on the panel was an tern representing the same-sex couple who sued a bakery for refusing to create their wedding cake. others included the editor of a british libertarian magazine. this is about an hour. jeffrey: it is now time to bring together a panel. i'm so excited that our partners for this event are "spiked" magazine and "spiked" will be represented by brendan o'neill, its editor in chief. "spiked" is a superb magazine, it describes itself as a political magazine devoted to radical humanism and libertarianism. it is hard to cat fworize

politically but it is fierce in its defense of individual liberty and brendan is a distinguished commentator who is the author most recently of "a duty to offend: selected essays." he'll be joined by stephanie barkley, council at the becht fund for religious liberty, during her time there she's defended a young muslim woman discriminated against at her place of employment. the little cyst orse they have poor before the supreme court and other practitioners of religious liberty. paula griesen is a partner at king and fwricen, one of the attorneys who represented the gay couple in this case starting at the trial level. she's been working with this case for six years and was a finalist for the case of the year award for her work on behalf of the plaintiffs in piece cake s master

shop. please join me in welcoming them. [applause] wonderful. when we've had formal debates at the constitution center, we vote before and after. because this is a case that will be decided by the court, i'd like to have a vote. i'm going to state the i stitutional question and want you to vote not for the side you agree with politically. you could think it's unfair for the gay couple in this case not to be able to get the cake but that the constitution protects the bake's right to refuse them or you could think it's fine for him to refuse to sell the cake as policy matter but the law requires it.

the question i'm asking you to vote on is, does the tigse protect the baker's right to refuse to sell a cake to a gay couple? in particular, do the religious freedom and free expression provisions of the first amendment protect the baker's right to refuse to sell the cake to the gay couple? we'll vote now, then hear the debate, i want you to listen with an open mind. at the end, we'll vote again. the winner will be not the numerical winner but the side that shifts the most votes. so i really want you to keep an open mind as you listen to the debate. this is the question, does the first amendment to the constitution protect the baker's right to refuse to sell a cake to to a gay couple, who believes that it does protect his right? it does protect his right to refuse the sell the cake. a strong majority before the debate in favor of the gay couple on constitutional grounds. we have no better person to start us off than paula griesen

who has been representing the couple in this case for six years, why don't you start us off by stating the facts of the case, as they say in law school and then defining the two constitutional issue the religious freedom issue for our audience. >> as a trial lawyer it's hard for me to sit dun and talk but i'm going to try. this case is about a couple, charlie and david, they actually got married in massachusetts because at the time colorado law did not recognize same-sex marriage. they were planning a wedding celebration in colorado at lakewood a little town outside the proper denver area. and the wedding planner said, go to masterpiece cake shop. they make really nice cakes there. so charlie and david along with charlie's mom, debbie, came in from california. they were really excited about

going and ordering a cake for their celebration. and they got some ideas together in a little folder. and walked into the cake shop. masterpiece cake shop and sat down at a table, the three of them and jack came up and what can i do for you? they said, well we want a wedding cake. for ck's response was, who? it was pretty apparent, charlie and david were sitting there, they're a loving couple, it was clear, the cake was for them. and they said, it's for us. and at that point, jack said, no. i don't do wedding cakes for same-sex couples. and there was a stunned silence.

and charlie and david kind of looked at each other. and they stood up, along with their mom, debbie. and walked out of the store. got in the car and on their way home charlie started to cry. and david got upset that charlie was upset. and went home and put it on his facebook page. can you believe this happened to us? we just wanted a cake. and that started what you all know eventually landed in front of the supreme court. the next day, debbie was very upset. she called jack and said, why did you do that? why did you refuse to make my son a wedding cake? and jack again said, i don't believe in same-sex marriage. same-sex marriage isn't legal in colorado. and it was against his religious

beliefs. and from that facebook page it kind of went viral. and the support poured out for charlie and david. and a lot of support came out for jack too. and that is how we then found ourselves, charlie and david were encouraged to file a complaint with the colorado civil rights division. they did. the colorado civil rights division agreed that there was probable cause to believe discrimination based on sexual orientation which is a colorado state -- colorado state statute had occurred. at that point the commission then took it to a hearing, i represented charlie and david at that hearing, and we won at the hearing, the baker then appealed it to the court of appeals, we won at the court of appeals. and the baker and his lawyers appealed it to the u.s. supreme court and that's where we are now.

