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>> and would be represented by mr. o'neill that describes itself devoted to radical humanism and humanitarianism with individual liberty with a distinguished commentator that most recently has a duty to defend selected essays and be joined by stephanie barclay from the religious liberty fund defending young muslim women and with other practitioners of liberty.

starting at the trial level and working with this case over six years and was a finalist for the year -- award of the year for her work please join me to welcome brandon and stephanie and paula. [applause] >> when we have formal debates at the constitution center i would like to have about i want you to vote why who should win constitutionally

separate your political views if you think it is unfair for the gay couple in this case not to get the cake in the constitution protects the bakers right so the question of asking you to vote is does the constitution protect the bakers right to sell the cake to a gay couple? does the religious freedom of the first amendment cover the bakers writes that you will hear the debate with an open mind we will vote again when the winter is who chefs the most votes so this is the

question so does the first amendment protect the bakers right to refuse to the gay couple? who believes that it does? it protects his right to refuse. who believes it does not? the strong majority of the gay couple and what you start by stating the facts of the case with the religious issue and the free speech issues. >> the trial lawyers trying to sit down and talk this is about a couple that actually got married in massachusetts because at the time colorado

did not recognize same-sex marriage they were planning a wedding outside the denver area and the wedding planner said go to the cake shop they make nice cakes so they came in from california really excited to order a cake from their celebration they got some ideas they walked into the cake shop and to say we want to write wedding cake and the response was for who? it was pretty apparent they

were a loving couple that was clear the cake was for them. they said it is for us. at that point jack said no. i don't do wedding cakes for same-sex couples there was a stunned silence and charlie and david looked at each other and they stood up with their mom debbie and walked out of the store. and on the way home charlie started to cry. david got upset that charlie was upset. in went home and said i can't believe this happened to us we just wanted a cake.

and that started what landed in front of the supreme court. the next day debbie was very upset so she called jack to say why did you do that? why did you refuse to make my son a wedding cake? and jack said i don't believe in same-sex marriage, it isn't legal in colorado, and it was against his religious beliefs. so from that facebook page it went viral. and a lot of support came out for jack than they were encouraged to file a complaint with the civil rights division and they agree there was probable cause of discrimination based on sexual orientation as a colorado

state statute then it went to a hearing i represented them at that hearing and we want to hear that baker appealed to the court of appeals and the baker in his lawyers appeal to the u.s. supreme court and that is where we are at now. >> thank you for that statement of fact do you have anything to add stephanie? >> thank you for having me. b defend religious liberty i can't tell you how glad we were so this is a test case

where there are feelings and i think that's why it is difficult to talk about that is why is important to have this dialogue that many business owners made a decision what even that he wanted to support. but it is important to step back and think about the way these decisions are made all the time. recently there was a gay coffee shop owner in seattle that asked christian individuals to leave the premises advocating for pro-life principles he did not agree with.

chipolte did not agree with the gay scout leaders and in colorado those that were asked by a christian client to have a bible themed cake that condemned homosexuality and they said no and with a third scenario they said you have the right to create something that the message that you disagree with but in jack's case he had said and the evidence of the record that was needed he is willing to sell anything off the shelf and would have been willing to do a cake but not create a custom design for an event that goes against his religious beliefs. that is not the only type of cake. he would have created a cake

celebrating racism, divorce, alcohol, those are once he has declined in the past. i saw by your votes at you disagree with the choice that he made what message he should support and whether or not to use it that way but the question is do we want to give the government the power to make the decision sensitive moral issues like sex and religion and politics do we want the government to say who's right and wrong and if you disagree you can be punished? that is how the supreme court will decide the case. >> now we have the case so brendan you are a defender of

individual liberty and a vigorous defender for free speech with the -- with the details how do you see those liberty issues in the case? >> i know the ins and outs will go on for quite some time but an individual cake maker should not have the right to refuse to sell his goods to someone because of their sexual orientation. and with that certain section of society. and and to refuse so to say i

