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Hugh Hewitt Book Club

David Cortman, Alliance Defending Freedom Senior Counsel, RE: Trinity Lutheran and Masterpiece Cake Shop

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The Audio:

06-27hhs-cortman

The Transcript:

HH: So pleased to welcome my friend, David A. Cortman, and to congratulate him. David, welcome and congratulations.

DC: Well, thank you. It’s good to be back again.

HH: David is the senior counsel and vice president of U.S. litigation with Alliance Defending Freedom. He joined ADF in 2005. Yesterday, he had a most unusual thing happen. He won a major United States Supreme Court decision which will be taught in law schools and will protect people of faith for generations to come in Trinity Lutheran, and on the same day, the Supreme Court granted certiorari in Masterpiece Cake Shop, another of David’s cases, meaning that not only does he win, he has to go right back to work. Am I right, David?

DC: (laughing) We do. That seems to be the story, these days.

HH: You don’t even get a day off. You win this big, huge constitutional landmark case, and then they hand you down another one. No vacation for you.

DC: (laughing) It’s okay. We’ve got a great team handling all of this.

HH: David, let’s talk with Trinity Lutheran first, 7-2. And I worried about this. I prayed about this. It’s very gratifying. Explain to people what the case was about, and what the Chief Justice said, and what Justice Gorsuch said in concurrence?

DC: Yeah, I mean, the case is about, you know, it’s interesting. Simple facts about a scrap tire program in Missouri that takes their recycled tires, tries to get them out of the landfills and that of the rivers and the streams, and do something good with them. You can get a reimbursement grant to put them down for to recover playground surfaces so when the kids fall, it’s a little bit of give, they don’t get as hurt. So they open the program to all not-for-profits, including not-for-profit preschools. Our client applies for one, goes through the long application process, all the vendors quotes and diagrams and estimates and all things it’ll do. It actually gets ranked high enough, number 5 out of 44 applications, to actually receive a grant. But once the state recognizes that it’s owned and operated by Trinity Lutheran Church, it says well, we have to disqualify you based on our state establishment clause, our state separation of church and state. And solely because of that, they disqualify them from the program.

HH: The Chief Justice called that decision odious yesterday, and seven justices agreed with him. What was his primary reasoning, David Cortman?

DC: Well, you know, the good thing about the case is, is that there’s a difference between how your program is set up. And in this particular case, you know, the government gets to decide how it sets up its programs. And of course, these days, the government seems to be involved in everything. But it set up the program on this neutral basis to allow all not-for-profits in, and not-for-profit preschools. But then, solely because of the church being religious, it says well, you’re disqualified even though you otherwise satisfy everything else we set forth, solely because of who you are, your religious status. And so the Chief said when you target religion like that, when you target people of faith, and solely because of their religion, when they otherwise qualify across the board, in fact, qualify better than almost everybody else, then that’s repugnant to the Constitution.

HH: Now I saw some left wingers online last night say this isn’t a big deal. But in fact, it is a decisive defeat of the march of the secularist absolutists, David Cortman. It is a huge rebuke to them, and to those who would drive religion and faith from the public square. Do you agree with that?

DC: Yeah, I mean, I think it is a very big deal. And what’s funny about some on the left, if you would have read their opinions before, they were like oh, no, we’ve got to, this case is, if we ever lost this case…and the easiest way to tell what kind of a deal it is, is read the dissent. Justice Sotomayor and Justice Ginsburg were the two that you were talking about, and the language they use is, you know, this is the end of the 39 state Blaine Amendments, the strict separation of church and state, and you know, they’ve done something they’ve done before, never done before, is required funding to churches. And so I think the dissent is the best way to tell what a big deal the case is.

HH: And a last question about the decision yesterday before we turn to the grant of cert yesterday is Footnote 3. Justice Gorsuch wrote separately to say I don’t agree with this, because it adds some confusion as to what is the implication. Can you tell us about Footnote 3 and the point that is being debated here, because I don’t know that I agree that it’s a bad, terrible thing, but I agree with Justice Gorsuch it could be if it’s interpreted the wrong way.

DC: Yeah, I mean, I think that’s the exact point. Footnote 3 basically says what we’re resolving here is the case about discrimination based on someone’s religious identity. We’re not talking about using money for religions purposes or other forms of discrimination. Well, in and of itself, that’s exactly true. And what Justice Gorsuch rightly said was look, that’s true and I agree with it. The reason I’m not joining it is people are going to take that and try to make it into something bigger. And I think that’s rightfully so. But what it really says is that we’re not talking about different cases, we’re not talking about funding religious activities. But even beside that, this is a tremendous victory, because now any type of program, and again, as the dissent points out, there’s 39 states that have these type of restrictions, they can no longer use those restrictions to say whatever program we set up, we can’t just go ahead and exclude religions organizations or people of faith from them, solely on that basis. And that’s a tremendous victory.

HH: It is. I believe that Blaine Amendment applications are now presumptively unconstitutional. David Cortman, Justices Kagan and Breyer joined in this decision. I personally interpret this as their recognition the Court will change over the next two years, and they don’t want to be left out in the cold as dissenting in 5-4 decisions. They wish to be participants in the emerging majority. And I believe that’s constructive and good. Let’s now talk about Masterpiece Cake Shop. This is Jack Phillips, a baker in Denver, who did not want to use his art to decorate a cake for a same sex wedding. He was fined by the Colorado Human Rights Commission, and now it seems to me that the Court is going to end up, and I’m just going to the conclusion. They’re not going to reverse Obergefell. They’re going to confirm Obergefell. But they have to come up with a rule of reason that defines when people of faith and sincere religious belief do not want to lend their creative art to an expression that is in conflict with their deeply-seated religious beliefs. Do you believe such a rule of reason can be developed?

