SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - MASTERPIECE CAKESHOP, LTD., ET AL.,) Petitioners, v. ) ) No. 16-111 COLORADO CIVIL RIGHTS COMMISSION, ) ET AL., ) Respondents. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 102 Place: Washington, D.C. Date: December 5, 2017 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 MASTERPIECE CAKESHOP, LTD., ET AL.,) 4 Petitioners, 5 v. ) ) No. 16-111 6 COLORADO CIVIL RIGHTS COMMISSION, ) 7 ET AL., ) 8 9 Respondents. ) - - - - - - - - - - - - - - - - - - 10 11 Washington, D.C. 12 Tuesday, December 5, 2017 13 14 The above-entitled matter came on for oral 15 argument before the Supreme Court of the United States 16 at 10:03 a.m. 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 APPEARANCES: 2 KRISTEN K. WAGGONER, Scottsdale, Arizona; on 3 4 behalf of the Petitioners GEN. NOEL J. FRANCISCO, Solicitor General, 5 Department of Justice, Washington, D.C.; on behalf 6 of the United States, as amicus curiae, supporting 7 the Petitioners 8 9 10 11 12 FREDERICK R. YARGER, Solicitor General, Denver, Colorado; on behalf of the State Respondent DAVID D. COLE, Washington, D.C.; on behalf of the private Respondents 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 3 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 KRISTEN K. WAGGONER 4 On behalf of the Petitioners 5 ORAL ARGUMENT OF: 6 GEN. NOEL J. FRANCISCO 7 On behalf of the United States, 8 as amicus curiae, supporting the 9 Petitioners 10 ORAL ARGUMENT OF: 11 FREDERICK R. YARGER 12 On behalf of the State Respondent 13 ORAL ARGUMENT OF: 14 DAVID D. COLE 15 On behalf of the private Respondents 16 REBUTTAL ARGUMENT OF: 17 KRISTEN K. WAGGONER 18 PAGE: On behalf of the Petitioners 19 20 21 22 23 24 25 Heritage Reporting Corporation 4 25 46 72 96 Official - Subject to Final Review 4 1 P R O C E E D I N G S 2 3 (10:03 a.m.) CHIEF JUSTICE ROBERTS: We'll hear 4 argument this morning in Case 16-111, 5 Masterpiece Cakeshop versus Colorado Civil 6 Rights Commission. 7 Ms. Waggoner. 8 ORAL ARGUMENT OF KRISTEN K. WAGGONER 9 ON BEHALF OF THE PETITIONERS 10 11 12 MS. WAGGONER: Mr. Chief Justice, and may it please the Court: The First Amendment prohibits the 13 government from forcing people to express 14 messages that violate religious convictions. 15 Yet the Commission requires Mr. Phillips to do 16 just that, ordering him to sketch, sculpt, and 17 hand-paint cakes that celebrate a view of 18 marriage in violation of his religious 19 convictions. 20 JUSTICE SOTOMAYOR: 21 JUSTICE GINSBURG: Can I ask you -What if -- what if 22 it's -- if it's an item off the shelf? 23 is, they don't commission a cake just for them 24 but they walk into the shop, they see a lovely 25 cake, and they say we'd like to purchase it for Heritage Reporting Corporation That Official - Subject to Final Review 5 1 2 the celebration of our marriage tonight. The Colorado law would prohibit that. 3 Would you claim that you are entitled to an 4 exception? 5 MS. WAGGONER: Absolutely not. The 6 compelled speech doctrine is triggered by 7 compelled speech. 8 pre-made cake, that is not compelled speech. 9 10 11 12 13 And in the context of a Mr. Phillips is happy to sell anything in his store, including -JUSTICE KENNEDY: Well, didn't -- didn't he express himself when he made it? MS. WAGGONER: Yes, he did express 14 himself when he made it. 15 which he expressed it is important to the 16 compelled speech doctrine and how it applies, 17 but when you -- 18 19 20 And the purpose for JUSTICE SOTOMAYOR: I'm sorry, he did refuse to sell -JUSTICE KENNEDY: Well, could I -- but 21 could I get the answer to the question? 22 so -- so if it -- if you agree that it's 23 speech, then why can he not refuse to sell the 24 cake that's in the window according to Justice 25 Ginsburg's hypothetical? Heritage Reporting Corporation So -- Official - Subject to Final Review 6 1 MS. WAGGONER: Well, in the context of 2 if it's already been placed in the stream of 3 commerce in a public accommodation setting, his 4 speech has been completed. 5 to speak through that cake with the purpose of 6 whatever it was when he created it. 7 He -- he intended In contrast, though, when he has a 8 different purpose, and is expressing a message 9 through a cake, it would render a different 10 11 result. It's still speech. JUSTICE SOTOMAYOR: I'm sorry, didn't 12 he refuse to sell cupcakes that he sells 13 regularly to the public to some same-sex 14 couples who intended to marry? 15 MS. WAGGONER: That allegation was 16 never involved in the complaint, the formal 17 charges, the ALJ's decision. 18 JUSTICE SOTOMAYOR: But I thought -- 19 I'm a little bit surprised by what you're 20 saying because your briefs seem to suggest 21 differently -- that the couple was looking at 22 his already pre-designed cakes that he appears 23 to sell without any customization, and they sat 24 down with him, and he said I don't supply cakes 25 of any kind to gay couples. Heritage Reporting Corporation Official - Subject to Final Review 7 1 So I thought this cake was about his 2 refusal to supply a cake for any wedding 3 ceremony. 4 MS. WAGGONER: Justice Sotomayor, 5 that's not how he responded to the couple. The 6 couple came in and they requested a custom cake 7 for their wedding. 8 in a folder with all kinds of designs they 9 wanted to discuss and ended up purchasing a At that point, they brought 10 rainbow-layered cake or -- or received a free 11 rainbow-layered cake, which certainly is 12 expression. 13 The order below requires Mr. Phillips 14 also to include words and symbols on his cakes. 15 It's that broad. 16 Mr. Phillips had used a Bible verse on a cake 17 in the past, he would be compelled to use that 18 Bible verse in a different context. 19 JUSTICE GINSBURG: So if, for example, Where does -- where 20 does it say -- I thought that the requirement 21 was he supply a custom-made cake, as he would 22 to any other shopper, but that he didn't have 23 to convey somebody else's message; that is, he 24 didn't have to write anything on the cake. 25 MS. WAGGONER: In Petitioners' Heritage Reporting Corporation Official - Subject to Final Review 8 1 Appendix 57(a), the order is provided, and that 2 order requires him to provide anything that he 3 would provide on a cake in another setting for 4 a marriage between a man and a woman, which 5 includes words and images that he would provide 6 on -- 7 JUSTICE GINSBURG: Well, suppose we 8 exclude that and say let's make the assumption 9 that he -- if he makes custom-made cakes for 10 others, he must make it for this pair, but he 11 doesn't have to write anything for anybody. 12 doesn't have to write a message that he 13 disagrees with. 14 MS. WAGGONER: He Well, this Court has 15 recognized in Hurley as well as in other 16 decisions that artistic expression doesn't need 17 to include words and symbols to express a 18 message or to be protected speech. 19 JUSTICE KENNEDY: Well, just -- just 20 one more thing, and then we'll leave this part 21 alone, at least as far as I'm concerned. 22 Suppose the couple goes in and sees the cake in 23 the window and the cake has a biblical verse. 24 Does he have to sell that cake? 25 MS. WAGGONER: Under our theory, he Heritage Reporting Corporation Official - Subject to Final Review 9 1 would need to sell that cake because he's 2 already created that cake with the message that 3 he intended for it, but we are drawing the line 4 prior to the compulsion -- there can be no 5 compulsion of speech. 6 If the Court were to choose to draw 7 that line in a different place and protect more 8 speech, there certainly is precedent for that. 9 But under the compelled speech doctrine, when 10 someone comes in and requests speech, if that 11 speech has already been created, then that 12 would be -- not be compelled. 13 14 JUSTICE SOTOMAYOR: Could you tell me how far -- 15 CHIEF JUSTICE ROBERTS: There's no -- 16 there's no compulsion of speech, but if he is 17 required to sell a cake in the window with the 18 message already on it, that is compelling him 19 to associate that message with the ceremony. 20 And I thought that was something to which you 21 objected. 22 MS. WAGGONER: There would possibly be 23 an expressive association claim and potentially 24 a free exercise claim if he was delivering the 25 case and there was other involvement. Heritage Reporting Corporation But in Official - Subject to Final Review 10 1 terms of the Court's application of the 2 compelled speech doctrine, the compulsion is 3 the trigger for that, but the Court could draw 4 that line at an earlier place and not force him 5 to sell that cake. 6 JUSTICE GINSBURG: 7 JUSTICE KAGAN: 8 JUSTICE GINSBURG: 9 But your -- Go ahead. -- the question that I started out with, I -- I wanted to 10 clarify that what you're talking about is a 11 custom-made cake. 12 obligation to sell his ordinary wares, his, as 13 you put it, already-made wares? 14 MS. WAGGONER: You are not challenging his Not at all. And, in 15 fact, Mr. Phillips offered the couple anything 16 in his store, as well as offered to sell 17 additional cakes, custom cakes, that would 18 express other messages. 19 JUSTICE GINSBURG: 20 JUSTICE KAGAN: 21 JUSTICE GINSBURG: Going -- Ms. Waggoner --- you mentioned -- 22 you brought up Hurley, but in Hurley, the 23 parade was the event. 24 parade. 25 speech is of the people who are marrying and It was the speech, a At a wedding ceremony, I take it, the Heritage Reporting Corporation Official - Subject to Final Review 11 1 perhaps the officiant, but who -- who else 2 speaks at a wedding? 3 MS. WAGGONER: The artist speaks, 4 Justice Ginsburg. 5 speech as it would be the couples'. 6 Hurley, the Court found a violation of the 7 compelled speech doctrine. 8 JUSTICE GINSBURG: 9 else as an artist? It's as much Mr. Phillips's And in Who else then? Say the -- the person who 10 does floral arranging, owns a floral shop. 11 Would that person also be speaking at the 12 wedding? 13 Who MS. WAGGONER: If the -- if they are 14 custom-designed arrangements and they are being 15 forced to create artistic expression which this 16 Court determines is a message -- 17 JUSTICE KAGAN: 18 JUSTICE GINSBURG: 19 person who designs the invitation? So could -- 20 MS. WAGGONER: 21 JUSTICE GINSBURG: 22 23 How about the Yes. Invitation to the wedding or the menu for the wedding dinner? MS. WAGGONER: Certainly, words and 24 symbols would be protected speech, and the 25 question would be whether the objection is to Heritage Reporting Corporation Official - Subject to Final Review 12 1 the message provided or if it's to the person. 2 JUSTICE KAGAN: 3 MS. WAGGONER: So the jeweler? It would depend on the 4 context as all free-speech cases depend on. 5 What is the jeweler asked to do? 6 JUSTICE KAGAN: 7 MS. WAGGONER: Hair stylist? Absolutely not. 8 There's no expression or protected speech in 9 that kind of context, but what it -- 10 11 12 JUSTICE KAGAN: Why is there no speech in -- in creating a wonderful hairdo? MS. WAGGONER: Well, it may be 13 artistic, it may be creative, but what the 14 Court asks when they're -- 15 JUSTICE KAGAN: 16 MS. WAGGONER: 17 The makeup artist? No. What the Court would ask -- 18 JUSTICE KAGAN: 19 It's the makeup artist. 20 (Laughter.) 21 MS. WAGGONER: It's called an artist. The makeup artist may, 22 again, be using creativity and artistry, but 23 when this Court is looking at whether speech is 24 involved, it asks the question of is it 25 communicating something, and is it analogous to Heritage Reporting Corporation Official - Subject to Final Review 13 1 other protected -- 2 JUSTICE KAGAN: 3 MS. WAGGONER: 4 JUSTICE KAGAN: But I'm --- forms of speech. -- I'm quite serious, 5 actually, about this, because, you know, a 6 makeup artist, I think, might feel exactly as 7 your client does, that they're doing something 8 that's of-- of great aesthetic importance to 9 the -- to the wedding and to -- and that 10 there's a lot of skill and artistic vision that 11 goes into making a -- somebody look beautiful. 12 And why -- why wouldn't that person or the 13 hairstylist -- why wouldn't that also count? 14 15 16 17 MS. WAGGONER: speech. Because it's not And that's the first trigger point -JUSTICE KAGAN: Some people may say that about cakes, you know? 18 MS. WAGGONER: 19 JUSTICE KAGAN: Some -But you have a -- you 20 have a view that a cake can be speech because 21 it involves great skill and artistry. 22 And I guess I'm wondering, if that's 23 the case, you know, how do you draw a line? 24 How do you decide, oh, of course, the chef and 25 the baker are on one side, and you said, I Heritage Reporting Corporation Official - Subject to Final Review 14 1 think, the florist is on that side, the chef, 2 the baker, the florist, versus the hairstylist 3 or the makeup artist? 4 I mean, where would you put a tailor, 5 a tailor who makes a wonderful suit of clothes? 6 Where does that come in? 7 MS. WAGGONER: Your Honor, the tailor 8 is not engaged in speech, nor is the chef 9 engaged in speech but, again, this Court -- 10 JUSTICE KAGAN: Well, why -- well -- 11 woah. The baker is engaged in speech, but the 12 chef is not engaged in speech? 13 MS. WAGGONER: The test that this 14 Court has used in the past to determine whether 15 speech is engaged in is to ask if it is 16 communicating something, and if whatever is 17 being communicated, the medium used is similar 18 to other mediums that this Court has protected. 19 Not -- 20 21 CHIEF JUSTICE ROBERTS: Does it depend on -- 22 JUSTICE SOTOMAYOR: So that begs the 23 question, when have we ever given protection to 24 a food? 25 kind is to be eaten. The primary purpose of a food of any Heritage Reporting Corporation Official - Subject to Final Review 15 1 Now, some people might love the 2 aesthetic appeal of a special desert, and look 3 at it for a very long time, but in the end its 4 only purpose is to be eaten. 5 And the same with many of the things 6 that you've mentioned. A hairdo is to show off 7 the person, not the artist. 8 wedding look at a wedding cake and they see 9 words, as one of the amici here, the pastry When people at a 10 chef said, there was a gentleman who had upset 11 his wife and written some words that said "I'm 12 sorry for what I did," something comparable, 13 and the chef was asked, the cake maker was 14 asked, was that affiliated with you? 15 And she said no. It's affiliated with 16 the person who shows the cake at their wedding. 17 It's what they wish to show. 18 So how is this your client's 19 expression, and how can we find something whose 20 predominant purpose is virtually always to be 21 eaten? 22 expression. 23 create a cake and put it in a museum as an 24 example of some work of art, that might be 25 different because the circumstances would show Call it a medium for expressive Mind you, I can see if they've -- Heritage Reporting Corporation Official - Subject to Final Review 16 1 that they want this to be affiliated with 2 themselves. 3 But explain how that becomes 4 expressive speech, that medium becomes 5 expressive speech. 6 MS. WAGGONER: Certainly not all cakes 7 would be considered speech, but in the wedding 8 context, Mr. Phillips is painting on a blank 9 canvas. He is creating a painting on that 10 canvas that expresses messages, and including 11 words and symbols in those messages. 12 JUSTICE SOTOMAYOR: You know, the 13 other night I had some people over and one of 14 them brought a box of cupcakes and one of the 15 cupcakes was smashed against the box. 16 the only cupcake not eaten. 17 That was Now, I suspect that one of the reasons 18 is the others were so much more attractive 19 whole. 20 creating any type of edible product. 21 There is creation in serving food, in People -- there are sandwich artists 22 now. There are people who create beauty in 23 what they make, but we still don't call it 24 expressive and entitled to First Amendment 25 protection. Heritage Reporting Corporation Official - Subject to Final Review 17 1 MS. WAGGONER: No, but when we have 2 someone that is sketching and sculpting and 3 hand designing something, that is creating a 4 temporary sculpture that serves as the 5 centerpiece of what they believe to be a 6 religious wedding celebration, that cake 7 expresses a message. 8 JUSTICE KAGAN: Is this just a -- 9 JUSTICE ALITO: What would you say 10 about an architectural design; is that entitled 11 to -- not entitled to First Amendment 12 protection because one might say that the 13 primary purpose of the design of a building is 14 to create a place where people can live or 15 work? 16 MS. WAGGONER: Precisely. In the 17 context of an architect, generally that would 18 not be protected because buildings are 19 functionable, not communicative. 20 JUSTICE ALITO: 21 22 You mean an architectural design is not protected? MS. WAGGONER: No. Architect -- 23 generally speaking, architectural would not be 24 protected. 25 JUSTICE BREYER: So in other words, Heritage Reporting Corporation Official - Subject to Final Review 18 1 Mies or Michelangelo or someone is not 2 protected when he creates the Laurentian steps, 3 but this cake baker is protected when he 4 creates the cake without any message on it for 5 a wedding? 6 baffle me, I have to say. 7 8 Now, that -- that really does MS. WAGGONER: Well, I did say generally no in terms of architecture. 9 JUSTICE BREYER: Well, then, what is 10 the line? 11 get at, because obviously we have all gone into 12 a Mexican restaurant. 13 Mole specially made for the people at the table 14 to show what important and wonderful evening it 15 was, which it did import -- impart. 16 That's what everybody is trying to They have this fabulous There are all kinds of restaurants 17 that do that. 18 know, maybe Ollie thought he had special 19 barbecue. 20 And maybe Ollie's Barbecue, you All right. Now, the reason we're 21 asking these questions is because obviously we 22 want some kind of distinction that will not 23 undermine every civil rights law from the -- 24 from -- from the year to -- including the 25 African Americans, including the Hispanic Heritage Reporting Corporation Official - Subject to Final Review 19 1 Americans, including everybody who has been 2 discriminated against in very basic things of 3 life, food, design of furniture, homes, and 4 buildings. 5 Now, that is, I think, the point of 6 the question, and I've tried to narrow it and 7 specify it to get your answer. 8 MS. WAGGONER: 9 Breyer. Thank you, Justice In terms of the test that would be 10 applied, the Court would first ask under the 11 speech analysis, is there speech? 12 asking that, you are asking is there something 13 that is being communicated and is it a 14 protection -- 15 JUSTICE BREYER: And by And there isn't one 16 of the people I mentioned who doesn't think he 17 is communicating something. 18 they're doing when they are making the Essow or 19 the building? 20 MS. WAGGONER: What do you think It's not just about 21 what the individual thinks they are 22 communicating. 23 that inquiry in all kinds of situations in all 24 free-speech cases. 