hate you people with discrimination so what i said i'm happy to make you a cake but i cannot express support for the institution i do not believe in whether the words or images i cannot say i support gay marriage and i think we have to defend his right. the reason i say that is pretty simple. we have to reckon with how terrifying it would be if the government could compel you to say something that you don't believe if it could make you

express something that goes against every core of your belief system that is the first step toward tyranny. and that would be a far force outcome and they were not capable to get the cake at a particular shop that is not nice and i'm sure they were upset but if we have a situation where the government can force individuals to say things that are not true or to express the views they think are repulsive or disgusting or horrible if we have a

situation they can make people do that then we no longer have freedom of speech or freedom of conscience. we have government mandated thinking that anyone could fall victim to and i think that is infinitely worse than the fact unfortunately that they could not get a cake. >> so now he has put on the table with clarity his view that it would be a form of compelled beach. 's one -- speech of this is one of the issues in the case the trump administration has taken a position someone cannot be forced to participate and to utter sentiments with which they disagree so so talk about the

case. >> i am a trial lawyer very rarely in licensing. >> it is important when you talk about these cases that fax do matter and they are really important. so the baker who is not make a cake that had essentially hate speech it was in the shape of the bible she had no problem to do that but after that the customer said take the icing you can write the words if you want i will not repeat those words for anyone. that is a big difference

between asking for a cake and asking for someone to write a hate message. the issue here is whether the government is compelling jack to say anything. in our society we regularly regulate commercial activity. the law at issue says you cannot discriminate amongst your customers when you sell something it is telling him what to say he can express his religion and we know what he believes. but the law is not doing that it is a general law that is mutual it doesn't target speech that when we have

commercial activity that we decide as a nation there is something fundamentally wrong with this it is and saying you can or cannot say anything but you have to sell protected classes across the board. >> so express the claim and why that would protect the baker in this case but not a makeup artist or a junior one -- or jeweler and refused to participate? >> fax matter and with oral argument one of the arguments was that colorado rule would

require him to write words on the cake that he disagrees with they admitted under the rule from the lower court from below he would have to create a cake that says god bless the union of this couple you have to write words on a cake that would say any number of things if you write anything remotely similar so the idea that this is contradicted but beyond that we recognize a lot of things count as speech that aren't just words. we say that includes like burning flags or the color

armband in protest. but that they unanimously upheld. the revocation for what they use in this case the black lives matter or gay bakers could be forced to put a confederate flag theme if that was requested. because that is the classification as well. absolutely we do with the situation where all sorts of individuals are forced to express something they disagree with that triggers free speech and also religious freedom protection to say

tolerance is important but it has to go both ways and colorado is not tolerant of jack and his beliefs and that is what justice kennedy said in oral arguments if you think of being a defender of tolerance like where he vindicated the rights of same-sex couples but what he said is the problem in that case is the government picked one view is marriage and punishing or excluding for those who had a different view. that we live in a society to have lots of different views about marriage and so when the government gets involved to punish someone it is this scenario but in reverse even

those who have stood up to the vendors to say we remember what it was like to be minority and we don't want to have a government that can punish us for our views we don't think we should give them that power. >> one more round on the free-speech question. there were a lot of questions asking like what about a makeup artist? so what about photographers but not that guy who doesn't want to sell barbecue in the 60s? because the government says you cannot be forced to participate in the ceremony or

with the writing on the cake at the time. >> there are many different ways with different forms of expression the right to burn flags that may not make much there are many forms of expression and i do think it is very clear that the creation of the cake that could have a rainbow stripe or two male statues that expressed support and conviction in the institution of gay marriage we are facing a potential situation in a way they don't want to do.

