Mike Farris is the CEO and General Counsel of Alliance Defending Freedom, lead counsel for Jack Phillips, petitioner in Masterpice Cakeshop Ltd v. Colorado Human Rights Commission, the most important Free Exercise Clause case to come before the Supreme Court in three decades. You can help support ADF with a contribution here. The SCOTUSblog page on the case with links to all the briefs is here.
HH: I am joined now by Michael Farris. Mike Farris is the CEO and the general counsel of Alliance Defending Freedom. ADF has been a regular feature on this show for many decades here, a great sponsor of the program. And more importantly, they’re my friends and I trust them, and I’ve been at many, many ADF gatherings over the years. And I don’t know that there’s ever been a more important time in the history of ADF, or a more important case than Masterpiece Cakeshop, Ltd. V. Colorado Human Rights Commission, which ADF is the lead counsel. Mike Farris, welcome to the program, it’s great to have you on.
MF: Hi, Hugh, great to be with you today, thank you.
HH: Would you agree with my assessment that Masterpiece Cakeshop is the most important free exercise case in three decades?
MF: Yes, I fully agree. Ed Meese said that he thought it was the most important free exercise case in American history. So…
HH: Okay, so three decades counts, but I’ll go with General Meese, for whom I worked. Would you explain to the Steelers fans out there, Mike Farris, what Masterpiece Cakeshop is about and what ADF’s role in it is?
MF: Jack Phillips is a cake artist. He designs beautiful wedding cakes in Denver, Colorado. When two men came into his cake business to ask him to do a custom cake for their wedding celebration, he politely declined, telling them that he doesn’t do cake designs that violate his conscience. He’s got a long history of doing that not just on this subject, but other things that violate his conscience. He told them he’d readily served them anything that was already premade in the shop, so it’s not about serving the people. It’s about particular messages. The Colorado Civil Rights Commission held that this is a violation of their state law and ruled that he did not have any 1st Amendment rights to avoid being compelled to make a cake, to design a cake that violates his conscience. So we have free speech elements, and we have free exercise elements, and the real issue is whether or not the government can force you to say things that you don’t believe, in fact, that you actively disbelieve.
MF: ADF is lead counsel in the case. We’re, Kristen Waggoner is lead counsel in the case. Kristen Waggoner, my colleague, will argue the case on December 5th.
HH: On December 5th, it will be argued. Between then and now, I am raising money for the Alliance Defending Freedom association of attorneys and participants, and I would encourage you to go to Hughhewitt.com and click on the button at the very top – $100, $500, $1,000. This is a big operation. You have cases in 50 states. You have 4,000 affiliated lawyers. But this case is taking up all of the oxygen, as it should, Mike Farris. How confident do you feel about this?
MF: Well, I’m very confident that it’s going to be really close. All the smart money is on the fact that it’s going to come down 5-4, and as often is the case, Justice Kennedy appears to be the swing vote. He’s one of the strongest advocates for same sex marriage, but he’s also got a very strong history on free speech. So it’s kind of two of his legacy issues are at conflict in this case, whether he’s going to stand with free speech, which would be devastated if he goes the wrong way, whereas the same sex marriage, you know, what happened to the two guys, they had to go a few blocks away to another bakery. And in fact, they got their cake for free when the news was out. So the implications for free exercise of religion and the freedom of speech are amazingly devastating if the government can coerce us to say what it wants us to say. Really, we can’t call ourselves a free country anymore.
HH: Now Mike Farris, on Thursday of last week, I had the Attorney General of the United States, Jeff Sessions, on. And he implied, and it was later confirmed, that Alliance Defending Freedom will be sharing time before the Court with the Solicitor General. Can you confirm that for me as well?
MF: Yes. Kristen Waggoner will take 15 minutes. The Solicitor General himself will argue for 10 minutes, and then Kristen will do the rebuttal for 5.
HH: And so Noel Francisco is actually going to argue it? And that telegraphs that the United States Department of Justice believes very much that this is a central case. The so-called 10th justice is the S.G. So that itself is a big win, isn’t it, Mike Farris, is the federal government is come in on the side of Jack Phillips?
MF: It is, and you know, of course the fact that the Court took the case was the first big win. And then the Solicitor General’s participation is the second. And we’re very hopeful that we’re going to have the ultimate win of the Court saying our country still believes in freedom of speech and free exercise of religion. You can’t force people to violate their conscience.
HH: Now I have been reading with great interest, and I will link in the transcription of our interview, Mike Farris, the SCOTUSblog page that links all the amicus briefs that have been coming in, and they’re flowing in. Amicus briefs like a river are coming into the Supreme Court. One of them arrived from the Utah Republican State Senators, unusual group, but you nevertheless, everyone can file an amicus. But I found in their brief this very interesting argument. Although state laws reflect an extreme divide on the issue of who should serve whom in what weddings, a majority of Americans have identified a reasonable compromise. And it goes on to read, “A sizeable majority of Americans agree that gays and lesbians should not be denied service on the basis of their sexual orientation. And a similar majority agree that wedding-related professionals should not be compelled to service same sex wedding ceremonies. When analyzed carefully, public polling demonstrates that most Americans distinguish between on the one hand, denying services to gays and lesbians on the basis of their sexual orientation, and on the other hand, declining for religious reasons to provide certain wedding-related services for same sex nuptials. A strong majority disapproves of the former, but approves of the latter.” I believe that is an accurate representation of everything I know about public opinion, Mike Farris. What do you think?