25 This Court also routinely makes Second, though, the Hurley framework Heritage Reporting Corporation Official - Subject to Final Review 20 1 provides a framework for this Court to make 2 those decisions and to protect individuals. 3 The way that it does that is it asks: 4 individual who's being compelled to speak 5 objecting to the message that is contained in 6 that speech or the person? 7 a very obvious inquiry. 8 9 Is the And that's usually If it's connected -- JUSTICE SOTOMAYOR: Would you stop -- would that belief that expresses speech trump 10 public accommodation laws against 11 discrimination or protecting customers from 12 race? 13 Yes or no. MS. WAGGONER: This Court has never 14 compelled speech in the context of race, but if 15 it were ever to do so -- 16 17 18 19 20 JUSTICE SOTOMAYOR: Oh, it didn't in Newman versus Piggie? MS. WAGGONER: Not in terms of compelling speech. JUSTICE SOTOMAYOR: There was a -- he 21 claimed that he was religious, that he opposed 22 serving blacks because it mixed the races, and 23 we basically refused both his free expression 24 and his free exercise clauses. 25 saying that your rule now would trump So are you Heritage Reporting Corporation Official - Subject to Final Review 21 1 protection against race discrimination? 2 MS. WAGGONER: Respectfully, Your 3 Honor, I don't think this Court has ever 4 compelled speech in the context of -- 5 6 JUSTICE SOTOMAYOR: myself. 7 8 JUSTICE KAGAN: I'm sorry, can I just -- 9 10 I'll read Newman JUSTICE SOTOMAYOR: Answer my question. 11 JUSTICE KAGAN: -- understand -- 12 JUSTICE SOTOMAYOR: Is your theory -- 13 is your theory that you -- that you -- public 14 accommodation laws cannot trump free speech or 15 free-exercise claims in protecting against race 16 discrimination? 17 MS. WAGGONER: That is not my theory. 18 That would be an objection to the person and 19 the Court may find a compelling interest in 20 that -- 21 JUSTICE KAGAN: If I could just, 22 sorry, very quickly, I know your light is on 23 and I'm sure you'll be given a little bit of an 24 adjustment. 25 Is that okay? (Laughter.) Heritage Reporting Corporation Official - Subject to Final Review 22 1 JUSTICE KAGAN: I guess I just didn't 2 understand your answers to Justice Sotomayor's 3 question. 4 your client instead objected to an interracial 5 marriage? 6 Same case or not the same case, if 7 MS. WAGGONER: that context. 8 9 JUSTICE KAGAN: Not the same. How about if he objected to an interreligious? 10 11 Very different case in MS. WAGGONER: Similar case, assuming that the objection is to -- 12 JUSTICE KAGAN: 13 MS. WAGGONER: Similar to what? Similar to Mr. 14 Phillips. 15 Compelled Speech doctrine if the objection is 16 to the message being conveyed in that 17 expression. 18 19 That would be protected under the JUSTICE KAGAN: You are just saying race is different? 20 MS. WAGGONER: 21 JUSTICE KAGAN: I'm saying that -I mean, I don't want 22 to put words in your mouth. 23 really, you know, just want to know the answer. 24 25 MS. WAGGONER: I -- I just I think race is different for two reasons: one, we know that Heritage Reporting Corporation Official - Subject to Final Review 23 1 that objection would be based to who the person 2 is, rather than what the message is. 3 And, second, even if that were not the 4 case, the Court could find a compelling 5 interest in the race inquiry just as it did in 6 the Pena-Rodriguez case. 7 JUSTICE KAGAN: 8 JUSTICE SOTOMAYOR: 9 So -So how about disability; I'm not going to serve cakes to two 10 disabled people because God makes perfect 11 creations, and there are some religions who 12 believe that? 13 MS. WAGGONER: 14 JUSTICE SOTOMAYOR: 15 16 Well -So how about there? MS. WAGGONER: I'm not aware of any 17 religions that believe that but, if they did, 18 that would clearly be based on who the person 19 is and not the message in the final product 20 that's -- they're being asked to create. 21 JUSTICE SOTOMAYOR: Well, your client 22 was saying that providing a cake to a same-sex 23 couple was against his free-expression rights 24 because -- and his free-exercise rights, 25 because he cannot celebrate that kind of Heritage Reporting Corporation Official - Subject to Final Review 24 1 marriage. 2 MS. WAGGONER: Mr. Phillips is looking 3 at not the "who" but the "what" in these 4 instances, what the message is. 5 years -- 6 JUSTICE GORSUCH: And for 25 Well, actually, 7 counsel, that seems to be a point of 8 contention. 9 it were the message, your client would have a The state seems to concede that if 10 right to refuse. 11 to the person, that's when the discrimination 12 law kicks in. 13 Colorado Court of Appeals' decision. 14 you know this. 15 But if it -- the objection is That's footnote 8 of the I know So what do you say to that, that 16 actually what is happening here may 17 superficially look like it's about the message 18 but it's really about the person's identity? 19 MS. WAGGONER: I would say that in 20 footnote 8, the court applies an offensiveness 21 policy, which allows the state the discretion 22 to decide what speech is offensive and what is 23 not, and it did not apply that in a fair way to 24 Mr. Phillips, which creates viewpoint 25 discrimination, as well as a violation of free Heritage Reporting Corporation Official - Subject to Final Review 25 1 exercise -- the Free Exercise Clause. 2 But what's deeply concerning is that 3 is not the theory that Respondents are 4 submitting to this Court today. 5 that they can compel speech, of filmmakers, oil 6 painters, and graphic designers in all kinds of 7 context. They believe 8 If there are no further questions, I 9 would reserver -- like to reserve the balance 10 11 12 of my time. CHIEF JUSTICE ROBERTS: We'll afford you the full rebuttal time. 13 MS. WAGGONER: Thank you. 14 CHIEF JUSTICE ROBERTS: 15 General Francisco. Sure. 16 ORAL ARGUMENT OF GEN. NOEL J. FRANCISCO 17 ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, 18 19 20 21 SUPPORTING THE PETITIONERS GENERAL FRANCISCO: Mr. Chief Justice, and may it -- may it please the Court: This case raises an important issue 22 for a small group of individuals; namely, 23 whether the state may compel business owners, 24 including professional artists, to engage in 25 speech in connection with an expressive event Heritage Reporting Corporation Official - Subject to Final Review 26 1 like a marriage celebration to which they're 2 deeply opposed. 3 In those narrow circumstances, we 4 believe the Free Speech Clause provides 5 breathing space -- 6 JUSTICE GINSBURG: How narrow is it? 7 Consider Justice Kagan's question. 8 we've gotten the answer that the florist is in 9 the same place as the cake-maker, so is the I mean, 10 person who designs the invitations and the 11 menus. 12 that would exclude the makeup artist or the 13 hairstylist. 14 I don't see a line that can be drawn GENERAL FRANCISCO: Well, Your Honor, 15 that's, of course, the question that the Court 16 -- Court has to answer at the threshold of 17 every Free Speech Case. 18 being regulated something we call protected 19 speech? 20 the other side is that they think the question 21 doesn't even matter. 22 African American sculptor to sculpt a cross for 23 a Klan service -- 24 25 Is the thing that's I think the problem for my friends on So they would compel an JUSTICE KENNEDY: But the problem for you is that so many of these examples -- and a Heritage Reporting Corporation Official - Subject to Final Review 27 1 photographer can be included -- do involve 2 speech. 3 ability to boycott gay marriages. 4 It means that there's basically an GENERAL FRANCISCO: Well, Your Honor, 5 I think what it boils down to is that in a 6 narrow category of services that do cross the 7 threshold into protected speech -- and I do 8 think it's a relatively narrow category -- you 9 do have protection. For example, I don't think 10 you could force the African American sculptor 11 to sculpt a cross for the Klan service just 12 because he'd do it for other religious -- 13 JUSTICE SOTOMAYOR: 14 JUSTICE KENNEDY: Well -If you prevail, 15 could the baker put a sign in his window, we do 16 not bake cakes for gay weddings? 17 GENERAL FRANCISCO: Your Honor, I 18 think that he could say he does not make 19 custom-made wedding cakes for gay weddings, but 20 most cakes -- 21 JUSTICE KENNEDY: 22 GENERAL FRANCISCO: 23 24 25 And you would not --- would not cross that threshold. JUSTICE KENNEDY: -- think that an affront to the gay community? Heritage Reporting Corporation Official - Subject to Final Review 28 1 GENERAL FRANCISCO: Well, Your Honor, 2 I -- I agree that there are dignity interests 3 at stake here, and I would not minimize the 4 dignity interests to Mr. Craig and Mr. Mullins 5 one bit, but there are dignity interests on the 6 other side here too. 7 JUSTICE SOTOMAYOR: Counsel, sometimes 8 it's not just dignity. A couple of the 9 briefs -- one of the amici briefs pointed out 10 that most military bases are in isolated areas 11 far from cities and that they're in areas where 12 the general population, service population, is 13 of one religion or close to one religious 14 belief. So where there might be two cake 15 bakers. They name a couple of military bases 16 like that. 17 photographer. Or two florists or one Very small number of resources. 18 GENERAL FRANCISCO: Right. 19 JUSTICE SOTOMAYOR: And in those 20 situations, they posit, and I don't think 21 probably wrongly, that it may come to pass 22 where the two cake bakers will claim the same 23 abstention here. 24 military men and women who are of the same sex 25 who want to get married in that town because So how do we protect the Heritage Reporting Corporation Official - Subject to Final Review 29 1 that's where all their friends are, because the 2 base is there? 3 GENERAL FRANCISCO: Right. 4 JUSTICE SOTOMAYOR: All right? 5 How do we protect those people? 6 GENERAL FRANCISCO: And, Your Honor, I 7 think that is precisely a situation where the 8 state would be able to satisfy heightened 9 scrutiny because their interests in providing 10 access to goods and services would be narrowly 11 tailored. 12 JUSTICE SOTOMAYOR: So -- but isn't 13 that -- isn't that the same for everybody? 14 Meaning, look, we live in a society with 15 competing beliefs, and all of our cases have 16 always said where LGBT people have been -- you 17 know, they've been humiliated, disrespected, 18 treated uncivilly. 19 situations that -- The briefs are filled with 20 GENERAL FRANCISCO: Right. 21 JUSTICE SOTOMAYOR: -- the gay couple 22 who was left on the side of the highway on a 23 rainy night, people who have been denied 24 medical treatment or whose children have been 25 denied medical treatment because the doctor Heritage Reporting Corporation Official - Subject to Final Review 30 1 didn't believe in same-sex parenthood, et 2 cetera. 3 GENERAL FRANCISCO: Mm-hmm. 4 JUSTICE SOTOMAYOR: We've always said 5 in our public accommodations law we can't 6 change your private beliefs, we can't compel 7 you to like these people, we can't compel you 8 to bring them into your home, but if you want 9 to be a part of our community, of our civic 10 community, there's certain behavior, conduct -- 11 GENERAL FRANCISCO: Right. 12 JUSTICE SOTOMAYOR: -- you can't 13 engage in. 14 products that you sell to everyone else to 15 people simply because of their either race, 16 religion, national origin, gender, and in this 17 case sexual orientation. 18 And that includes not selling So we can't legislate civility and 19 rudeness, but we can and have permitted it as a 20 compelling state interest legislating behavior. 21 GENERAL FRANCISCO: And -- 22 JUSTICE SOTOMAYOR: So why is not 23 selling or selling to one group as opposed to 24 another not behavior? 25 GENERAL FRANCISCO: And, Your Honor, Heritage Reporting Corporation Official - Subject to Final Review 31 1 if I could respond, I think it's because here 2 we have speech involved, and this case is 3 essentially the flip side of the Hurley case. 4 In Hurley, we couldn't force a parade 5 to include a particular speaker. 6 don't think you can -- 7 8 Here, we JUSTICE SOTOMAYOR: That was a private GENERAL FRANCISCO: And here, Your parade. 9 10 Honor, we don't think you can force a speaker 11 to join the parade. 12 speaker to both engage in speech and contribute 13 that speech to an expressive event that they 14 disagree with, you fundamentally transform the 15 nature of their message from one that they want 16 to say to one that they don't want to say. 17 18 19 20 21 Because when you force a JUSTICE GINSBURG: How about if it's a -JUSTICE KAGAN: So, General, you started by -JUSTICE GINSBURG: -- if it's a 22 question of race? There's a certain irony in 23 here because one of the things that 24 anti-discrimination in public accommodations is 25 supposed to do is to protect religion, minority Heritage Reporting Corporation Official - Subject to Final Review 32 1 religions. So you -- you have already said 2 that you put -- might put race in a different 3 category, right? 4 GENERAL FRANCISCO: 5 JUSTICE GINSBURG: 6 GENERAL FRANCISCO: Yes, Your Honor. How about gender? Well, Your Honor, 7 I think that race is particularly unique 8 because when it comes to racial 9 discrimination -- 10 11 JUSTICE GINSBURG: what about -- 12 13 Well, I asked you GENERAL FRANCISCO: Sure. I think -- I think -- 14 JUSTICE GINSBURG: 15 on race. How about gender? 16 origin -- 17 GENERAL FRANCISCO: 18 JUSTICE GINSBURG: 19 GENERAL FRANCISCO: I have your answer How about national Right. -- and religion? I think pretty 20 much everything but race would fall in the same 21 category, but as this Court made clear in the 22 Bob Jones case, the IRS could withdraw 23 tax-exempt status from a school that 24 discriminated on the basis of interracial 25 marriage, but I'm not at all sure that it would Heritage Reporting Corporation Official - Subject to Final Review 33 1 reach the same result if it were dealing with a 2 Catholic school that limited married student 3 housing to opposite-sex couples only. 4 I think when you get to this case, if 5 you agree with our test -- and I know that I 6 have a little bit of an uphill battle in 7 convincing some of you of that. 8 with our test, I think the heightened scrutiny 9 standard is particularly easy because they're If you agree 10 the same interests at stake as were at stake in 11 Hurley. 12 And if I could -- 13 JUSTICE KAGAN: General, it -- it 14 seems as though there are kind of three axes on 15 which people are asking you what's the line? 16 How do we draw the line? 17 we started with, like what about the chef and 18 the florist -- 19 20 So one axis is what GENERAL FRANCISCO: Speech, non-speech. 21 JUSTICE KAGAN: -- and -- and, you 22 know, everybody else that participates in a 23 wedding? 24 only about gay people? 25 race? A second axis is, well, why is this Why isn't it about Why isn't it about gender? Why isn't it Heritage Reporting Corporation Official - Subject to Final Review 34 1 about people of different religions? 2 a second axis. 3 So that's And there's a third axis, which is why 4 is it just about weddings? You say ceremonies, 5 events. Is it the funeral? 6 Is it the Bar Mitzvah or the communion? 7 the anniversary celebration? 8 birthday celebration? 9 What else counts? Is it Is it the So there are all three of these that 10 suggest like, whoa, this doesn't seem like such 11 a small thing. 12 hypothetical and then you can answer more 13 broadly. And so let me give you one 14 GENERAL FRANCISCO: 15 JUSTICE KAGAN: Thank you. Which, you know -- so 16 I'll just pick one of those. 17 about a -- a -- a -- a couple, a same-sex 18 couple goes to a great restaurant with a great 19 chef for an anniversary celebration, and the 20 great chef says I don't do this for same-sex 21 couples? 22 It's like how How about that? GENERAL FRANCISCO: So, Your Honor, if 23 I could answer that question starting out with 24 another example that illustrates the point in 25 a reply to your example -- Heritage Reporting Corporation Official - Subject to Final Review 35 1 2 JUSTICE KAGAN: Well, I'd like my example, please. 3 (Laughter.) 4 GENERAL FRANCISCO: Sure. So in your 5 example I would first say, one, there's no 6 speech involved and, two, there's -- 7 JUSTICE KAGAN: 8 GENERAL FRANCISCO: 9 -- no expressive event. 10 11 No, there is. JUSTICE KAGAN: The chef is expressing something about how he feels -- 12 GENERAL FRANCISCO: 13 JUSTICE KAGAN: Right. -- about same-sex 14 couples and same-sex marriage. 15 to celebrate a same- -- the anniversary of a 16 same-sex marriage. 17 18 GENERAL FRANCISCO: JUSTICE KAGAN: 20 GENERAL FRANCISCO: 21 JUSTICE KAGAN: 23 And that's where -- 19 22 He doesn't want Just like -Sure. -- the baker doesn't want to celebrate a same-sex marriage. GENERAL FRANCISCO: And that's where I 24 would go to something that I think that my 25 friends on the other side have to deal with, is Heritage Reporting Corporation Official - Subject to Final Review 36 1 often is the case in the First Amendment law 2 you are dealing with something that everybody 3 clearly agrees is speech. 4 case difficult is because we're kind of on that 5 line. And what makes this Is it speech or is it not speech? 6 We think it is on the speech side of 7 the line. 8 who does not want to sculpt that cross. 9 But take, for example, the sculptor JUSTICE KAGAN: Well, I -- Mr. -- 10 General, really, I mean, could we just -- I 11 guess I would like an answer to my 12 hypothetical. 13 GENERAL FRANCISCO: Sure. So the 14 answer to your hypothetical is, as this Court 15 has repeatedly said, not everything that 16 expresses a message is speech. 17 comes to -- 18 JUSTICE KAGAN: I think when it So the baker is 19 speech, but the great chef who is like 20 everything is perfect on the plate and it's a 21 work of art, it is a masterpiece? 22 GENERAL FRANCISCO: Well, Your Honor, 23 you have to confront that issue in every First 24 Amendment case, if you're -- 25 JUSTICE ALITO: General, my colleagues Heritage Reporting Corporation Official - Subject to Final Review 37 1 I think go to more elite restaurants than I do, 2 but my -- 3 (Laughter.) 4 GENERAL FRANCISCO: 5 Same here, Your Honor. 6 JUSTICE ALITO: I think that if -- 7 JUSTICE KAGAN: Well, Ollie's 8 Barbecue. 9 JUSTICE ALITO: If -- if in my -- if 10 in my dreams I could go to a Michelin, I don't 11 know, one-tenth star, I don't know, two-star 12 restaurant, and there was a menu of wonderful 13 dishes created by the chef with -- with great 14 creativity, and I said I really don't want any 15 of these. 16 make this for me. 17 that? 18 Here is the recipe. I want you to Do you think he would do GENERAL FRANCISCO: Probably not, Your 19 Honor, but I think the critical question always 20 -- 21 JUSTICE ALITO: He's serving up -- he 22 creates something when he makes -- when he 23 devises those dishes and when somebody comes in 24 and asks to buy one, he is just mechanically 25 producing another example of the thing that he Heritage Reporting Corporation Official - Subject to Final Review 38 1 created earlier. 2 3 GENERAL FRANCISCO: Yes. Justice -- Mr. Chief Justice, may I answer? 