so what is clearly an expressive act wedding cakes are expressive things. you eat them eventually but they are the centerpiece of the wedding and they say something about the wedding. he had two children before he got married which many people would frown upon but a man and woman were on the top so that says something. maybe someone thinks they should not make the cake that's fine. and to say something about values it is wrong to force someone and there was a case

of a bakery in northern ireland who refused to make wedding cake other cases in europe as well. what we can't quite pin down is the couples i'm not doubting for a moment that they cannot get a cake from a particular baker why don't they go to another baker? this is the important question this will make a gay wedding cake this is what we have in britain that it isn't difficult for a couple for a gay couple to get a wedding cake but it seems there is a punitive element the idea it

is unacceptable for bakery to exist which doesn't share the values of society i find that vindictive with religious persecution precisely to turn this into a public or legal incident and we can see were people are almost trolling for discrimination that they can turn into a public spectacle because it comes down to the consequences the moral consequences of this couple who couldn't get a cake and one bakery that we should not undermine that. and then to encourage other people through social media

and what treated them badly. but that consequence to focus on -- or force every bakery to do something those are far more dire because the boosting of government power over expression and the erasure of any realm in which people can hold views and i think that is far worse than they gay couples put out because they bakery will refuse to serve them. [laughter] >> in the course of your response please give the audience some case law one of the supreme court precedent is the early case that the boy scouts can allow them the game

to have them walk in the parade. >> first to clear up a few things, when you talk about a cake being expressive hue on -- whose viewpoint? the person who orders the cake your friend said i want the people on the top it wasn't the couple one -- the baker but it was the couple somehow everybody would think that a wedding cake created the cake shop expressing the bakers viewpoint is i don't buy that. that is important from that concept of convenience i find very upsetting we don't make

constitutional laws based on convenience i don't think anybody would have suggested rather than move back a row but yes, maybe in denver to make that cake which was not in the thought process initially but a lot of people live in small towns that don't have 50 bakers to choose from and even if you do don't use say they are relegated to second-class citizens going door to door to find somebody that will serve you? with so many commercial activities are expressive. think about the website designer who can say women

should be in the home i will not design a website for the all-female owned business. how offensive would we find that? an interracial couple blocks into a photography business clearly that his first amendment can they say i don't even interracial marriage? this is the slope to pick and choose some a makeup artist isn't protected but the baker is michelangelo does it for a building but the chef would be. this isn't a slope to go down as the country decides which businesses can pick and choose their customers. and in front of the supreme

court the court said how do you choose just to protect just this baker? races different we are not sure why maybe because there is so much historical discrimination but everybody else is fair game with the veteran status and gender those individuals cannot be discriminated against including religious protection so the supreme court talked about this issue with a barbecue restaurant to not believe in intermingling of mixes. in the supreme court said no.

if the freedom speech argument will not fly. and to discriminate in the name of protecting the first amendment rights. and that should continue to look at this is regulation as private expression. and open to the public or business on a nondiscriminatory basis. the mechanized to have the expressive right rather than the boy scouts.

so they conceded if the baker refused then that would not be permissible why is that the case? >> first as far as expression goes it is hard to draw a line and it is important to keep in mind to deal with this question when it comes to expression it might be expression and protest but not because they throw it out in the trash so also what is understood by those actions also it is important to keep in mind that weddings themselves are deeply expressive events and how

americans be allowed to make decisions if they will participate or not. maybe i have been lucky but i never said that cake is alleges i want to eat more. maybe if you're not raising your hand because you are sitting next to somebody but why are we all eating bad cakes at weddings? and in that they show their commitment and it is with

meaning and in that it matters only defend the right for those that want to participate. so how do we draw the line? first it is important to have that free exercise right not that somebody has expressed his beliefs to deny people whatever they want but now they have to prove they have a good reason. and they have dealt with this conflict and with first amendment rights and with this scenario where we have said

like those other cases after a decade of the supreme court the factors the supreme court looked at is the first amendment objective is the objection to a message or a event and in which case be other factors the supreme court looks at it is a market failure that it is a monopoly to provide that essential service. and here the government did not introduce one iota of evidence.