>> thank you. thank you so much more that. helpful statement of the facts. stephanie, do you have anything to add? >> first, thank you for having me. thank you all for being here tonight. i'm, as you mentioned from the becht fund where we defend religious liberty for people of all faiths, from a to z, from anglican to zorostrian. i can't tell you how glad we were when we got the zorastrian case. this is test case. this is a case where there are deep feelings and hurt feelings and important interests going on and i think that's why sometimes it can be difficult to talk about and i'm so grateful for the national constitution center for having this important dialogue. so jack, like many business owners, made a decision about what sort of message or event he wanted to support.

i'll talk about the facts of that a little bit more. i think it's important to step back and think about the ways in which, in our society, business owners and individuals make these sorts of decisions all the time. recently, there was a gay coffee shop owner in seattle that asked christian individuals to leave his premises when they had been advocating for pro-life principles he disagreed with. chipotle decided not too long ago they didn't want to kater to boy scouts because they disagreed with the boy scouts' then position on their gay scout leaders. in colorado, there were gay bakers who were asked by a christian client to bake a bible-themed cake that condemned homosexuality and those bakers said no, we don't want to create a cake that expresses that message. and in their snaree -- scenario, the colorado commission said you have the right to object to create something that is a message that you disagree with.

in jack's case, he had said and the evidence on the record that's undisputed that was before colorado and went up to the supreme court, he is willing to sell anything off the shelf in his business to anyone and he would have been willing to design all sorts of cakes for this couple, but he couldn't create a custom designed wedding cake for an event that goes against his deeply held religious beliefs. and think -- and that's not the only type of cake he won't create he won't create a cake celebrating racism. divorce. alcohol. these are cakes he's actually declined in the past. and so i understand that many people in this audience and in fact i saw by your votes, probably disagree with the choice jack ultimately made about what message he should support and whether or not he should use his talents in that way. but that's not really the

question in this case. the question is, do we want to give the government the power to make decisions about important sensitive moral issues like sex, religion, and politics, and do we want the government to be the one that gets to say who is right and who is wrong and if you disagree that you can be punished. and that's what at stake when the supreme court is going to decide this case. >> great. we have had the facts and a sense that the issue is truly joined. brendan, you are a defender of individual liberty and vigorous defender of free speech, we'll wonk out on the details of exercise of free speech in a econd but how do you see the liberty part of the case. >> i know the ins and outs of the case are complex and it will go on for a long time and has gone on for a long time.

but the way i see it, a business, an individual cake maker, should not have the right to refuse to sell his goods to someone because of their sexual orientation because that would give rise to discrimination across society potentially and then a certain section of society would be unable to access goods and services in the same way that other people could and that's wrong. however, an individual business and an individual cakemaker in particular in this case who describes himself as an artist should have the right to refuse to express something he doesn't believe in so if he had said to those -- to this couple, i'm not selling you a cake because i hate you people, that to me would have been a straightforward instance of discrimination and would have been unacceptable and unconstitutional and illegal. but what he said is, i'm happy to sell you a cake, i'm happy to make you a cake, but i cannot express support for an

institution that i don't believe in. i cannot say whether it's with words or images or with my artistry as he views it, i cannot say i support gay marriage. and i think we have to defend his right to refuse to say those words. and i think we -- the reason i'm saying that is pretty simple. we have to reckon with how terrifying and unspeakable in fact it would be if the government could compel you to say something that you don't believe. if the government could make you express something that goes against every corps -- core of your belief system and every value you hold. that's first step in my view toward tyranny. and i think that would be a far that outcome than the fact this couple were incapable of getting a cake from a particular shop. in my view the fact that they

