CNN's Jeffrey Toobin: On whether businesses can discriminate based on religion, Masterpiece Cakeshop decision is just the beginning
Toobin: "It is also an invitation to more cases. It's an invitation to religious people to say, 'Well, I don't want ... your wedding cake business. I don't want your restaurant business. I don't want your hotel business. I don't want you in my store. I don't want you.'"
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From the June 4 edition of CNN Newsroom with Poppy Harlow:
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JEFFREY TOOBIN (CNN SENIOR LEGAL ANALYST): This is an enormous defeat for the gay rights movement because the question now is, what are the limits in terms of religious people when they're allowed to discriminate? Here we have a cake baker who says, "I don't want to bake a wedding cake for a gay couple." Well, what about the restaurant owner who says, "I don't want to see a gay couple because it violates my religious principles"? What about the hotel owner who says, "I don't want to rent a room to a gay couple because it violates my religious principles"?
The issue here was, as presented to the court, was that cake-baking is such a unique, creative task, an occupation, that it was essentially like forcing a novelist to write a novel. It was like forcing a painter to paint a painting. That's the limiting principle that the court is applying here because the court said, cake baking is such a unique creative process that the government can't force someone to violate their conscience. The question is, what is the limiting principle there? And there will be future cases. This is certainly an invitation to people who discriminate against gay people from barring them from their businesses.
HARLOW: Jeffrey Toobin --
TOOBIN: I'm sorry, go ahead.
POPPY HARLOW (CO-HOST): I just want you to weigh in on one of the key quotes thus far in the majority opinion by [Justice Anthony] Kennedy. He's talking about Jack Phillips, the cake baker here. And let me read this to you and get your take: "The commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral towards religion. Philips, the cake baker, was entitled to a neutral decision-maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which the case was presented, considered, and decided." And the court held that the commission they're talking about, the Colorado Civil Rights Commission, this is the court saying that that commission showed hostility towards the cake baker on his religious beliefs, Jeffrey.
TOOBIN: That's right. And the -- there was some dialogue, a transcript where Justice Kennedy, during the oral arguments was very concerned about this, that indicated that the commission in charge of enforcing the anti-discrimination law was hostile to the president -- to the baker's religious beliefs. Obviously, no one should be hostile to people's religious beliefs, but, as always, in difficult constitutional questions, this is a question of balance, competing rights.
You do have the religious conviction of the baker, which no doubt was sincere. But we also have a principle of religious discrimination -- of discrimination against gay people. And, again, you have to sort through the limiting principles. There are religions that hold that interracial marriages are a violation of God's law. So can you refuse to bake a cake for an interracial couple? Can you refuse to bake a cake for two people of different religions who are marrying each other? There are all sorts of religious principles that are against the laws on the books. And the question is how much, and how often, and under what circumstances do people who have religious objections to laws on the books, how much do they get to excuse them?
HARLOW: So, Jeffrey, exactly to that point, of how far does this go, the precedent that this sets, what doors does it open? And what doors are remain closed? Here's another part of the majority opinion that has come down, quote, "The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." That also coming from Kennedy, Jeffrey.
TOOBIN: Well, I think that certainly lays out the dilemma and the problem in the case. But it is also an invitation to more cases. It's an invitation to religious people to say, "Well, I don't want you in -- I don't want you to do your wedding cake business. I don't want your restaurant business. I don't want your hotel business. I don't want you in my store. I don't want you." And that we're going to see more cases. And obviously Kennedy is aware of the problem that gay people will be subjected to indignity, and dignity is a favorite word of Justice Kennedy, something he's very concerned about. But, it's also -- dignity is a very vague and elastic concept, and there were a lot of people who believed that the customers of the Masterpiece bake shop were treated in an undignified way, to be turned away when they wanted a wedding cake. So, the fact that Justice Kennedy says people who have -- that we have to have respect for the dignity of gay people, well, the gay people lost this one, and we'll see if they lose more of them.