and those of the factors the supreme court provided for us. so also to decide if it is meritorious or if they can trump the first amendment. that we are not given the government carte blanche. >> so without religious liberty question there are a lot of cases like the christian printer and a gay coffee owner in seattle. and then in those two cases

with those difficulties of the lower courts. >> but to live with the fact we will be a minority of businesses and for those that expressed something if this was across british or european models but there would be a problem. and those who want particular things to be said. it is practical to find a way to manage that situation you must associate with and facilitate other people but

there is a real contradiction and to be deeply upset i have no reason to question. it is part of what they wanted but on the other hand why is he so upset just to make a cake? that is an interesting contradiction because it is so incredibly important which suggests it is more cream and butter it is expressive and that is precisely why we have to have a situation where people can refuse to express a point of view on their behalf creating something for them.

but with this insinuation for anybody who takes the side of the baker or anything similar is like the people that wanted rosa parks to sit at the back of the bus or to support discrimination against black people in the 60s. nobody is defending the right as far as i know to refuse to serve based on sexual orientation no one is defending the right on the basis of race or gender or orientation. i am not. but we are seeing there is a particular incident where it is and expressive product and it becomes problematic and that seems to be a good thing

from that discrimination it really doesn't offer any clarity except the moral authority and a final point, it is worth thinking about the term discrimination because we do think it is a bad thing but also it could be a good thing you can have a discriminating taste in art so remember this is the point that they were making with some of those racial remarks she makes the point the right to discriminate is essential to freedom of association and at some level if you cannot discriminate in private than with the freedom of association.

and then to raise the possibility there is a gray area where we would be foolish to police this case. >> but now put on the table religious freedom claim to say congress shall make no law respecting establishment of religion or the free exercise of that the baker's rates are being violated. >> and this is about a piece of cake. or that if it was a barbecue

or a seat on the bus and the reason why charlie and david filed a complaint wasn't because a piece of cake but to be humiliated and treated like a second-class is a sin so when we start talking about the humiliation of discrimination we cannot trivialize it by saying they go get that someplace else. i think that is important to this day. jack was the person who decided and that is very divisive if it was a jewish person who walked in and was

refused nobody would say that is okay. but the issue of gay marriage it is a polarizing issue reading to a slippery slope. the argument that you referenced is the argument validating freedom of speech to require us to associate that is an argument we have rejected from the governmental interest. so here i will disagree as

most would argue it does have an interest to eradicate discrimination the decision that was referenced several times that justice kennedy talked about so over a century to outlaw same-sex sex and criminalized it. but he said it is very important to be respectful of religious beliefs but this is a group historically from what happens now and then it has been systemic in our country and i don't think this is an isolated incident by any

stretch of the imagination so yes we do need to be respectful of religion and to be specifically exempt and they don't have to comply we are respecting freedom of association so now digging on the religious framework that is devoted to protecting and describe the free exercise and so tell us why you think those cases support the baker's right to refuse and serve the couple. >> there is a lot of similarities with free speech

protections being forced to custom design with his disbelief's something the first amendment to say it's not his message it is the couples message but when they have a cake and is also something significant if we didn't believe in block lives matter or the confederate flags that very act to create something should be protected and for jack is that act to contradict what he really does believe in.

to have providing protection to protect the gay baker's with a message that they rightly disagreed with then it is a double standard and constitutional dangerous not to offer that sort of protection to jack. there are other things that are relevant to that level of coercion. if colorado wins not only could he be forced to create these type of cases but actually he would have to give

training to family and employees why his beliefs. >> i think it is the antidiscrimination law. >> and he cannot carry them out that is the oral argument the attorneys for colorado admitted he has to give that training to family employees that is a lot of government level of intrusion in that case. so the part of the case that is kept referring to but where a footnote court said there would not be attorneys fees for a business owner who said he's not willing to serve black people and it is important to think about the shameful history our country has of race discrimination in jim crow south and the fact individuals sometimes they

