Welcome to the Liberty Insider.
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This is your program
that brings you news updates,
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analysis, and discussion
on religious liberty events
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in the US and around the world.
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My name is Lincoln Steed,
Editor of Liberty Magazine.
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And my guest on this
program is my good friend,
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Attorney Alan Reinach.
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And you have many titles
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but you're the
Executive Director
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of the California-based
Church State Council,
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we'll go with that one.
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Okay. Fair enough. Glad
to be with you, Lincoln.
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And as a lawyer, particularly,
let's talk a little bit about
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one of the recent
decisions of the Supreme Court,
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they dealt with the lay
people, and I'm one of them,
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we say Cake Case, right?
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Masterpiece Cakeshop.
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So Jack Phillips is a baker
in Colorado, he's a Christian,
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he was asked to bake a
cake for a same-sex couple
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and he refused.
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And so he was
brought up on charges
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with the Colorado
Civil Rights Commission
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and found to have
discriminated against them
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on the basis of sexual
orientation and, of course...
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I think he went on
appeal at the Supreme Court.
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Went all the way
to the Supreme Court.
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Now both sides are
claiming victory in this case
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and in fact...
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Now who are the sides?
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Well, alright, so...
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Maybe there's more than two.
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This is a very...
It's a very interesting...
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Look, the number
one conflict in America
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in terms of religious freedom
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is this conflict
between LGBT rights
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and religious freedom,
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especially for
Christians and for...
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especially for Christian
institutions that uphold
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what I like to call
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the biblical view
of human sexuality
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because properly understood,
it's not discriminatory
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against people with
a same-sex orientation.
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You know, it's a
view of human sexuality
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that consistently discourages
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sex outside of
heterosexual marriage,
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for anyone, whether you're
heterosexual or otherwise.
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Yeah, don't you
think it's unduly polarized
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because in any
biblically based Christian
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reads their Bible and stands by
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would think that
to steal, you know,
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whether it's at
gunpoint on the street corner
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or from a company
embezzling from the company
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that this is a
crime, this is immoral.
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But I don't know of
any history of Christians,
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you know, with
posters out front of a prison
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or mistreating ex-prisoners
because of their crime.
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We see this as the
foible of fallen human beings,
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and we try to witness to them
and have the mend their ways
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and join the
Christian community,
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it's not a holier-than-thou,
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you know, go to hell and
stay there type approach.
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Well, look,
religious freedom is suffering
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as is the gospel itself
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by the very harsh
culture war hostility that,
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you know, some
Christians are nurturing.
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Now a part of that, honestly,
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I have to lay the blame
at the feet of both preachers
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and unaffiliated
Christian organizations
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that need
conflict to raise money.
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Yeah, I think you're right.
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This is, you know,
part of the whole equation,
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I've seen this for decades,
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and I've been so
thankful to be part of
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a denominationally-based
organization,
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we're affiliated with the
Seventh-day Adventist Church,
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we're not
independently raising money.
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I don't have to express,
you know, a hysterical opinion
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to get people scared
enough to give me money,
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you know, and
that's what I see happening
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both from the
Liberals and the Conservatives.
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I used to say that the likes of,
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you know, the culture warriors
in the Christian community
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like Pat
Robertson or Jerry Falwell,
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they were in a sick,
symbiotic relationship
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with the culture warriors
on the left like Barry Lynn
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of Americans United for
Separation of Church and State.
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That's true, they
needed each other.
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You know, they needed
each other to raise money
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and to build up
their own powerbase.
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Well, let's get back
to Jack Phillips though.
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So Phillips has the...
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Try to give a cultural backdrop.
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Sure.
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'Cause it doesn't
make sense to some people.
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Well, so he has an objection,
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he feels, according to
the records in the case,
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it's his belief
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that baking the special
cake to honor a same-sex...
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And probably
it's not the baking,
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it's the decorating that
got to him mostly, right?
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Putting an
artistic input into it
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where he would have
to invest his feelings,
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and creativity, and so on.
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Bottom line, he felt
that would be an expression,
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an expression of
speech, and endorsement,
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and violation of his conscience.
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So you have two
sets of rights here,
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Colorado has broad
anti-discrimination laws
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that apply to businesses,
public accommodations laws.
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Now these laws predate
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the American
civil rights movement
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and the Civil
Rights Act of 1964.
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Colorado's laws
go back to statehood
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shortly after
statehood in the 19th century,
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they began to prohibit
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discrimination and
public accommodations.
