Re: July 7, 2015 Colorado Court of Appeals hearing of Craig & Mullins v. Masterpiece Cakeshop
Many of your supporters were disappointed when Stacy Worthington, the Senior Assistant Attorney General of the State of Colorado, argued alongside the ACLU’s Ria Mar in attacking Jack Phillips for having the courage to follow his conscience. It is infuriating that government officials, bureaucrats and judges, secure in their paychecks and positions, have no misgivings in bringing the full prosecutorial power of the state to crush a private citizen. A private citizen who for 22 years has poured his life, talents and beliefs into building his own small business. Mr. Phillips has been given the “choice” to submit to state-sanctioned morality or to lose his livelihood, be fined or possibly face jail time. It is a shock to many Coloradans – both heterosexual and homosexual – that the Colorado Attorney General’s office so willingly participates in the destruction of a man’s life, liberty and property. His crime – politely declining to use his talents and his shop’s resources to design and create a wedding cake to celebrate a same-sex union.
It is understood that the Attorney General has the obligation to represent state agencies and commissions. But the Attorney General also has the responsibility, when an agency or commission is so clearly on the wrong side of constitutional liberties, to refuse to represent that body’s legal efforts. The personal backgrounds of the seven members of the Colorado Civil Rights Commission give it more the appearance of a homosexual advocacy group than a neutral commission. There is nothing wrong with an advocacy group, but it is a betrayal of the public trust when an agenda-driven, unelected commission masquerades as an even-handed deliberative body as it metes out severe “justice” to unwary and unsuspecting citizens. Mr. Phillips has clearly been denied due process of law. Constitutionally, he should have been afforded the opportunity to publicly present his case before an impartial jury of his peers.
Regarding Ms. Worthington’s oral argument before the Colorado Court of Appeals:
 The Attorney General’s office misrepresented the mythical “compelling state interest to eradicate discrimination." In her oral argument, Ms. Worthington stated that, “The main purpose behind the anti-discrimination act is the eradication of discrimination.” As Chief Judge Loeb’s pointed question to the ACLU’s Ria Mar illustrated, no Colorado court has ever acknowledged such an overbroad, generalized and vague “compelling state interest to eradicate discrimination.” I would expect more honesty from a senior staff attorney.
How does the State propose to completely eradicate “discrimination” within the sphere of private business without simultaneously eradicating individual liberties? Who gets to define what exactly “discrimination” is and isn’t?
The purpose of government according to the Declaration of Independence, our nation’s birth certificate, is to secure the unalienable Rights endowed to each one of us by our Creator. Rights of conscience, free exercise of religion, free speech, free expression, free association and right to contract are unalienable rights. There is no unalienable right granted to us by our Creator to live a life free from discrimination or to live a life free from offense. The purpose of government is not to protect citizens from dignitary harms or hurt feelings.
Only if widespread and pervasive discrimination places an actual substantial burden upon a class of individuals is the government justified in infringing upon a private business’ first amendment rights. The state certainly has no defensible compelling interest to eradicate every last single act of whatever it unilaterally defines as “discrimination” in the private sector.
The ruse seems to be to redefine traditional first amendment rights as discrimination, intolerance and hate speech; then, to statutorily criminalize them.
 The Attorney General’s office misrepresented the history of Colorado public accommodations law. Ms. Worthington neglected to point out that public accommodations law in the U.S. (as it was carried into American law from English common law) was the exception to the general rule; the general rule being that private businesses had complete “first amendment” rights, as expressed in corresponding state constitutional provisions. Only a small subset of private businesses were statutorily categorized as “public accommodations” – eating houses, hotels, places of entertainment, public conveyances – and required to serve all races.
Public accommodations law in the U.S. was originally in response to real problems created by pervasive discrimination that existed for post-civil war blacks. It was often impossible for black citizens to find a restaurant or hotel that would serve them. Widespread and pervasive refusal of service by private businesses offering essential goods and services placed a substantial burden on blacks. The state, in these circumstances, did have a compelling interest that justified the infringement of first amendment rights of a small and limited subset of private businesses – those statutorily defined as public accommodations.
Over the years, “public accommodations law” has been incrementally defined out of existence. Colorado’s current anti-discrimination law makes every private business a “public accommodation” … and every citizen a member of at least one of the protected classes. This completely perverts the historical purpose of public accommodation laws. It appears impossible for a Colorado private business to organize as anything other than what the state statute disingenuously defines as a “public accommodation.”