travel across the country knew where they could stop to eat door how they could survive in the political and economic society. that was a serious problem in our country that we created powerful tools to address through public accommodation laws nobody says that i'm not willing to serve them i just want --dash that would be a different case if he did in the government would have a much stronger interest he is saying i will design on -- i will cannot have a custom-designed message or sell you anything in my shop so it is an error to at least recognize nobody that i knows that their feelings were hurt

we can understand that but think about the survivors some of these individuals still have tattoos on their bodies from nazi germany. some of their loved ones are gone and they are arguing to the suffering court their dignity should not be protested to come to their town and it was deeply offensive i think we can all agree that the supreme court unanimously protected first amendment rights in that case recognized if we are not willing to protect even those that we disagree it is hurtful and offensive then we are not able to protect freedom from others for the government can take it away from anyone.

>> do you make the religious claim independently from the free-speech claim? how was that fair in britain which is not the same way and then we have phenomenal audience questions should for-profit activities decide or is that case-by-case? >> i and worried about the state of religious freedom in the western world i think we are too cavalier about freedom to believe and act on your belief within reason without harming other people we forget where much of life is built on the argument for religion. but now it is incredibly important if you want to see a

slippery slope look at what is happening in britain with the acquisition of equality legislation to undermine freedom of association because once you go down this route to tell the companies but with their own convictions and is in pretty dramatic behavior. without government equality legislation a few years ago with the british international party to force them to rewrite the constitution that is tyrannical and how much you could despise the british is

there other religious groups and then sometimes given prison sentences as pushing and then to describe homosexuality and that is the view of the deeply held religious view and therefore was punished. and that with those beliefs they were seeing as to make non- christian people

humiliated and i personally think it is bad to base laws on how people were killed basis right and liberty but looking at europe the legislation and freedom of religion and freedom of association by another quick point is i have to reiterate how unhelpful that you are conflating discrimination against black people which was widespread and horrendous with this case. as i have said before i have never heard one person not one single person including jack say they want to discriminate against gay people or stop serving or associating with gay people and i genuinely believe you risk minimizing the crimes of the past by

currently marshaling them to your cause because you are suggesting that what rosa parks faced with similar and what they faced was the denigration of their entire life and the ability in any way whatsoever and in relation to freedom of religion i am worried about the way and if to hold a certain view of gay marriage and then you are branded a bigot i'm not religious lots of people think

that should be between men and women and they simply have a religious belief about the institution of marriage as a form of abuse or bigotry? go back to the actual definition that actually means someone who thinks differently than you doesn't actually mean racist or sexist but the definition is someone who is intolerant of someone who has a different opinion. it could even say religious opinion with the early definition but i am worried those who talk about bigotry

are also enforcing the bigotry of their own to make it increasingly difficult for people with certain religious views to express themselves or not as they see fit. >> poly you may want to respond to a bit of that. [laughter] so i will give a question to you as well did you deduce anything from the question based on the oral argument how you expect to vote? >> and i believe in religious freedom my mother is a religious person she is a christian and accepts the marriage i am not saying her belief is right and jack's is wrong but it is interesting when we start trying to value the harm of discrimination

between different groups to say the harm of discrimination felt by african-americans is somehow more important than the harm felt by other religious groups or by groups of sexual orientation i am sure there is a history if you know the matthew shepard case to know about that gay college and who was tortured because he was gay and tied to a fence and left to die where he did five days later it isn't an isolated incident. we cannot calibrate whose harm to dignity is more real or important than somebody else. i am not never have questioned jack is deeply held religious beliefs. i applaud him and i think he should be able to express them.

i have never called him the name or to denigrate in any way in this case and david and charlie have never denigrated jack or his belief. as well as the first amendment so i am not as worried and most of the examples are about preachers or religious organizations the law already exempts those organizations in our country. i think religious freedom can

sit side-by-side with the government regulation that if you are going to open for business you serve everybody equally. i completely forgot what the previous session was, jeffrey. well, then opposite to stephanie because we should just -- get it on the table. the commentary noted any people think the case with justice kennedy forces him to balance his commitment to equality for gays and lesbians and a passionate commitment to free expression and religious liberty and he seemed to express sympathy for both sides in the oral argument. how do you think he will vote in which way out? >> that is a great question and it was an interesting oral argument. justice kennedy clearly cares about the dignity of the gay couples and everywhere and all sorts of marginalized groups.