MF: Well, I think it’s exactly what Jack Phillips has practiced. He has not denied people’s services, gay people coming into this shop. He’s served them for years, and will continue to do so. He will serve these two guys. The parallel case that’s right behind it, Barronelle Stutzman, the florist from Richland, Washington, she served the two guys in question for nine years. So that’s, I think, exactly the mood of the American public, and the practice of the people that are really being conflicted here with the government. They have served gay people. They have served people of all races, you know, religions, etc. But they refuse to participate in a wedding which violates their conscience, because they believe, like millions of others, that God defined marriage. And to try to redefine it, marriage by the Supreme Court, well, they did it for wedding licenses. But they can’t force them to join the celebration.
HH: I want to point out as well about Jack Phillips, the perfect plaintiff, I’ve met Jack, and this case began in Denver. I’ve met his local counsel. It’s really kind of a remarkable case. He does not make cakes with alcohol in them. He does not make Halloween cakes. He has a consistent record dating over many years of refusing to use his artistic talents to make case and odds with his religious beliefs. Is that a fair summary?
MF: It’s exactly correct, yes. He follows his conscience, even if it costs him. And he’s willing to pay the price, but he shouldn’t have to pay the price at the hands of the government by coercing him in this kind of context.
HH: Tell us about who’s arguing this for ADF. She’s an amazing woman.
MF: Kristen Waggoner is the head of our legal team, head of U.S. advocacy. And this is my kind of first big decision as CEO since joining ADF in January. And it was readily apparent to me that Kristen’s the right one to argue this case. She’s a former state supreme court law clerk, and has a terrific record, and is just dynamite. And she’s going to do a great job in the Supreme Court. I have high confidence that she will present the argument with real, real aplomb.
HH: Have you begun the so-called murder boards where a number of very competent stand-ins for the justices fire questions at her?
MF: We’re about two weeks away from the murder boards. But she’s got me to face. I coached moot court, which is of course what we’re talking about here for 17 years at Patrick Henry College. My teams won ten national championships. She’s got me every day, really, for about a month. She’s going to have to face me. And so you know, I’ll warm her up, and then the murder boards will start in about two weeks.
HH: Now let’s talk, well, that’s good practice. Let’s talk a little bit about Alliance Defending Freedom overall. Right now, ADF is making an appeal to the public to stand with them and to make a donation. They can make that donation by a credit card. They can send it to a mailing address, which is on the website at Hughhewitt.com. But we need some money, because this is a big operation. And now, I’m never ashamed to ask for money for ADF, to beg for money for ADF, because religious freedom, everything depends upon it, everything, Mike Farris. How is the response to the fundraising campaign going?
MF: Well, it’s encouraging, but we have a long way to go. So people have stood up and have supported Jack Phillips and our work in this whole arena. But we really do need help. The amount of coordination it takes, the amount of money it takes to present a case of this magnitude to the Supreme Court of the United States is really staggering. So we really need their help.
HH: You are up against some very competent lawyers on the other side, and a vast array of very well-funded groups, I mean, just a bankroll that would stun. It’s like fighting against the government. Now the government is coming on your side, but they have not carried you forward to this point. So people, whether it’s $50 or $500 or $5,000 dollars, it will also be matched. You’ve got someone who has stepped up and said I will match every dollar that comes in to ADF. How unusual is that?
MF: Well, that’s a real blessing to have that match, and we’re just so grateful that people, if they give today, it will be doubled. If they give $100, we’ll get $200 and so on. So it really does help, and that starts adding up. And the other side, you’re right. I mean, the ACLU has raised tens of millions of dollars around all of this, and they’re the lead counsel on the other side. So it’s, you know, if people understand the vast power and resources of the ACLU, they’ll really understand the need that we’re facing.
HH: When you got to Hughhewitt.com, it’s the very top banner. When you click on that banner, you’ll be led to a page that’s got my smiling face on it, and it makes an offer, it makes it very easy. You can donate $75, you can donate $35, $50, $100, $250, other. You can give $5,000 dollars in a one-time donation, a monthly donation. This is actually the easiest to use donation page I’ve ever landed on, Mike. Who did this for you?
MF: We have a great team. It’s internal. We have some good tech guys that really pulled this off quite well.
HH: The Freedom Fund landing page is really quite amazing. So let me conclude by asking you this. Obviously, people pray for ADF. It is so vital that they understand the connection between this case and every other free exercise case. This isn’t just about cakes and gay weddings. It’s about how the Court is going to decide the free exercise case going forward for probably decades and decades. Correct or not?
MF: Absolutely correct. The Court got it wrong in the early 1940s when it forced Jehovah Witnesses to violate their conscience in the flag salute context. But two years later, after a bunch of violence against Jehovah Witnesses, they turned it around and got it right, and said the government can never coerce people to violate their conscience. And the question is are we going to go back to those days of coercion and violence? Or are we going to stand for freedom?
HH: I hope we stand for freedom. Help Alliance Defending Freedom. The button is over at Hughhewitt.com. The banner is at the very top. Thank you so much, Mike Farris, CEO and general counsel of Alliance Defending Freedom.
End of interview.