couldn't get the cake there but presumably there are many other places they could get the cake is not particularly nice, and i'm sure they are upset. but if we have a situation where the government can force individuals to say things they don't believe are true or to partake in ceremonies they think are wrong or to express views they think are repulsive or horrible or disgusting, which many of you probably disagree with them but if we have a situation with a government can we no ple do that, longer have freedom of speech or freedom of conscience. we have government mandated orrect thinking. which anyone could be subject to and i think that's worse from the perspective of liberty and choice and an open society than the fact that unfortunately this

couple couldn't get a cabling from this guy. >> brandon has put on the table his view that this would be a form of compelled speech so pau la, let's focus on the compelled speech issue which is one of the two constitutional issues in the case, the trump administration has taken a position similar to the one brendan just embraced, that someone cannot be forced to participate in an expressive event and utter sentiments with which they disagree. explain what the compelled speech is. >> i'm a trial lawyer, i'm rarely -- rarely succinct but i'll try. facts do matter.

in the example of a baker who wouldn't bake a cake with hate speech on it thises a baker who is asked to make a cake in the shape of a bible. she agreed, she had in problem with doing that. after she baked the cake, the customer then said i want you to take the icing and write on the cake god hates gays. and she said, i won't do that. i find that offensive. you can have the icing piping and you can write it if you want but i'm not going to write those words for anyone on that cake. that's a big difference between asking for a cake and then asking somebody to write a hate message on the cake. the issue here isn't whether the government is compelling jack to say anything, the baker in this ase. the law at issue says, you can't

discriminate amongst your customers when you sell something. it's not telling jack what to say or what to think, it's letting jack expressed his religion. we all clearly no what he believes. i believe in the first amendment. the law isn't doing that. this law is a general applicable law that is neutral, it doesn't target speech. it doesn't say you must send this message or that message. it's just that when we have commercial activity in this country, we decided as a nation that we are not going to let you pick and choose your customers, that there is something fundamentally wrong with hat. that is what this law is saying. it's not saying you can or can't say anything, it's saying you have to sell to protect classes cross the board.

mr. rosen: if you could talk about this first amendment claim, and why it would protect the baker, but not allow makeup artists, or jewelers to refuse to participate in weddings as ell. ms. barclay: in oral argument, one of the facts the justices were disturbed by is in fact colorado's rule would require jack to write words on a cake she would disagree with. -- that he disagreed. with the attorney for colorado admitted under the rule they're advocating and the rule of the court below, jack would have to create a cake that says god bless the union of this couple. whoever their names are. he would have to write words on a cake that say any number of

hings endorsing a same-sex marriage, if he'd write anything remotely similar for another event. so the idea that words make a difference is contradicted by the record and what the supreme court found. beyond that, in our country, we recognize that a will the of things count as speech that aren't actually words you write down. i think that is a good thing. we say speech includes things like burning flags and the color of an armband you wear in protest. sometimes really hurtful and offensive things like a nazi protest that the supreme court nanimously upheld. in -- in this case, the rainbow cake is what the couple ultimately received for the cake they used in this case and that means that gay bakers or a black

lives matter supporter baker could be forced to bake a cake with a confederate flag on it because that's a protected class under colorado's law as well. we're dealing with an -- with a situation where all sorts of individuals could be forced to express something they disagree with that both triggers free speech protection and triggers in this case religious free hrow dom protection. one thing justice kennedy pointed out -- tolerance is important in our society, but tolerance has to go both ways. colorado was not very tolerant of jack and his beliefs. that is what justice kennedy said at oral argument. he has been a defender of tolerance. in his opinion where he vindicated the right of same-sex couples, he said the problem in this case was the government was

picking one right view of marriage and punishing or excluding those of a different view. justice kennedy talked about the fact that we have lots of different views about marriage and sometimes disagree on that fact. those views are worthy of protection. the problem is when the government gets involved and picks the correct view and punishes someone. this case is the exact scenario, but in reverse. there have been gay business owners who have stood up and said, we remember what it was like to be the minority that was marginalized and treated poorly, and we don't want to have a government that can punish us for our views. so we don't think we should give the government that pow for the this case. mr. rosen: great. let's take one more round on