i thank you take that very seriously and i also think that paula is right. it doesn't make sense in this case to act as though the couples didn't experience hurt and there have been times in our country have treated all gdp individuals terribly and they faced all sorts of injustice. it is clear that that was on his mind but is clear that he understands that in a pluralistic society we have to protect dignity on both sides and he talks about another case in one of these vendors is a 70 -year-old grandmother who if she loses her case because she can provide custom service for same-sex wedding she will not only lose her business the state will come after her for millions of dollars and i think the dignity of those people is on justice kennedy's mind and that is why he brought up the importance of tolerance and our country needs to be a two-way street. he also talked about some

concern that he and other justices pointed out in colorado some of the statements by the commissioners below were quite hostile to religious belief and the place of religion in society. it acted like it open a business or if you're coming out here you shouldn't be able to have religious police at all and you should compromise and that seem deeply troubling that there seem to be animosity towards religion and also that there was a substandard how colorado treated gay bakers but not jack. i think it will be important. i also think that the spring court president in the first amendment has generally been quite clear that while dignitary interests certainly matter and we don't want to minimize those we have to look elsewhere when we decide whether or not the government has the power to for someone to express the message we disagree with ord to do

contrary to their religious beliefs. that is why the spring court has perfected the first amendment in cases where we talk about protesters and funerals that had horrific things about things were withheld that hurt the dignity in that case and the spring court has said we have to look to other government interest to decide whether it is warranted and here the government simply has not made a case beyond dignity why they are justified in taking away that freedom and again i still haven't heard an issue about why this case should be different than if we were forcing black lives matter baker to create a cake that had a veteran or confederate flag on it for the white area church. you cannot give protection to that baker and not give it to jack unless were going to live in a society where the rule is

to protect people we agree with and no one else and that is no way to run a constitutional democracy. >> well, national constitution panels and they have to end more or less on time and therefore it is time for our final vote. the foreboding i want you to reflect very carefully about the constitutional arguments you've heard on both sides and approach them with an open mind and now having heard the arguments please vote once again. do you believe that the first amendment to the constitution protects the bakers right to refuse a cake to the gay couple who believes that the first amendment does protect the bakers right to refuse to sell the cake? and who believes that it does not? changed his or her vote as a result of the discussion? and how many people change their vote from policy side to stephanie's side?

after hearing the discussion and how many change their bow from stephanie side to publicize? this is extremely imprecise but i'm going to call it a tie and i want to thank our panelists for this extraordinary discussion. [applause] thank you very much. [applause] >> tonight on the scene to hear oral arguments in the case san francisco versus donald trump. the ninth circuit us court of appeals is considering the legality of prison terms executive order to deny federal funding to the so-called sanctuary cities. watch tonight at 8:00 p.m. eastern on c-span2. >> this weekend on c-span, live

saturday at 5:30 road to the white house 2020 at the new hampshire democratic party dinner with former missouri secretary of state decent candor and sunday at 6:30 road to the white house. the coverage continues with montana democratic in iowa. on the tv on c-span2. saturday at 7:30 a feature on black plastic press in baltimore and on sunday at 8:00 p.m. eastern author receives up award for his book, a benedict option a strategy for questions in a post- christian nation.

watched this weekend on the c-span network. >> c-span where history unfolds daily. in 1979 c-span was created as a public service by america's cable television companies and today we continue to bring you unfiltered coverage of congress, the white house, the supreme court and public policy events in washington dc and around the country. c-span is brought to you by your cable or satellite provider. >> the un security council held an emergency meeting on the alleged chemical attack in syria. the meeting comes as us department announced it has been the syrian government is responsiblr