4 CHIEF JUSTICE ROBERTS: Why don't you 5 take an extra five minutes and I'll accord the 6 same to your friends. 7 GENERAL FRANCISCO: Well, thank you. 8 And so what happens, though, in every 9 free-speech case you have got to make that 10 initial cut. 11 protected speech? 12 understand -- 13 Does it cross the line into And if it does, and I JUSTICE KAGAN: Okay. How about the 14 same cake, if you don't -- if you want to, as I 15 understand it, you want to treat the chef 16 differently from the baker, but let's say the 17 same cake, and a couple comes in, a same-sex 18 couple, and says it's our first-year 19 anniversary, and we would like a special cake 20 for it. 21 Can he then say no? 22 GENERAL FRANCISCO: No cake? Well, Your Honor, 23 if it is the exact same cake and it crosses 24 that threshold into speech, I would say -- 25 JUSTICE KAGAN: It's a great cake. Heritage Reporting Corporation Official - Subject to Final Review 39 1 2 What do you mean is it the exact same cake? GENERAL FRANCISCO: No, what I'm 3 saying is if it's the same type of 4 highly-sculpted stylized cake that Mr. Phillips 5 makes, such that in our view it crosses the 6 line into speech, then you can't force him to 7 create that any more than you can force the 8 sculptor -- 9 JUSTICE GORSUCH: 10 what is the line? 11 Court draw the line? 12 13 14 15 So General, what -- How would you have this GENERAL FRANCISCO: Sure. There are a couple of -JUSTICE GORSUCH: You make a lot of specifics -- 16 GENERAL FRANCISCO: 17 JUSTICE GORSUCH: Yeah. -- but I'd -- I'd 18 appreciate a more abstract general rule that 19 the government suggests. 20 GENERAL FRANCISCO: I think there are 21 a couple of ways to draw that line, and this is 22 something that the Court has to struggle with 23 in a lot of cases. 24 draw that line is you analogize it to something 25 that everyone regards as traditional art and I think the first way to Heritage Reporting Corporation Official - Subject to Final Review 40 1 everyone agrees is protected speech. 2 3 4 JUSTICE GORSUCH: Like the Jackson Pollock? GENERAL FRANCISCO: Exactly. And here 5 you have a cake that is essentially synonymous 6 with a traditional sculpture except for the 7 medium used. 8 Circuit's decision in the Mastrovincenzo case 9 provides a good and workable standard when But I also think that the Second 10 you've got something that is part art and part 11 utilitarian. 12 And what the Second Circuit asks is it 13 predominantly art or predominantly utilitarian? 14 And here people pay very high prices for these 15 highly sculpted cakes, not because they taste 16 good, but because of their artistic qualities. 17 I think the more important point -- 18 JUSTICE GORSUCH: In fact, I have yet 19 to have a -- a wedding cake that I would say 20 tastes great. 21 (Laughter.) 22 GENERAL FRANCISCO: And, Your Honor, 23 my wedding cake, the top of it is still sitting 24 in our freezer, and I'm sure it no longer 25 tastes great. Heritage Reporting Corporation Official - Subject to Final Review 41 1 But I think the point is when you 2 cross that threshold into free speech, the 3 question is can you compel somebody to create 4 and contribute speech to an expressive event -- 5 6 JUSTICE GORSUCH: Is it a purpose test -- 7 GENERAL FRANCISCO: 8 JUSTICE KAGAN: 9 JUSTICE GORSUCH: -- that they -- How about this --- or is it -- would 10 you say it's a predominant purpose or a 11 predominant effect? 12 that? 13 How would you characterize GENERAL FRANCISCO: So if you're 14 talking about the line between speech and 15 non-speech -- 16 JUSTICE GORSUCH: 17 GENERAL FRANCISCO: 18 Yes. -- with the item that is part utilitarian and part art -- 19 JUSTICE GORSUCH: 20 GENERAL FRANCISCO: Yes, yes. I would say is it 21 predominantly expressive or predominantly 22 utilitarian? 23 24 25 JUSTICE GORSUCH: In its purpose or its effect on others? GENERAL FRANCISCO: I think both. Heritage Reporting Corporation And Official - Subject to Final Review 42 1 I think one of the key factors that the Second 2 Circuit looks to, it looks to a bunch of 3 different factors, but one factor is price. 4 Are people paying for the utilitarian side of 5 it or are they paying for the artistic side of 6 it? 7 JUSTICE SOTOMAYOR: 8 JUSTICE GINSBURG: 9 JUSTICE KAGAN: What -I'm not going to -- What if somebody comes 10 in, it's a baker who's and atheist and really 11 can't stand any religion, and somebody comes in 12 and says I want one of your very, very special, 13 special cakes for a First Communion or for a 14 Bar Mitzvah. 15 I don't -- I don't do that. 16 cakes to be used in the context of a religious 17 ceremony. 18 And the baker says no, I don't -- GENERAL FRANCISCO: I don't want my Well, and, again, 19 I think if you apply these tests, you first 20 have to decide whether -- 21 22 23 JUSTICE KAGAN: I just want the answer. GENERAL FRANCISCO: Well, what I'm 24 saying is that when you apply these tests you 25 first have got to decide if the cake rises to Heritage Reporting Corporation Official - Subject to Final Review 43 1 2 3 4 the level of speech. JUSTICE KAGAN: It's a special, special cake. GENERAL FRANCISCO: Well, you know, if 5 so, and it rises to the level of speech, then I 6 think he has a claim just like that same baker 7 could refuse to sculpt that cake -- 8 9 10 11 JUSTICE BREYER: Would I -- could I ask you your answer to what I think is the same question going on in different forums. Forget the doctrine for a minute. 12 There's a category of people called artisans. 13 An artisan is a kind of artist. 14 many fields. 15 discriminated against. 16 of minorities, there are many different groups 17 that have been discriminated against. 18 They are in They are also people who are And we're in a country For many years Congress has passed 19 laws saying, at least to the artisans: 20 cannot discriminate on the basis of -- of race, 21 religion, dah, dah, dah. 22 GENERAL FRANCISCO: 23 JUSTICE BREYER: You Mm-hmm. Sexual orientation. 24 If we were to write an opinion for you, what 25 would we have done to that principle? Heritage Reporting Corporation And, of Official - Subject to Final Review 44 1 course, the concern is that we would have 2 caused chaos with that principle across the 3 board because there is no way of confining an 4 opinion on your side in a way that doesn't do 5 that. So tell me how? 6 GENERAL FRANCISCO: Well, Your Honor, 7 I think that the way you do it is because none 8 of these Courts' cases has ever involved 9 requiring somebody to create speech and 10 contribute that speech to an expressive event 11 to which they are deeply opposed. 12 And if I could go back to my example, 13 when you force that African-American sculptor 14 to sculpt that cross for a Klan service, you 15 are transforming his message. 16 He may want his cross to send the 17 message of peace and harmony. 18 to combine it with that expressive event, you 19 force him to send a message of hate and 20 division. 21 22 23 JUSTICE SOTOMAYOR: By forcing him I -- I -- I am very confused -JUSTICE KENNEDY: What would the 24 government -- what would the government's 25 position be if you prevail in this case, the Heritage Reporting Corporation Official - Subject to Final Review 45 1 baker prevails in this case, and then bakers 2 all over the country received urgent requests: 3 Please do not bake cakes for gay weddings. 4 more and more bakers began to comply. 5 6 7 And Would the government feel vindicated in its position that it now submits to us? GENERAL FRANCISCO: Your Honor, I 8 think in that case, the case for strict 9 scrutiny would be much stronger, because you'd 10 be able to show that your -- that the 11 application of the law is narrowly tailored to 12 the government's interests in ensuring access. 13 Here, of course, you have these 14 products that are widely available from many 15 different sources. 16 finish up, that if you were to disagree with 17 our basic principle, putting aside the line 18 about whether a cake falls on speech or 19 non-speech side of the line, you really are 20 envisioning a situation in which you could 21 force, for example, a gay opera singer to 22 perform at the Westboro Baptist Church just 23 because that opera singer would be willing to 24 perform at the National Cathedral. 25 And I would submit, just to And the problem is when you force Heritage Reporting Corporation Official - Subject to Final Review 46 1 somebody not only to speak, but to contribute 2 that speech to an expressive event to which 3 they are deeply opposed, you force them to use 4 their speech to send a message that they 5 fundamentally disagree with. 6 7 And that is at the core of what the First Amendment protects our citizenry against. 8 9 CHIEF JUSTICE ROBERTS: General. 10 11 Thank you, GENERAL FRANCISCO: Thank you, Mr. Chief Justice. 12 CHIEF JUSTICE ROBERTS: 13 ORAL ARGUMENT OF FREDERICK R. YARGER 14 ON BEHALF OF THE STATE RESPONDENT 15 MR. YARGER: Mr. Yarger. Thank you, Mr. Chief 16 Justice, and may it please -- please the Court: 17 A decade ago Colorado extended to LGBT 18 people the same protections used to fight 19 discrimination against race, sex and a person's 20 faith. 21 that is open to the public and subject to the 22 Colorado Anti-Discrimination Act. 23 Masterpiece Cakeshop is a retail bakery Yet, Petitioners' claim that they can 24 refuse to sell a product, a wedding cake of any 25 kind in any design to any same-sex couple. Heritage Reporting Corporation Official - Subject to Final Review 47 1 JUSTICE KENNEDY: 2 CHIEF JUSTICE ROBERTS: 3 I don't want to -Counsel, take an organization -- 4 JUSTICE KENNEDY: Go ahead. 5 CHIEF JUSTICE ROBERTS: -- I think 6 there are many different faiths, but Catholic 7 Legal Services, they provide pro bono legal 8 representation to people who are too poor to 9 avoid it and they provide it to people of all 10 different faiths. 11 So let's say someone just like 12 Respondents here, except needing the pro bono 13 assistance, goes into Catholic Legal Services 14 and say, we want you to take this case against 15 Masterpiece Cakeshop. 16 the lawyers say: 17 to, because we don't support same-sex marriage. 18 19 20 And the people at the -- well, we -- we're not going Are they in violation of the Colorado law? MR. YARGER: No, Chief Justice, Mr. 21 Chief Justice, they are not. 22 a particular service in that case when they 23 wouldn't provide it to any other customer -- 24 25 Refusing to offer CHIEF JUSTICE ROBERTS: No, no, they would provide it, if a -- if a heterosexual Heritage Reporting Corporation Official - Subject to Final Review 48 1 couple comes in and says we need a -- 2 particular services in connection with our 3 marriage, they would provide it. 4 It's only because, and they say this, 5 it's only because it is a same-sex marriage 6 that we're not going to provide pro bono legal 7 services to you. 8 9 MR. YARGER: In -- in the sense of a -- services regarding maybe divorce or -- 10 CHIEF JUSTICE ROBERTS: Something in 11 connection -- something in connection with the 12 marriage. 13 -- whatever, a contract dispute with somebody 14 in connection with their marriage, and the 15 lawyer says we're not going to provide services 16 in connection with same-sex marriage because we 17 have a religious objection to that. 18 You know, they're having a -- a -- a MR. YARGER: Mr. Chief Justice, I 19 think there's an initial question that's asked 20 in all of these cases, and it's the way that 21 states have been resolving these questions for 22 literally 100 years, and that -- the question 23 is: 24 retail store in the sense that it is -- 25 Is this entity operating in the way of a CHIEF JUSTICE ROBERTS: No, no. Heritage Reporting Corporation Official - Subject to Final Review 49 1 MR. YARGER: -- inviting -- 2 CHIEF JUSTICE ROBERTS: It's 3 clearly -- it's clearly covered by Colorado's 4 law. 5 primarily legal. 6 And there's nothing in the law that I can see 7 that says it's limited to for-profit 8 organizations. 9 It's not primarily religious. It's It's provided to all faiths. MR. YARGER: And, Your Honor, again, I 10 -- I think the question is going to be is -- is 11 that operating in the sense of a retail store? 12 If it is, then, yes, a state can require a -- 13 someone offering a service to give the same 14 services regardless of -- 15 CHIEF JUSTICE ROBERTS: 16 MR. YARGER: So -- -- the protected 17 characteristics of -- of the customer. 18 -- 19 CHIEF JUSTICE ROBERTS: If that So -- so 20 Catholic Legal Services would be put to the 21 choice of either not providing any pro bono 22 legal services or providing those services in 23 connection with the same-sex marriage? 24 25 MR. YARGER: If -- if it is operating in the same way as a retail store, I think the Heritage Reporting Corporation Official - Subject to Final Review 50 1 2 3 answer -CHIEF JUSTICE ROBERTS: law, is -- 4 MR. YARGER: 5 CHIEF JUSTICE ROBERTS: 6 7 8 9 10 11 Under Colorado -- is yes, Your Honor. -- are they or are they not? MR. YARGER: I don't -- I can't answer that question, because -CHIEF JUSTICE ROBERTS: What facts would you need besides the ones I've given you? MR. YARGER: I would have to 12 understand what the -- the purpose and the 13 history is of that entity choosing customers 14 and how it works. 15 selectivity -- 16 If there's genuine CHIEF JUSTICE ROBERTS: They have 17 taken every other customer to date, except this 18 is the first time someone has come in and wants 19 legal services in connection with a same-sex 20 marriage and they say we're not going to do it 21 because, as a religious matter, we're opposed 22 to same-sex marriage. 23 MR. YARGER: And -- and, Your Honor, I 24 think -- I think if they were operating like a 25 retail store like that, then -- then Colorado Heritage Reporting Corporation Official - Subject to Final Review 51 1 2 3 4 5 6 would have the ability to regulate them. JUSTICE KENNEDY: Well, the Chief Justice -MR. YARGER: If the answer were otherwise -JUSTICE KENNEDY: -- has introduced 7 the question of the Free Exercise Clause in 8 this case. 9 We didn't talk about it earlier. And perhaps you want to get on to 10 speech, but in this case, pages 293 and 294 of 11 -- of the Petitioner appendix, the -- 12 Commissioner Hess says freedom of religion used 13 to justify discrimination is a despicable piece 14 of rhetoric. 15 Did the Commission ever disavow or 16 disapprove of that statement? 17 MR. YARGER: There were no further 18 proceedings in which the Commission disavowed 19 or disapproved of that statement. 20 JUSTICE KENNEDY: Do you disavow or 21 disapprove of that statement? 22 MR. YARGER: 23 24 25 I would not have counseled my client to make that statement. JUSTICE KENNEDY: Do you now disavow or disapprove of that statement? Heritage Reporting Corporation Official - Subject to Final Review 52 1 MR. YARGER: I -- I do, yes, Your 2 Honor. I think -- I need to make clear that 3 what that commissioner was referring to was the 4 previous decision of the Commission, which is 5 that no matter how strongly held a belief, it 6 is not an exception to a generally applicable 7 anti-discrimination law. 8 9 And if -- if the assertion that what is engaging in is speech is enough to overcome 10 that law, you're going to face a situation 11 where a family portrait artist can say I will 12 photograph any family but not when the 13 father -- 14 JUSTICE KENNEDY: 15 MR. YARGER: But -- but -- in -- -- is wearing a yarmulke 16 because I have a sincere objection to the 17 Jewish faith. 18 That would be discrimination. JUSTICE KENNEDY: Suppose we thought 19 that in significant part at least one member of 20 the Commission based the commissioner's 21 decision on -- on -- on the grounds that -- of 22 hostility to religion. 23 could your judgment then stand? 24 25 MR. YARGER: Can -- can your -- Your Honor, I don't think that one statement by the commissioner, Heritage Reporting Corporation Official - Subject to Final Review 53 1 2 assuming it reveals bias -JUSTICE KENNEDY: Well, suppose we -- 3 suppose we thought there was a significant 4 aspect of hostility to a religion in this case. 5 Could your judgment stand? 6 MR. YARGER: Your Honor, if -- if 7 there was evidence that the entire proceeding 8 was begun because of a -- an intent to single 9 out religious people, absolutely, that would be 10 11 12 a problem. JUSTICE SOTOMAYOR: commissioners -- 13 MR. YARGER: 14 filed by a couple -- 15 16 17 18 19 How many But this was a complaint JUSTICE SOTOMAYOR: How many commissioners are there? MR. YARGER: Excuse me, Justice Sotomayor. JUSTICE SOTOMAYOR: I'd like you to 20 answer Justice Kennedy's question. 21 commissioners are there? 22 23 24 25 MR. YARGER: How many There are seven commissioners, Your Honor. JUSTICE SOTOMAYOR: All right. If one -- if there was a belief, not yours -- stop Heritage Reporting Corporation Official - Subject to Final Review 54 1 fighting the belief; accept the hypothetical -- 2 that this person was improperly biased, what 3 happens then? 4 Kennedy is asking you. 5 6 7 8 9 I think that's what Justice MR. YARGER: If there is one person that's improperly biased? JUSTICE SOTOMAYOR: One of the commissioners is improperly biased. MR. YARGER: I think you're going to 10 have to ask whether the complaint filed with 11 the division, which was filed by a customer who 12 was referred to a bakery to receive a product, 13 and the ALJ and the commission in the appeal 14 were all biased in the sense that this was a 15 proceeding meant to single out a religious 16 person for his views. 17 And that is not the fact here. 18 CHIEF JUSTICE ROBERTS: 19 20 21 22 We've -- we've had this case before -JUSTICE GORSUCH: But you agree that would be a problem -CHIEF JUSTICE ROBERTS: -- in the 23 context -- the context of courts, I think it's 24 not just where you have a three-judge panel and 25 it turns out one judge was -- should have been Heritage Reporting Corporation Official - Subject to Final Review 55 1 disqualified, whether -- for whatever reason, 2 they don't say that, well, the vote, there were 3 two still, so it doesn't change the result 4 because it's a deliberative process, and the 5 idea is, well, the one biased judge might have 6 influenced the views of the other. 7 MR. YARGER: And, Your Honor, again, I 8 don't think that this -- that particular 9 phrase -- I wouldn't advise my client to make 10 that statement, but it was referring back to 11 the previous decision -- 12 13 14 15 16 JUSTICE GORSUCH: Mr. Yarger, you actually -MR. YARGER: -- where the commission fully debated the issue -JUSTICE GORSUCH: Mr. Yarger, you 17 actually have a second commissioner who also 18 said that he's -- if someone has an issue with 19 the laws impacting his personal belief system, 20 he has to look at compromising that belief 21 system presumably, as well, right? 22 MR. YARGER: And, yes, Your Honor. 23 That's the same principle that this Court 24 recognized in cases -- 25 JUSTICE GORSUCH: But a second Heritage Reporting Corporation Official - Subject to Final Review 56 1 commissioner? 2 MR. YARGER: 3 States versus Lee -- 4 -- cases like United JUSTICE GORSUCH: -- so we have two -- 5 two -- two commissioners out of seven who've 6 expressed something along these lines. 