forcing people to express messages that violate their religious convictions yet the commission requires mr phillips to do just that ordering him to sketch sculpt and hand paint cakes that celebrate a view of marriage in compelled speech doctrine is triggered by compelled speech and in the context of a premade cake that is not compelled speech mr philips is happy to sell anything in his store include yes he did express himself when he made it and the purpose for which express it is important to the compelled speech doctrine and how it applies but when he sorry he did refuse to sell but can i get the answer the question so so so if it if you agree the speech then why can you not refuse to sell the cake this in the window according to justice ginsburg's hypothetical well in a context if it's already been placed in the stream of commerce in a public accommodation setting his speeches been  completed he intended to speak through that cake with the purpose of whatever it was when he created it in contrast though when he has a different purpose and is expressing a message through a cake it would render a different result it doesn't really didn't he refused to sell cupcakes that he sells regularly to the public to some same sex couples who intended to marry that allegation was never involved in the complaint the formal charges  decision but i thought i'm a little bit surprised by what you're saying because your proof seemed to suggest differently that the couple was looking at his already pre designed cakes that he appears to sell without any customer service and they sat down with him when he said i don't supply cakes of any time to gay couples so i thought the scheme was about his refusal to supply a key for any wedding ceremony just the sort of my are that's not how he responded to the couple the couple came in and they requested a custom cake for their wedding at that point they brought in a folder with all kinds of designs they want to discuss and ended up purchasing a rainbow layer cake or or received a free rainbow layer cake which certainly is the expression the order below requires mr phillips also to include words and symbols on his cakes it's petitioner's appendix fifty seven a the order is provided in that order requires him to provide anything that he would provide on a cake in another setting for a marriage between a man and a woman which includes words and images that he would provide he doesn't have to write a message that he disagrees with well this court has recognized in hurley as well as another decisions that artistic expression doesn't need to include words and symbols to express a message or to be protected speech well just just one more there are theory he would need to sell that cake because he's already created that cake with the message that he intended for it but we are drawing the line prior to the compulsion there can be no compulsion of speech if the court were to choose to draw  line in a different place and protect more speech there certainly is precedent for that but under the compelled speech doctrine when someone comes in and requests speech if that speech is already been created then that would be not be com would possibly be an expressive association claim and potentially a free exercise claim if he was delivering the cake and there was other involvement but in terms of the court's application of the compelled speech doctrine that compulsion is the trigger for that but the court could draw wedding the artist speaks justice ginsburg it's as much mr philips of speech as it would be the couple's and in her leave the court found a violation of the compelled speech dr who else is an artist say that the person who does provided or if it's to the person so the jeweler it would depend on the context is all free speech cases depend on what is the jeweler asked to do the hairstylist absolutely not there's no expression or protected speech in that kind of context but what why is there no speech in creating a wonderful hairdo well it may be artistic it may be creative but what the court asks when their makeup artist know what the court would add an artist the makeup artist the makeup artist may again be using creativity and artistry but when this court is looking at whether speech is involved it asks the question of is it communicating something and is it analogous to other protected about this because you know the makeup artist i think might feel exactly as your client does that they're doing something that's of great aesthetic importance to the work to the weddin and that there's  a lot of skill and art to stick vision that goes into making somebody look beautiful and why why wouldn't that person or the hairstylist why wouldn't that also count because it's not speech and that's the first trigger i mean some people might say that about cakes you know some but you have a you have a view that a cake can be speech because it it involves great skill and art istry and i guess i'm wondering if that's the case you know how do you draw a line how do you decide oh of course the chef and baker are on one side and you said i think the florist is on that side the chef the baker the florist verses the hairstylist or the makeup artist i mean where would you put a tailor a tailor who makes a wonderful suit of clothes where does that come in past to determine whether speech is engaged in is to ask if it's communicating something and if whatever is being communicated the medium used is similar to other mediums that this court is protected so not a question when have we ever given protection to a food the primary purpose of a food of any kind is to be that some people might love the aesthetic appeal of a special to serve and look at it for a very long time but in the end its only purpose is to be eaten and the same with many of the things that you mentioned a hairdo is to show off the person n the artist when people at a wedding look at a wedding cake and they see words as one of the a meek i hear the pastry chef said there was a gentleman who had upset his wife and written some words that said i'm sorry for what i did something comparable and the chef was asked the cake maker was asked was that affiliated with you and she said no it's affiliated with the person who shows the  their wedding it's what they wish to show so how is this your client's expression and how can we find something whose predominant purpose is virtually always to be call it a medium for expressive express expression mind you i can see if they've created cake and put it in a museum as an example of some work of art that might be different because the circumstances would show that they want this to be affiliated with themselves but explain how that becomes expressive speech medium becomes expressive speech certainly not all cakes will be considered speech but in the wedding context mr phillips is painting on a blank canvas he is creating a painting on that campus that expresses messages and include good in words and symbols you know the other night i had some people over and one of them brought a box of cupcakes and one of the cuss picks was smashed against the box that was the only cupcake not even now i suspect that one of the reasons is the others were so much more attractive whole there is creation and serving food in creating any type of edible product people there are sandwich artists now there are people who create beauty in what they make but we still don't call it expressive and entitle to first amendment no but when we have someone that is sketching and sculpting in hand designing something that is creating a temporary sculpture that serves as the centerpiece of what they believe to be a just wedding