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Speaker 1: The Supreme Court opens its new term next month on

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Speaker 1: the traditional first Monday of October. One of the most

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Speaker 1: hotly contested cases involves the same sex Colorado couple turned

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Speaker 1: away five years ago when they asked a local bakery

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Speaker 1: about making them a wedding cake. The bakery's owner, Jack Phillips,

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Speaker 1: objects to gay marriage on religious grounds, and he says

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Speaker 1: it would violate his free speech rights if he were

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Speaker 1: forced to create a cake for a same sex wedding

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Speaker 1: to David Mullins and Charlie Craig. That's discrimination. The now

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Speaker 1: married couple file to complaint under Colorado's anti discrimination law

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Speaker 1: and won an order from the state's Civil Rights Commission

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Speaker 1: requiring Phillips to either sell wedding cakes to gay couples

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Speaker 1: or stop selling them all together. It's a class among

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Speaker 1: some of the country's most treasured rights, and we're going

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Speaker 1: to talk it through with Eric Siegel, professor at Georgia

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Speaker 1: State University College of Law. Eric, thanks for joining us.

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Speaker 1: Let's start with the world from Jack Phillips's perspective, Putting

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Speaker 1: aside whether he's right or wrong, what's his strongest argument

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Speaker 1: that his constitutional rights are being violated? Well, I think

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Speaker 1: he has to his his two equal arguments. I think

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Speaker 1: one is that he shouldn't be forced to perform an

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Speaker 1: act that violates his religious conscience, and that would be

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Speaker 1: supporting a same sex marriage. And second, or maybe first,

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Speaker 1: or tied for first, would be the state of Colorado

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Speaker 1: is not allowed, is not allowed under the First Amendment,

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Speaker 1: to compel him to express something he doesn't want to compel.

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Speaker 1: He does want to express, So he does not want

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Speaker 1: to say I'm in favor of same sex marriage, and

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Speaker 1: Colorado is in effect making him say that by requiring

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Speaker 1: him to sell this cake. And as far as the

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Speaker 1: argument of Colorado explain that, well, I think that's um,

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Speaker 1: you know, it's it's it's an argument that states have

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Speaker 1: used for a long time. Colorado does not want businesses

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Speaker 1: who are open to the public and who make a

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Speaker 1: profit or trying to make a profit to discriminate on

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Speaker 1: the basis of race or religion, or national urgin or

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Speaker 1: gender or sexual orientation when they are selling their products.

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Speaker 1: He has opened a bake shot, he is selling his

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Speaker 1: wedding cakes to all, and certainly if an interracial couple

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Speaker 1: came and he said, I don't believe in interracial marriage,

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Speaker 1: so I'm not going to sell my cake to you. Um,

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Speaker 1: Colorado would be well within its rights to say you

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Speaker 1: have no choice but to sell your cake to an

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Speaker 1: interracial couple. And they're making the same argument as to

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Speaker 1: sexual orientation. Eric, does that last point you just made

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Speaker 1: mean that if the Supreme Court agrees with Phillips, they're

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Speaker 1: gonna have to give us some sort of explanation as

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Speaker 1: to why sexual orientation discrimination is treated differently under the

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Speaker 1: law from racial discrimination. Well, the Trump administration filed a

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Speaker 1: brief basically suggesting the case should be decided along those lines.

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Speaker 1: I don't think the court is going to do that.

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Speaker 1: If the bake shop owner is going to win, I

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Speaker 1: don't think he should. But if he's going to win it,

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Speaker 1: I think on the compelled expression grounds that the First

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Speaker 1: Amendment prohibits state and federal governments from making us say

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Speaker 1: things we don't want to say, which leads to what

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Speaker 1: I think is the absolute most difficult and big issue

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Speaker 1: in the case our wedding cakes. Expressive. So the best

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Speaker 1: way I think to explain that is, if you own

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Speaker 1: a card dealership and you are you know, and you're

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Speaker 1: selling cars, You're not expressing anything. You're selling cars. On

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Speaker 1: the other hand, if you're all a wedding singer who

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Speaker 1: sings songs at weddings, I think you are expressing something

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Speaker 1: under the First Amendment. Where does a wedding cake fit

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Speaker 1: into that um spectrum? And I think it's a hard issue,

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Speaker 1: But I think I know what the answer is, and

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Speaker 1: I think the answer should be A plain vanilla chocolate

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Speaker 1: wedding cake doesn't express anything. A wedding cake with the

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Speaker 1: message same sex marriage is wonderful, or even a symbol

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Speaker 1: like the rainbow which expresses gay rights, that is expressive.