DC: We’re certainly hopeful that they can. And if people pay attention to what’s going on around the country, you hear about the bakers and the florists and the fire chief and the photographers. I mean, this is a big deal. This is one of the big questions that is up and coming, is now that Obergefell has been ruled upon about same sex marriage, what do you do with people who don’t want to celebrate, who don’t want to promote it, who don’t want to participate in those type of events? And so far, the lower courts have really not done well with it. And so this is an important opportunity for the Court to reaffirm not only free speech rights, and we have to remind everyone this rule will apply to everyone across the board. It doesn’t matter what your view is on marriage. It doesn’t matter what your view is on these issues. The question is number one, can the government force you to speak a message by which you disagree, or force you to participate in some event, especially when you’re talking about creative professionals of the various stripes. So it’s a pretty important case for the Court to take up.

HH: And I want everyone to understand what David just said. This will apply to all religions in all settings, people of sincere religious beliefs in any situation where that which is being celebrated is in conflict with their honest, deep-seated faith/religion. And it can’t, I don’t know how you can get an absolute rule out of this, but I was surprised by the grant of cert. And I wonder if the fourth vote was provided by Justice Gorsuch finally to grant cert. But you’ve got to find a fifth vote somewhere, or, as I suspect Justice Kennedy is going to be drafting a rule of reason, because it has to be a rule of reason, doesn’t it, David?

DC: It really does. And not only does it apply to people of all faiths, this applies to everyone regardless of your faith, because it also has a compelled speech component. So even if you take away the religious aspect of it, and you say to someone you know, for example, if there’s someone who’s a gay baker, and someone comes in, as happened in Colorado, and says we want to bake a cake to oppose same sex marriage, are they required to support that message? So it goes beyond religion, and it goes straight to speech, regardless of what your view is on any topic. And do we want the government penalizing someone for not speaking a message they disagree with? And I think you’re right that they have to come up with some sort of rule, because it won’t work just to say they have to do this. People will not put up with you’re compelled to speak whatever message it is that violated your conscience, or that you disagree with. I think that’s a dangerous rule, because it doesn’t balance all the issues that are going in play here.

HH: So the hardest argument will be when we passed the Civil Rights Act of 1964, we told people regardless of their beliefs, they were going to serve our African-American fellow citizens. We told them that, and we do not accept that people who are in commerce get to have a faith exception. How will you distinguish that, David Cortman, from this case?

DC: Yeah, I mean, it’s, you know, there’s two different things. I mean, the easiest way is that it’s apples and oranges, number one. When you talk about that, they’re discriminating against African-Americans because of their status, in other words, because of their race and the color of their skin. Here, these all are clients served, gladly serve everyone – LGBT communities. In fact, our florist client, Barronelle Stutzman, she serves and employs them. She’s been friends with them. She does all kinds of events for them. It’s the objection, the message objection to participating in what people of faith consider to be a sacred religious ceremony, and that is a wedding, whereas in the racial movement, they wouldn’t serve them at all. They wouldn’t let them eat at the restaurant, they wouldn’t let them sleep in their hotels. This situation, they serve everyone, but what they won’t do is communicate every message, regardless of your attributes. It doesn’t matter. They won’t speak messages. In fact, Jack Phillips, he doesn’t do cakes about Halloween. He doesn’t do cakes that are anti-American or anti-family. So he serves all people, but he won’t communicate all messages.

HH: But it does seem to me that the response will be, and I can see Justice Kennedy leaning forward and saying, or Justice Breyer, who’s very good with a tricky question, are you saying to me, Mr. Cortman, that an individual who is firmly against interracial marriage based upon their particular reading of Scripture is not obliged to provide flowers for an interracial marriage?

DC: Yeah, and again, again, I think it’s different, and there’s a lot of reasons for that without going into all of them. But I think the main reason it’s different is when you object to an interracial marriage, you’re still objecting to the status of the person. What you’re doing is you still have that idea of what all that came out of was the white supremacy, and blacks were inferior, and so you still have the problem with the person. And so it’s completely, it’s completely different from this type of situation here. The status of the person is irrelevant. You gladly serve them. You’re friends with them. You know, it’s just a normal part of your business. But anyone who comes in, regardless of their sexual orientation, regardless of what attribute they have, are they speaking a message you disagree with? For example, if you have, you know, someone who’s an African-American baker, are they required to say okay, the KKK is coming in for an event, you have to, you know, you have to bake something for them? The answer is no. And so my point is the freedom carries to everyone based not on the person, but based on the message that it carries. And I think that’s completely different from the race situation.

HH: Interesting. And religious ceremonies are going to be also a different issue. It’s going to be about speaking into a religious ceremony that is, or at least a ceremony understood by the country as a whole to be religious. Give me a couple of practical things, David. When is the argument?

DC: Not set, yet, but my guess is it’ll be late fall. Though based on the way the calendar is filling up, if I’d have to guess, I’d say probably around November, maybe December would be my rough guess.

HH: And my next, and I’ve got 30 seconds left, you argued Trinity Lutheran, I believe. Will you be arguing Masterpiece Cake Shop?

DC: I will not. I will be on the team working on it. Our, Kristen Waggoner, I think she’s been on the show before, but anyway, she’ll be arguing the case, but we’ll be working closely with her, getting her ready, and drafting the briefs over the summer. So we’ll have the whole team that works on the case.

HH: Alliance Defending Freedom, America. Go look it up. (www.adflegal.org). Support them. They are the front line of religious liberty and conscience rights in America, a big win yesterday, big case next year. Thank you, David Cortman.

End of interview.

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