7 MR. YARGER: I don't agree that what 8 was expressed in the record reveals the kind of 9 bias that existed in cases like the Church of 10 -- 11 12 JUSTICE GORSUCH: What if we disagree with -- 13 MR. YARGER: -- Lukumi Babalu Aye. 14 JUSTICE GORSUCH: 15 What if we disagree with you; then what follows? 16 MR. YARGER: I think you have to do 17 that analysis and decide whether this 18 proceeding was engineered in a way to single 19 out people with a certain faith and they're 20 not. This -- 21 JUSTICE SOTOMAYOR: 22 JUSTICE GINSBURG: 23 JUSTICE BREYER: 24 25 You -This -- Well, the reason that I -MR. YARGER: -- this law would apply Heritage Reporting Corporation Official - Subject to Final Review 57 1 to protect people with religious beliefs. 2 JUSTICE BREYER: I see that. The 3 reason I want you to continue this is that many 4 of the civil rights laws, not all public 5 accommodations laws, though -- there are 6 exceptions, like, for example, with housing, a 7 person's own room, for example. 8 9 And what people are trying to do with exceptions is take the thing you're worried 10 about, where they are genuine, sincere 11 religious views or whatever it is, and minimize 12 the harm it does to the principle of the 13 statute while making some kind of compromise 14 for people of sincere beliefs on the other 15 side. 16 And we find that in -- in a lot of 17 them, but that's primarily a legislative job. 18 And my impression of this is there wasn't much 19 effort here in Colorado to do that. 20 JUSTICE GINSBURG: 21 JUSTICE BREYER: And your -My problem is can we 22 do that in any way, or is there any way to get 23 to a place that without harming the law, and 24 its object, which is fine, you can have narrow 25 kinds of exceptions for sincere, et cetera? Heritage Reporting Corporation Do Official - Subject to Final Review 58 1 you see -- do you see what I'm driving at? 2 MR. YARGER: I do. 3 JUSTICE BREYER: And I can't think of 4 a way to do it. 5 to do it, but I thought it's worth asking. 6 Maybe you can't think of a way MR. YARGER: Justice Breyer, I -- I do 7 not agree that this law, which was passed in 8 2008, after literally a decade in the wake of 9 Romer, was not an attempt sincerely to hear 10 from all sides about a question of whether to 11 grant the same protections to people who are 12 discriminated based on race or faith to people 13 of the LGBT community. 14 JUSTICE ALITO: 15 MR. YARGER: 16 JUSTICE ALITO: One thing that's -- And if you look at the -One thing that's 17 disturbing about the record here, in addition 18 to the statement made, the statement that 19 Justice Kennedy read, which was not disavowed 20 at the time by any other member of the 21 Commission, is what appears to be a practice of 22 discriminatory treatment based on viewpoint. 23 The -- the Commission had before it 24 the example of three complaints filed by an 25 individual whose creed includes the traditional Heritage Reporting Corporation Official - Subject to Final Review 59 1 Judeo-Christian opposition to same-sex 2 marriage, and he requested cakes that expressed 3 that point of view, and those -- there were 4 bakers who said no, we won't do that because it 5 is offensive. 6 And the Commission said: That's okay. 7 It's okay for a baker who supports same-sex 8 marriage to refuse to create a cake with a 9 message that is opposed to same-sex marriage. 10 But when the tables are turned and you have the 11 baker who opposes same-sex marriage, that baker 12 may be compelled to create a cake that 13 expresses approval of same-sex marriage. 14 MR. YARGER: 15 JUSTICE SOTOMAYOR: 16 Justice Alito -Counselor, in that case -- 17 CHIEF JUSTICE ROBERTS: Maybe you 18 could answer -- maybe you could Justice Alito's 19 question. 20 MR. YARGER: Yes, Mr. Chief Justice. 21 The facts of that case are that someone walked 22 into a bakery and wanted a particular cake with 23 particular messages on it that that bakery 24 wouldn't have sold to any other customer. 25 Mr. Phillips would not be required to Heritage Reporting Corporation Official - Subject to Final Review 60 1 sell a cake to a gay couple that he wouldn't 2 sell to his other customers. 3 4 JUSTICE ALITO: Mr. Phillips -- 5 6 No, but Mr. -- MR. YARGER: What he said in this case -- 7 JUSTICE ALITO: Mr. Phillips would not 8 -- do you disagree with the fact that he would 9 not sell to anybody a wedding cake that 10 expresses approval of same-sex marriage? 11 MR. YARGER: I -- what he may not do 12 as a public accommodation that offers to the 13 public -- 14 15 JUSTICE SOTOMAYOR: Would you answer the question? 16 MR. YARGER: -- yes -- yes, Your 17 Honor -- is decide that he won't sell somebody 18 a product that he would otherwise sell because 19 in his view the identity of the customer 20 changes the message. 21 22 23 24 25 JUSTICE ALITO: No, he didn't say the identity. MR. YARGER: That is discrimination under our law. JUSTICE ALITO: He said the message. Heritage Reporting Corporation Official - Subject to Final Review 61 1 He said the message. 2 MR. YARGER: Well, and the message in 3 this case, Your Honor, depended entirely on the 4 identity of the customer who was ordering the 5 cake. If he had said I have a deeply -- 6 JUSTICE SOTOMAYOR: I'm sorry, could 7 you answer the question asked? 8 this couple did come in and wanted the rainbow 9 cake. 10 MR. YARGER: 11 JUSTICE SOTOMAYOR: Let's assume Yes. And this gentleman 12 says one of two things: If you're same-sex, 13 I'm not going to provide you with a rainbow 14 cake or I don't create rainbow cakes for 15 weddings because I don't believe in same-sex 16 marriage. 17 I'm not going to sell it to a same -- a 18 heterosexual couple. 19 affiliated with that concept of rainbowness at 20 a wedding, any kind of wedding. I'm not going to sell it to you. I just don't want to be 21 MR. YARGER: 22 JUSTICE SOTOMAYOR: 23 24 25 And Justice -So what are the difference in treatment? MR. YARGER: Justice Sotomayor, in that latter case, if that truly a product he Heritage Reporting Corporation Official - Subject to Final Review 62 1 wouldn't sell to any other customer, he would 2 not have to sell it to this customer. 3 But if it's a question of a cake he 4 would sell to any other customer, he cannot say 5 I have a very strong objection to interracial 6 or interfaith marriages and I don't want to 7 send message about those -- those events, and 8 so I'm not going to sell it to you. 9 discrimination. That's It wouldn't be appropriate 10 under Colorado law, and it would be a First 11 Amendment objection. 12 JUSTICE KENNEDY: Counselor, tolerance 13 is essential in a free society. 14 is most meaningful when it's mutual. 15 And tolerance It seems to me that the state in its 16 position here has been neither tolerant nor 17 respectful of Mr. Phillips' religious beliefs. 18 MR. YARGER: And, Your Honor, I -- 19 JUSTICE KENNEDY: And -- because 20 accommodation is, quite possible, we assume 21 there were other shops that -- other good 22 bakery shops that were available. 23 MR. YARGER: Your Honor, I don't -- I 24 don't agree that Colorado hasn't taken very 25 seriously the rights of those who wish to Heritage Reporting Corporation Official - Subject to Final Review 63 1 practice their faith. 2 legislative history that culminated in 3 literally ten years of debate about how to deal 4 with this question. 5 I urge you to read the And what the legislature decided after 6 hearing from the faith community, after making 7 an exception for places of worship and doing -- 8 making other exceptions decided we can't make 9 exceptions here for same-sex people who deserve 10 the same protections if we wouldn't make those 11 same exceptions for discrimination based on 12 race and sex and religion. 13 JUSTICE GORSUCH: 14 JUSTICE BREYER: Mr. Yarger -I'm asking can you do 15 this? 16 baker say, you know, there are a lot of people 17 I don't want to serve, so I'm going to 18 affiliate with my friend, Smith, who's down the 19 street, and those people I don't want to serve, 20 Smith will serve. 21 Can a baker say do this? Is that legal? Would that be legal under Colorado 22 law? 23 they get the cake. 24 25 Could the That'd be a kind of accommodation, so MR. YARGER: It would be, Your Honor -- Heritage Reporting Corporation Official - Subject to Final Review 64 1 JUSTICE BREYER: 2 MR. YARGER: 3 JUSTICE BREYER: 4 MR. YARGER: 5 It would be legal? No, no. It would be illegal? You cannot turn away from your storefront if you're a retail store. 6 JUSTICE BREYER: It's a -- it's a 7 joint venture. 8 with Smith. 9 serve the people he doesn't like, he serves the 10 I have a regular affiliation Smith and I work together. I people I don't like. 11 Does that violate the law? 12 MR. YARGER: I don't -- I would say 13 that there's -- there is a possibility that 14 that does not violate the law if there is not 15 some other pretext there to ensure that a 16 disfavored class of customers receives lesser 17 service. 18 case like this. And that's always a question in a 19 CHIEF JUSTICE ROBERTS: 20 difference, was -- was same-sex marriage 21 permitted in Colorado at the time of these 22 events? 23 MR. YARGER: 24 CHIEF JUSTICE ROBERTS: 25 Does it make a It was not, Your Honor. Does that make a difference? Heritage Reporting Corporation Official - Subject to Final Review 65 1 2 3 MR. YARGER: I don't think it does, Your Honor. CHIEF JUSTICE ROBERTS: Could he have 4 said I am not going to make a cake for, you 5 know, celebrating events that aren't permitted 6 in Colorado? 7 8 9 10 MR. YARGER: Well, Mr. Chief Justice -- may I answer? CHIEF JUSTICE ROBERTS: You have five -- more minutes. 11 MR. YARGER: Oh. 12 CHIEF JUSTICE ROBERTS: 13 (Laughter.) 14 MR. YARGER: If you want. I'll have to think about 15 that, Your Honor. 16 was nothing illegal about two gay people in 17 2012 in Colorado expressing their commitment to 18 each other and celebrating that commitment with 19 their loved ones. 20 But in the meantime, there JUSTICE GINSBURG: Would Colorado be 21 required to give full faith and credit to the 22 Massachusetts marriage? 23 24 25 MR. YARGER: Well, it certainly would today, Your Honor. JUSTICE ALITO: But it wouldn't at the Heritage Reporting Corporation Official - Subject to Final Review 66 1 time. 2 MR. YARGER: No, it wouldn't. 3 JUSTICE ALITO: 4 time. 5 this case as it might play out in 2017, soon to 6 be 2018, but this took place in 2012. 7 This is very odd. It did not at the We're thinking about So if Craig and Mullins had gone to a 8 state office and said we want a marriage 9 license, they would not have been accommodated. 10 If they said: Well, we want you to 11 recognize our Massachusetts marriage, the state 12 would say: 13 Well, we want a civil union. 14 accommodate that either. 15 No, we won't accommodate that. Well, we won't And yet when he goes to this bake shop 16 and he says I want a wedding cake, and the 17 baker says, no, I won't do it, in part because 18 same-sex marriage was not allowed in Colorado 19 at the time, he's created a grave wrong. 20 does that all that fit together? 21 MR. YARGER: How Well, Your Honor, again, 22 it -- it -- the decision by this bakery was it 23 wouldn't sell any product -- 24 25 JUSTICE ALITO: Mr. Yarger. No, that's not right, It is a disturbing feature of your Heritage Reporting Corporation Official - Subject to Final Review 67 1 brief because this case was decided on summary 2 judgment, and, therefore, you have to view the 3 facts in the light most favorable to Mr. 4 Phillips. 5 And the only thing he admitted and 6 what was said in the undisputed -- the list of 7 undisputed facts was he would not create -- he 8 was very careful to use the word "create." 9 that wrong? 10 MR. YARGER: Is That's not incorrect, 11 Your Honor. What -- what he has said is that 12 all of his wedding cakes are custom-made. 13 so what he said is that he would have a right 14 to refuse that service to anyone whose identity 15 in his view means that the message has changed. 16 And he does not want to sell it to them. 17 It would be akin to a -- 18 JUSTICE ALITO: And And we have a history 19 of -- in the questioning by -- of Petitioner's 20 counsel, we explored the line between speech 21 and non-speech, but as I understand your 22 position, it would be the same if what was 23 involved here were words. 24 25 Am I wrong? If he would put a particular form of words on a wedding cake, on Heritage Reporting Corporation Official - Subject to Final Review 68 1 a cake for one customer, he has to put the same 2 form of words, the same exact words on a 3 wedding cake for any other customer, regardless 4 of the context? 5 MR. YARGER: That's right, just as he 6 would have to sell a Happy Birthday cake to a 7 member of the Jewish faith or an 8 African-American couple. 9 JUSTICE ALITO: So if someone came in 10 and said: 11 our wedding anniversary, and I want it to say 12 November 9, the best day in history, okay, 13 sells them a cake. 14 wants exactly the same words on the cake, he 15 says: 16 No, we're going to have a party to celebrate 17 Kristallnacht. 18 19 I want a cake for -- to celebrate Somebody else comes in, Oh, is this your anniversary? He says: He would have to do that? MR. YARGER: Your Honor, that wouldn't be -- 20 JUSTICE ALITO: 21 MR. YARGER: It is the same words. It is, Your Honor. I 22 haven't -- I don't -- that would be a question 23 about whether there is a even-handed, genuine 24 policy applied by the baker that doesn't have 25 to do with the identity of the customer. Heritage Reporting Corporation Official - Subject to Final Review 69 1 And if it has to do with a message 2 that is apart from the identity of the 3 customer, then he can refuse that. 4 you'd have a circumstance in which he would 5 paint a picture of a couple but couldn't change 6 the skin tone of the -- of the couple that's 7 pictured on the cake. 8 discrimination. 9 First Amendment problem with enforcing our law 10 Otherwise, That would be And there wouldn't be any against that. 11 JUSTICE GORSUCH: I have a quick 12 question about the remedy. 13 Colorado ordered Mr. Phillips to provide 14 comprehensive training to his staff, and it 15 didn't order him to attend a class of the 16 government's own creation or anything like 17 that, but to provide comprehensive staff 18 training. 19 As I understand it, Why -- why isn't that compelled speech 20 and possibly in violation of his free-exercise 21 rights? 22 staff, including his family members, that his 23 Christian beliefs are discriminatory. 24 25 Because presumably he has to tell his MR. YARGER: He -- a training requirement is a common remedy that is used in Heritage Reporting Corporation Official - Subject to Final Review 70 1 many civil rights cases. 2 3 JUSTICE GORSUCH: attending your training, Mr. Yarger. 4 5 But this isn't MR. YARGER: He doesn't have to say that his -- 6 JUSTICE GORSUCH: Mr. Yarger, again, I 7 agree with you, some sort of training by an 8 outside group, but this order was ordering him 9 to provide training and presumably compelling 10 him to speak, therefore, and to speak in ways 11 that maybe offend his religion and certainly 12 compel him to speak. 13 And given that, plus the 14 discriminatory language in the -- in the 15 Commission's discussion, I just -- that 16 concerns me, and I just wonder what you have to 17 say. 18 MR. YARGER: I understand, Your Honor, 19 if all that is required in these training 20 sessions is an understanding, and a 21 demonstrated understanding of the Colorado 22 Anti-Discrimination Act. 23 It has nothing to do with a particular 24 person's belief. It has to do with ensuring 25 that the conduct that was found discriminatory, Heritage Reporting Corporation Official - Subject to Final Review 71 1 and if that conduct can be regulated consistent 2 with the First Amendment, I think that a 3 training requirement like that can be imposed. 4 JUSTICE KENNEDY: Part of that speech 5 is that state law, in this case, supersedes our 6 religious beliefs, and he has to teach that to 7 his family. 8 family. 9 10 MR. YARGER: He has to speak about the fact that -- 11 12 He has to speak about that to his JUSTICE KENNEDY: His family who are the employees. 13 MR. YARGER: -- in running a public 14 accommodation that is open to all people, he 15 cannot use his faith to discriminate based on 16 identity in selling a good he would otherwise 17 sell. 18 JUSTICE GINSBURG: The question does 19 -- he doesn't have to tell his family -- I 20 mean, his belief is his belief. 21 -- 22 MR. YARGER: 23 JUSTICE GINSBURG: 24 25 All he has to That's correct. -- instruct them is this is what the law of Colorado requires. MR. YARGER: Thank you, Justice Heritage Reporting Corporation Official - Subject to Final Review 72 1 Ginsburg. 2 3 That's precisely correct. JUSTICE GINSBURG: You must adhere to the law. 4 MR. YARGER: That's precisely correct. 5 JUSTICE GINSBURG: Nothing about I've 6 changed my belief in any way. 7 MR. YARGER: Absolutely not. MR. YARGER: If there are no further 8 correct. 9 10 questions. 11 12 13 14 15 16 17 18 That's CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Cole. ORAL ARGUMENT OF DAVID COLE ON BEHALF OF THE PRIVATE RESPONDENTS MR. COLE: Mr. Chief Justice, and may it please the Court: We don't doubt the sincerity of Mr. 19 Phillips's convictions. 20 argument leads to unacceptable consequences. 21 But to accept his A bakery could refuse to sell a 22 birthday cake to a black family if it objected 23 to celebrating black lives. 24 photography studio could refuse to take 25 pictures of female CEOs if it believed that a A corporate Heritage Reporting Corporation Official - Subject to Final Review 73 1 2 woman's place is in the home. And a florist could put a sign up on 3 her storefront saying we don't do gay funerals, 4 if she objected to memorializing gay people. 5 Now, both Petitioner and the United 6 States recognize that these results are 7 unacceptable with respect to race. 8 9 And so they suggest that you draw a distinction between race discrimination and 10 sexual orientation discrimination and the 11 state's ability to protect it. 12 would be to constitutionally relegate gay and 13 lesbian people to second class status, even 14 when a state has chosen, as Colorado has done 15 here, to extend them equal treatment. 16 CHIEF JUSTICE ROBERTS: But to do that I'm not sure 17 he provides equal services outside the context 18 of wedding -- weddings, to gay and lesbian 19 individuals. 20 is very compelling, but when the Court upheld 21 same-sex marriage in Obergefell, it went out of 22 its way to talk about the decent and honorable 23 people who may have opposing views. 24 25 And the racial analogy obviously And to immediately lump them in the same group as people who are opposed to Heritage Reporting Corporation Official - Subject to Final Review 74 1 equality in relations with respect to race, I'm 2 not sure that takes full account of that -- of 3 that concept in the Obergefell decision. 