Saturday, August 26, 2017

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

4. Fundamental Rights

Fundamental Rights elevated by this Court via the Ninth or Fourteenth Amendments, should not conflict with enumerated Fundamental Rights. Nor should elevated Fundamental Rights be controversial. This may be a necessary evil, but conflicting and controversial rights work to polarize the general public instead of uniting them. For instance, abortion and gay marriage rights conflict with natural enumerated rights such as Life and Religious rights. Abortion and gay marriage conflict with previously elevated rights such as procreation (Skinner v. Oklahoma, 1942). For these reasons, abortion and gay marriage have moved from state rights issues to national issues literally dividing the country in two. Troxel v. Granville is an example of a properly elevated Fundamental Right (the right of parents to make decisions for their children) because it is not controversial or conflicts with other Fundamental Rights. Troxel is good law because it widely accepted and has not created any national polarity or divisive politics.

When Fundamental Rights collide, in the absence of discrimination, the Court should side in favor with the enumerated right. The Constitution and Bill of Rights have lasted over 200 years without any serious modifications. The Court could consider some type of jurisprudence standard to overcome such conflicts which undoubtedly will continue to occur. The Court faced a similar dilemma when medical advancements made late term abortions safer, but at the same time made the viability of the fetus earlier in the pregnancy. In Webster (1989) and Casey (1992) the Court disregarded the trimester system formulated under Roe and created the “undue burden” standard which exists today to deal with the conflicting Fundamental Rights of Life and Abortion.

The natural law due process philosophy (freedom of contract) founded in Lochner v. New York (1905) and enforced in Adkins v. Children’s Hospital (1923) was repudiated in West Coast Hotel v. Parrish (1937) and finally revitalized in Loving v. Virginia (1967), Griswold v. Connecticut (1965), Roe v. Wade (1973), Troxel v. Granville (2000), Lawrence v. Texas (2003), Raich v. Gonzales (2007, Ninth Circuit), and Obergefell v. Hodges (2015). In all the above cases Meyer v. Nebraska (1923) was cited by the Court. The Court held in Meyer, “without doubt, it denotes not merely the freedom from bodily restraint but also the right of the individual to contracts to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally enjoy those privileges long recognized as common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” In Adair v. United States (1908) Justice Harlan declared “the right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor the person offering to sell.” This can be read to be the freedom of contract between employer and employee (repudiated in West Coast Hotel v. Parrish), but the same contract conditions exist between a business and customer (and this has not been repudiated by the Court). Although freedom of contract between employer and employee have been repudiated, the contract between business owners and customers “to engage in any of the common occupations of life” is still good law in Meyer.

Since CADA does not address the rights of business owner’s religious or free speech liberties it is a flawed law. In United States v. Fisher (1805) the great Chief Justice Marshall declared “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”

This Court needs to decide what is more important: natural and enumerated First Amendment rights or elevated conflicting and controversial social rights.

5. Scrutiny (Rational Test) In Hobby Lobby v Burwell the Court held that a company can deny certain contraceptives (abortifacients) from women in their healthcare plans. In fact, a vast majority of states have statutes protecting pharmacists from handing out abortifacients if it opposes their religious beliefs. Most states also exempt doctors and nurses from performing abortions if it is against their religious beliefs. Abortion is held to the rational basis test of “undue burden” decided in Casey v. Planned Parenthood (1992). The courts in these states and in Hobby Lobby say abortion fails to meet the “undue burden” test for two reasons. First, there are literally a dozen of other types of contraception available to women other than abortifacients. Secondly, there are a far greater number of healthcare plans, doctors, nurses, and pharmacists willing to cover, prescribe, or handout abortifacients or perform abortion surgeries. In other words, it is not an “undue burden” because women have many more choices than exclusions for these services. The Masterpiece Cake Shop case is not much different since homosexual partners can choose from a wide range of products except for a gay wedding cake and there are literally dozens of bakeries in the Denver Metroplex that would be willing to make a gay wedding cake.

The precedent in Atlanta Hotel v. United States and Katzenbach v. McClung in 1964 using the Commerce Clause to eliminate discrimination in public places (in these cases: hotels and restaurants) does not really apply. Although it is easy to see how these cases could be used to apply to a bakery business, these cases used a low level rational base scrutiny since no liberties of the business owners were violated. However, in Masterpiece Cake Shop, the business owners Fundamental First Amendment Religious and Freedom of Speech liberties were violated. Hence, strict scrutiny is required to uphold CADA.