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Speaker 1: And I think this case is going to turn on

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Speaker 1: that question. In this case, Eric, one of Philip's arguments,

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Speaker 1: which seems to me to be strong, is he says

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Speaker 1: that the Colorado Civil Rights Commission let other bakeries refuse

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Speaker 1: to put anti homosexual wording on cakes, and he's refused

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Speaker 1: to make cakes for a long time with offensive or

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Speaker 1: vulgar messages, and he won't make items celebrating Halloween or

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Speaker 1: bachelor parties. Does that help him No, I think he's

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Speaker 1: mischaracterizing the record and distorting what Colorado has done. Colorado

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Speaker 1: allowed three other bakers to refuse to put anti same

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Speaker 1: sex marriage weddings on their cakes, not because of anything

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Speaker 1: having to do with same sex marriage or not. Colorado's

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Speaker 1: official position in this litigation and how they implement their law,

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Speaker 1: is that any vendor of anything is allowed to refuse

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Speaker 1: to put a message on what they're selling. Has nothing

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Speaker 1: to do with religion, has nothing to do with what

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Speaker 1: the message says. So someone went to a baker and

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Speaker 1: that I want you to put this message on a cake,

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Speaker 1: and the baker said, no, I'm not going to endorse

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Speaker 1: that message. The issue in our case is that the

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Speaker 1: facts never went that far. The same sex couple walked

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Speaker 1: into the store, and this is undisputed, and Jack Phillips

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Speaker 1: very politely, very politely said I'm sorry, I can't make

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Speaker 1: a cake for you, and they didn't have a discussion

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Speaker 1: as to what that cake would be. My view of

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Speaker 1: the First Amendment is that if the couple said I

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Speaker 1: want you to put a rainbow on the cake, and

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Speaker 1: we know what a rainbow means in this context, he

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Speaker 1: would have been within his rights to say no, and

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Speaker 1: the First Amendment gives him that shield. But if they

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Speaker 1: asked for a plain vanilla cake, you know, with then

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Speaker 1: I think he can't say no. Colorado agrees that you

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Speaker 1: can't make people put messages on their products. They don't

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Speaker 1: want to put on their projects. So it's not anything

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Speaker 1: those same sex marriage. It's a distinction between messages and

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Speaker 1: non messages. Eric, only about twenty seconds left, But is

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Speaker 1: this gonna be one of these cases that is all

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Speaker 1: about Anthony Kennedy. Yes, Yes, And you can repeat that

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Speaker 1: since for the next year, until until Anthony Kenny retires

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Speaker 1: or someone else on the Court with tires. That's what

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Speaker 1: it's going to be. Yes. Well, Kennedy is both a

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Speaker 1: champion of gay rights and a champion of free speech.

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Speaker 1: He wrote the Supreme Court decision back in legalizing same

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Speaker 1: sex marriage nationwide, so he will be a justice to watch,

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Speaker 1: Thanks very much to Eric Siegel, professor at Georgia State

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Speaker 1: University College of Law. Coming up on Bloomberg Law. The

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Speaker 1: Supreme Court has never said a voting map is so

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Speaker 1: partisan that it violates the Constitution, But now it has

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Speaker 1: a Wisconsin case that will give it a chance to

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Speaker 1: say that for the first time. Perhaps if Anthony Kennedy

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Speaker 1: goes along with that. That's coming up on Bloomberg Law,

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Speaker 1: and we'll talk about the rest of the Supreme court term.

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Speaker 1: In a moment, you're listening to Bloomberg Law. This is

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Speaker 1: Bloomberg