Where blacks had difficulty in finding a restaurant that would serve them a meal, same-sex couples have difficulty in finding a bakery that won’t bake them a wedding cake.
The Colorado Civil Rights Commission (CCRC) and judges are in the process of creating a hierarchy of protected classes in which some some classes are more equal than others. Ambiguous anti-discrimination statutes have become a weapon to attack individual unalienable liberties.
 The Attorney General’s office refused to acknowledge that there is a distinction between disagreement and discrimination. To this day, Jack Phillips insists that he did not violate Colorado’s anti-discrimination statute; Ms. Worthington insists that he did. The statute ambiguously requires that a private business not refuse service “because of sexual orientation” [C.R.S. 24-34-601(2)]. The Colorado legislature needs to exercise its legislative authority to clarify what this phrase means. Otherwise unelected CCRC commissioners and judges are free to unconstitutionally legislate ex post facto law that criminalizes citizens without notice.
Jack Phillips says that he did not refuse service “because of sexual orientation.”
Mr. Phillips has consistently served all clients – regardless of personal traits or lifestyle – the wide array of his shop’s baked goods. He has repeat homosexual clients for whom he makes personalized birthday cakes. Even in the midst of these ongoing legal proceedings, homosexual clients continue to come into the shop to purchase baked goods and to give Mr. Phillips words of encouragement. He does not see himself as biased towards anyone; as a Christian he strives to show God’s love to all his customers.
On the other hand, Mr. Phillips has consistently chosen not to create specialty cakes for events and celebrations that he feels dishonor God – no cakes for Halloween, no sexually suggestive cakes, etc. In that same light, he also does not wish to contribute his talents and the resources of his business to an event that celebrates same-sex unions. Jack is pro-God, not anti-gay. He chose not to contract to design and create a wedding cake celebrating David and Charlie’s union not because of David and Charlie’s homosexuality, but because his beliefs conflict with theirs in regard to same-sex unions.
Mr. Phillips did not decline service because of sexual orientation (discrimination); but, rather, he declined service because he disagrees with same-sex unions. Mr, Phillips believes in natural marriage. He chooses not to participate in any way in the celebration of an event that is contrary to his beliefs.
The Attorney General argues that the conduct of a same-sex union is inextricably correlated with the status of being homosexual; and, since only homosexual couples enter into same-sex unions, a refusal to create wedding cakes for same-sex couples is de facto “discrimination because of sexual orientation.” But why does the Attorney General assume that same-sex unions are only open to homosexual couples? Same-sex unions are equally open to any same-sex couple, whether the individual partners be homosexual, heterosexual, transgender, bisexual or any combination thereof. Jack Phillips does not care to know, nor could he ascertain with certainty, the sexual orientations of the partners requesting a same-sex wedding cake. His refusal is based solely on his belief that the only formalized union of adults is natural marriage between one man and one woman.
Jack, as with all the other Christian business owners around the United States being prosecuted by state administrative agencies, had no idea that he was breaking any law. To this day he knows in his heart of hearts that he did not discriminate on the basis of sexual orientation – he just disagrees with same-sex unions.
In conclusion, First Amendment rights are under full assault. Citizens will continue to stand against the purveyors of this tyranny and expect their elected government officials to do the same. It is unacceptable to many Coloradans that the Colorado Attorney General continues to unconstitutionally criminalize small business owners such as Jack Phillips.
I urge you, as the newly elected Attorney General, to withdraw your office’s support from the Colorado Civil Rights Commission’s prosecution of Jack Phillips.
You might suggest to the Colorado Civil Rights Commission (CCRC) that they put their prosecution of Jack Phillips on hold until the Colorado legislature clarifies the Colorado Anti-Discrimination Act (CADA) as to what specifically constitutes discrimination “because of sexual orientation.” Because of the vagueness of the current statutory language, unelected commissioners and judges are, from Mr. Phillips’ perspective, legislating unconstitutional ex post facto law that retroactively criminalizes his good-faith business decisions.
Legislators should add a provision to the Colorado Anti-Discrimination Act (CADA) that reads, “A private business who chooses not to use their talents and/or business resources to provide support for the celebration of same-sex unions does so out of disagreement based on conflicting beliefs regarding such unions and is not discrimination because of sexual orientation.”
Sincerely, Mark Braunlich, J.D., Colorado Springs