celebration that cake expresses a message architectural design on is that entitled to a not entitled to first amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work precisely in the context of an architect generally that would not be protected because buildings are functional not community and architectural design is not protected no architect generally speaking architecture would specially made for the people at the table to show what important and wonderful evening it was which it did import in part there are all kinds of restaurants do that and maybe always barbecue you know maybe all the thought he had special barbecue right now the reason we're asking these questions is because obviously we want some distinction that will and not undermine every civil rights law from the from from from the year two including the african americans including the hispanic americans including everybody who has been discriminated against in very basic things of life food design of furniture homes and buildings no that is i think the point of the question and i'll try to narrow it unspecified to get your hands thank you justice breyer in terms of the test that would be applied the court would first ask under the speech analysis is there speech and by asking that you're asking is there something that's being communicated and is it a particular is one of the people i mentioned who doesn't think he's communicating something what do you think they're doing when they're making  it's not just about what the individual thinks they're communicating that this court also routinely makes that inquiry in all kinds of situations in all free speech cases second the hurly framework provides a framework for this court to make those decisions and to protect individuals the way that it does that is it asks is the individual who is being compelled to speak objecting to the message that's contained in that speech or the person and that's usually a very obvious inquiry if it's  belief that expressed in speech trump public accommodation laws against discrimination and protecting customers from race yes or no this court is never compelled speech in is your theory that you could you public accommodation laws could not trump free speech or free exercise claims in protecting against race discrimination that is not my theory that would be an objection to the person and the court may find a compelling interest in it if i could just sorry very quickly i know your latest on and i'm sure you'll be given a little bit of an adjustment is that ok  i guess i just didn't understand your answers to just the sort of my us question same case or not the same case if your client instead objected to an interracial marriage very different case in that continent the same how about if he objected to an interreligious similar case assuming that the objection summoners to what similar to mr phillips that would be protected under the compelled speech doctrine if the objection is to the message being conveyed in that expression you're just saying race is different i'm saying i mean i don't want to put words in your mouth i just really you know i just want to know the answer i think race is different for two reasons one we know that that objection will be based to who the person is rather than what the messages and second even if that were not the case the court could find a compelling interest in the race in corrie just as it did in the pea rodriguez case so where else ability i'm not going to kicks to two disabled people because god makes perfect creations and there are some religions who believe well how about they're not aware of any religions that believe that but if they did that would clearly be based on who the person is and not the message in the final product but they're being asked we'll hear why it was saying that providing the cake to a same sex couple was against his free expression rights because and history exercise rights because he cannot celebrate that kind of marriage mr phillips is looking at not the who but the what in these instances what the message is in for twenty five years actually counsel that seems to be a point of you know this so what do you say to that that actually what is happening here may superficially look like it's about the message but it's really about the person's identity i would say then but now eight the court applies an offensiveness policy which allows the state the discretion to decide what speech is offensive and what is not and it did not apply that in a fair way to mr philips which creates viewpoint discrimination as well as a violation of free exercise the free exercise clause but what's deeply concerning is that it's not the theory that respondents are submitting to this court today they believe that they can compel speech filmmakers oil painters and graphic designers in all kinds of contacts if there are no further questions i would like to reserve the balance of my time will afford you the full rebuttal time thank you for general francisco mr chief justice and may it may please the court this case raises an important issue for a small group of individuals namely whether the state may compel business owners including professional artists to engage in speech in connection with an expressive event like a marriage celebration to which they are deeply opposed in those narrow circumstances we believe the free speech clause provides breathing space how narrow is considered justice  done well your honor that's of course a question that the course has court has to answer at the threshold of every free speech case is the thing that's being regulated something we call protected speech i think the problem for my friends on the other side is that they think the question doesn't even matter so they would compel an african american sculptor to sculpt across for a klan service but the problem for you is that so many of these examples of photographer can be included do involve speech that means that there basically an ability to boycott or your honor i think that what it boils down to is that in a narrow category of services that do cross the threshold into protected speech and i do think it's a relatively narrow category you do have protection for example i don't think you could force the african american sculptor to sculpt the cross for the klan service just because he do it for only if you prevail could the bakery put a sign it is a window we do not big weddings your honor i think that he could say he could does not make custom made wedding cakes for gay weddings but most cases you would not cross that at the front to the gay community your honor i agree that there are dignity interests at stake here bases are in isolated areas far from cities and that they're in areas where the general population service population is of one religion or close to one religious belief and so where there might be cake bakers they name a couple of military bases like that or two florist store one photographer very small number of resources right and in those situations they posit and i don't think probably wrongly that it may come to pass where the two cake bakers will claim the same of sentient here so how do we protect the military men and women who are of the same sex who want to get married and that because that's where all their friends are because the base is there right all right how do we protect those people and your honor i think that is precisely a situation where the state would be able to satisfy heightened scrutiny because their interest in providing access to goods and services would be utterly isn't that the sea for everybody meaning look we live in a society with competing beliefs and all of our cases have always