4 MR. COLE: So, Chief Justice Roberts, 5 the Court in Obergefell did, indeed, say that 6 individuals are free to express their 7 disagreement through speech with the notion of 8 same-sex marriage, but it did not say that 9 businesses who make a choice to open themselves 10 to the public can then turn away people because 11 they are gay and lesbian. 12 All the baker needed to know about my 13 clients was that they were gay and lesbian. 14 And, therefore -- or gay. 15 wouldn't sell them a wedding cake which he 16 would sell, gladly -- 17 JUSTICE BREYER: And, therefore, he But is there an 18 answer to that? I was trying to get the answer 19 to that, and I think that they are proceeding 20 roughly on the line that, well, all that you 21 say is true, but that doesn't mean that under 22 these laws, maybe the African American, et 23 cetera, is separate, but it doesn't mean that 24 the person could be hired to come to the 25 wedding and announce to the general people Heritage Reporting Corporation Official - Subject to Final Review 75 1 there, this is the most wonderful thing I've 2 ever been at. 3 Now, that's where they say they have a 4 right not to do that. And then the second step 5 of that is to say: 6 the equivalent of that. And what's going on here is 7 MR. COLE: 8 JUSTICE BREYER: 9 Right. I took that as -- I may be unfair with them -- but I -- I took that 10 as -- as -- as the outlines of the answer to 11 what you're saying. 12 you say in respect, if I'm right, about what 13 they say. 14 MR. COLE: So I'd like to hear what Yeah, thank you. No one is 15 suggesting that the baker has to march in the 16 parade, as Mr. Francisco said here. 17 Colorado law requires is that you sell a 18 product -- when a -- when a mom goes into a 19 bakery and says make me a happy birthday cake 20 for my child, and then she takes that cake home 21 for her four-year-old son's birthday party, no 22 one thinks that the baker is wishing happy 23 birthday to the four-year-old. 24 25 JUSTICE GINSBURG: What the Would that be true -- would that be true if what the message -- Heritage Reporting Corporation Official - Subject to Final Review 76 1 the message, let's say Craig and Mullins said 2 we would like to have on this wedding cake of 3 ours these words: 4 Craig and Mullins." 5 MR. COLE: "God bless the union of So if he would not put that 6 message on any other cake, then he doesn't have 7 to put it on that cake. 8 JUSTICE GINSBURG: 9 MR. COLE: 10 a cake that said: 12 and Marty. 13 If he -- JUSTICE GINSBURG: 11 MR. COLE: He would put -- -- that message on God bless the union of Ruth Right. If he would -- if 14 he would say that, then he would have to say 15 God bless the union of Dave and Craig because 16 the only difference between those two cakes, 17 Your Honor, is the identity of the customer who 18 is seeking to purchase it. 19 20 21 22 23 It is the same cake otherwise. So -- so, yes, if he -- but, again, in this case -JUSTICE KAGAN: Do we have to answer that question, Mr. Cole? MR. COLE: No, you don't, no, Justice 24 Kagan, you don't, because in this case, again, 25 the only thing the baker knew about these Heritage Reporting Corporation Official - Subject to Final Review 77 1 customers was that they were gay. 2 result, he refused to sell them any wedding 3 cake. 4 And, as a There was no request for a design. 5 There was no request for a message. 6 to sell them any wedding cake. And that's 7 identity-based discrimination. It is not a 8 decision to refuse to put particular words on 9 it. 10 JUSTICE KENNEDY: He refused Suppose that either 11 in this case or some cases you have a very 12 complex case -- cake, and -- case and cake -- 13 (Laughter.) 14 JUSTICE KENNEDY: That -- that -- and 15 you need a baker, a baker's assistant to be 16 right there at the wedding so you cut it in the 17 right place and the thing doesn't collapse. 18 Does the baker have to attend that 19 wedding and help cut the cake? 20 MR. COLE: 21 JUSTICE KENNEDY: 22 23 So, I think, again, that -Assume the hypo, that the -MR. COLE: Right, right, that is not 24 necessary to decide this case, but I think in 25 -- I think in a future case that involved Heritage Reporting Corporation Official - Subject to Final Review 78 1 physical participation in a -- in a -- in a 2 religious ceremony that an individual deeply 3 opposed, that a court -- this Court might draw 4 -- might create new doctrine and draw a new 5 line and say, no, that's not governed by Smith. 6 That's not governed by O'Brien. 7 make an exception. 8 9 10 But -- in this -- JUSTICE BREYER: of vegetable -(Laughter.) 12 JUSTICE BREYER: 14 How do we do that? You know, we can't have 42,000 cases, each kind 11 13 We're going to -- that the preparer or thinks is something special. So -- so here, is it an answer that 15 satisfies you to say, well, you see, here, of 16 course, all custom goods, all custom goods have 17 an element of expression. 18 quite the same as an artist, but an artisan can 19 be a great artisan and can produce good things. 20 But where the clash is between an important 21 public policy, the policy of opening the doors 22 to everyone, including minorities, in the 23 public commercial area, well, there the speech 24 element of the artisan is not really sufficient 25 to outweigh that. An artisan is not Now, that's pretty Heritage Reporting Corporation Official - Subject to Final Review 79 1 straightforward. 2 And I don't know how it fits within 3 the law and the so forth. 4 looking at the policies here, it seems to me 5 the cases do support that. 6 leave open the instance where the speech goes 7 farther than just preparing a specially-shaped 8 cake, admitted that a specially-shaped cake can 9 suggest approval, et cetera. 10 MR. COLE: 11 JUSTICE BREYER: 12 But -- but if you're And they do have to So, Justice Breyer -And if that's not good, what is? 13 MR. COLE: So, Justice Breyer, I think 14 the -- the -- the colloquy with my opponent 15 with respect to whether a cake artist is 16 different from a makeup -- makeup artist, or 17 whether a highly-sculpted cake is different 18 from an unsculpted cake illustrates that it is 19 just not possible to develop doctrine based on 20 how expressive, how artistic the speech is. 21 And that's -- 22 23 JUSTICE BREYER: Then what do we do? 24 25 Fine. MR. COLE: Honor. This is what you do, Your You do what you did in O'Brien, in Heritage Reporting Corporation Official - Subject to Final Review 80 1 CCMV, in Fair versus Rumsfeld, and in Turner 2 Broadcasting. 3 And what the -- what the Court has 4 done when it's expressive conduct, because 5 that's what we have here at most is expressive 6 conduct, we don't ask is it expressive from the 7 perspective of the baker or is it expressive 8 from the perspective of the -- of a customer. 9 We ask what's the state's interest in 10 11 regulating? What is the state doing? And if the state is regulating conduct 12 because of what it expresses, well, now that's 13 strict scrutiny. 14 15 16 That's -- JUSTICE ALITO: Are the words on the cake expressive conduct or are they not speech? MR. COLE: The -- the conduct, Your 17 Honor, that is regulated by Colorado here is 18 not the words on the cake. 19 that Colorado regulates is the sale by a 20 business that opens itself to the public, 21 invites everybody in, it's -- it's regulating 22 the conduct of refusing a transaction -- 23 JUSTICE ALITO: 24 MR. COLE: 25 The conduct that -- But you're -- -- to somebody because of who they are. Heritage Reporting Corporation Official - Subject to Final Review 81 1 JUSTICE ALITO: 2 MR. COLE: 3 4 Yeah, but -- It doesn't matter whether it's speech or whether it's not speech. JUSTICE ALITO: But you just said, and 5 I understand Mr. Yarger's position for Colorado 6 to be the same, is that someone can be 7 compelled to write particular words with which 8 that person strongly disagrees. 9 10 11 12 MR. COLE: If he -- JUSTICE ALITO: That's your -- that is your position, isn't it? MR. COLE: If he has written the same 13 words for others, and the only difference is 14 the identity of the customer, yes, so, again, a 15 baker could sincerely believe that saying happy 16 birthday to a black family is different from 17 saying happy birthday to a white family, but we 18 would not say that, therefore, it is 19 permissible for a baker to say: 20 for whites only. 21 JUSTICE ALITO: birthday cakes There are services, I 22 was somewhat surprised to learn this, but 23 weddings have become so elaborate, that will 24 write custom wedding vows for you and custom 25 wedding speeches. Heritage Reporting Corporation Official - Subject to Final Review 82 1 So somebody comes to one of these 2 services and says: You know, we're not good 3 with words, but we want you to write wedding -- 4 a vow -- vows for our wedding, and the general 5 idea we want to express is that we don't 6 believe in God, we think that's a bunch of 7 nonsense, but we're going to try to live our 8 lives to make the world a better place. 9 the -- the person who is writing this is And 10 religious and says: 11 creative efforts to the expression of such a 12 message. 13 I can't lend my own But you would say, well, it's too bad 14 because you're a public accommodation. 15 right? 16 MR. COLE: Am I What I would say, Your 17 Honor, is that if that case were to arise, it 18 would certainly be open to this Court to treat 19 it differently, but this is not a case in which 20 anyone is being asked to -- 21 22 JUSTICE KENNEDY: -- differently on what basis -- 23 MR. COLE: 24 JUSTICE KENNEDY: 25 Differently on what I think, Your Honor -On what -- what principle would we use to treat it differently? Heritage Reporting Corporation Official - Subject to Final Review 83 1 MR. COLE: I think the principle would 2 have to be some amendment to Smith versus 3 Employment Division to say that even where 4 there's a generally applicable law, and even 5 where it's neutrally applied, if it has the 6 effect of compelling somebody to engage in a 7 religious ceremony that is against their deep 8 religious commitment, we might treat that 9 differently, but under current law -- 10 CHIEF JUSTICE ROBERTS: 11 modification of -- 12 MR. COLE: 13 14 -- that would not be the result under Smith versus Employment Division. CHIEF JUSTICE ROBERTS: 15 that a modification of Smith? 16 an overruling of Smith. 17 Is that a MR. COLE: Is that -- is It sounds like Well, I think it would 18 depend on how broadly you wrote it, certainly. 19 But -- but I don't think in this case, where 20 all that's asked for is a product, that you 21 have to reach that question. 22 23 24 25 And the other thing I would say, Justice Alito -JUSTICE SOTOMAYOR: How do you deal under your hypothetical with hotels associated Heritage Reporting Corporation Official - Subject to Final Review 84 1 with weddings? You know, hotels rent out 2 banquet hauls, their staff. 3 entitled to the exception you are imagining? 4 MR. COLE: 5 say -- let me make it clear. 6 advocating -- 7 8 No. Would they be And I'm not -- let me JUSTICE SOTOMAYOR: I am not You're not advocating this? 9 MR. COLE: -- this exception at all. 10 I am saying that this case does not involve 11 that kind of participation, and so you don't 12 need to address it. 13 arises, then you might -- 14 JUSTICE GORSUCH: If at some point a case Well, let's take -- 15 let's take a case a little bit more likes ours, 16 and -- and it doesn't involve words, but just a 17 cake. 18 someone who wants a red cross to celebrate the 19 anniversary of a great humanitarian 20 organization. 21 the same red cross to celebrate the KKK. 22 the baker have to sell to the second customer? 23 And if not, why not? 24 25 It is Red Cross, and the baker serves Next person comes in and wants MR. COLE: discrimination. Does It's not identity-based If -- all -- all that Colorado Heritage Reporting Corporation Official - Subject to Final Review 85 1 law and public accommodations law generally 2 requires is that you not discriminate on the 3 basis of particular protected classes, sexual 4 orientation, race, disability, religion, and 5 the like. 6 7 8 9 And if I can go back to Justice Alito's question -JUSTICE GORSUCH: Well, why is that any different than our case? You say it's not 10 based on identity, but the baker might well say 11 I -- I -- I despise people who adhere to the 12 creed of -- 13 MR. COLE: Right. 14 JUSTICE GORSUCH: -- of the KKK. 15 That's one way of characterizing it. 16 way of characterizing it is saying I disagree 17 with the message of the KKK. 18 So too here. Another One could make the exact 19 analogy, I would think, that you could either 20 characterize it as I -- I don't like people of 21 a certain class or I -- or I have a religious 22 belief against this kind of union. 23 So how do I distinguish those cases? 24 MR. COLE: 25 So I -- I think -- I think, Your Honor, if -- if identity discrimination is Heritage Reporting Corporation Official - Subject to Final Review 86 1 involved -- and there's no question that 2 identity discrimination is involved here 3 because, again, the only thing the baker knew 4 was the identity of the people who were -- 5 6 JUSTICE GINSBURG: -- 7 JUSTICE GORSUCH: 8 JUSTICE GINSBURG: 9 Mr. Cole, maybe I I -- I -- but --- I misunderstood your answer to Justice Gorsuch. Did you say 10 you could refuse to sell the identical cake 11 with the red cross? 12 MR. COLE: If -- if he is not doing it 13 on the basis of the identity -- a protected 14 identity. 15 is not a protected class. The Ku Klux Klan as an organization 16 So, yes, the LB -- the public 17 accommodations law does not say you must treat 18 everybody; it says you cannot discriminate on 19 the basis of protected categories. 20 JUSTICE KENNEDY: Well, but this whole 21 concept of identity is a slightly -- suppose he 22 says: 23 gay people. 24 they should have a marriage because that's 25 contrary to my beliefs. Look, I have nothing against -- against He says but I just don't think It's not -- Heritage Reporting Corporation Official - Subject to Final Review 87 1 MR. COLE: Yeah. 2 JUSTICE KENNEDY: 3 identity; it's what they're doing. It's not their 4 MR. COLE: 5 JUSTICE KENNEDY: 6 identity thing is just too facile. 7 MR. COLE: Yeah. I think it's -- your Well, Justice Kennedy, this 8 Court faced that question in Bob Jones 9 University. Bob Jones University said we're 10 not discriminating on the basis of race; we 11 allow black people to come into the school. 12 just refuse to admit those who are engaged in 13 interracial marriages or advocate interracial 14 dating. 15 discrimination. 16 discrimination, even if you treat others 17 similarly. 18 We And this Court said that's race That's identity-based But -- but I think one way to think 19 about this case is -- is -- is analogize it to 20 O'Brien, right? 21 that O'Brien's burning of the draft card to 22 protest the Vietnam War was expressive. 23 core political expression. 24 25 In O'Brien, nobody disputed It was But what the Court did was it didn't say, well, how expressive is it? Is it Heritage Reporting Corporation Official - Subject to Final Review 88 1 artistry; is it not? 2 It said what is the state trying to do here? 3 Because it's expressive conduct. 4 state's seeking to regulate conduct, then the 5 fact that it has an incidental effect on 6 Mr. O'Brien's expression is not a problem as 7 long as the state has a content-neutral reason 8 for regulating that conduct. 9 Is it core; is it not? JUSTICE BREYER: And if the I take Justice 10 Gorsuch's question and substitute for the KKK a 11 religious group, bizarre perhaps, but a 12 religious group that unfortunately has the same 13 beliefs as the KKK. 14 ask your question -- It doesn't -- then you can 15 MR. COLE: 16 JUSTICE BREYER: 17 18 Right. -- and the answer is they do have to sell it to them, right? MR. COLE: I think if the 19 discrimination is based on a -- a protected 20 characteristic, yes, they -- they can't say 21 because I object to the message that equal 22 treatment sends, right? 23 to the message that equal treatment sent. 24 serve a -- a black person in a segregated -- 25 previously segregated restaurant sent a Piggie Park objected Heritage Reporting Corporation To Official - Subject to Final Review 89 1 tremendous message, a message that Piggie Park 2 sincerely religiously objected to. 3 Court said that that's a frivolous claim in 4 that context. 5 And this So I don't -- I just -- I don't think 6 you can carve out exceptions to generally 7 applicable rules that regulate conduct in a 8 content-neutral way, as this does. 9 as Mr. -- the fact that Mr. O'Brien's conduct, 10 burning the draft card, was expressive did not 11 give him a First Amendment exemption to a 12 content-neutral prohibition on draft card 13 destruction, so the fact that Mr. Phillips 14 considers his cake-baking to be expressive 15 doesn't give him a First Amendment exemption to 16 a content-neutral regulation of public 17 accommodation sales in the retail context. 18 And so just This Court has already said that that 19 interest in prohibiting discrimination on the 20 basis of identity in public accommodations is a 21 interest unrelated to the suppression of 22 expression, said that in Roberts versus 23 Jaycees, it serves compelling interests, 24 Roberts versus Jaycees, even where race is not 25 involved. Heritage Reporting Corporation Official - Subject to Final Review 90 1 CHIEF JUSTICE ROBERTS: 2 your answer to my hypothetical about the 3 religious legal services organization the same 4 as Mr. Yarger's? 5 MR. COLE: Is your -- is I think -- I -- I -- I 6 think if -- if Christian Legal Services, 7 Catholic Legal Services, sorry, Your Honor, has 8 offered a service to the public generally, 9 let's say it was wills, and a -- and a 10 same-sex -- someone who died, the survivor of a 11 same-sex couple -- 12 CHIEF JUSTICE ROBERTS: I just -- 13 you're -- you're changing the hypothetical just 14 a little -- 15 16 MR. COLE: Well, I think it's the same. 17 CHIEF JUSTICE ROBERTS: 18 services they offered was pro bono legal 19 services -- 20 MR. COLE: 21 CHIEF JUSTICE ROBERTS: 22 -- I -- the Yeah. -- to people, whether it's wills or -- 23 MR. COLE: 24 CHIEF JUSTICE ROBERTS: -- contracts or 25 Yeah. landlord/tenant or anything at all. Heritage Reporting Corporation Official - Subject to Final Review 91 1 MR. COLE: Right. So I -- I don't 2 think they have -- they obviously don't have to 3 argue for a position that they disagree with. 4 But what they -- if they provide wills or they 5 provide landlord/tenant to a -- a straight 6 couple, then they have to provide that to a gay 7 couple. 8 9 And -CHIEF JUSTICE ROBERTS: So they would -- if someone had a problem in connection 10 with their marriage, again, whatever it is, 11 contract dispute, something like that, they 12 would have to provide representative services 13 to someone who had a similar problem in 14 connection with a same-sex marriage? 15 MR. COLE: So I'd say two things, Your 16 Honor. 17 if they have provided the same services to 18 couples who are straight. 