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So these laws are very ancient,
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they were amended more recently
to include sexual orientation
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and businesses
generally can't discriminate,
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you have to serve
people regardless of their age,
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or sex, or, you know,
disability, or religion,
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you know, etcetera.
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So you have these
two sets of rights,
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rights of conscience,
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right not to be
discriminated against.
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They go all the way
to the Supreme Court.
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And what does
the Supreme Court do,
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it punts, and it
gives a victory to nobody.
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Yeah.
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Well, I thought you
were gonna explain how.
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Well, yeah, no, I will.
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I felt there was prejudice
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on the part of those
representing the gay lobby,
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the way they'd expressed
themselves ahead of time
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showed that they
really had the animus
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even though they
brought it out of him.
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So you have an administrative
judge that issues a decision
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and then it's reviewed
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by the Colorado
Civil Rights Commission.
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There were two
hearings at the Commission
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and two of the
four commissioners
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expressed significant hostility
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to the notion of
religious discrimination.
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So they viewed
Phillips as being discriminatory
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and they lumped it
with the Nazi Holocaust,
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they lumped it with
the history of slavery,
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and Jim Crow laws etcetera.
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And the Supreme Court said,
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"You know, when you adjudicate
these conflicts of rights,
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religion has a right
to be treated fairly,
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the government can't be
hostile to religious claims."
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Yeah.
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Now there's a... but
there's a back story here.
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The back story is
that the Supreme Court,
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30 years ago, destroyed
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the constitutional
value of religious freedom
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and this is something that...
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Smith case.
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The peyote case,
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Employment
Division against Smith.
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Because religious-free exercise,
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religious conscience
has now been relegated to,
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you know, I say the
back of the civil rights bus
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or even being dragged
behind the civil rights bus,
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like a lynching practically.
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Because of that,
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the Supreme Court did
not... was not able to engage
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in the traditional
weighing of rights.
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And let me explain
what that would look like.
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So you have a neutral
law, when I say neutral,
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the civil
rights law in Colorado,
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it doesn't
target people of faith,
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you know, especially,
it applies to everybody.
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So it's not
discriminatory in its language,
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but in its application
to Mr. Phillips, arguably,
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it's restricting
his religious freedom.
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Okay.
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So the question is how do
you resolve these conflicts.
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Well, under the
traditional view,
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you would say, "Does the
state have a compelling interest
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in eradicating discrimination?"
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That's a pretty
easy question to answer.
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Yes, state's interest
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in prohibiting
discrimination broadly,
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that's a compelling interest.
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Well, they have
other compelling interests.
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I always object to
that statement that...
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I know you do, but let's,
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you know, but then
the next question is,
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is it necessary, in
order to achieve that interest,
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to restrict the religious
conscience of Jack Phillips.
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You know, you have to have...
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it's called a least
restrictive means analysis.
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So his rights get considered.
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That kind of analysis, the
court no longer engages in,
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they only ask, "Is the
law itself discriminatory?
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Is it neutral in its language?"
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And the answer clearly is yes.
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So free exercise
doesn't even get to first base,
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you don't have a
claim, which is why
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the lawyers for Jack
Phillips litigated this
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as a free speech case.
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Now we don't traditionally think
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of baking a cake as expression.
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You know, there's another case
involving Alain photography,
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wedding photography,
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you know, we can
relate to a little bit more
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as an art form, as,
you know, expression,
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but baking a cake, well,
Jack is the unusual baker.
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I mean, he calls it Masterpiece
Cakeshop because, you know,
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he fancies himself
a bit of an artist,
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and he engages with
a couple to understand
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where they're coming
from and to craft a cake.
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Yeah, they don't
have any problem,
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see, these are
both creative endeavors.
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You don't but, you know,
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reasonable people
differ on whether,
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you know, this is free speech.
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I'll give you an example.
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One of the champions of
free speech in the legal academy
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is a law professor out of UCLA
by the name of Eugene Wollock,
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and he runs a
religion law listserv,
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so Eugene
Wollock would side with
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the baker in the Baker case...
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I'm sorry, would
side with the photographer
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but, as free speech,
but would not agree that
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the cake is his
free speech, you know.
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Now that's not to say
he's right but just that,
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you know, a
thoughtful academic...
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Because they've
started with a premise
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that we would say is wrong
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and then come to
conclusions of the trouble.
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So the problem in
this case starts with
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we have a faulty legal landscape
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that does not properly value
religious conscience claims.
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And what I don't
think helps things much that
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this is clearly a provocation.