said where l g p t people have been you know they've been humiliated disrespected treated on civil e the briefs are filled with situations the right gay couple who was left on the side of the highway on a rainy night people who have been denied medical treatment or whose children have been denied medical treatment because the doctor didn't believe in same said parenthood excedrin we've always said in our public accommodations law we can't change your private police we can't compel you to like these people we can't compel you to bring them into your home but if you want to be part of our community our civic community there are certain behavior conduct right you can think and that includes not selling products that you sell to everyone else to people simply because of their either race religion national origin gender and in this case sexual orientation so we can't legislate civility and rudeness but we can and half permitted as a compelling state interest legislating behavior still why is not sell sell and to one group as opposed to another not behavior and your honor if i could respond i think it's because here we have speech involved in this case is essentially the flip side of the early case and hurley we couldn't force a parade to include a particular speaker here we don't want you can private parade and here your honor we don't think you can force a speaker to join the parade because when you force the speaker to both engage in speech and contribute that speech to an expressive event that they disagree with you fundamentally transform the nature of their message from one that they want to say to one that they don't want to admitting i think pretty much everything but race would fall in the same category but is this court made clear in the bob jones case the i r s could withdraw tax exempt status from a school that discriminate on the basis of marriage but i'm not at all sure that it would reach the same result if it were dealing with the catholic school that women bury student housing the opposite sex couples only i think when you get to this case if you agree with our test and i know that i have a little bit of an uphill battle in convincing some of you of that if you agree with our task i think the heightened scrutiny standard is particularly easy because they're the same interests at stake as were at stake in hurley jennifer i know it's seems as though there are kind of three a which people are asking you what's the line how do we draw the line so one axis is what we started with like what about the chef and the speaker on speed and then you know everybody else that participates in a wedding axis is well why is this only about gay people why isn't it about race why isn't it about gender why isn't it about people of different religions so that's a second axis and there's a third celebration is it the birthday celebration so they're all three of the is that suggests like whoa this doesn't seem like such a small thing and so let me just give you one hypothetical and then you can answer more broadly which you know involved in two there's no there really this russia is expressing something about how he feels about same sex couples and same sex marriage he doesn't want to celebrate same the anniversary of a same sex marriage sure the baker doesn't want to celebrate a same sex marriage and that's where i'd go to something that i think that my friends on the other side have to deal with is often is the case and first amendment law you're dealing with something that somebody everybody clearly agrees that speech and what makes this case difficult is because we're kind of on that line is it speech or is it not speech we think it's on the speech side of the line but take for example the sculptor who does not want to identify general really i mean could could we just i guess i'd like an answer to my hypothetical short so the answer to your hypothetical is as this court has repeatedly said not everything that expresses a message is speech i think when it's a debate there is speech but the the great chef who's like everything is perfect on the plate and it's a work of art it's a masterpiece well your honor you have to confront that issue in every first amendment case generally my my colleagues i think go to more elite restaurants  created by the chef with art with great creativity and i said i really don't want any of these here's the recipe i want you to make this for me you think you do that probably not your honor but i think the critical quite  he created something when he makes that when he devises those dishes and when somebody comes in and asks to buy one he is just mechanically producing another example of the thing that he created earlier that this same cake if you don't if you want to as i understand it you want to treat the chef differently from the baker but let's say the same cake and a couple comes in a same sex couple and says it's our first year anniversary and we would like a special cake for it can he then saying no no no your honor if it's the exact same cake and it crosses that threshold into speech i would just wait what do you mean is it the exact same i don't know what i'm saying is if it's the same type of highly kate that mr phillips makes such that in our view across is the line into speech then you can't force him to create that anymore the you can force in general what is the law and how would you have this court sure of the law and there are a couple when it's a lot of specifics but i appreciate a more abstract general rule that the government suggests i think there are a couple of ways to draw that line and this is something that the court has to struggle with in a lot of cases i think the first way to draw that line is you analogize it to something that everyone regards as traditional art and everyone agrees is protected speech like the jackson pollock exactly and here you have a cake that is essentially synonymous with a traditional sculpture except for the medium used but i also think that the second circuit's decision in the master of in chains of case provides a good  workable standard when you've got something that is part art and part utilitarian and what the second circuit asks is is it predominantly art or predominantly utilitarian and here people pay very high prices for these highly sculpted cakes not because they taste good but because of their artistic qualities i think the more important in fact i have yet to have a wedding cake that i would say tastes great and your honor my wedding cake the top of it is still sitting in our freezer and i'm sure it no longer tastes great but i think the effect and i think i think both and i think one of the key factors that the second circuit looks to it looks to a bunch of different factors but one factor is price are people paying for the utilitarian side of it or are they paying for the artistic side  it's a baker who's an atheist and really can't stand any religion and somebody comes in and says i want one of your very very special special cakes for a first communion for a bar mitzvah and the baker says no i don't i don't i don't do that i don't want my cakes to be used in the right test of a religious ceremony well and again i think if you apply these tests you first have to decide whether i just want to answer well  saying is that when you apply these tests you first got to decide if the cake rises to the level of speech itself on this battle in a well you know if so when it rises to the level of speech then i think he has a claim just like that same baker could refuse to go  i think is the same question go to different for us forget the doctrine for a minute there's a category of people called artists and