free speech. the justices seemed to think it was tough to draw the line. there were lots of questions from justice sotomayor, saying what about the -- justice kagan saying, what about a makeup artist? how do you limit this to wedding cakemakers and maybe photographers but not include the guy who didn't want to sell barbecue to the african-american couple in the 1960's and how would you state the principle because the government says you can't be forced to participate in the ceremony. is that the place where the principle kicks in or sit writing on the cake at the time you're making it, a lot depends on exactly how the free speech principle is stated. >> freedom of speech doesn't just cover words. there are many different ways in which you can express yourself. there are different forms of expression. that is the right to silence, the right to burn flags, the

right to dwarf certain things that might express visceral emotion. i think it seems pretty clear to me that the creation of a cake which might have a rainbow flag on it or two male statuettes, whatever they have that expresses support and conviction in the institution of gay marriage, strikes me as an xpressive act. we are facing a situation where someone would be forced to express themselves in a way they don't want to do. as to where the line comes to notice clearly a speech or expressive act and what is, that is a difficult area to decide. wedding cakes are expressive things, that is why you have to. you don't have them just to eat. you eat them eventually but they are a centerpiece of the weding in many instances.

they say something about the wedding. i was at my brother's wedding recently. he has two children before he got married, which many would frown upon on his cake -- there was a man and woman and two children at the top. that says something. i'm sure there might be a baker somewhere in the world who might not want to make that cake because they don't believe in sex outside of marriage. that's an expressive cake, it says something about values and morality. so i think it's an expressive act and it's wrong to force someone to express themselves in way they don't want to. one thing in all of these cases -- in britain, there was the case of a bakery in northern ireland taken to court for refusing to make a wedding cake. there have been other cases in europe as well. what i find interesting is why couples who have the inconvenience -- i'm not doubting for a moment it is inconvenient and upsetting that

they can't get the particular cake -- why they don't go to another baker. this is an important question because the majority of bakers will make a gay wedding cake. that is what we have in britain, and i am sure it is the same situation here. it is not difficult for a gay couple to get a wedding ake. it seems to me that there is a punitive element -- that there is a punitive element to all of this, that it is unacceptable for a bakery to exist which doesn't share the mainstream values of society. i find that slightly vindictive and veering on the edge of eligious persecutions, where you go looking for the institutions that won't serb you precisely to turn this into a public incident or legal incident.

in britain, people are trolling o make spectacles. i find that worrying. to me it comes down to, what are the moral cons dwhovense decision that gets taken in these cases. the moral consequences of this couple not being able to get a cake in this bakery is they will be inconvenienced. they will be upset. we shouldn't undermine that. but it can be rectified by them going to another plates and possibly by them encouraging people people through social media or campaigning not to go to this bakery that really annoyed them and treated them badly. that could be the consequence of hat. the consequence of forcing every baker in the country to do something that goes against every grain of their belief, those consequences strike me as far more dire. those consequences will be the boosting of government power

over expression, and the erasure of any realm, small realm, in which people can hold views which break against the mainstream. i think those consequences are far worse than gay couples being put out because some bakeries refuse to serve them. mr. rosen: this was designed for a good response. [laughter] if you could, please give the audience some case law. you've been living with this case for a long time. one of the big supreme court precedents, saying the boy scouts can't force gay scout masters to march in a parade. what's the relevance of that and why don't you think they cover the first amendment claim in this case. ms. griesen: when you talk about a cake being expressive, whose

viewpoint is it expressing? the person who orders the cake is expressing their viewpoint. it was your friend who said, i want to couple with the two kids on the top, it was not a baker's viewpoint, not the customer viewpoint. the idea that someone at that wedding went think a wedding cake created by masterpiece cake shop somehow expressed the baker's viewpoint is one that i do not buy, it is the customer's viewpoint. that is important. this other concept of convenience i find very upsetting. i no, i that our editorials went down and i said this in the editorial, but we don't make our constitutional laws based on convenience in this country. i don't think anybody here would have suggested rosa parks just find another bus rather than move back a row or anything like that. es, maybe in denver somebody did, when they saw the facebook,