19 First of all, I -- I think they would, But the Court might say that when what 20 you're regulating is only speech, not 21 expressive conduct -- because, remember, the 22 O'Brien test, the CCMV test, the FAIR versus 23 Rumsfeld test -- 24 25 CHIEF JUSTICE ROBERTS: But this not only speech; it's providing legal services. Heritage Reporting Corporation Official - Subject to Final Review 92 1 MR. COLE: Yeah, but the -- the legal 2 services are speech, Your Honor, I don't know 3 what other than speech I'm engaged in, for 4 example, right now. 5 CHIEF JUSTICE ROBERTS: No, I would 6 say partly expressive conduct. 7 in a representation before the Court, which 8 involves a lot more than simply what you're 9 saying in response to the answers. 10 MR. COLE: You're engaged Well, you know, if -- if 11 you -- if you treat -- if you treat -- Hurley, 12 I think, illustrates that where the state is 13 regulating only expression, no conduct at all, 14 just a banner that's in the parade, the Court 15 takes a different view, but where expressive 16 conduct is involved -- and the reason the Court 17 takes a different view makes sense because, 18 again, the -- the analysis this Court uses with 19 respect -- with respect to expressive conduct 20 is is the state regulating the conduct for some 21 reason other than what it expresses or is it 22 regulating what it expresses? 23 And -- and when you only have 24 expression, when all that's involved is 25 expression, as was the case with the parade in Heritage Reporting Corporation Official - Subject to Final Review 93 1 Hurley, that's different because there's no -- 2 there's no neutral conduct to be regulated. 3 But here what we have is the sale of a good, a 4 cake to a -- to an individual. 5 -- to the extent it's expressive, it's 6 certainly also conduct. 7 That's -- that And Colorado's interest in ensuring 8 the bakeries and tailors and -- and other 9 public accommodations treat all people equally 10 is a content-neutral interest in ensuring that 11 everybody has a right to participate in the 12 economic life of the community and that no 13 one has this -- 14 JUSTICE ALITO: Along the same lines 15 as the Chief Justice's question, would you say 16 that Colorado can compel a religious college 17 that -- whose creed opposes same-sex marriage 18 to provide married student housing for a 19 married same-sex couple or allow a same-sex 20 wedding to be performed in the college chapel? 21 MR. COLE: 22 JUSTICE ALITO: 23 24 25 So I think that -That's not -- those are not free speech -MR. COLE: I think, again, under something like Hosanna-Tabor, they might be Heritage Reporting Corporation Official - Subject to Final Review 94 1 religious-based exceptions for core religious 2 institutions, but a bakery that opens itself to 3 the public is not a church, is not -- you know, 4 it's -- 5 JUSTICE ALITO: Well, this is not a 6 church. It's an educational -- it's a -- it's 7 an independent educational institution with a 8 religious heritage. 9 believe. And that's what they 10 MR. COLE: 11 JUSTICE GORSUCH: 12 So, I think -- I think -So your answer is they would be -- 13 MR. COLE: 14 JUSTICE GORSUCH: -- they would be 15 required to do it? 16 MR. COLE: I -- Well, I think under this 17 Court's doctrine in Employment Division versus 18 Smith, the question would be is it a generally 19 applicable neutral law? 20 generally-applicable neutral law, there would 21 not be a free exercise question at all. 22 And if it's a Right? And so -- and -- and the reason for 23 that, as Justice Scalia said in -- in 24 Employment Division versus Smith is equally 25 applicable here. Heritage Reporting Corporation Official - Subject to Final Review 95 1 Once you open this up, once you say 2 generally applicable regulations of conduct 3 have exceptions when someone raises a religious 4 objection, or in this case have objections 5 where someone raises a speech objection, you're 6 in a world in which every man is a law unto 7 himself. 8 9 And so the only sensible way to approach this is to say if the state is 10 targeting religion, then we're going to be very 11 careful about protecting religion. 12 state is targeting the message, is targeting 13 the content of speech, then we're going to be 14 very careful about protecting. 15 And if the But when the state is regulating 16 conduct neutrally, unrelated to expression, 17 which is what this Court has already said is 18 the case with respect to public accommodations, 19 then we can have a world in which everybody who 20 raises an objection -- otherwise we would live 21 in a society in which businesses across this 22 country could put signs up saying we serve 23 whites only, music lessons for Muslims need not 24 apply, passport photos not for the disabled. 25 CHIEF JUSTICE ROBERTS: Thank you. Heritage Reporting Corporation Official - Subject to Final Review 96 1 Thank you, counsel. 2 MR. COLE: 3 CHIEF JUSTICE ROBERTS: 4 5 Ms. Waggoner, five minutes. REBUTTAL ARGUMENT OF KRISTEN K. WAGGONER, 6 7 Thank you. ON BEHALF OF PETITIONER JUSTICE SOTOMAYOR: Here the seller of 8 the cakes is not Mr. Phillips, it's Masterpiece 9 Corporation. Does it -- in your arguments, who 10 controls the expression here, the corporation 11 or its shareholders? 12 I always thought corporations were 13 separate entities. 14 this corporation, which is just a bakery, 15 doesn't purport to sell just religious items, 16 it's a public place, how do we -- and how do we 17 make this decision with respect to the rights 18 of individuals in a corporation that don't have 19 objections? 20 And how do we impute to So can the chef at the Hilton -- and I 21 don't mean to demean the Hilton or anybody 22 else, I'm using it as an example -- can he say 23 I don't believe in same-sex marriage and I 24 won't create a cake and can he be fired? 25 MS. WAGGONER: Justice Sotomayor, in Heritage Reporting Corporation Official - Subject to Final Review 97 1 the context of your question regarding the 2 Hilton, there may be a religious accommodation 3 that is made to that employee; but in the 4 context of Masterpiece Cakeshop, this -- this 5 Court has found that corporations have free 6 speech rights, as well as closely family-held 7 corporations have free exercise rights. 8 And Mr. Phillips is also the speaker. 9 So they're both speaking when they're creating 10 11 -JUSTICE SOTOMAYOR: But who makes a 12 decision for the corporation? In -- in most 13 situations -- it may be easier in a 14 closely-held corporation, it may be the 15 shareholders. 16 corporate board or it's the shareholders. I don't know if it's the 17 Who -- who decides? 18 MS. WAGGONER: Well, certainly I think 19 it -- again, if it's dealing with an employee, 20 the employee certainly decides what -- what 21 they're willing to express, and -- 22 23 JUSTICE SOTOMAYOR: It can't be the employee -- 24 MS. WAGGONER: -- and -- 25 JUSTICE SOTOMAYOR: -- speaking for Heritage Reporting Corporation Official - Subject to Final Review 98 1 the corporation. 2 agent of the corporation and speak on its 3 behalf, but the employee can't choose it on 4 behalf of the corporation. 5 The employee can be made an MS. WAGGONER: Certainly. But if 6 we're talking about what the corporation will 7 speak, then the shareholders in an -- a small 8 family-held corporation, the shareholders would 9 decide that. 10 11 And that's exactly what's at stake in this case. Mr. Phillips owns Masterpiece 12 Cakeshops. 13 cakes himself by him -- - 14 15 He designs most of the wedding JUSTICE SOTOMAYOR: It's him and his wife, right? 16 MS. WAGGONER: Yes, it is. 17 I have three brief points in rebuttal: 18 First of all, the bias of the 19 Commission is also evidenced in the unequal 20 treatment of the cake designers, the three 21 other cake designers who were on the squarely 22 opposite sides of this issue. 23 If -- if the Court looks at the 24 analysis that was provided by the Colorado 25 court of appeals, line by line they take the Heritage Reporting Corporation Official - Subject to Final Review 99 1 opposite approach to Mr. Phillips that they do 2 to those who are unwilling to criticize 3 same-sex marriage -- 4 JUSTICE GINSBURG: And they say they 5 wouldn't -- they would say no to anyone who 6 came with that request? 7 MS. WAGGONER: No. The Colorado court 8 of appeals said that they could have an 9 offensiveness policy, and they said that those 10 three cake designers were expressing their own 11 message if they had to design that cake. 12 In Mr. Phillips's case, they said it 13 wasn't his message. 14 with the law. 15 It's simply compliance In the other case, they said that the 16 cake designers, because they served Christian 17 customers in other contexts, that that was 18 evidence it was a distinction based on the 19 message, but in Mr. Phillips's case, they ruled 20 the opposite way. 21 Professor Laycock's brief provides a 22 good analysis of that as well. 23 this case. 24 25 It was filed in Second, the Compelled Speech Doctrine and the Free Exercise Clause is anchored in the Heritage Reporting Corporation Official - Subject to Final Review 100 1 concept of dignity and speaker autonomy. 2 in this case dignity cuts both ways. 3 record is clear on that. 4 And The Demeaning Mr. Phillips' honorable and 5 decent religious beliefs about marriage, when 6 he has served everyone and has a history of 7 declining all kinds of cakes unaffiliated with 8 sexual orientation because of the message, he 9 should receive protection here as well. 10 This law protects the lesbian graphic 11 designer who doesn't want to design for the 12 Westboro Baptist Church, as much as it protects 13 Mr. Phillips. 14 Lastly, political, religious, and 15 moral opinions shift. 16 Court's dedication to Compelled Speech Doctrine 17 and to free exercise should not shift. 18 We know that. JUSTICE SOTOMAYOR: And this Counsel, the 19 problem is that America's reaction to mixed 20 marriages and to race didn't change on its own. 21 It changed because we had public accommodation 22 laws that forced people to do things that many 23 claimed were against their expressive rights 24 and against their religious rights. 25 It's not denigrating someone by Heritage Reporting Corporation Official - Subject to Final Review 101 1 saying, as I mentioned earlier, to say: 2 choose to participate in our community in a 3 public way, your choice, you can choose to sell 4 cakes or not. 5 or not, whatever it is you choose to sell, you 6 have to sell it to everyone who knocks on your 7 door, if you open your door to everyone. You can choose to sell cupcakes 8 MS. WAGGONER: 9 CHIEF JUSTICE ROBERTS: 10 11 If you Mr. Chief Justice? You can respond, if you'd like. MS. WAGGONER: Justice Sotomayor, I 12 think that the gravest offense to the First 13 Amendment would be to compel a person who 14 believes that marriage is sacred, to give voice 15 to a different view of marriage and require 16 them to celebrate that marriage. 17 Amendment -- 18 JUSTICE SOTOMAYOR: The First Then don't 19 participate in weddings, or create a cake that 20 is neutral, but you don't have to take and 21 offer goods to the public and choose not to 22 sell to some because of a protected 23 characteristic. 24 anti-discrimination laws require. 25 That's what the public CHIEF JUSTICE ROBERTS: A brief last Heritage Reporting Corporation Official - Subject to Final Review 102 1 word, Ms. Waggoner. 2 MS. WAGGONER: A wedding cake 3 expresses an inherent message that is that the 4 union is a marriage and is to be celebrated, 5 and that message violates Mr. Phillips's 6 religious convictions. 7 Thank you. 8 CHIEF JUSTICE ROBERTS: 9 10 11 counsel. This Court should reverse. Thank you, The case is submitted. 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97:16 44:25 45:1,8,8 47:14,22 51:8,10 Church [5] 45:22 56:9 94:3,6 100: 55:17 56:1 Bob [3] 32:22 87:8,9 53:4 54:19 59:16,21 60:6 61:3,25 12 commissioner's [1] 52:20 boils [1] 27:5 64:18 66:5 67:1 71:5 76:20,24 77: Circuit [2] 40:12 42:2 commissioners [6] 53:12,16,21, bono [5] 47:7,12 48:6 49:21 90:18 11,12,12,24,25 82:17,19 83:19 84: Circuit's [1] 40:8 23 54:8 56:5 both [6] 20:23 31:12 41:25 73:5 97: 10,12,15 85:9 87:19 92:25 95:4, circumstance [1] 69:4 commitment [3] 65:17,18 83:8 9 100:2 18 98:10 99:12,15,19,23 100:2 circumstances [2] 15:25 26:3 common [1] 69:25 box [2] 16:14,15 102:9,10 cities [1] 28:11 communicated [2] 14:17 19:13 boycott [1] 27:3 cases [14] 12:4 19:24 29:15 39:23 citizenry [1] 46:7 communicating [4] 12:25 14:16 breathing [1] 26:5 44:8 48:20 55:24 56:2,9 70:1 77: civic [1] 30:9 19:17,22 BREYER [25] 17:25 18:9 19:9,15 11 78:9 79:5 85:23 CIVIL [6] 1:6 4:5 18:23 57:4 66:13 communicative [1] 17:19 43:8,23 56:23 57:2,21 58:3,6 63: categories [1] 86:19 70:1 communion [2] 34:6 42:13 14 64:1,3,6 74:17 75:8 78:8,12 79: category [5] 27:6,8 32:3,21 43:12 civility [1] 30:18 community [7] 27:25 30:9,10 58: 10,11,13,22 88:9,16 Cathedral [1] 45:24 claim [7] 5:3 9:23,24 28:22 43:6 13 63:6 93:12 101:2 brief [4] 67:1 98:17 99:21 101:25 Catholic [5] 33:2 47:6,13 49:20 90: 46:23 89:3 comparable [1] 15:12 briefs [4] 6:20 28:9,9 29:18 7 claimed [2] 20:21 100:23 compel [9] 25:5,23 26:21 30:6,7 bring [1] 30:8 caused [1] 44:2 claims [1] 21:15 41:3 70:12 93:16 101:13 broad [1] 7:15 CCMV [2] 80:1 91:22 clarify [1] 10:10 compelled [18] 5:6,7,8,16 7:17 9: Broadcasting [1] 80:2 celebrate [9] 4:17 23:25 35:15,22 clash [1] 78:20 9,12 10:2 11:7 20:4,14 21:4 22:15 broadly [2] 34:13 83:18 68:10,16 84:18,21 101:16 class [5] 64:16 69:15 73:13 85:21 59:12 69:19 81:7 99:24 100:16 brought [3] 7:7 10:22 16:14 celebrated [1] 102:4 86:15 compelling [9] 9:18 20:19 21:19 building [2] 17:13 19:19 celebrating [3] 65:5,18 72:23 classes [1] 85:3 23:4 30:20 70:9 73:20 83:6 89:23 buildings [2] 17:18 19:4 celebration [6] 5:1 17:6 26:1 34:7, Clause [4] 25:1 26:4 51:7 99:25 competing [1] 29:15 bunch [2] 42:2 82:6 8,19 clauses [1] 20:24 complaint [3] 6:16 53:13 54:10 burning [2] 87:21 89:10 centerpiece [1] 17:5 clear [4] 32:21 52:2 84:5 100:3 complaints [1] 58:24 business [2] 25:23 80:20 CEOs [1] 72:25 clearly [4] 23:18 36:3 49:3,3 completed [1] 6:4 businesses [2] 74:9 95:21 ceremonies [1] 34:4 client [6] 13:7 22:4 23:21 24:9 51: complex [1] 77:12 buy [1] 37:24 ceremony [6] 7:3 9:19 10:24 42: 23 55:9 compliance [1] 99:13 17 78:2 83:7 client's [1] 15:18 comply [1] 45:4 C certain [4] 30:10 31:22 56:19 85: clients [1] 74:13 comprehensive [2] 69:14,17 cake [102] 4:23,25 5:8,24 6:5,9 7:1, 21 close [1] 28:13 compromise [1] 57:13 2,6,10,11,16,21,24 8:3,22,23,24 9: certainly [12] 7:11 9:8 11:23 16:6 closely [1] 97:6 compromising [1] 55:20 1,2,17 10:5,11 13:20 15:8,13,16, 65:23 70:11 82:18 83:18 93:6 97: closely-held [1] 97:14 compulsion [4] 9:4,5,16 10:2 23 17:6 18:3,4 23:22 28:14,22 38: 18,20 98:5 clothes [1] 14:5 concede [1] 24:8 14,17,19,21,23,25 39:1,4 40:5,19, cetera [4] 30:2 57:25 74:23 79:9 COLE [54] 2:11 3:14 72:13,14,16 concept [4] 61:19 74:3 86:21 100: 23 42:25 43:3,7 45:18 46:24 59:8, challenging [1] 10:11 74:4 75:7,14 76:5,9,13,22,23 77: 1 12,22 60:1,9 61:5,9,14 62:3 63:23 change [4] 30:6 55:3 69:5 100:20 20,23 79:10,13,24 80:16,24 81:2,9, concern [1] 44:1 65:4 66:16 67:25 68:1,3,6,10,13, changed [3] 67:15 72:6 100:21 12 82:16,23 83:1,12,17 84:4,9,24 concerned [1] 8:21 14 69:7 72:22 74:15 75:19,20 76: changes [1] 60:20 85:13,24 86:5,12 87:1,4,7 88:15, concerning [1] 25:2 2,6,7,11,19 77:3,6,12,12,19 79:8,8, changing [1] 90:13 18 90:5,15,20,23 91:1,15 92:1,10 concerns [1] 70:16 15,17,18 80:15,18 84:17 86:10 93: chaos [1] 44:2 93:21,24 94:10,13,16 96:2 conduct [25] 30:10 70:25 71:1 80: 4 96:24 98:20,21 99:10,11,16 101: chapel [1] 93:20 collapse [1] 77:17 4,6,11,15,16,18,22 88:3,4,8 89:7,9 19 102:2 characteristic [2] 88:20 101:23 colleagues [1] 36:25 91:21 92:6,13,16,19,20 93:2,6 95: cake-baking [1] 89:14 characteristics [1] 49:17 college [2] 93:16,20 2,16 cake-maker [1] 26:9 characterize [2] 41:11 85:20 colloquy [1] 79:14 confining [1] 44:3 cakes [26] 4:17 6:22,24 7:14 8:9 characterizing [2] 85:15,16 COLORADO [31] 1:6 2:9 4:5 5:2 confront [1] 36:23 10:17,17 13:17 16:6 23:9 27:16, charges [1] 6:17 24:13 46:17,22 47:18 50:2,25 57: confused [1] 44:22 19,20 40:15 42:13,16 45:3 59:2 chef [14] 13:24 14:1,8,12 15:10,13 19 62:10,24 63:21 64:21 65:6,17, Congress [1] 43:18 61:14 67:12 76:16 81:19 96:8 98: 33:17 34:19,20 35:10 36:19 37:13 20 66:18 69:13 70:21 71:24 73:14 connected [1] 20:7 CAKESHOP [5] 1:3 4:5 46:20 47: 38:15 96:20 CHIEF [60] 4:3,10 9:15 14:20 25: Heritage Reporting Corporation Sheet 2 better - connected 105 Official - Subject to Final Review connection [10] 25:25 48:2,11,11, 14,16 49:23 50:19 91:9,14 consequences [1] 72:20 Consider [1] 26:7 considered [1] 16:7 considers [1] 89:14 consistent [1] 71:1 constitutionally [1] 73:12 contained [1] 20:5 content [1] 95:13 content-neutral [5] 88:7 89:8,12, 16 93:10 contention [1] 24:8 context [20] 5:7 6:1 7:18 12:4,9 16: 8 17:17 20:14 21:4 22:7 25:7 42: 16 54:23,23 68:4 73:17 89:4,17 97:1,4 contexts [1] 99:17 continue [1] 57:3 contract [2] 48:13 91:11 contracts [1] 90:24 contrary [1] 86:25 contrast [1] 6:7 contribute [4] 31:12 41:4 44:10 46:1 controls [1] 96:10 convey [1] 7:23 conveyed [1] 22:16 convictions [4] 4:14,19 72:19 102: 6 convincing [1] 33:7 core [4] 46:6 87:23 88:1 94:1 corporate [2] 72:23 97:16 Corporation [11] 96:9,10,14,18 97: 12,14 98:1,2,4,6,8 corporations [3] 96:12 97:5,7 correct [4] 71:22 72:1,4,8 couldn't [2] 31:4 69:5 counsel [8] 24:7 28:7 47:2 67:20 72:12 96:1 100:18 102:9 counseled [1] 51:23 Counselor [2] 59:15 62:12 count [1] 13:13 country [3] 43:15 45:2 95:22 counts [1] 34:5 couple [28] 6:21 7:5,6 8:22 10:15 23:23 28:8,15 29:21 34:17,18 38: 17,18 39:13,21 46:25 48:1 53:14 60:1 61:8,18 68:8 69:5,6 90:11 91: 6,7 93:19 couples [6] 6:14,25 33:3 34:21 35: 14 91:18 couples' [1] 11:5 course [5] 13:24 26:15 44:1 45:13 78:16 COURT [56] 1:1,15 4:11 8:14 9:6 10:3 11:6,16 12:14,16,23 14:9,14, 18 19:10,22 20:1,13 21:3,19 23:4 24:13,20 25:4,20 26:15,16 32:21 36:14 39:11,22 46:16 55:23 72:17 73:20 74:5 78:3,3 80:3 82:18 87:8, 14,24 89:3,18 91:19 92:7,14,16,18 95:17 97:5 98:23,25 99:7 102:7 Court's [3] 10:1 94:17 100:16 courts [1] 54:23 Courts' [1] 44:8 covered [1] 49:3 Craig [5] 28:4 66:7 76:1,4,15 create [16] 11:15 15:23 16:22 17: 21 55:11 66:22 74:3 77:8 96:17 97:12 decisions [2] 8:16 20:2 declining [1] 100:7 dedication [1] 100:16 14 23:20 39:7 41:3 44:9 59:8,12 deep [1] 83:7 61:14 67:7,8 78:4 96:24 101:19 deeply [6] 25:2 26:2 44:11 46:3 61: created [6] 6:6 9:2,11 37:13 38:1 5 78:2 66:19 deliberative [1] 55:4 creates [4] 18:2,4 24:24 37:22 delivering [1] 9:24 creating [5] 12:11 16:9,20 17:3 97: demean [1] 96:21 9 Demeaning [1] 100:4 creation [2] 16:19 69:16 demonstrated [1] 70:21 creations [1] 23:11 denied [2] 29:23,25 creative [2] 12:13 82:11 denigrating [1] 100:25 creativity [2] 12:22 37:14 Denver [1] 2:9 credit [1] 65:21 Department [1] 2:5 creed [3] 58:25 85:12 93:17 depend [4] 12:3,4 14:20 83:18 critical [1] 37:19 depended [1] 61:3 criticize [1] 99:2 desert [1] 15:2 cross [13] 26:22 27:6,11,22 36:8 deserve [1] 63:9 38:10 41:2 44:14,16 84:17,18,21 design [8] 17:10,13,21 19:3 46:25 86:11 77:4 99:11 100:11 crosses [2] 38:23 39:5 designer [1] 100:11 culminated [1] 63:2 designers [5] 25:6 98:20,21 99:10, cupcake [1] 16:16 16 cupcakes [4] 6:12 16:14,15 101:4 