an artisan is a kind of artist there in many fields there are also people who are discriminated against and we are in a country of minorities there are many different groups that have been discriminated against for many years congress has passed laws say at least to the  cannot discriminate on the basis of race religion sexual orientation if we were to write an opinion for you what would we have done to that princip and of course the concern is that we would have caused chaos with that principle across the board because there is no way of confining an opinion on your side in a way that doesn't do that so tell me well you honor i think that the way you do it is because none of these court cases is ever involved requiring somebody to create speech and contribute that speech to an expressive event to which they are deeply opposed and if i could go back to my example when you force that african american sculptor disco up that cross for a klan service or transforming his message he may want his cross to send the message of peace and harmony by forcing him to combine it with that expressive event you force them to send a message of hate and wanted what was the government's position be if you prevail in this case the baker prevails in this case and then bakers all over the country received urgent request please do not bake cakes for gay weddings and more and more begin to comply with the government feel vindicated in its position that it now if submitted to your honor i think in that case the case for strict scrutiny would be much stronger because you'd be able to show that you're that the application of the laws narrowly tailored to the government's interest in ensuring access here of course you have these products that are widely available from many different sources and i would submit just to finish up that if you were to disagree with our basic principle putting aside the line about whether a cake falls on speech or non speech side of the line you really are in visioning a situation in which you could force for example a gay person your deport form at the westboro baptist church just because th opera singer would be willing to perform at the national cathedral and the problem is when you force somebody not only to speak but to contribute that speech to an expressive event to which they are deeply opposed you force them to use their speech to send a message that they fundamentally disagree with and that is at the core of what the first amendment protects our citizenry against thank you general justice retail bakery that is open to the public and subject to the colorado and discrimination act if petitioners claim that they can refuse to sell a product a wedding cake of any kind of any design to any same sex couple organization  i think there are in many different faiths but catholic legal services they provide pro bono legal representation to people who are too poor to avoid it and they provide it to people of all all different faiths so let's say someone just like respondents here except needing the pro bono assistance goes into catholic legal services and say we want you to take this case against masterpiece cake shop and the people at the lawyers say well we're not going to because we're we don't support same sex marriage are they in violation of the colorado law no chief justice mr chief justice they are not refusing to offer a particular service in that case when they wouldn't provide it to any other customer no no they would provide a different if they had a real sexual couple comes in and says we need a particular services in connection with our marriage  they would provide it it's only because and they say this it's only because it's a same sex marriage that we're not going to provide pro bono legal services to you in the sense of a services regarding maybe something or something in connection with the marriage you know they're having a whatever a contract dispute with somebody in connection with their marriage and the lawyer says we're not going to provide services in connection with same sex marriage because we have a religious objection to that  chief justice i think there's the initial question that's asked in all of these cases and it's the way that states have been resolving these questions for literally one hundred years and that the the question is is this entity operating in the way of a retail store in the sense that it  fighting clearly is covered by colorado's law it's not primarily religious it's primarily legal it's provided to all faiths and there's nothing in the law that i can see that says it's limited to for profit organizations and your honor again i  think the question's going to be is that operating in the sense of a retail store if it is then yes a state can require a someone offering a service to give the same services regardless so the protected characteristics of of the customer if that's ok so catholic legal services would be put to the choice of either not providing any pro bono legal services or providing those services in connection with the same sex marriage if it is operating in the same way as a retail store i think under colorado and i don't i can't answer that question actually need besides the ones i've been i would have to understand what the the the purpose and the history is of that and to teach choosing customers and how it works if there's j have all they have to take in every other customer to date except this is the first time someone's come in and wants legal services in connection with the same sex marriage and they say we're not going to do it because as a religious matter were opposed to same sex marriage and your honor i think i think if they were operating like a retail store like that and then colorado would have the ability to regulate well that answers were otherwise this has entered to the question of the free exercise clause in this case we didn't talk about it earlier justify discrimination is a despicable piece of russian rhetoric did the commission ever disavow or disapprove of that statement there were no further proceedings in which the commission disavowed or disapprove this of our disapprove of that i would not have counseled my client do you now disavow or disapprove that the i do yes your honor i think i need to make clear that what that commissioner was referring to was the previous decision of the commission which is that no matter how strongly it is not an exception to a generally applicable and it discrimination and if if the assertion that what is engaging in his speech is enough to overcome that law you're going to face a situation where a family portrait artist can say i will photograph any family but not when the fathers are because i have a sincere injection and then it was faith that would be discrimination suppose we thought that in significant part at least one member of the commission based  the commissioner's decision on the ground that of hostility to religion can your good your judgment then stand your honor i don't think that one statement by the commissioner sumit residuals by the suppose we thought there was a significant aspect of hostility to religion in this case good your judgment stand your honor if if if there was evidence that the entire justice kennedy's question how many commissioners are there there are seven commissioners you're right if one if there was a belief not yours stop fighting the belief except the hypothetical if this person was in properly biased what happens then that i think that's what justice kennedy assassination if there is one person that's improperly by it is the commissioners is improperly biased i think you're going to have to ask whether the complaint filed with