to serve LGBT people in other circumstances but has a sincerely held religious belief that simply objects to participating in a wedding ceremony and that that isn't discrimination and that that person has a right to free speech, too, and shouldn't the ACLU want to protect the speech of that Christian florist or cake baker or photographer, also?

Selling a customer a product simply isn't a form of speech.

You're not endorsing your customers just by selling them the same product you would sell to someone else down the street.

>> You're right!

It isn't speech.

But that is the question is whether the court, in future cases, will rule that, in some kinds of expressive events, those products, in very, very narrow circumstances, might in the future be considered speech creation?

>> Well, I certainly disagree that selling someone a wedding cake to be used at their reception is a form of participating in a religious ceremony.

The court did recognize that, of course, a minister, for example, couldn't be called on to perform a wedding of any two people that he or she chose not to marry, whether it's because they're a couple of the same sex or an interfaith couple or, for that matter, an interracial couple, and the First Amendment protects that freedom.

>> The ACLU has defended free speech for more than 80 years in many, many cases.

The only thing that I sort of would raise to you and sort of push back against is that there is a narrative that the ACLU is willing to defend people of many religions but that they back off when they're somebody who is Christian, like in the case of a Christian florist or a Christian cake baker or a Christian photographer, that somehow their free speech is not as important as the free speech of Neo-Nazis or Klan.

And I think there's an opportunity, moving forward, for the ACLU -- and for Americans, frankly -- to be able to balance these freedoms when they're intentioned.

>> I think the Supreme Court has already struck the proper balance when it comes to balancing these freedoms and has recognized, in the context of race discrimination and sex discrimination, that everyone has to follow generally applicable state laws that don't infringe on their religious freedom, like the obligation that when you open up a shop, you can't use your beliefs to discriminate against customers.

And the ACLU, by the way, certainly does defend Christians, so I take issue with that as a factual matter.

But it's true that we are often concerned with the rights of members of religious minorities who all too often are persecuted when they try to practice their faith in settings like school or prisons.

>> It just feels like the court is opening the door to some kind of compromise with religious freedom, that there is still, even in the face of public accommodations laws and the fact that Jack Phillips and any cake baker or any service provider is going to have to provide services to LGBT people, all LGBT Americans, that there might still be this possibility of protecting a sincerely held religious view as speech.

And I appreciate that that's not the position of the ACLU or the position that the ACLU wants to take, but it seems clear that there is a signal to the religious-freedom community that there is a narrow path that they can walk in order to secure freedoms for Christians in American who maybe feel differently simply about the sanctity of marriage.

>> Look, I think the court recognized in its 2015 marriage-equality decision that, of course, the First Amendment protects the right of everyone to disagree with the Supreme Court's decisions, including its decision that marriage equality is the law of the land.

>> Right.

>> We all have that freedom.

But the court also recognized that the right to hold our own views and to advocate and to teach our beliefs comes up against certain equality principles, and one of those in America is that when a business chooses to open its doors to the general public, it can't turn people away simply because of who they are.

>> And, fortunately, that was affirmed, right?

Like, this is the part that was affirmed in that 7-2 decision.

>> And, you know, when it comes to freedom of speech, of course it's true the court didn't squarely address that question, but I think it did plant a strong flag, essentially saying that if the refusal was to make any cake at all, the bakery would not have made any cake for Dave and Charlie, that that certainly falls outside the protection of freedom of speech.

And, of course, that's the facts of this case.

Because Dave and Charlie walked in the door, there was no opportunity to describe what kind of cake they would have wanted.

They're immediately told that the bakery won't... >> I don't need to tell the lawyer who argued this, but what you well know is that he would have sold them a cake that he had.

He just couldn't create them and design a cake, because, to him, that was expressive speech, and to him, that speech, the act of creating, the artistry of creating the cake, which as you well know, our heartbreak argued against.

But the act of creating that artistry is speech, and forcing him to do it is the government compelling speech.

>> That's certainly the position taken in the Supreme Court.

I don't think the facts bear him out.

And, after all, this is bakery that refused to sell even cupcakes for a lesbian couple's commitment ceremony.

So I don't think that can seriously be argued that the refusal's about artistry.

Refusal's about who the customer is, and that's identity-based discrimination.

That's not constitutionally protected speech.

>> You know, there are other cases that are pending their way through the courts.

The court conferenced another case about a florist in Washington the day that this was decided that is a lot cleaner, because there certainly were questions about the feelings that Jack Phillips harbored towards LGBT individuals and, certainly, in a case of a florist in Washington, Arlene's Flowers, Arlene has not demonstrated anti-LGBT animus throughout the course of her business practice.

But she had just decided that she wasn't going to be able to participate in a ceremony.

So, is it entirely possible, to you, or does it seem conceivable, that this 7-2 decision, basing it on a technicality about how this Colorado civil rights commission treated Jack Phillips' religion, was an opportunity to send a unified message about where the guardrails are, in terms of future litigation, that LGBT people will be served but that there might be a possibility of protecting sincerely held religious beliefs and expressive events as speech and that, in between those guardrails is where the next case will be decided in a way that is much -- has less baggage, I think, than the case of Masterpiece.

Is it possible that Kennedy or one of the Justices was sort of whipping votes in order to have a 7-2 affirmation of those principles?

>> Well, I think we'll know very soon whether or not the court wants to take up this question again, because as you said, it did just conference the case in Arlene's Flowers, which pits the store owner, Barronelle Stutzman, against the ACLU clients, Rob and Curt, who, of course, were turned away seeking flowers for their wedding reception.

I don't think, however, the majority opinion in Masterpiece Cakeshop left much room for a free speech argument when, again, we're talking about a floral shop that has refused to provide any flowers at all for the wedding of a same-sex couple simply because of who they are.