designing [1] 17:3 curiae [3] 2:6 3:8 25:17 designs [4] 7:8 11:19 26:10 98:12 current [1] 83:9 despicable [1] 51:13 custom [6] 7:6 10:17 78:16,16 81: despise [1] 85:11 24,24 destruction [1] 89:13 custom-designed [1] 11:14 determine [1] 14:14 custom-made [5] 7:21 8:9 10:11 determines [1] 11:16 27:19 67:12 develop [1] 79:19 customer [18] 47:23 49:17 50:17 devises [1] 37:23 54:11 59:24 60:19 61:4 62:1,2,4 died [1] 90:10 68:1,3,25 69:3 76:17 80:8 81:14 difference [5] 61:23 64:20,25 76: 84:22 16 81:13 customers [6] 20:11 50:13 60:2 different [24] 6:8,9 7:18 9:7 15:25 64:16 77:1 99:17 22:6,19,25 32:2 34:1 42:3 43:10, customization [1] 6:23 16 45:15 47:6,10 79:16,17 81:16 cut [3] 38:10 77:16,19 85:9 92:15,17 93:1 101:15 cuts [1] 100:2 differently [7] 6:21 38:16 82:19,21, 22,25 83:9 D difficult [1] 36:4 D.C [3] 1:11 2:5,11 dignity [6] 28:2,4,5,8 100:1,2 dah [3] 43:21,21,21 dinner [1] 11:22 date [1] 50:17 disability [2] 23:9 85:4 dating [1] 87:14 disabled [2] 23:10 95:24 Dave [1] 76:15 disagree [8] 31:14 45:16 46:5 56: DAVID [3] 2:11 3:14 72:14 11,14 60:8 85:16 91:3 day [1] 68:12 disagreement [1] 74:7 deal [3] 35:25 63:3 83:24 disagrees [2] 8:13 81:8 dealing [3] 33:1 36:2 97:19 disapprove [3] 51:16,21,25 debate [1] 63:3 disapproved [1] 51:19 debated [1] 55:15 disavow [3] 51:15,20,24 decade [2] 46:17 58:8 disavowed [2] 51:18 58:19 December [1] 1:12 discretion [1] 24:21 decent [2] 73:22 100:5 discriminate [4] 43:20 71:15 85:2 decide [8] 13:24 24:22 42:20,25 86:18 56:17 60:17 77:24 98:9 discriminated [5] 19:2 32:24 43: decided [3] 63:5,8 67:1 15,17 58:12 decides [2] 97:17,20 discriminating [1] 87:10 decision [11] 6:17 24:13 40:8 52:4, discrimination [23] 20:11 21:1,16 24:11,25 32:9 46:19 51:13 52:17 60:23 62:9 63:11 69:8 73:9,10 77: 7 84:25 85:25 86:2 87:15,16 88: 19 89:19 discriminatory [4] 58:22 69:23 70:14,25 discuss [1] 7:9 discussion [1] 70:15 disfavored [1] 64:16 dishes [2] 37:13,23 dispute [2] 48:13 91:11 disputed [1] 87:20 disqualified [1] 55:1 disrespected [1] 29:17 distinction [3] 18:22 73:9 99:18 distinguish [1] 85:23 disturbing [2] 58:17 66:25 division [6] 44:20 54:11 83:3,13 94:17,24 divorce [1] 48:9 doctor [1] 29:25 doctrine [12] 5:6,16 9:9 10:2 11:7 22:15 43:11 78:4 79:19 94:17 99: 24 100:16 doing [6] 13:7 19:18 63:7 80:10 86: 12 87:3 done [3] 43:25 73:14 80:4 door [2] 101:7,7 doors [1] 78:21 doubt [1] 72:18 down [3] 6:24 27:5 63:18 draft [3] 87:21 89:10,12 draw [10] 9:6 10:3 13:23 33:16 39: 11,21,24 73:8 78:3,4 drawing [1] 9:3 drawn [1] 26:11 dreams [1] 37:10 driving [1] 58:1 E each [2] 65:18 78:9 earlier [4] 10:4 38:1 51:8 101:1 easier [1] 97:13 easy [1] 33:9 eaten [4] 14:25 15:4,21 16:16 economic [1] 93:12 edible [1] 16:20 educational [2] 94:6,7 effect [4] 41:11,24 83:6 88:5 effort [1] 57:19 efforts [1] 82:11 either [5] 30:15 49:21 66:14 77:10 85:19 elaborate [1] 81:23 element [2] 78:17,24 elite [1] 37:1 else's [1] 7:23 employee [6] 97:3,19,20,23 98:1,3 employees [1] 71:12 Employment [4] 83:3,13 94:17,24 end [1] 15:3 ended [1] 7:9 enforcing [1] 69:9 engage [4] 25:24 30:13 31:12 83:6 Heritage Reporting Corporation Sheet 3 connection - engage 106 Official - Subject to Final Review engaged 87:12 expression [18] 7:12 8:16 11:15 92:3,6 12:8 15:19,22 20:23 22:17 78:17 engaging [1] 52:9 82:11 87:23 88:6 89:22 92:13,24, engineered [1] 56:18 25 95:16 96:10 enough [1] 52:9 expressive [30] 9:23 15:21 16:4,5, ensure [1] 64:15 24 25:25 31:13 35:8 41:4,21 44: ensuring [4] 45:12 70:24 93:7,10 10,18 46:2 79:20 80:4,5,6,7,15 87: entire [1] 53:7 22,25 88:3 89:10,14 91:21 92:6, entirely [1] 61:3 15,19 93:5 100:23 entities [1] 96:13 extend [1] 73:15 entitled [5] 5:3 16:24 17:10,11 84: extended [1] 46:17 3 extent [1] 93:5 entity [2] 48:23 50:13 extra [1] 38:5 envisioning [1] 45:20 F equal [4] 73:15,17 88:21,23 [1] 18:12 fabulous equality [1] 74:1 face [1] 52:10 equally [2] 93:9 94:24 faced [1] 87:8 equivalent [1] 75:6 facile [1] 87:6 essential [1] 62:13 fact [8] 10:15 40:18 54:17 60:8 71: [2] essentially 31:3 40:5 10 88:5 89:9,13 Essow [1] 19:18 [1] 42:3 factor [6] ET 1:3,7 30:1 57:25 74:22 79:9 factors [2] 42:1,3 even [7] 23:3 26:21 73:13 83:3,4 facts [4] 50:9 59:21 67:3,7 87:16 89:24 [3] 24:23 80:1 91:22 fair [1] even-handed 68:23 faith [9] 46:20 52:17 56:19 58:12 evening [1] 18:14 63:1,6 65:21 68:7 71:15 event [8] 10:23 25:25 31:13 35:9 [3] 47:6,10 49:5 faiths 41:4 44:10,18 46:2 [1] 32:20 fall events [4] 34:5 62:7 64:22 65:5 falls [1] 45:18 everybody [9] 18:10 19:1 29:13 [10] 52:11,12 69:22 71:7,8, 33:22 36:2 80:21 86:18 93:11 95: family 11,19 72:22 81:16,17 19 [2] 97:6 98:8 family-held everyone [7] 30:14 39:25 40:1 78: far [3] 8:21 9:14 28:11 22 100:6 101:6,7 farther [1] 79:7 everything [3] 32:20 36:15,20 [1] 52:13 father [2] evidence 53:7 99:18 favorable [1] 67:3 evidenced [1] 98:19 feature [1] 66:25 exact [4] 38:23 39:1 68:2 85:18 feel [2] 13:6 45:5 [4] exactly 13:6 40:4 68:14 98:9 [1] example [16] 7:15 15:24 27:9 34: feels 35:11 [1] 72:25 female 24,25 35:2,5 36:7 37:25 44:12 45: [1] 43:14 fields 21 57:6,7 58:24 92:4 96:22 fight [1] 46:18 examples [1] 26:25 fighting [1] 54:1 except [3] 40:6 47:12 50:17 filed [5] 53:14 54:10,11 58:24 99: [6] exception 5:4 52:6 63:7 78:7 22 84:3,9 [1] 29:18 filled [9] exceptions 57:6,9,25 63:8,9, filmmakers [1] 25:5 11 89:6 94:1 95:3 final [1] 23:19 exclude [2] 8:8 26:12 find [4] 15:19 21:19 23:4 57:16 [1] Excuse 53:17 fine [2] 57:24 79:22 exemption [2] 89:11,15 [1] exercise [9] 9:24 20:24 25:1,1 51: finish 45:16 [1] 96:24 fired 7 94:21 97:7 99:25 100:17 First [23] 4:12 13:15 16:24 17:11 existed [1] 56:9 19:10 35:5 36:1,23 39:23 42:13, explain [1] 16:3 19,25 46:7 50:18 62:10 69:9 71:2 [1] explored 67:20 89:11,15 91:16 98:18 101:12,16 express [8] 4:13 5:12,13 8:17 10: [1] 38:18 first-year 18 74:6 82:5 97:21 fit [1] 66:20 expressed [4] 5:15 56:6,8 59:2 fits [1] 79:2 expresses [10] 16:10 17:7 20:9 [3] 36:16 59:13 60:10 80:12 92:21,22 five 38:5 65:9 96:4 flip [1] 31:3 102:3 floral [2] 11:10,10 expressing [4] 6:8 35:10 65:17 florist [5] 14:1,2 26:8 33:18 73:2 99:10 [8] 14:8,9,11,12,15 florists [1] 28:16 folder [1] 7:8 follows [1] 56:15 food [4] 14:24,24 16:19 19:3 footnote [2] 24:12,20 for-profit [1] 49:7 force [12] 10:4 27:10 31:4,10,11 22 41:7,13,17,20,25 42:18,23 43:4, 22 44:6 45:7 46:9,10 74:25 82:4 generally [10] 17:17,23 18:8 52:6 83:4 85:1 89:6 90:8 94:18 95:2 generally-applicable [1] 94:20 gentleman [2] 15:10 61:11 genuine [3] 50:14 57:10 68:23 39:6,7 44:13,19 45:21,25 46:3 GINSBURG [33] 4:21 7:19 8:7 10: forced [2] 11:15 100:22 6,8,19,21 11:4,8,18,21 26:6 31:17, forcing [2] 4:13 44:17 21 32:5,10,14,18 42:8 56:22 57: Forget [1] 43:11 20 65:20 71:18,23 72:1,2,5 75:24 form [2] 67:25 68:2 76:8,10 86:5,8 99:4 formal [1] 6:16 Ginsburg's [1] 5:25 forms [1] 13:3 give [6] 34:11 49:13 65:21 89:11, forth [1] 79:3 15 101:14 forums [1] 43:10 given [4] 14:23 21:23 50:10 70:13 found [3] 11:6 70:25 97:5 gladly [1] 74:16 four-year-old [2] 75:21,23 God [5] 23:10 76:3,11,15 82:6 framework [2] 19:25 20:1 goods [4] 29:10 78:16,16 101:21 FRANCISCO [59] 2:4 3:6 25:15,16, GORSUCH [29] 24:6 39:9,14,17 19 26:14 27:4,17,22 28:1,18 29:3, 40:2,18 41:5,9,16,19,23 54:20 55: 6,20 30:3,11,21,25 31:9 32:4,6,12, 12,16,25 56:4,11,14 63:13 69:11 17,19 33:19 34:14,22 35:4,8,12,17, 70:2,6 84:14 85:8,14 86:7,9 94:11, 20,23 36:13,22 37:4,18 38:2,7,22 14 39:2,12,16,20 40:4,22 41:7,13,17, Gorsuch's [1] 88:10 20,25 42:18,23 43:4,22 44:6 45:7 got [3] 38:9 40:10 42:25 46:10 75:16 gotten [1] 26:8 FREDERICK [3] 2:8 3:11 46:13 governed [2] 78:5,6 free [19] 7:10 9:24 20:23,24 21:14 government [4] 4:13 39:19 44:24 24:25 25:1 26:4,17 41:2 51:7 62: 45:5 13 74:6 93:23 94:21 97:5,7 99:25 government's [3] 44:24 45:12 69: 100:17 16 free-exercise [3] 21:15 23:24 69: grant [1] 58:11 20 graphic [2] 25:6 100:10 free-expression [1] 23:23 grave [1] 66:19 free-speech [3] 12:4 19:24 38:9 gravest [1] 101:12 freedom [1] 51:12 great [12] 13:8,21 34:18,18,20 36: freezer [1] 40:24 19 37:13 38:25 40:20,25 78:19 84: friend [1] 63:18 19 friends [4] 26:19 29:1 35:25 38:6 grounds [1] 52:21 frivolous [1] 89:3 group [6] 25:22 30:23 70:8 73:25 full [3] 25:12 65:21 74:2 88:11,12 fully [1] 55:15 groups [1] 43:16 functionable [1] 17:19 guess [3] 13:22 22:1 36:11 fundamentally [2] 31:14 46:5 H funeral [1] 34:5 [1] 12:6 Hair [1] funerals 73:3 hairdo [2] 12:11 15:6 furniture [1] 19:3 hairstylist [3] 13:13 14:2 26:13 further [3] 25:8 51:17 72:9 hand [1] 17:3 [1] future 77:25 hand-paint [1] 4:17 G happening [1] 24:16 gay [21] 6:25 27:3,16,19,25 29:21 happens [2] 38:8 54:3 33:24 45:3,21 60:1 65:16 73:3,4, happy [6] 5:9 68:6 75:19,22 81:15, 12,18 74:11,13,14 77:1 86:23 91: 17 6 harm [1] 57:12 harming [1] 57:23 GEN [3] 2:4 3:6 25:16 gender [4] 30:16 32:5,15 33:25 harmony [1] 44:17 General [67] 2:4,8 25:15,19 26:14 hate [1] 44:19 27:4,17,22 28:1,12,18 29:3,6,20 hauls [1] 84:2 hear [3] 4:3 58:9 75:11 30:3,11,21,25 31:9,19 32:4,6,12, 17,19 33:13,19 34:14,22 35:4,8,12, hearing [1] 63:6 17,20,23 36:10,13,22,25 37:4,18 heightened [2] 29:8 33:8 38:2,7,22 39:2,9,12,16,18,20 40:4, held [1] 52:5 Heritage Reporting Corporation Sheet 4 engaged - held 107 Official - Subject to Final Review help [1] 77:19 heritage [1] 94:8 Hess [1] 51:12 heterosexual [2] 47:25 61:18 high [1] 40:14 highly [1] 40:15 highly-sculpted [2] 39:4 79:17 highway [1] 29:22 Hilton [3] 96:20,21 97:2 himself [4] 5:12,14 95:7 98:13 hired [1] 74:24 Hispanic [1] 18:25 history [5] 50:13 63:2 67:18 68:12 100:6 home [3] 30:8 73:1 75:20 homes [1] 19:3 Honor [51] 14:7 21:3 26:14 27:4, 17 28:1 29:6 30:25 31:10 32:4,6 34:22 36:22 37:5,19 38:22 40:22 44:6 45:7 49:9 50:4,23 52:2,24 53: 6,23 55:7,22 60:17 61:3 62:18,23 63:24 64:23 65:2,15,24 66:21 67: 11 68:18,21 70:18 76:17 79:25 80: 17 82:17,23 85:25 90:7 91:16 92: 2 honorable [2] 73:22 100:4 Hosanna-Tabor [1] 93:25 hostility [2] 52:22 53:4 hotels [2] 83:25 84:1 housing [3] 33:3 57:6 93:18 humanitarian [1] 84:19 humiliated [1] 29:17 Hurley [10] 8:15 10:22,22 11:6 19: 25 31:3,4 33:11 92:11 93:1 hypo [1] 77:21 hypothetical [8] 5:25 34:12 36:12, 14 54:1 83:25 90:2,13 I idea 82:5 identical [1] 86:10 identity [20] 24:18 60:19,22 61:4 [2] 55:5 67:14 68:25 69:2 71:16 76:17 81: 14 85:10,25 86:2,4,13,14,21 87:3, 6 89:20 identity-based [3] 77:7 84:24 87: 15 illegal [2] 64:3 65:16 illustrates [3] 34:24 79:18 92:12 images [1] 8:5 imagining [1] 84:3 immediately [1] 73:24 impacting [1] 55:19 impart [1] 18:15 import [1] 18:15 importance [1] 13:8 important [5] 5:15 18:14 25:21 40: 17 78:20 imposed [1] 71:3 impression [1] 57:18 improperly [3] 54:2,6,8 impute [1] 96:13 incidental [1] 88:5 include [3] 7:14 8:17 31:5 included [1] 27:1 includes [3] 8:5 30:13 58:25 including [8] 5:10 16:10 18:24,25 19:1 25:24 69:22 78:22 judgment [3] 52:23 53:5 67:2 knocks [1] 101:6 Justice [315] 2:5 4:3,10,20,21 5:11, Kristallnacht [1] 68:17 18,20,24 6:11,18 7:4,19 8:7,19 9: KRISTEN [5] 2:2 3:3,17 4:8 96:5 13,15 10:6,7,8,19,20,21 11:4,8,17, Ku [1] 86:14 incorrect [1] 67:10 indeed [1] 74:5 independent [1] 94:7 individual [5] 19:21 20:4 58:25 78: 18,21 12:2,6,10,15,18 13:2,4,16, 19 14:10,20,22 16:12 17:8,9,20,25 18:9 19:8,15 20:8,16,20 21:5,7,9, 11,12,21 22:1,2,8,12,18,21 23:7,8, 2 93:4 14,21 24:6 25:11,14,19 26:6,7,24 individuals [5] 20:2 25:22 73:19 27:13,14,21,24 28:7,19 29:4,12,21 74:6 96:18 30:4,12,22 31:7,17,19,21 32:5,10, influenced [1] 55:6 14,18 33:13,21 34:15 35:1,7,10,13, inherent [1] 102:3 19,21 36:9,18,25 37:6,7,9,21 38:2, initial [2] 38:10 48:19 3,4,13,25 39:9,14,17 40:2,18 41:5, inquiry [3] 19:23 20:7 23:5 8,9,16,19,23 42:7,8,9,21 43:2,8,23 instance [1] 79:6 44:21,23 46:8,11,12,16 47:1,2,4,5, instances [1] 24:4 20,21,24 48:10,18,25 49:2,15,19 instead [1] 22:4 50:2,5,9,16 51:2,3,6,20,24 52:14, institution [1] 94:7 18 53:2,11,15,17,19,20,24 54:3,7, institutions [1] 94:2 18,20,22 55:12,16,25 56:4,11,14, instruct [1] 71:23 21,22,23 57:2,20,21 58:3,6,14,16, intended [3] 6:4,14 9:3 19 59:14,15,17,18,20 60:3,7,14,21, intent [1] 53:8 25 61:6,11,21,22,24 62:12,19 63: interest [8] 21:19 23:5 30:20 80:9 13,14 64:1,3,6,19,24 65:3,7,9,12, 89:19,21 93:7,10 20,25 66:3,24 67:18 68:9,20 69: interests [7] 28:2,4,5 29:9 33:10 11 70:2,6 71:4,11,18,23,25 72:2,5, 45:12 89:23 11,16 73:16 74:4,17 75:8,24 76:8, interfaith [1] 62:6 10,21,23 77:10,14,21 78:8,12 79: interracial [5] 22:4 32:24 62:5 87: 10,11,13,22 80:14,23 81:1,4,10,21 13,13 82:21,24 83:10,14,23,24 84:7,14 interreligious [1] 22:9 85:6,8,14 86:5,7,8,9,20 87:2,5,7 introduced [1] 51:6 88:9,9,16 90:1,12,17,21,24 91:8, invitation [2] 11:19,21 24 92:5 93:14,22 94:5,11,14,23 invitations [1] 26:10 95:25 96:3,7,25 97:11,22,25 98: invites [1] 80:21 14 99:4 100:18 101:8,9,11,18,25 inviting [1] 49:1 102:8 involve [3] 27:1 84:10,16 Justice's [1] 93:15 involved [12] 6:16 12:24 31:2 35:6 justify [1] 51:13 44:8 67:23 77:25 86:1,2 89:25 92: K 16,24 [44] 10:7,20 11:17 12:2,6, KAGAN involvement [1] 9:25 10,15,18 13:2,4,16,19 14:10 17:8 involves [2] 13:21 92:8 21:7,11,21 22:1,8,12,18,21 23:7 irony [1] 31:22 31:19 33:13,21 34:15 35:1,7,10, IRS [1] 32:22 13,19,21 36:9,18 37:7 38:13,25 [9] isn't 19:15 29:12,13 33:24,25, 41:8 42:9,21 43:2 76:21,24 25 69:19 70:2 81:11 [1] 26:7 Kagan's [1] isolated 28:10 [32] 5:11,20 8:19 26:24 issue [5] 25:21 36:23 55:15,18 98: KENNEDY 27:14,21,24 44:23 47:1,4 51:2,6, 22 20,24 52:14,18 53:2 54:4 58:19 [2] item 4:22 41:17 62:12,19 71:4,11 77:10,14,21 82: items [1] 96:15 21,24 86:20 87:2,5,7 itself [2] 80:20 94:2 Kennedy's [1] 53:20 J key [1] 42:1 Jackson [1] 40:2 kicks [1] 24:12 Jaycees [2] 89:23,24 kind [16] 6:25 12:9 14:25 18:22 23: jeweler [2] 12:2,5 25 33:14 36:4 43:13 46:25 56:8 Jewish [2] 52:17 68:7 57:13 61:20 63:22 78:9 84:11 85: job [1] 57:17 22 join [1] 31:11 kinds [6] 7:8 18:16 19:23 25:6 57: joint [1] 64:7 25 100:7 Jones [3] 32:22 87:8,9 KKK [5] 84:21 85:14,17 88:10,13 Judeo-Christian [1] 59:1 Klan [4] 26:23 27:11 44:14 86:14 judge [2] 54:25 55:5 Klux [1] 86:14 L landlord/tenant [2] 90:25 91:5 language [1] 70:14 last [1] 101:25 Lastly [1] 100:14 latter [1] 61:25 Laughter [8] 12:20 21:25 35:3 37: 3 40:21 65:13 77:13 78:11 Laurentian [1] 18:2 law [36] 5:2 18:23 24:12 30:5 36:1 45:11 47:19 49:4,6 50:3 52:7,10 56:25 57:23 58:7 60:24 62:10 63: 22 64:11,14 69:9 71:5,24 72:3 75: 17 79:3 83:4,9 85:1,1 86:17 94:19, 20 95:6 99:14 100:10 laws [9] 20:10 21:14 43:19 55:19 57:4,5 74:22 100:22 101:24 lawyer [1] 48:15 lawyers [1] 47:16 Laycock's [1] 99:21 LB [1] 86:16 leads [1] 72:20 learn [1] 81:22 least [3] 8:21 43:19 52:19 leave [2] 8:20 79:6 Lee [1] 56:3 left [1] 29:22 Legal [17] 47:7,7,13 48:6 49:5,20, 22 50:19 63:20,21 64:1 90:3,6,7, 18 91:25 92:1 legislate [1] 30:18 legislating [1] 30:20 legislative [2] 57:17 63:2 legislature [1] 63:5 lend [1] 82:10 lesbian [5] 73:13,18 74:11,13 100: 10 lesser [1] 64:16 lessons [1] 95:23 level [2] 43:1,5 LGBT [3] 29:16 46:17 58:13 license [1] 66:9 life [2] 19:3 93:12 light [2] 21:22 67:3 likes [1] 84:15 limited [2] 33:2 49:7 line [24] 9:3,7 10:4 13:23 18:10 26: 11 33:15,16 36:5,7 38:10 39:6,10, 11,21,24 41:14 45:17,19 67:20 74: 20 78:5 98:25,25 lines [2] 56:6 93:14 list [1] 67:6 literally [3] 48:22 58:8 63:3 little [5] 6:19 21:23 33:6 84:15 90: 14 live [4] 17:14 29:14 82:7 95:20 lives [2] 72:23 82:8 long [2] 15:3 88:7 longer [1] 40:24 Heritage Reporting Corporation Sheet 5 help - longer 108 Official - Subject to Final Review look [8] 13:11 15:2,8 24:17 29:14 22:16 23:2,19 24:4,9,17 31:15 36: 55:20 58:15 86:22 16 44:15,17,19 46:4 59:9 60:20, looking [4] 6:21 12:23 24:2 79:4 25 61:1,2 62:7 67:15 69:1 75:25 looks [3] 42:2,2 98:23 76:1,6,10 77:5 82:12 85:17 88:21, lot [6] 13:10 39:14,23 57:16 63:16 23 89:1,1 95:12 99:11,13,19 100: 92:8 8 102:3,5 love [1] 15:1 messages [5] 4:14 10:18 16:10, loved [1] 65:19 11 59:23 lovely [1] 4:24 Mexican [1] 18:12 LTD [1] 1:3 Michelangelo [1] 18:1 Lukumi [1] 56:13 Michelin [1] 37:10 lump [1] 73:24 Mies [1] 18:1 might [15] 13:6 15:1,24 17:12 28: M 14 32:2 55:5 66:5 78:3,4 83:8 84: made [7] 5:12,14 18:13 32:21 58: 13 85:10 91:19 93:25 18 97:3 98:1 military [3] 28:10,15,24 maker [1] 15:13 Mind [1] 15:22 makeup [8] 12:15,19,21 13:6 14:3 minimize [2] 28:3 57:11 26:12 79:16,16 minorities [2] 43:16 78:22 man [2] 8:4 95:6 minority [1] 31:25 many [13] 15:5 26:25 43:14,16,18 minute [1] 43:11 45:14 47:6 53:11,15,20 57:3 70:1 minutes [3] 38:5 65:10 96:4 100:22 misunderstood [1] 86:8 march [1] 75:15 Mitzvah [2] 34:6 42:14 marriage [44] 4:18 5:1 8:4 22:5 24: mixed [2] 20:22 100:19 1 26:1 32:25 35:14,16,22 47:17 Mm-hmm [2] 30:3 43:22 48:3,5,12,14,16 49:23 50:20,22 modification [2] 83:11,15 59:2,8,9,11,13 60:10 61:16 64:20 Mole [1] 18:13 65:22 66:8,11,18 73:21 74:8 86: mom [1] 75:18 24 91:10,14 93:17 96:23 99:3 100: moral [1] 100:15 5 101:14,15,16 102:4 morning [1] 4:4 marriages [4] 27:3 62:6 87:13 most [8] 27:20 28:10 62:14 67:3 100:20 75:1 80:5 97:12 98:12 married [4] 28:25 33:2 93:18,19 mouth [1] 22:22 marry [1] 6:14 Ms [59] 4:7,10 5:5,13 6:1,15 7:4,25 marrying [1] 10:25 8:14,25 9:22 10:14,20 11:3,13,20, Marty [1] 76:12 23 12:3,7,12,16,21 13:3,14,18 14: Massachusetts [2] 65:22 66:11 7,13 16:6 17:1,16,22 18:7 19:8,20 MASTERPIECE [8] 1:3 4:5 36:21 20:13,18 21:2,17 22:6,10,13,20,24 46:20 47:15 96:8 97:4 98:11 23:13,16 24:2,19 25:13 96:3,25 Mastrovincenzo [1] 40:8 97:18,24 98:5,16 99:7 101:8,11 matter [5] 1:14 26:21 50:21 52:5 102:1,2 81:2 much [6] 11:4 16:18 32:20 45:9 57: mean [10] 14:4 17:20 22:21 26:7 18 100:12 36:10 39:1 71:20 74:21,23 96:21 Mullins [4] 28:4 66:7 76:1,4 Meaning [1] 29:14 museum [1] 15:23 meaningful [1] 62:14 music [1] 95:23 means [2] 27:2 67:15 Muslims [1] 95:23 meant [1] 54:15 must [3] 8:10 72:2 86:17 meantime [1] 65:15 mutual [1] 62:14 mechanically [1] 37:24 myself [1] 21:6 medical [2] 29:24,25 N medium [4] 14:17 15:21 16:4 40:7 name [1] 28:15 mediums [1] 14:18 namely [1] 25:22 member [3] 52:19 58:20 68:7 narrow [6] 19:6 26:3,6 27:6,8 57: members [1] 69:22 24 memorializing [1] 73:4 narrowly [2] 29:10 45:11 men [1] 28:24 national [3] 30:16 32:15 45:24 mentioned [4] 10:21 15:6 19:16 nature [1] 31:15 101:1 necessary [1] 77:24 menu [2] 11:22 37:12 need [8] 8:16 9:1 48:1 50:10 52:2 menus [1] 26:11 message [50] 6:8 7:23 8:12,18 9:2, 77:15 84:12 95:23 needed [1] 74:12 18,19 11:16 12:1 17:7 18:4 20:5 needing [1] 47:12 neither [1] 62:16 neutral [4] 93:2 94:19,20 101:20 neutrally [2] 83:5 95:16 never [2] 6:16 20:13 new [2] 78:4,4 Newman [2] 20:17 21:5 Next [1] 84:20 night [2] 16:13 29:23 nobody [1] 87:20 NOEL [3] 2:4 3:6 25:16 non-speech [4] 33:20 41:15 45: 19 67:21 none [1] 44:7 nonsense [1] 82:7 nor [2] 14:8 62:16 nothing [5] 49:6 65:16 70:23 72:5 86:22 notion [1] 74:7 November [1] 68:12 number [1] 28:17 O O'Brien [5] 78:6 79:25 87:20,20 91:22 O'Brien's [3] 87:21 88:6 89:9 Obergefell [3] 73:21 74:3,5 object [2] 57:24 88:21 objected [7] 9:21 22:4,9 72:22 73: 4 88:22 89:2 objecting objection [1] 20:5 [13] 11:25 21:18 22:11, 15 23:1 24:10 48:17 52:16 62:5, 11 95:4,5,20 objections [2] 95:4 96:19 obligation [1] 10:12 obvious [1] 20:7 obviously [4] 18:11,21 73:19 91:2 odd [1] 66:4 offend [1] 70:11 offense [1] 101:12 offensive [2] 24:22 59:5 offensiveness [2] 24:20 99:9 offer [2] 47:21 101:21 offered [4] 10:15,16 90:8,18 offering [1] 49:13 offers [1] 60:12 office [1] 66:8 officiant [1] 11:1 often [1] 36:1 oil [1] 25:5 okay [5] 21:24 38:13 59:6,7 68:12 Ollie [1] 18:18 