offer to make them a certain type of cake that wasn't in their thought process initially. maybe you could in denver. but we have a lot of people in small towns that don't have 50 bakers to choose from. and even if you do, what do we say to those people? aren't we relegating them to second class citizens to say keep going door-to-door to find omebody to serve you. so many commercial activities in our society. can a website designer say, i think women should be in the home, that's my religious view and i'm not going to design a website for an all-female business. an interracial couple walks into a commercial business, photography is within the first amendment. can the photographer say i don't believe in interracial marriage,

therefore i'm not going to give you the service. this is the slope once we go down to trying to pick and choose. a makeup artist isn't protected, a baker said. a chef would be under certain circumstances. this is not a slope we want to go down as a country and decide which businesses can pick and choose their customers. and in front of the supreme court, the court said how is race different? is it going to protect this baker? and the answer was, well, race is different, not quite sure why, but because there is so much historical discrimination, but every other group, they are fair game. people with disabilities, veteran status, gender, all the other categories we see as

protected, those individuals can now be discriminated against in the nail of religion including religious protections can be discriminated now against in the name of religion. so, you know, the supreme court talked about this issue back in the civil rights area where a barbecue restaurant objected -- did not believe in the intermingling of races and did not want to serve african-american people in its restaurant. supreme court said that freedom of speech argument is not going to fly. we will not constitutionalize freedom to discriminate in the name of protecting your first amendment rights. and i think that's the precedent the court should continue, look at this as regulation of commercial speech.

the parade is different, because it was a private expression of beliefs. in hurley, a private expressive activity. this is different. this is supposed who is open to .he public for a business >> what do you make about the claim of he himself has the expressive right rather than the boy scouts who is a private association? and why is race different? the counsel conceded that if the baker refused to bake a cake for an african-american couple, why is that the case? first as far as expression goes, sometimes it's hard to draw lines as far what you are doing is expressive enough and when it's not and important to keep in mind, the supreme court and

other courts deal with these questions when it comes to expression outside of this hot topic. it might be expressive when someone burns a flag in protest but not expressive when they are throwing it out in the trash. it depends on the context and the understanding of those actions and i think it's important to keep in mind that in the context of a wedding, weddings themselves are deeply expressive events and justice kennedy talked about how important weddings are and americans should be allowed to make deeply personal decisions about whether they are going to participate or not. and even if we think about a cake at a wedding, i have never been to a wedding where i thought gee, that cake was delicious. i don't know if anyone else had that experience.

if you don't raise your hand that means you went to a wedding recently. i think we need to be honest, why do we keep eating bad cake at weddings, because it is part of this tradition. they call it the secular sacrament of our time. they stand up together and feed each other the cake or if you are in my husband, he shoved it my nostrils and this has meaning and symbolism to us and cannot be the case that marriage and weddings matter when we are defending those rights to lgb couple who want to participate. and how do we join draw the ine.

and that is the first part of the test. doesn't mean just because someone hasn't expressed his beliefs they get off scott free. that means that now, the government has to prove that they have a good reason for trumpping those first amendment rights. and the supreme court has dealt with this conflict between public accommodation laws and first amendment rights on multiple occasions going back to decades and haven't been in this slippery slope where we have discrimination that looks like the jim crow south. and the supreme court used rights. factors are number one how broad is the first amendment objection. in hurley, these are some of the factors, is the objection just to a particular message or discrete event that they are

willing to include the individual in which case the government has interest there. the other factors that the supreme court looked at in hurley, the supreme court looked like is there a market failure here that the government has to address here. is there a wide swath of businesses. and here, in jack's case, the government didn't introduce one piece of evidence nor could it have where there were bakeries offering to provide to provide it for free. those are factors that the supreme court has provided to us after something is expressive and whether or not those cases will be meritorious.