RFRA calls for the Court to protect religious discrimination using strict scrutiny. Also from Gonzales, the Chief Justice outlines the test for a state or federal law to abridge religious liberty: “1. Is in the furtherance of a compelling government interest 2. Is the least restrictive means of furthering that government interest”. If prevention of discrimination for protected groups is the compelling state interest for CADA, then it must be the least restrictive way to further that interest. Based on the “undue burden” test listed previously, CADA fails on both points. First, if CADA is to prevent discrimination, then it should protect both customers and business owners equally. It should not protect customers at the expense of store owners. Secondly, with absolutely no exceptions to CADA, it is impossible it may be enforced in the least restrictive manner since it treats true discrimination and religious liberty as one of the same.

In Gonzales, Chief Justice Roberts says RFRA protects people and business from “’neutral’ laws toward religion may burden religious exercise [conduct] as surely as laws intended to interfere with religious exercise”. Furthermore, the compelling test “strikes a sensible balance between religious liberty and competing prior governmental interests”. This case is no different: a neutral law on its face prohibits the exercise of religious beliefs. The state should therefore, be able to “strike a sensible balance” between religious liberty and perceived discrimination.

Consider an example of a cake maker whose schedule is full but gets a request to make a gay wedding cake. In fear of refusing to make the cake or face discrimination claims, the cake maker notifies a non-protected class customer he erred by taking their order and cannot make their cake due to schedule limitations. Is this fair? Is this discrimination? Is this the type of owner reaction the commission wants from CADA?


CADA is bad law because every instance of denial leads to hurt feelings and offended persons claiming discrimination when in fact we are seeing nothing more than political correctness. The law has proven to be hypocritical in its application and it fails to protect the rights of business owners. We are at a crossroads in America. We see our new generation of young Americans who refuse to respect the First Amendment at our colleges. They refuse to tolerate other opinions and open debate over issues. This generation does not respect the peaceful transfer of power already wanting to impeach a president with no chargers or crime. To deny both the enumerated rights of free speech and religious liberty to elevated social justice rights rising from perceived discrimination from political correctness would be an injustice. It would further the assault on our First Amendment in America. The Court needs to take a stand and show our First Amendment is still valued over political correctness. Hurt or offended or annoyed feelings does not constitute discrimination. Please put an end to the insanity of this never-ending convergence between Social Justice and Religious rights once and for all with some sound jurisprudence.

We live in the greatest country on the face of the earth. We are all lucky to be Americans. In over a third of the nations around the globe Christians and gays are still persecuted and have no rights. Masterpiece Cake Shop realizes this fact and that is why they will not make any anti-American cake – anything that portrays America in a bad light. There will be no cakes celebrating 9/11 or anything supporting the message conveyed by Westboro Baptist Church. Our country is so special that Christians and gays can argue a case about a wedding cake in front of the Supreme Court. That is special and it needs to be protected without infringing on Religious and free speech liberties that our country was founded.

The Fifth Amendment says, “nor be deprived of life, liberty, or property without due process of the law”. In Dred Scott v. Sanford (1857) Taney interpreted this as denying property to slave owners without due process of the law. Taney never considered the denial of liberty without due process of the law to slaves. Taney provided slave owners with preferential treatment over slaves. When Fundamental Rights collide and the Court favors one side over the other it never ends well. It will be controversial. One Hundred and Sixty years following Dred Scott and we still have not learned our lesson. The Colorado commission has failed to seriously consider Masterpiece Cake Shop religious or free speech liberty and instead labeled them as a discriminatory and a racist business. This is similar to what happened in Dred Scott. The Colorado commission provided preferential treatment to one class of individuals over the other without seriously considering the consequences of their actions. In McMullen v. Coakley (2014) the Court held to discriminate against one group of persons at the expense of another is never warranted for any reason. Speech laws are to be neutral and therefore business owners also deserve equal protection under the law. Justice Harlan in his dissent in Plessy v. Ferguson said, “In respect to civil rights, all citizens are equal before the law.” Instead, the Colorado Anti-Discrimination Commission has a history of siding with the perceived most disenfranchised group. In his dissent in the Civil Rights Cases of 1883 Harlan said, “No government ever has brought, or ever can bring, its people into social intercourse against their wishes.” Harlan was on the right side of history in these cases.

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