00:11:05.89\00:11:08.03
I've said it on
this program before.
00:11:08.06\00:11:12.03
Things like wedding photography
and making a wedding cake,
00:11:12.07\00:11:16.24
or...
00:11:16.27\00:11:17.61
it's not up for legal challenge,
00:11:17.64\00:11:19.31
but where you're going to
have your wedding dress made,
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you go with
someone simpatico, right?
00:11:21.98\00:11:25.25
It's somewhat self-regulating,
00:11:25.28\00:11:27.72
and if gays knew that
00:11:27.75\00:11:30.19
this was a Christian
cake-maker or whatever,
00:11:30.22\00:11:33.32
they probably wouldn't
knock on the door to start with,
00:11:33.36\00:11:35.79
they would go where they feel
they're among fellow travelers.
00:11:35.82\00:11:39.36
So I think it's a setup
from the get-go and so...
00:11:39.39\00:11:43.93
Well, and the upshot
of it is after two weeks,
00:11:43.97\00:11:48.70
after he wins or, you
know, he wins in the sense that
00:11:48.74\00:11:53.04
the court reverses
the decision against him.
00:11:53.07\00:11:55.11
So in that sense,
it is a win for him.
00:11:55.14\00:11:56.78
Yeah.
00:11:56.81\00:11:58.15
But then a transgender
person had ordered a cake
00:11:58.18\00:12:02.98
and the Colorado Commission
rules against Jack Phillips
00:12:03.02\00:12:07.42
saying that he discriminated
against this transgender person
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'cause he wouldn't
bake a blue and pink cake
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to celebrate their transition.
00:12:14.13\00:12:16.40
Well, let me throw something in,
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and we need to
take a break shortly.
00:12:18.23\00:12:19.90
But, you know, I've
heard over and over again
00:12:19.93\00:12:22.10
and I know that
generally this is true
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that it doesn't matter
what your position is per se,
00:12:23.87\00:12:28.08
if you hold something
as a point of conscience
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that's a deeply
held conviction that
00:12:31.25\00:12:33.78
that needs to be
on it, so it does...
00:12:33.82\00:12:35.88
on one level it seems to me,
00:12:35.92\00:12:37.25
it doesn't have to be proven
00:12:37.29\00:12:38.62
that he's had a
biblical position
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or that is consistent
with what other churches hold.
00:12:40.79\00:12:44.23
He's troubled by this
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and his feelings on one level
should be respected, right?
00:12:45.63\00:12:48.73
Well, but here's
the rub, Lincoln,
00:12:48.76\00:12:52.17
historically, the southern
white Christian Church held
00:12:52.20\00:12:57.84
either slavery or
segregation as religious dogma.
00:12:57.87\00:13:02.88
Right.
00:13:02.91\00:13:04.25
You brought it up and
I've brought it before.
00:13:04.28\00:13:05.88
I remember when I
first came to the US,
00:13:05.91\00:13:08.82
people were being
turned away from stores
00:13:08.85\00:13:11.02
on a biblical basis but
underneath, it was racism.
00:13:11.05\00:13:14.96
I will tell you
that my kids generation,
00:13:14.99\00:13:17.59
they see Christian attitudes
towards gays of a same piece
00:13:17.63\00:13:24.50
with Christian
attitudes towards blacks.
00:13:24.53\00:13:26.90
Yeah.
00:13:26.94\00:13:28.27
And that's the problem,
00:13:28.30\00:13:29.64
we can talk about liberty
of conscience in the abstract,
00:13:29.67\00:13:32.64
but when you're talking
about the right to discriminate,
00:13:32.67\00:13:35.84
it's a tough sell.
00:13:35.88\00:13:37.25
Yeah.
00:13:37.28\00:13:38.61
And before the program,
00:13:38.65\00:13:39.98
we were talking about some of
the dynamic that preceded this,
00:13:40.02\00:13:43.02
and I've always objected to gay,
00:13:43.05\00:13:46.49
and transgender, and lesbian,
00:13:46.52\00:13:49.52
and so on rights being equated
with the civil rights movement.
00:13:49.56\00:13:53.50
I don't think it's
a direct comparison.
00:13:53.53\00:13:55.70
We'll take a short break,
00:13:55.73\00:13:57.10
and we'll come back to
this very loaded discussion
00:13:57.13\00:14:00.20
that derives from a
recent Supreme Court action.
00:14:00.24\00:14:02.44
Stay with us.
00:14:02.47\00:14:03.81