division which was filed by a customer who referred to a bakery to receive a product and the a l j and the commission in the appeal were all biased in the sense that this was a proceeding meant to single out a religious person for his views and that is not the fact here we've had you'd agree that would be a more obvious context the context of courts i think it's not just where you have a three judge panel and turns out one judge was should have been disqualified whether for whatever reason they don't say that well the vote there were to sit still so it doesn't change the result because it's a deliberative process and the idea is well the one biased judge might have influenced the views of the other your honor again i don't think that th particular phrase i would advise my client to make that statement but it was referring back to the previous decision where the commissioner you're going to debate is actually of a second commissioner who also said that  if someone has an issue with the laws impacting his personal belief system he has to look at compromising that belief system presumably as well right and yes your honor and that's the same principle that this court record a second commissioner cases like united states two to commissioners out of seven who've expressed something along these lines i don't agree that what was expressed in the record reveals the kind of bias that existed in cases like the church of what if you disagree right it what if we disagree with you then what follows i example and what people are trying to do with exceptions is take the thing you're worried about where there are genuine sincere religious views or whatever it is and minimize the harm it does to the principle of the statute while making some kind of compromise for people of sincere beliefs on the other side and we find out in a lot of them but that's primarily a legislative job and my impression of this is there wasn't much effort here in colorado to do that anywhere and where i feel obligated is can we do that in any way or is there any way to get to a place that without harming the law and its object which asking just this prior i i do not agree that this law which was passed in two thousand and eight after literally a decade in the wake of aurora was not an attempt sincerely to hear from all sides about a question of whether to grant the same protections to people who are discriminated based on race or faith to people of the g l b t community and one thing if you look at one thing that's disturbing about the record here in addition to the statement made  statement that justice kennedy read which was not disavowed at the time by any other member of the commission is what appears to be a practice discriminatory treatment based on viewpoint  the commission had before it the example of three complaints filed by an individual whose creed includes the traditional judeo christian opposition to same sex marriage and he requested cakes that express that point of view and those there were bakers who said no we won't do that because it is offensive and the commission said that's ok it's ok for a baker who supports same sex marriage to refuse to create a cake with a message that is opposed to same sex marriage but when the tables are turned and you have a baker who opposes same sex marriage that baker yes mr chief justice the facts of that case are that someone walked into a bakery and wanted a particular cake with particular messages on it that that bakery wouldn't have sold to any other customer and mr phillips would not be required to sell a cake  to a gay couple that he wouldn't sell to his other no business or what is said in this case mr phelps would not that we do you disagree with the fact that he would not sell to anybody a wedding cake that expresses approval of same sex marriage i what he may not do as a public accommodation they do when there's an offer to the public yes yes your honor is decided that he won't sell somebody a product that he would others was sell because in his view the identity of the customer changes the mess couple did come in and want to the rainbow ok yes and this gentleman says one of two things if you're same sex i'm not going to provide you with a rainbow cake or i don't create rainbow cakes for weddings because i don't believe in same sex marriage i'm not going to sell it to you i'm not going to sell it to a same heterosexual couple i just don't want to be affiliated with that concept of rainbow ness at a wedding any kind of wedding and just what are the difference in treatment just the sort of my or in that latter case if that was truly a product he wouldn't sell to any other customer he would not have to sell it to this customer but if it's a question of a cake he would sell to any other customer he cannot say i have a very strong objection to interracial or interfaith marriages and i don't want to send a message about that with those events and so i'm not going to sell it to you that's discrimination it wouldn't be appropriate in a colorado on counselor tolerance is essential in a free society and tolerance as most meaningful one is mutual it seems to me that this in its position here has been neither tolerant in a respectful of mr phillips religious beliefs and your honor i did it because accommodation is quite possible with soon there were other shops the other good big rich ups that were available your honor i do i don't agree that colorado hasn't taken very seriously the rights of those who wish to practice their faith i urge you to read the legislative history that culminated in literally ten years of debate about how to deal with this question and what the legislature decided after hearing from the faith community after making an exception for places of worship and doing making other exceptions decided we can't make exceptions here for same sex people who deserve the same protections if we wouldn't make those same exceptions for discrimination based on race and sex and religion history are going to be none of this can you can a baker do this could the baker say you know there are a lot of people i don't want to serve so i'm going to affiliate with my friend smith who's down the street and those people i don't want to serve smith will serve is that legal would that be legal under colorado law that be a kind of accommodation so they get because it would be your honor it would legal to hurt no no it would be illegal if you cannot turn away from your storefront if you were to it's a joint venture i have a regular affiliation with smith smith and i work together i serve the people he doesn't like he serves the people i don't like is that violate the law i don't i think i would say that there's there is a possibility that that does not violate the law if there's not some other pretext there to ensure that a disfavored class of customers  sees lesser service and that's always a question in a case like this does it make a difference it was same sex marriage permitted in colorado at the time of these events it was not your honor does that make a difference i don't think it does your honor could he have said i'm not going to make and twelve so if craig and moments had gone to a state office and said we want to marriage license they would not have been accommodated if they said well we want you to recognize our massachusetts marriage the state would say no we want to commentate that well we want to civil union well we want to commentate that either and yet when he goes to this bake shop and he says i want to wedding cake and the baker says no i won't do it in part because same sex marriage was not allowed in colorado at the time he's created a grave all wrong how does all that