>> print t-shirts for a local gay pride festival. a gay coffee in seattle asked them to remove. should the coffee shop owner be punished and are you concerned that the loir courts will have difficulties if this box is open? >> yes. i would like to live in a society that can absorb cases like that and live with the fact that there will be a minority of businesses and minority of individuals who sell things who may not want to express certain things or have people express certain things on their

premises. if this was a widespread thing, if this across america can society or british society, there would be a problem. but these are pretty small cases of individuals or small groups of companies who don't want particular things said or done. i think it is preferable for society to manage that situation than to invite the government to police who you must associate with, what you should express and what you should facilitate in their expression of it. living with it is preferable. but there is a real contradiction in this particular case because on the one hand we are told the couple was deeply upset because the cake was incredibly important to them and important part of what they wanted in their ceremony. why is he other hand, this guy so upset?

and you are either saying that this cake is so important and go all the way to the supreme court in order to have it, which suggests to me it is more than cream, squam and butter. very symbolic important expressive thing. and that's precisely why i think we have to try and have a situation where people can refuse in certain circumstances to express another person's point of view on their behalf in creating a product or creating something for them. i think it's incredibly important to challenge paula's argument that anyone who has any -- anyone who takes the side of the baker or other cases similar to it is like the people who wanted rosa parks to stay in the back of the bus or like the people who support discrimination against black people in diners in the 1950's. no one here is defending the

rights of any company in america so far as i know to refuse to serve couples on the basis of their sexual orientation. no one is defending the right of any company in the united states to refuse on the basis of race, genderer, orientation and so on. certainly i'm not. what we are saying there are particular incidents where a service becomes an expressive product and it becomes problematic. and that seems to me to be very, very distinct from the kind of discrimination was practiced in the past and doesn't offer any clarity except to try and boost the moral authority of your side to conflate those two things. one final point which we might come into on the religious thing. it's worth thinking about the term discrimination. we think it is a bad thing.

but discrimination can be a good thing. you can be a discriminating person and have discriminating taste in art. this is a point that was made in the 1950's after the racial controversies. she made the point that the right to discriminate is essential to the freedom of association. and if you cannot at some level discriminate in public groups, if you cannot discriminate, you cannot have freedom of association. and that's a problem. but then she rose the possibility between private groups groups and public areas, there is a gray area, which we would be foolish to invite the government to police in the way think this case has been.

>> first amendment says congress should not make a law establishing the establishment of religion. e rights are being compelled to embrace a message and describe that claim. >> this is about human dignity. and the reason why charlie and david filed this plaint wasn't because of a piece of cake, it s about what it felt to be humiliated, and treated like a second-class citizen. when we talk about this humiliation and pain, we can't

trivialize and say go get that service someplace else. and i think that is really mportant to this debate. jack was the person who decided to continue appealing and appealing and appealing this mainly because i think the issue of same sex marriage is very divisive. if this was a jewish person and walked in and asked for a cupcake for a bar mitzvah and had been refused, no one in this room would have said it's ok. because it is the issue of gay marriage, this has become a very polarizing issue, in fact i believe is a very slippery slope once we start going down it. the freedom of association argument that you referenced is

the argument that was raised, you are violating our free speech and freedom of association by requiring us to associate with the black people sitting at our counters. that is an argument that we have rejected as long as there is a governmental interest in the commercial regulation. here -- and i will disagree with stephanie, colorado argued as most states would argue that the government does have an interest in eradicating discrimination. a decision which was referenced several times that justice kennedy wrote, talks about the storical of gay couples in this country. we need to outlaw same sex sex.

we criminalized it. andhronicled -- in addition he said it's very important to be respectful of religious beliefs, but this is a group that historically as opposed to the characterization where it happens now and then, the discrimination against the gay community has been systemic and fraught with violence and terror and i don't think this is an isolated situation by any stretch of the imagination. yes, we do now need to be respectful. and the statute specifically exempts organizations or businesses that are primarily for religious purposes. so those businesses that offer religious purposes do not have to comply with this law. d that is respecting freedom

of association and freedom of religion. >> stephanie, let's dig on the religious freedom claim which is devoted to protecting. describe the free exercise claim and tell us the relevant cases and why do you think those cases support the baker's right to fuse the cake on religious grounds? arguing that being forced to custom design that goes against his religious beliefs is something that the first amendment prohibits. and paula talked about, it's not his message, it's the couple's message and it's the couple's message, too, when they have the cake at their ceremony.