That's just not about artistry.

>> Let's talk about the harm.

You've sort of speak eloquently about the harm that was done to your clients, Charlie Craig and David Mullins, when they went into that store and they weren't able to receive the cake.

>> Dave and Charlie, like all engaged couples, were looking forward to planning their wedding, and one of the details they were excited about was the cake.

Charlie's mom lived out of town, and she was going to be there, and so they waited until she would be there to help them select their cake because it was an important part of their wedding-planning process.

Now, remember, this is 2012.

Dave and Charlie couldn't marry in Colorado, where they lived.

They had to travel to Massachusetts for their ceremony, but they were planning a reception back home in Denver, and that's what they were looking for a cake for.

And their event planner had recommended Masterpiece Cakeshop to them as a business that had catered other events she had planned.

They walk in there with no sense of what was about to happen.

In fact, they had done research into cake designs that they might like, and you can just imagine the anticipation, the excitement that you feel at that moment of your wedding-planning process, only to be told that the business won't serve you simply because of who you are and who you love.

Devastating.

The family left the bakery.

Almost immediately, Charlie broke down in the car.

He turned to his mother, and, again, for her to see her adult son cry, I think, as a mother, it breaks my heart.

>> Sure.

I, um...

I'm really sympathetic to that, and I think what's interesting to me is, over the course of the last 80 years, the ACLU has been in a position where it has defended the free-speech rights of really extreme right-wing groups, right?

From Nazis in 1934 to Neo-Nazis in the 1970s to the KKK as recently as Charlottesville.

And...

I think it feels to many Americans like if the ACLU is willing to take on such really radical, right-wing groups, why is it against the religion of -- the Christian religion of a cake baker who is expressing his free speech in a very narrow example.

>> Well, the ACLU stands second to none in defending the freedom of speech and the freedom of religion.

And anti-discrimination laws like Colorado's actually further religious freedom because they protect against discrimination based on religion, something that religious minorities in this country face daily.

>> But is this cake-baking, or the lack of cake-baking, as harmful as some of the other examples that the ACLU has taken on?

I mean, for example, when you think about some of the cases, you have Virginia vs. Black, and Justice Thomas cited this.

He said, "Concerns about 'dignity' and 'stigma' did not carry the day when the Supreme Court affirmed the right to burn a 25-foot cross."

Or even when you think about Skokie, where the Supreme Court, because of the help of the ACLU, affirmed the right of Neo-Nazis to march through a Jewish neighborhood full of Holocaust survivors.

And as you talk about harm and you talk about dignity, I think, too, of the harm and dignity done to those Holocaust survivors by seeing sort of that expression of speech.

And so, the question is, is there a double standard?

Because it feels to many Americans that there could be a double standard.

The ACLU is willing to defend the KKK and not willing to defend Jack Phillips, the baker in Colorado.

>> Well, Margaret, seven Justices of the U.S. Supreme Court essentially agreed that freedom of speech is just not implicated by laws like the Anti-Discrimination Act.

Again, this is a law that targets people.

It doesn't target speech.

And the Supreme Court has repeatedly recognized the dignitary harms that are involved in being turned away and told that "Your dollar isn't as good as someone else's."

Masterpiece Cakeshop is not the first business to challenge the application of anti-discrimination law.

When you go back to the 1964 Civil Rights Act, which, again, required businesses not to discriminate based on race, color, and religion, and the question of whether Congress has the power to prohibit that discrimination making its way to the U.S. Supreme Court in the case called Heart of Atlanta Motel.

And you see the court reference one of the Congressional reports in passing the Civil Rights Act and says, "Discrimination is not just dollars and cents.

It's the indignity that a person feels when he's told that his very presence is not good enough, that he's unacceptable as a member of the public," and that's true whether you're buying hamburgers or movies or even a wedding cake.

>> Ria, I'd like to turn your attention to a clip of a "Firing Line" from 20 years ago.

And it is on a subject that is not dissimilar from the subject that we're discussing today.

In the context of a debate William F. Buckley held called "Resolved: The ACLU is Full of Baloney."

Let's take a look.

>> We don't believe that the homosexuals should be a special group, in the sense that women are a special group, children are a special group.

That seemed entirely plausible, but it was overwhelmingly backed in the marketplace.

What happens?

It's knocked down in the Supreme Court with the aid of the ACLU.

And now he actually boasts of it, having just five seconds ago told us how he was in favor of market solutions.

>> But isn't the important thing about the Bill of Rights and, in fact, the whole constitutional system we have, that it protects the minority against this extraordinary and easy power of the majority to enflame, as Mr. Knight and you very successfully do?

>> The answer to your question is, that's part of it.

The other part is the affirmation of the majority.

The majority has certain rights.

We decided Mr. Clinton should go to the White House, so he's there.

The minority has a right to protest it, but you simply are constructing an entire cathedral around the rights of a minority, completely ignoring such majorities as belief, for instance, in prayer in public schools, offensive as that may be to some of you.

>> Yeah, that was 1998, which wasn't so long ago -- only 20 years ago.

And I think that clip does -- If it does anything at all, it also demonstrates how far LGBT freedom has come in a very short period of time.

But what I'd like to say to you is, in that case, let the record state that the ACLU was not full of baloney.

[ Both laugh ] >> Well, thank you for that, Margaret.

And I have to say, I actually agree with William F. Buckley about one thing, which is that LGBT people aren't asking for special protections.

All we're asking for is that the same rules that apply to everyone else apply to us, too, and I think the court recognized that on Monday.

>> They absolutely did.

Thank you very much, Ria, for being here on "Firing Line."

>> It's been great.

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