fit together well your honor again it the decision by this bakery was it wouldn't sell only thing he admitted and what was said in the undisputed of the list of undisputed facts was he would not create he was very careful to use the word create is that wrong that's not incorrect your honor what  has said is that all his wedding cakes are custom made and so what he said is that he would have a right to refuse that service to anyone whose identity in his view means that the message is changed and he does not want to sell it to them and we have to endure in the questioning by the petitioners council we explored the line between speech and non speech but as i understand your position and would be the same if what was involved here were words am i wrong he would put a particular form of words on a wedding cake on a cake for one customer he has to put the same form of words the same exact words on a wedding cake for any other customer regardless of the context that's that's right just as he would have to saw a happy birthday cake to a member of the jewish faith or an african american couple so if someone came in and said i want a cake for to celebrate our wedding a even handed genuine policy applied by the baker that doesn't have to do with the identity of the customer and if it has to do with a message that is a part from the identity  customer then he can refuse that otherwise you have a suit circumstances in which he would paint a picture of a couple but wouldn't change the skin tone of the couple that's pictured on the cake that would be discrimination and there wouldn't be any first amendment problem with enforcing a law against that i have a quick question about the remedy as i understand it colorado ordered mr philips to provide comprehensive training to his staff and it didn't order him to attend a class of the government's own creation or anything like that but to provide comprehensive staff training why why isn't that compelled speech and possibly in violation of his free exercise rights because presumably he has to tell his staff including his family members again i agree with you in some sort of training by an outside group but this water was ordering him to provide training and presumably compelling him to speak therefore and to speak in ways that maybe offend is religion and certainly compel him to speak and given that plus the discriminatory language in the in the commission's discussion that i just that concerns me i just wonder what you have to say i understand your honor if all that's required in these training sessions is an understanding and a demonstrated understanding of the colorado in a discrimination act it has nothing to do with a particular person's belief it has to do with ensuring that the conduct that was found discriminatory and if that conduct can be regulated consistent with the for first amendment i think that a training requirement part of that it be it is the state law in this case supersedes our religious beliefs and he has to teach that his family he has to speak about that to his family he has to speak about that if i am not in running up a public accommodation that's open to mr cole mr chief justice and may please the court we don't doubt the sincerity of mr phillips convictions but to six accept his argument leads to unacceptable consequences a bakery could refuse to sell a birthday cake to a black family if it objected to celebrating black lives a corporate photography studio could refuse to take pictures of female c e o s of a believe that a woman's place is in the home and a florist could put a sign up on her storefront saying we don't do gay funerals if she objected to memorializing gay people now both petitioner and the united states recognize that these results are unacceptable with respect to race and so they suggest you draw a distinction between race discrimination and sexual orientation is communication and the state's ability to protect it but to do that would be to constitutionally relegate gay lesbian people to second class status even when a state has chosen as colorado has done here to extend them equal to make sure he provides equal services outside the context of wedding to weddings to gay and lesbian individuals and though the racial analogy obviously is very compelling but when the court upheld same sex marriage in a burger fell it went out of its way to talk about the decent and honorable people who may have opposing views and to immediately lump them in the same group as people who are opposed to equality in relations with respect to race i'm not sure that takes full account of that of that concept in the word of phil decision so so chief justice roberts that the court in in over a fell did indeed say that individuals are free to express their disagreement through speech with the notion of same sex marriage but it did not say that businesses who make a choice to open themselves to the public can then turn away people because they are gay and lesbian all the baker needed to know about my clients was that they were gay and lesbian and therefore a gay and therefore he wouldn't sell them a wedding cake which he would sell gladly but he's not her answer to that i was trying to get the answer to that much i think that they're proceeding roughly on the line that well all that you say is true but that doesn't mean that under these laws maybe the african american it's true is separate but it doesn't mean that the person could be hired to come to the wedding and announce to the general people they are this is the most wonderful thing i've ever been happy now that's where they say they have a right not to do that and no one second step of that is to say and what's going on here is the equivalent of that right but i took that as i may be unfair to them but i took the what is as the outlines of the answer to what you're saying so i'd like to hear what you say in respect if i'm right about what this thank you no one is suggesting  that the baker has to march in the parade as mr francisco said here what they're what the colorado law requires is that you sell a product when i don't want to mom goes into a bakery and says make me a happy birthday right if he would if he would say that then he would have to say god bless the union of dave and craig because the only difference between those two cakes yana is the identity of the customer who is seeking to purchase it it's the same cake otherwise so so yes if he is but but again in this we have to answer that question you don't know you know justice kagan you don't because in this case again the only thing the baker knew about these customers was that they were gay and as a result he refused to sell them any wedding cake there was no request for design there was no request for a message he refused to sell them any wedding cake and that's identity based discrimination it is we can't have forty two thousand cases each kind of vegetable that the preparer thinks is something special so so here is an answer that satisfies you  say well you see here of course all custom goods all custom goods have an element of expression and are his and is not quite the same as an artist but an artis an can be a great artisan and can produce good things but where are the clashes between an important public policy the policy of opening the doors to everyone including minorities in the public commercial area well there the speech element of the artisan is not really sufficient to outweigh that now that's pretty straightforward and i don't know how it fits within the lore and so forth but if you're looking at the policies here it seems to me the cases do support the out and they do have to leave open the instance where the