but there is something significant about just the act of creation. i think it would be significant if we force someone who bleembs in black lives matter to create a confederate-flagged theme cake. it goes against their beliefs and i think that should be protected for them and for jack, what he has objected to is that i'm being forced to create and design something contradicts what he believes in. and the way the supreme court has protected free exercise rights, they have said if the government is willing to provide protection to people for secular reasons, that they are willing to protect the gay bakers in the state who didn't want to create . e bible cakes with a message and they rightly chose not to create that cake. it is a double standard and

constitutionally dangerous to offer that same sort of protection to jack. there are other things that are going on that are relevant to his free exercise case and the level of coercion that the government is engaging in, it came up in oral argument, if colorado wins, not only would jack be forced to create these kinds of cakes and cakes that have words on them say i bless the union, he actually would have to give training to his family and employees about why his religious beliefs are incorrect -- >> you have to give training on the anti-discrimination laws. >> and why he can't carry them up. the attorneys for colorado admitted that he has to give that sort of training to his familiary and employees.

that is the troubling moment. and some other things that paula talked about the case she keeps referring to and that is a case where the decision in the footnote, the supreme court said there won't be going to be attorneys' fees that he wasn't going to serve black people. and think about the really shameful history that our country has of race discrimination and jim crow south and the individuals in that era, when they traveled across the country had to carry green books because they had to know where they could stop to eat and survive in our political and economic societies. that's something that was a serious problem. something we created to address to accommodation laws. no one dispute, jack was saying i'm not willing to serve lgbt

people and that would be a different case. under the supreme court precedent. that's not what is going on. jack is telling couple. i will sell you anything in this shop, i cannot create this custom designed message. and i think it's absolutely fair to recognize the interests and no one i knows is happy that this hurt the feelings of this gay couple. but if we want to talk about harm, think about the holocaust survivors in the supreme court case in scokey. they still have tattoos on their body from the mistreatment they received during nazi germany. all of the loved ones in some instances were gone and they said their dignity should not

allow nazi protestors to come to their town. their dignity was at stake. we can all agree it was diss pickable. but the supreme court protected first amendment rights in that case because the supreme court recognized that if we are not willing to protect freedom even when we deeply disagree and it is hurtful, if we won't protect that, then we are not able to protect freedom for all of us. the government can take away those freedoms. >> on the religious point, are you moved by the religious claim independently from the free speech claim? how would that religion claim then put our audience questions on the table should religious profit put it on the table or decide on a case

by case basis? >> because once you go down this route of inviting the government to tell first the companies and then it could balloon into others as well. and must prioritize equality

above their own convictions and you open the flood gates to tyrannical behavior. in britain, the government's equality legislation a few years ago forced a party called the british national party which is a horrible racist organization, forced them to rewrite their constitution which it was only opened to white people on the basis that it was -- celebrated inequality. that is tyrannical. that is end of freedom of association even though you might despise. i have marched against it many times when i was younger. there have been other instances where religious groups in the u.k. and other parts of europe has been punished and given rison sentences. pushing in's quality. a pastor in sweden was given a

one month suspended system describing homo sexuality as a tumor and that is a pretty re pulse i have view. and it ran counter to swedish hate crime and therefore he was punished. a church in britain was made to take down a poster warning passersby if they didn't believe in god they were going to hell. because that was seen as harassing and alarming and making nonchristians feel humiliated and bad and it's bad to base laws on what people feel rather than on the question of rights and liberty. look at what is happening in urope with the use of equality legislation. just one other quick point i wanted to make in relation to some of this stuff. i have to illustrate how

unhelpful it is that you are conflating the discrimination against black people, which was widespread and horrendous, with this case. and as i said before, i have never heard one person, not one single person including jack or anybody else, say that they want to discriminate against gay people and want to stop serving or associating with gay people. and i genuinely believe that you risk minimizing the crimes of the past by constantly marshaling them to your cause because you are suggesting that what rosa parks' case was similar to a couple who are incapable of getting a cake. what she faced was the den gation of her entire life and her entire being and her ability to go about her life one

molested in any way whatsoever. it is a profound problem to conflate those things. in relation to the freedom of religion thing, i'm worried the way that religious beliefs are being redefined by some people as akin to bigotry and if you think marriage is between men and women and if you believe that, you are ought matically branded a bigot. i'm not religious, but i come from a religious background and i know lots of people think that marriage should be between men and women and they are not bigots. they don't hate gay people but have a religious pleff about the institution of marriage. and i'm worried about the redefinition of beliefs of hate imes as a form of abuse or bigotry. i think it is worth of getting

back to the word of bigotry. it means intolerance of someone who thinks different than to you. it doesn't mean racist or sexist. but the definition of the term bigotry. intolerance of someone to your views. and i'm worried the way in which -- worry about bigotry in cases like this.