speech goes with my opponent with respect to whether a cake artist is different from a make our makeup artist or whether highly sculpted cake is different from a an unscripted cake illustrates that it's just not possible to broadcasting and what the what the court has done when it's expressive conduct because that's what we have here at most is expressive conduct we don't ask is it expressive from the perspective of the baker or is it expressive from the perspective of the of the of the  customer we ask what's the state's interest in regulating what is the state doing and if the state is regulating conduct because of what it expresses well now that's strict scrutiny that is the words on the cake express of conduct are are are they not speech but the conduct your honor is regulated by colorado here is not the words on the cake the cot the conduct of the colorado regulates is the sale by a business that opens itself to the public invites everybody and it's it's regulating the conduct of refusing a transaction sure to somebody because of who they are in the transit doesn't matter whether it's speech or whether it's not speech what you just said and and i understand mr yar position for colorado to be the same is that someone can be compelled to write particular words with which that person strongly disagrees if your that is your position if he has written the same words for others and the only difference is the identity of the customer yes so again a baker could sincerely believe that saying happy birthday to a black family is different from saying happy birthday to a white family but we would not say if therefore it's permissible for a baker to say birthday cakes for whites only there's a there are services i was somewhat surprised to learn this but wedding soon becomes a labrat that will write custom wedding vows for you and custom wedding speeches  so somebody comes to one of these services and says you know we're not good with words but we want you to write wedding vows for our wedding and the general idea we want to express is that we don't believe in god we think that's a bunch of nonsense but we're going to try to live our lives to make the world a better place and that the person who's writing this is religious and says i can't lend my own creative efforts to the expression of such a message but you would say well it's too bad because you're a public accommodation and i write what i would say your honor is that if that case were to arise it would certainly be open to this court to treat it differently but this is not a case in which anyone is being asked differently on one law and even where it's neutrally applied if it has the effect of compelling somebody to engage in a religious ceremony that is against their deep religious commitment we might treat that differently but under the monologue you know that would not be a red cross to celebrate the anniversary of a great humanitarian organization next person comes and wants the same red cross to celebrate the k k k does the baker have to sell the second customer and if not why not it's not identity based discrimination if they're all that colorado law and public accommodations law generally requires is that you not discriminate on the basis of a particular protected class sexual orientation race disability religion and the  the if he is not doing it on the basis of the ident protected identity the ku klux klan as an organization is not a protected class so yes you don't you're the public companies are does not say you must treat everybody it says you to my beliefs it's not it's not their identity it's what they're doing i think it's well your identity thing is just too fast well justice kennedy this court faced that question in bob jones university bob jones you resist that we're not screening on the basis of race we allow black people to come into the school we just refuse to admit those who are engaged in interracial marriages or advocate interracial dating and this court said that's race discrimination that's identity base even if you treat others similarly but but i think one way to think about this case it is is analogize it to brian right you know brian nobody disputed that o'brien's burning of the draft card to protest the vietnam war was expressive it was core political expression but what the court did was it didn't say well how expressive is it is it artistry is it not is it core is it not it said what is the state trying to do here because it's expressive conduct and if the state's seeking to regulate conduct then the fact that it has an incidental effect on mr o'brien's expression is not a problem as long as the state has a content neutral reason for regulating that kind of take justice course it's a question substitute for the k k k a religious group bizarre perhaps that a religious group that unfortunately has the same beliefs as the k k k that is doesn't then you can ask a question answer as they do disown i think if the discrimination is based on protective characteristics yes they can they can't say because i object to the message that equal treatment sentence right pinky park objected to the message that equal treatment sent to serve a black person in a segregated previously segregated restaurant sent a tremendous message a message that piggy park sincerely religiously objected to and this court said that that's a frivolous claim in that context so i don't i just i don't think you can carve out exceptions to generally applicable rules that regulate conduct in a content neutral way as this does and so just as mr the fact that mr o'brien's conduct burning of draft card was expressive did not give him a first amendment exemption to a content neutral prohibition on draft card destruction so the fact that mr phillips considers his cake baking to be expressive doesn't give him a first amendment exemption to a content neutral regulation of public accommodation sales in the retail context this court has already said that that interest in prohibiting discrimination on the basis of identity in public accommodations is a interest unrelated to the suppression of expression so that roberts versus jaycee's it serves compelling interests roberts versus jaycee's even where race is not involved where is your answer to my hypothetical about the religious legal services organization the same as mr youngers i think i think if if christian legal services catholic legal services sorry or has offered a offered was pro bono legal services people whether it's wills or contracts or landlord tenant or anything at all right so i don't think they have to as they don't have to argue for a position that they disagree with but what they if they provide wills or they provide landlord tenant to a straight couple then they have to provide that to a gay couple and so they would if someone had a problem in connection with their marriage again whatever i contract dispute something like that they would have to provide representative services to someone who had a similar problem in connection with a same sex marriage marriage so i'd say two things are first of all i think they would if they have provided the same services to couples who are straight but the court might say that when what you're regulating is only speech not expressive conduct because remember that the o'brian task the c c envy task the fair versus runs is not only speech it's providing the legal service over the legal services are speech on a what other than speech i'm gaged in for example right now well i would say partly expressive conduct your engaged in representation before the court which involves a lot more than simply what you're saying in response to the answers well if you treat if you treat her early i think illustrates that where the state is regulating only expression no conduct at all just the banner that's in the parade the court takes a different view but where expressive conduct is involved and the reason the court takes a different view makes sense because again  the analysis this court uses with a suppressed with respect to expressive conduct is is the state regulating the conduct for some reason no the water expresses or is it regulating what it expresses and and when you only have expression when all that's involved is expression as was the case with the parade in her early that's different because there's no there's no neutral conduct to be regulated but here what we have is the sale of a good a cake  to an individual that's where to go to the extent it's expressive it's certainly also conduct and colorado's interest in ensuring that bakeries and tailors and and other public accommodations treat all people equally is a content neutral interest in ensuring that everybody has a right to participate in the economic life of the community along no one along the same lines as the chief justices question would you say that colorado can compel a religious college that whose creed opposes same sex marriage to provide married student housing for a married same sex couple or allow religious institutions but a bakery that opens itself to the public is not a church well this is not a church it's an educational it's a it's and an independent educational institution with a religious heritage and that's what they believe so i think surmised i think they would be required to do it well i think under this court's doctrine employment division versus smith the question would be is it a generally applicable neutral law and if it's a generally applicable neutral law there would not be a free exercise question at all right and so and the reason for that is justice scalia said an important division for smith is equally applicable here once you open this up once you say generally applicable regulations of conduct have exceptions when someone raises a religious objection or in this case have objections were someone raises a speech objection you're in a world in which every man is a law unto himself and so the only sensible way to approach this is to say if the state is targeting religion then we're going to be very careful about protecting religion and if the state is targeting the message is targeting the content of speech then we're going to be very careful about protecting but when the state is regulating conduct neutrally unrelated to expression it is what this court has already said is the case with respect to public accommodations then we can have a world in which everybody who raises an objection otherwise we would live in a society in which businesses across this country could put signs up saying we serve whites only music lessons for muslims need not apply passport photos not for the disabled thank you thank you coun seller of the cakes is not mr philips it's masterpiece corporation does it in your arguments who controls the expression here the corporation or of shareholders i always thought corporations were separate entities and how do we and pew should this corporation which is just a bakery doesn't purport to sell just religious items it's a public place how do we how do we make this decision with respect to the rights of individuals in a corporation that don't have objections still can the show at the hilton and i don't mean to demean the holton or anybody else i'm using it as an example can he say i don't believe in same sex marriage and i won't create a cake and can be cornered justice sotomayor in the context of your question regarding the health and there may be a religious accommodation that is made to an employee but in the context of masterpiece cake shop this this court has found that corporations have free speech rights as well as a closely family hold corporations have free exercise rights and mr phillips is also the speaker if it's the corporate board or it's the shareholders who decides well certainly i think it again if it's dealing with an employee the employee certainly decides what what they're willing to express can be that really speaking for the corporation the employee can be made an agent for the corporation speak on its behalf the employee can choose it on behalf of the corporation certainly but if we're talking about what the corporation will speak then the shareholders and in a small family home corporation the shareholders for the site that and that's exactly what's at stake in this case mr philips owns masterpiece cake shops he designs most of the wedding cakes himself by hooman his wife right yes it is i have three brief points in rebuttal first of all the bias of the commission on is also evidence to the unequal treatment of the cake designers the three other cake designers who are on the squarely opposite sides of this issue if the court looks at the analysis that was provided by the colorado court of appeals line by lin they take the opposite approach to mr phillips that they do to those who are unwilling to criticise anything they would say no to any looking with that request you know the colorado court of appeal said that they could have an offensive in this policy and they said that those three kc designers were expressing their own message if they had to design that cake in mr phillips this case they said it wasn't his message it simply compliance with the law in the other case they said that the cake designers because they served christian customers  another context that that was evidence it was a distinction based on the message that mr phillips case they ruled the opposite way professor les cox brief provides a good analysis of that as well that was filed in this case second speech doctrine and the free exercise clause is anchored in the concept of dignity and speaker autonomy and in this case dignity cuts both ways the record is clear on that demeaning mr philips is honorable and decent religious beliefs about marriage when he has served everyone and has a history of declining all kinds of cakes and affiliated with sexual orientation because of the message he should receive protection here as well this law protects the lesbian graphic designer who doesn't want to design for the westboro baptist church as much as it protects mr phelps lastly political and moral opinions shift we know that and this court's dedication to compelled speech doctrine and to free exercise should not shipped the problem here is that americans reaction to mixed marriages and to race didn't change on its own it changed because we had public accommodation laws that force people to do things that many claims were against their expressive rights and against their religious rights it's not denigrating someone by saying as i mentioned earlier to say if you choose to participate in our community in a public way your choice you can choose to sell cakes or not you consumes to sell cupcakes or not whatever it is you choose to sell you have to sell it to everyone who knocks on your door if you open your door to everyone you can respond if you like just the sort of my i think that the greatest offense to the first amendment would be to compel a person who believes that marriage is sacred to give voice to a different view of marriage and require them to celebrate that marriage don't first participate in weddings or create a cake that is neutral but you don't have to take and offer goods to the public e union is a marriage and is to be celebrated and that message violates mr philips religious convictions thank you this court thank you counsel case is submitted