>> i believe in religious freedom. my mother is a very religious freedom. she is a christian and accepts gay marriage. i'm not saying her believes are right and jack is wrong. it is interesting when we start 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 groups based on sexual orientation. this country does have a very pronounced history, anyone who knows the matthew shepard case and that gay college student who

was tortured and tied to a fence and left to die, which he did die five days later. and i don't think we can stop calibrating whose harm is more real than somebody else's. i am certainly not and never have questioned jack's sincerely eld religious beliefs. i applaud him and should be able to express them. or er called him the name denigrated him. nobody has in this case. david and charlie have never denigrated jack's beliefs. the question is whether in a society like ours, if you are going to open up a business, private associations are different. private trades are different.

writing pamphlets i would say are different. but there are so many activities so expressive. you do open up the flood gates. we do have a bill of rights in this country. we do have legal protection clause as well as the first amendment. so i'm not as worried. most of the examples you hear about, preachers or religious organizations, the law 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 are going to serve everyone equally. i forgot what the other question was. >> we should go to stephanie and get it on the table. the commentary noted many people think the case is up to justice

to free d forces him expression and has expressed sympathy for both sides. which way do you think he is going to vote? >> justice kennedy clearly cares about the dignity of this gay couple and gay couples everywhere and all sorts of marginalized groups and takes it seriously and i don't think it makes sense to act as though that this couple didn't experience hurt. they have faced injustice. that is on justice kennedy's mind. we live in a pluralistic

society. and talked about jack's dignity. another case, one of these vendors is a 70-year-old grandmother who if she loses her case because she couldn't provide a service, she will not only lose her business but the state will come after her for millions of dollars. that is why he brought up the importance of tolerance and our country needs to be a two-way street and talked about some concerns that he and other just is are worried about and in colorado, some of the statements were hostile to religious beliefs and the place of religion in society. look if you open a business or coming out here, you shouldn't be able to have religious beliefs at all. you have to compromise. and that seemed deeply troubling to john kerry. there seemed to be animosity

towards religion and double standard of how colorado treated gay bakers and not jack. that is going to be important. the supreme court precedent in the first amendment area has been quite clear that while dignitary interests matter, we have to look elsewhere when we decide whether or not the government has the power to force someone to express a message they disagree with or do something contrary to religious beliefs. that's why the supreme court has protected the first amendment in ike scokey and protected protestors at funerals. and the supreme court has said we have to look at other government interests to decide whether coercion is warranted. and the government hasn't made a

case beyond dignity why they are justified in taking away jack's freedom. and i haven't heard an answer why this case is any different than if we were forcing black lives' matter baker to create a aryan church hite you cannot give it to them and not give it to jack. and no way to run a constitutional democracy. >> national constitution center panel. we have to end on time. and time for our final vote. before voting, i want you to reflect very carefully about the constitutional arguments. 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 baker's right to refuse to sell ? e cake to the gay couple who believes the first amendment protects the baker's right to bake the cake. and who believes it does not. who changed his or her vote as a result of the discussion? and how many people changed heir vote from paula's side to stephanie's side? and how many people changed their votes from stephanie's side to paula's side. this is extremely imprecise tie but i'm going to call it a tie. and i want to thank our panelists for this extraordinary discussion. thank you very much. wonderful job. [applause]

[captions copyright national satellite corp. 2018] nick nick -- captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org >> saturday at 4:55 p.m. prominent figures in american law.

and justice kagan and sunday at 4:00 p.m. on real america, two cbs "face the nation" programs with republican governor ronald reagan and george wallace. watch this weekend on the c-span networks. >> former f.b.i. director james comey has a book coming out tuesday. president trump tweeting --