Ollie's [2] 18:17 37:7 Once [2] 95:1,1 one [44] 8:20 13:25 15:9 16:13,14, 17 17:12 19:15 22:25 28:5,9,13, 13,16 30:23 31:15,16,23 33:16 34: 11,16 35:5 37:24 42:1,3,12 52:19, 25 53:24 54:5,7,25 55:5 58:14,16 61:12 68:1 75:14,22 82:1 85:15, 18 87:18 93:13 one-tenth [1] 37:11 ones [2] 50:10 65:19 only [19] 15:4 16:16 33:3,24 46:1 48:4,5 67:5 76:16,25 81:13,20 86: 3 91:20,25 92:13,23 95:8,23 open [7] 46:21 71:14 74:9 79:6 82: 18 95:1 101:7 opening [1] 78:21 opens [2] 80:20 94:2 opera [2] 45:21,23 operating [4] 48:23 49:11,24 50: 24 opinion [2] 43:24 44:4 opinions [1] 100:15 opponent [1] 79:14 opposed [9] 20:21 26:2 30:23 44: 11 46:3 50:21 59:9 73:25 78:3 opposes [2] 59:11 93:17 opposing [1] 73:23 opposite [3] 98:22 99:1,20 opposite-sex [1] 33:3 opposition [1] 59:1 oral [9] 1:14 3:2,5,10,13 4:8 25:16 46:13 72:14 order [5] 7:13 8:1,2 69:15 70:8 ordered [1] 69:13 ordering [3] 4:16 61:4 70:8 ordinary [1] 10:12 organization [4] 47:3 84:20 86:14 90:3 organizations [1] 49:8 orientation [5] 30:17 43:23 73:10 85:4 100:8 origin [2] 30:16 32:16 other [35] 7:22 8:15 9:25 10:18 13: 1 14:18 16:13 17:25 26:20 27:12 28:6 35:25 47:23 50:17 55:6 57: 14 58:20 59:24 60:2 62:1,4,21,21 63:8 64:15 65:18 68:3 76:6 83:22 92:3,21 93:8 98:21 99:15,17 others [5] 8:10 16:18 41:24 81:13 87:16 otherwise [6] 51:5 60:18 69:3 71: 16 76:19 95:20 out [12] 10:9 28:9 34:23 53:9 54:15, 25 56:5,19 66:5 73:21 84:1 89:6 outlines [1] 75:10 outside [2] 70:8 73:17 outweigh [1] 78:25 over [2] 16:13 45:2 overcome [1] 52:9 overruling [1] 83:16 own [5] 57:7 69:16 82:10 99:10 100:20 owners [1] 25:23 owns [2] 11:10 98:11 P PAGE [1] 3:2 pages [1] 51:10 paint [1] 69:5 painters [1] 25:6 painting [2] 16:8,9 pair [1] 8:10 panel [1] 54:24 parade [8] 10:23,24 31:4,8,11 75: Heritage Reporting Corporation Sheet 6 look - parade 109 Official - Subject to Final Review 16 92:14,25 parenthood [1] 30:1 Park [2] 88:22 89:1 part [9] 8:20 30:9 40:10,10 41:18, 18 52:19 66:17 71:4 picture [1] 69:5 pictured [1] 69:7 pictures [1] 72:25 piece [1] 51:13 Piggie [3] 20:17 88:22 89:1 place [10] 9:7 10:4 17:14 26:9 57: participate [3] 93:11 101:2,19 participates [1] 33:22 23 66:6 73:1 77:17 82:8 96:16 participation [2] 78:1 84:11 placed [1] 6:2 particular [11] 31:5 47:22 48:2 55: places [1] 63:7 8 59:22,23 67:25 70:23 77:8 81:7 plate [1] 36:20 85:3 play [1] 66:5 particularly [2] 32:7 33:9 please [7] 4:11 25:20 35:2 45:3 46: partly [1] 92:6 16,16 72:17 party [2] 68:16 75:21 plus [1] 70:13 pass [1] 28:21 point [9] 7:7 13:15 19:5 24:7 34:24 passed [2] 43:18 58:7 40:17 41:1 59:3 84:12 passport [1] 95:24 pointed [1] 28:9 past [2] 7:17 14:14 points [1] 98:17 pastry [1] 15:9 policies [1] 79:4 pay [1] 40:14 policy [5] 24:21 68:24 78:21,21 99: paying [2] 42:4,5 9 peace [1] 44:17 political [2] 87:23 100:14 Pena-Rodriguez [1] 23:6 Pollock [1] 40:3 people [56] 4:13 10:25 13:16 15:1, poor [1] 47:8 7 16:13,21,22 17:14 18:13 19:16 population [2] 28:12,12 23:10 29:5,16,23 30:7,15 33:15, portrait [1] 52:11 24 34:1 40:14 42:4 43:12,14 46: posit [1] 28:20 18 47:8,9,15 53:9 56:19 57:1,8,14 position [7] 44:25 45:6 62:16 67: proceeding [4] 53:7 54:15 56:18 74:19 proceedings [1] 51:18 process [1] 55:4 produce [1] 78:19 producing [1] 37:25 product [9] 16:20 23:19 46:24 54: 12 60:18 61:25 66:23 75:18 83:20 products [2] 30:14 45:14 professional [1] 25:24 Professor [1] 99:21 prohibit [1] 5:2 prohibiting [1] 89:19 prohibition [1] 89:12 prohibits [1] 4:12 protect [7] 9:7 20:2 28:23 29:5 31: 25 57:1 73:11 protected [22] 8:18 11:24 12:8 13: 1 14:18 17:18,21,24 18:2,3 22:14 26:18 27:7 38:11 40:1 49:16 85:3 86:13,15,19 88:19 101:22 protecting [4] 20:11 21:15 95:11, 14 protection [7] 14:23 16:25 17:12 19:14 21:1 27:9 100:9 protections [3] 46:18 58:11 63:10 protects [3] 46:7 100:10,12 protest [1] 87:22 58:11,12 63:9,16,19 64:9,10 65: 22 81:5,11 91:3 provide [19] 8:2,3,5 47:7,9,23,25 16 71:14 73:4,13,23,25 74:10,25 possibility [1] 64:13 48:3,6,15 61:13 69:13,17 70:9 91: 85:11,20 86:4,23 87:11 90:21 93: possible [2] 62:20 79:19 4,5,6,12 93:18 9 100:22 possibly [2] 9:22 69:20 provided [5] 8:1 12:1 49:5 91:17 perfect [2] 23:10 36:20 potentially [1] 9:23 98:24 perform [2] 45:22,24 practice [2] 58:21 63:1 provides [5] 20:1 26:4 40:9 73:17 performed [1] 93:20 pre-designed [1] 6:22 99:21 perhaps [3] 11:1 51:9 88:11 pre-made [1] 5:8 providing [5] 23:22 29:9 49:21,22 permissible [1] 81:19 precedent [1] 9:8 91:25 permitted [3] 30:19 64:21 65:5 Precisely [4] 17:16 29:7 72:1,4 public [29] 6:3,13 20:10 21:13 30: person [22] 11:9,11,19 12:1 13:12 predominant [3] 15:20 41:10,11 5 31:24 46:21 57:4 60:12,13 71: 15:7,16 20:6 21:18 23:1,18 24:11 predominantly [4] 40:13,13 41:21, 13 74:10 78:21,23 80:20 82:14 85: 26:10 54:2,5,16 74:24 81:8 82:9 21 1 86:16 89:16,20 90:8 93:9 94:3 84:20 88:24 101:13 preparer [1] 78:12 95:18 96:16 100:21 101:3,21,23 person's [4] 24:18 46:19 57:7 70: preparing [1] 79:7 purchase [2] 4:25 76:18 24 presumably [3] 55:21 69:21 70:9 purchasing [1] 7:9 personal [1] 55:19 pretext [1] 64:15 purport [1] 96:15 perspective [2] 80:7,8 pretty [2] 32:19 78:25 purpose [11] 5:14 6:5,8 14:24 15: Petitioner [3] 51:11 73:5 96:6 prevail [2] 27:14 44:25 4,20 17:13 41:5,10,23 50:12 Petitioner's [1] 67:19 prevails [1] 45:1 put [16] 10:13 14:4 15:23 22:22 27: Petitioners [8] 1:4 2:3,7 3:4,9,18 previous [2] 52:4 55:11 15 32:2,2 49:20 67:24 68:1 73:2 4:9 25:18 previously [1] 88:25 76:5,7,8 77:8 95:22 Petitioners' [2] 7:25 46:23 price [1] 42:3 putting [1] 45:17 Phillips [21] 4:15 5:9 7:13,16 10: prices [1] 40:14 Q 15 16:8 22:14 24:2,24 39:4 59:25 primarily [3] 49:4,5 57:17 [1] 40:16 qualities 60:4,7 67:4 69:13 89:13 96:8 97:8 primary [2] 14:24 17:13 [43] 5:21 10:8 11:25 12: 98:11 99:1 100:13 principle [7] 43:25 44:2 45:17 55: question 24 14:23 19:6 21:10 22:3 26:7,15, [3] Phillips' 62:17 100:4 102:5 23 57:12 82:25 83:1 20 31:22 34:23 37:19 41:3 43:10 Phillips's [4] 11:4 72:19 99:12,19 prior [1] 9:4 photograph [1] 52:12 private [5] 2:12 3:15 30:6 31:7 72: 48:19,22 49:10 50:8 51:7 53:20 58:10 59:19 60:15 61:7 62:3 63:4 photographer [2] 27:1 28:17 15 64:17 68:22 69:12 71:18 76:22 83: photography [1] 72:24 pro [5] 47:7,12 48:6 49:21 90:18 21 85:7 86:1 87:8 88:10,14 93:15 [1] [2] photos 95:24 probably 28:21 37:18 phrase [1] 55:9 problem [11] 26:19,24 45:25 53:10 94:18,21 97:1 questioning [1] 67:19 physical [1] 78:1 54:21 57:21 69:9 88:6 91:9,13 questions [4] 18:21 25:8 48:21 72: [1] pick 34:16 100:19 10 quick [1] 69:11 quickly [1] 21:22 quite [3] 13:4 62:20 78:18 R race [26] 20:12,14 21:1,15 22:19, 24 23:5 30:15 31:22 32:2,7,15,20 33:25 43:20 46:19 58:12 63:12 73: 7,9 74:1 85:4 87:10,14 89:24 100: 20 races [1] 20:22 racial [2] 32:8 73:19 rainbow [3] 61:8,13,14 rainbow-layered [2] 7:10,11 rainbowness [1] 61:19 rainy [1] 29:23 raises [4] 25:21 95:3,5,20 rather [1] 23:2 reach [2] 33:1 83:21 reaction [1] 100:19 read [3] 21:5 58:19 63:1 really [8] 18:5 22:23 24:18 36:10 37:14 42:10 45:19 78:24 reason [8] 18:20 55:1 56:23 57:3 88:7 92:16,21 94:22 reasons [2] 16:17 22:25 REBUTTAL [4] 3:16 25:12 96:5 98:17 receive [2] 54:12 100:9 received [2] 7:10 45:2 receives [1] 64:16 recipe [1] 37:15 recognize [2] 66:11 73:6 recognized [2] 8:15 55:24 record [3] 56:8 58:17 100:3 Red [4] 84:17,18,21 86:11 referred [1] 54:12 referring [2] 52:3 55:10 refusal [1] 7:2 refuse [14] 5:19,23 6:12 24:10 43: 7 46:24 59:8 67:14 69:3 72:21,24 77:8 86:10 87:12 refused [3] 20:23 77:2,5 Refusing [2] 47:21 80:22 regarding [2] 48:9 97:1 regardless [2] 49:14 68:3 regards [1] 39:25 regular [1] 64:7 regularly [1] 6:13 regulate [3] 51:1 88:4 89:7 regulated [4] 26:18 71:1 80:17 93: 2 regulates [1] 80:19 regulating [9] 80:10,11,21 88:8 91:20 92:13,20,22 95:15 regulation [1] 89:16 regulations [1] 95:2 relations [1] 74:1 relatively [1] 27:8 relegate [1] 73:12 religion [14] 28:13 30:16 31:25 32: 18 42:11 43:21 51:12 52:22 53:4 63:12 70:11 85:4 95:10,11 Heritage Reporting Corporation Sheet 7 parade - religion 110 Official - Subject to Final Review religions [4] 23:11,17 32:1 34:1 religious [34] 4:14,18 17:6 20:21 room [1] 57:7 roughly [1] 74:20 27:12 28:13 42:16 48:17 49:4 50: routinely [1] 19:22 21 53:9 54:15 57:1,11 62:17 71:6 rudeness [1] 30:19 78:2 82:10 83:7,8 85:21 88:11,12 rule [2] 20:25 39:18 90:3 93:16 94:1,8 95:3 96:15 97:2 ruled [1] 99:19 100:5,14,24 102:6 rules [1] 89:7 religious-based [1] 94:1 Rumsfeld [2] 80:1 91:23 religiously [1] 89:2 running [1] 71:13 remedy [2] 69:12,25 Ruth [1] 76:11 remember [1] 91:21 S render [1] 6:9 [1] 101:14 sacred rent [1] 84:1 sale [2] 80:19 93:3 repeatedly [1] 36:15 sales [1] 89:17 reply [1] 34:25 same [45] 15:5 22:3,3,8 26:9 28:22, representation [2] 47:8 92:7 representative [1] 91:12 request [3] 77:4,5 99:6 requested [2] 7:6 59:2 requests [2] 9:10 45:2 require [3] 49:12 101:15,24 required [5] 9:17 59:25 65:21 70: 19 94:15 requirement [3] 7:20 69:25 71:3 requires [6] 4:15 7:13 8:2 71:24 75:17 85:2 requiring [1] 44:9 reserve [1] 25:9 reserver [1] 25:9 resolving [1] 48:21 resources [1] 28:17 respect [8] 73:7 74:1 75:12 79:15 92:19,19 95:18 96:17 respectful [1] 62:17 Respectfully [1] 21:2 respond [2] 31:1 101:10 responded [1] 7:5 Respondent [3] 2:10 3:12 46:14 Respondents [6] 1:8 2:12 3:15 25:3 47:12 72:15 response [1] 92:9 restaurant [4] 18:12 34:18 37:12 88:25 restaurants [2] 18:16 37:1 result [5] 6:10 33:1 55:3 77:2 83: 13 results [1] 73:6 retail [7] 46:20 48:24 49:11,25 50: 25 64:5 89:17 reveals [2] 53:1 56:8 reverse [1] 102:7 rhetoric [1] 51:14 RIGHTS [14] 1:6 4:6 18:23 23:23, 24 57:4 62:25 69:21 70:1 96:17 97:6,7 100:23,24 rises [2] 42:25 43:5 ROBERTS [48] 4:3 9:15 14:20 25: 11,14 38:4 46:8,12 47:2,5,24 48: 10,25 49:2,15,19 50:2,5,9,16 54: 18,22 59:17 64:19,24 65:3,9,12 72:11 73:16 74:4 83:10,14 89:22, 24 90:1,12,17,21,24 91:8,24 92:5 95:25 96:3 101:9,25 102:8 Romer [1] 58:9 24 29:13 32:20 33:1,10 35:15 37: 4 38:6,14,17,23 39:1,3 43:6,9 46: 18 49:13,25 55:23 58:11 61:17 63: 10,11 67:22 68:1,2,14,20 73:25 76:19 78:18 81:6,12 84:21 88:12 90:3,16 91:17 93:14 same-sex [38] 6:13 23:22 30:1 34: 17,20 35:13,14,16,22 38:17 46:25 47:17 48:5,16 49:23 50:19,22 59: 1,7,9,11,13 60:10 61:12,15 63:9 64:20 66:18 73:21 74:8 90:10,11 91:14 93:17,19,19 96:23 99:3 sandwich [1] 16:21 sat [1] 6:23 satisfies [1] 78:15 satisfy [1] 29:8 saying [17] 6:20 20:25 22:18,20 23: 22 39:3 42:24 43:19 73:3 75:11 81:15,17 84:10 85:16 92:9 95:22 101:1 says [19] 34:20 38:18 42:12,14 48: 1,15 49:7 51:12 61:12 66:16,17 68:15,15 75:19 82:2,10 86:18,22, 23 Scalia [1] 94:23 school [3] 32:23 33:2 87:11 Scottsdale [1] 2:2 scrutiny [4] 29:9 33:8 45:9 80:13 sculpt [6] 4:16 26:22 27:11 36:8 43:7 44:14 sculpted [1] 40:15 sculpting [1] 17:2 sculptor [5] 26:22 27:10 36:7 39:8 44:13 sculpture [2] 17:4 40:6 Second [13] 19:25 23:3 33:23 34:2 40:7,12 42:1 55:17,25 73:13 75:4 84:22 99:24 see [9] 4:24 15:8,22 26:11 49:6 57: 2 58:1,1 78:15 seeking [2] 76:18 88:4 seem [2] 6:20 34:10 seems [5] 24:7,8 33:14 62:15 79:4 sees [1] 8:22 segregated [2] 88:24,25 selectivity [1] 50:15 sell [43] 5:9,19,23 6:12,23 8:24 9:1, 17 10:5,12,16 30:14 46:24 60:1,2, 9,17,18 61:16,17 62:1,2,4,8 66:23 67:16 68:6 71:17 72:21 74:15,16 75:17 77:2,6 84:22 86:10 88:17 96:15 101:3,4,5,6,22 seller [1] 96:7 selling [4] 30:13,23,23 71:16 sells [2] 6:12 68:13 send [4] 44:16,19 46:4 62:7 sends [1] 88:22 sense [5] 48:8,24 49:11 54:14 92: 17 sensible [1] 95:8 sent [2] 88:23,25 separate [2] 74:23 96:13 serious [1] 13:4 seriously [1] 62:25 serve [7] 23:9 63:17,19,20 64:9 88: 24 95:22 served [2] 99:16 100:6 serves [4] 17:4 64:9 84:17 89:23 service [9] 26:23 27:11 28:12 44: 14 47:22 49:13 64:17 67:14 90:8 services [25] 27:6 29:10 47:7,13 48:2,7,9,15 49:14,20,22,22 50:19 73:17 81:21 82:2 90:3,6,7,18,19 91:12,17,25 92:2 serving [3] 16:19 20:22 37:21 sessions [1] 70:20 setting [2] 6:3 8:3 seven [2] 53:22 56:5 sex [3] 28:24 46:19 63:12 sexual [5] 30:17 43:23 73:10 85:3 100:8 shareholders [5] 96:11 97:15,16 98:7,8 shelf [1] 4:22 shift [2] 100:15,17 shop [3] 4:24 11:10 66:15 shopper [1] 7:22 shops [2] 62:21,22 show [5] 15:6,17,25 18:14 45:10 shows [1] 15:16 side [13] 13:25 14:1 26:20 28:6 29: 22 31:3 35:25 36:6 42:4,5 44:4 45: 19 57:15 sides [2] 58:10 98:22 sign [2] 27:15 73:2 significant [2] 52:19 53:3 signs [1] 95:22 similar [5] 14:17 22:10,12,13 91: 13 similarly [1] 87:17 simply [3] 30:15 92:8 99:13 sincere [4] 52:16 57:10,14,25 sincerely [3] 58:9 81:15 89:2 sincerity [1] 72:18 singer [2] 45:21,23 single [3] 53:8 54:15 56:18 sitting [1] 40:23 situation [3] 29:7 45:20 52:10 situations [4] 19:23 28:20 29:19 97:13 sketch [1] 4:16 sketching [1] 17:2 skill [2] 13:10,21 skin [1] 69:6 slightly [1] 86:21 small [4] 25:22 28:17 34:11 98:7 smashed [1] 16:15 Smith [11] 63:18,20 64:8,8 78:5 83: 2,13,15,16 94:18,24 society [3] 29:14 62:13 95:21 sold [1] 59:24 Solicitor [2] 2:4,8 somebody [14] 7:23 13:11 37:23 41:3 42:9,11 44:9 46:1 48:13 60: 17 68:13 80:24 82:1 83:6 someone [17] 9:10 17:2 18:1 47: 11 49:13 50:18 55:18 59:21 68:9 81:6 84:18 90:10 91:9,13 95:3,5 100:25 sometimes [1] 28:7 somewhat [1] 81:22 son's [1] 75:21 soon [1] 66:5 sorry [7] 5:18 6:11 15:12 21:7,22 61:6 90:7 sort [1] 70:7 SOTOMAYOR [53] 4:20 5:18 6:11, 18 7:4 9:13 14:22 16:12 20:8,16, 20 21:5,9,12 23:8,14,21 27:13 28: 7,19 29:4,12,21 30:4,12,22 31:7 42:7 44:21 53:11,15,18,19,24 54: 7 56:21 59:15 60:14 61:6,11,22, 24 83:24 84:7 96:7,25 97:11,22, 25 98:14 100:18 101:11,18 Sotomayor's [1] 22:2 sounds [1] 83:15 sources [1] 45:15 space [1] 26:5 speaker [5] 31:5,10,12 97:8 100:1 speaking [4] 11:11 17:23 97:9,25 speaks [2] 11:2,3 special [8] 15:2 18:18 38:19 42:12, 13 43:2,3 78:13 specially [1] 18:13 specially-shaped [2] 79:7,8 specifics [1] 39:15 specify [1] 19:7 speech [98] 5:6,7,8,16,23 6:4,10 8: 18 9:5,8,9,10,11,16 10:2,23,25 11: 5,7,24 12:8,10,23 13:3,15,20 14:8, 9,11,12,15 16:4,5,7 19:11,11 20:6, 9,14,19 21:4,14 22:15 24:22 25:5, 25 26:4,17,19 27:2,7 31:2,12,13 33:19 35:6 36:3,5,5,6,16,19 38:11, 24 39:6 40:1 41:2,4,14 43:1,5 44: 9,10 45:18 46:2,4 51:10 52:9 67: 20 69:19 71:4 74:7 78:23 79:6,20 80:15 81:3,3 91:20,25 92:2,3 93: 23 95:5,13 97:6 99:24 100:16 speeches [1] 81:25 squarely [1] 98:21 staff [4] 69:14,17,22 84:2 stake [4] 28:3 33:10,10 98:10 stand [3] 42:11 52:23 53:5 standard [2] 33:9 40:9 star [1] 37:11 Heritage Reporting Corporation Sheet 8 religions - star 111 Official - Subject to Final Review started [3] 10:9 31:20 33:17 starting [1] 34:23 State [23] 2:9 3:12 24:8,21 25:23 29:8 30:20 46:14 49:12 62:15 66: 8,11 71:5 73:14 80:10,11 88:2,7 92:12,20 95:9,12,15 state's [3] 73:11 80:9 88:4 statement [9] 51:16,19,21,23,25 52:25 55:10 58:18,18 STATES [8] 1:1,15 2:6 3:7 25:17 48:21 56:3 73:6 status [2] 32:23 73:13 statute [1] 57:13 step [1] 75:4 steps [1] 18:2 still [4] 6:10 16:23 40:23 55:3 stop [2] 20:8 53:25 store [7] 5:10 10:16 48:24 49:11, 25 50:25 64:5 storefront [2] 64:5 73:3 straight [2] 91:5,18 straightforward [1] 79:1 stream [1] 6:2 street [1] 63:19 strict [2] 45:8 80:13 strong [1] 62:5 stronger [1] 45:9 strongly [2] 52:5 81:8 struggle [1] 39:22 student [2] 33:2 93:18 studio [1] 72:24 stylist [1] 12:6 stylized [1] 39:4 subject [1] 46:21 submit [1] 45:15 submits [1] 45:6 submitted [2] 102:9,11 submitting [1] 25:4 substitute [1] 88:10 sufficient [1] 78:24 suggest [4] 6:20 34:10 73:8 79:9 suggesting [1] 75:15 suggests [1] 39:19 suit [1] 14:5 summary [1] 67:1 superficially [1] 24:17 supersedes [1] 71:5 supply [3] 6:24 7:2,21 support [2] 47:17 79:5 supporting [3] 2:6 3:8 25:18 supports [1] 59:7 suppose [7] 8:7,22 52:18 53:2,3 77:10 86:21 supposed [1] 31:25 suppression [1] 89:21 SUPREME [2] 1:1,15 surprised [2] 6:19 81:22 survivor [1] 90:10 suspect [1] 16:17 symbols [4] 7:14 8:17 11:24 16:11 synonymous [1] 40:5 system [2] 55:19,21 T table [1] 18:13 tables [1] 59:10 tailor [3] 14:4,5,7 tailored [2] 29:11 45:11 tailors [1] 93:8 targeting [3] 95:10,12,12 taste [1] 40:15 tastes [2] 40:20,25 tax-exempt [1] 32:23 teach [1] 71:6 temporary [1] 17:4 ten [1] 63:3 terms [4] 10:1 18:8 19:9 20:18 test [8] 14:13 19:9 33:5,8 41:5 91: trying [4] 18:10 57:8 74:18 88:2 Tuesday [1] 1:12 turn [2] 64:4 74:10 turned [1] 59:10 Turner [1] 80:1 turns [1] 54:25 two [14] 22:25 23:9 28:14,16,22 35: violation [5] 4:18 11:6 24:25 47: 18 69:20 virtually [1] 15:20 vision [1] 13:10 voice [1] 101:14 vote [1] 55:2 vow [1] 82:4 6 55:3 56:4,5,5 61:12 65:16 76:16 vows [2] 81:24 82:4 91:15 two-star [1] 37:11 type [2] 16:20 39:3 W WAGGONER [64] 2:2 3:3,17 4:7,8, 10 5:5,13 6:1,15 7:4,25 8:14,25 9: 22 10:14,20 11:3,13,20,23 12:3,7, unacceptable [2] 72:20 73:7 12,16,21 13:3,14,18 14:7,13 16:6 unaffiliated [1] 100:7 17:1,16,22 18:7 19:8,20 20:13,18 22,22,23 uncivilly [1] 29:18 21:2,17 22:6,10,13,20,24 23:13,16 tests [2] 42:19,24 [14] 8:25 9:9 19:10 22:14 Under 24:2,19 25:13 96:3,5,25 97:18,24 [1] That'd 63:22 50:2 60:24 62:10 63:21 74:21 83: 98:5,16 99:7 101:8,11 102:1,2 themselves [2] 16:2 74:9 [1] 58:8 9,13,25 93:24 94:16 wake theory [5] 8:25 21:12,13,17 25:3 [1] 18:23 [1] 4:24 undermine walk [19] There's 9:15,16 12:8 13:10 27: understand [9] 21:11 22:2 38:12, walked [1] 59:21 2 30:10 31:22 34:3 35:5,6 43:12 15 50:12 67:21 69:12 70:18 81:5 wanted [4] 7:9 10:9 59:22 61:8 48:19 49:6 50:14 64:13 83:4 86:1 understanding [2] 70:20,21 wants [4] 50:18 68:14 84:18,20 93:1,2 [2] 67:6,7 [1] 87:22 undisputed War therefore [5] 67:2 70:10 74:14,14 [1] 98:19 [2] 10:12,13 unequal wares 81:18 unfair [1] 75:9 Washington [3] 1:11 2:5,11 they've [2] 15:22 29:17 unfortunately [1] 88:12 way [23] 20:3 24:23 39:23 44:3,4,7 thinking [1] 66:4 [6] 66:13 76:3,11,15 85:22 union 48:20,23 49:25 56:18 57:22,22 58: [3] thinks 19:21 75:22 78:13 102:4 4,4 72:6 73:22 85:15,16 87:18 89: third [1] 34:3 [1] 32:7 unique 8 95:8 99:20 101:3 though [5] 6:7 19:25 33:14 38:8 [7] 1:1,15 2:6 3:7 25:17 [3] 39:21 70:10 100:2 UNITED ways 57:5 [1] 52:15 56:2 73:5 wearing three [6] 33:14 34:9 58:24 98:17, [2] 87:9,9 [42] 7:2,7 10:24 11:2,12, University wedding 20 99:10 unrelated [2] 89:21 95:16 22,22 13:9 15:8,8,16 16:7 17:6 18: three-judge [1] 54:24 [1] 5 27:19 33:23 40:19,23 46:24 60: threshold [5] 26:16 27:7,23 38:24 unsculpted 79:18 [1] 95:6 unto 9 61:20,20 66:16 67:12,25 68:3, 41:2 unwilling [1] 99:2 11 73:18 74:15,25 76:2 77:2,6,16, today [2] 25:4 65:24 up [7] 7:9 10:22 37:21 45:16 73:2 19 81:24,25 82:3,4 93:20 98:12 together [2] 64:8 66:20 95:1,22 102:2 [2] tolerance 62:12,13 upheld [1] 73:20 weddings [9] 27:16,19 34:4 45:3 tolerant [1] 62:16 uphill [1] 33:6 61:15 73:18 81:23 84:1 101:19 tone [1] 69:6 [1] 15:10 [2] 45:22 100:12 upset Westboro [1] tonight 5:1 [1] 63:1 [7] 6:6 14:16 48:13 55:1 urge whatever took [3] 66:6 75:8,9 urgent [1] 45:2 57:11 91:10 101:5 top [1] 40:23 [1] 92:18 [1] 102:10 uses Whereupon [1] town 28:25 [2] 12:22 96:22 [16] 11:25 12:23 14:14 25: using whether traditional [3] 39:25 40:6 58:25 [5] 23 42:20 45:18 54:10 55:1 56:17 training [8] 69:14,18,24 70:3,7,9, utilitarian 40:11,13 41:18,22 42:4 58:10 68:23 79:15,17 81:2,3 90: 19 71:3 22 transaction [1] 80:22 V [1] 81:17 white [1] transform 31:14 vegetable [1] 78:10 whites [2] 81:20 95:23 transforming [1] 44:15 venture [1] 64:7 who's [3] 20:4 42:10 63:18 treat [9] 38:15 82:18,25 83:8 86:17 verse [3] 7:16,18 8:23 who've [1] 56:5 87:16 92:11,11 93:9 versus [12] 4:5 14:2 20:17 56:3 80: whoa [1] 34:10 treated [1] 29:18 1 83:2,13 89:22,24 91:22 94:17, whole [2] 16:19 86:20 treatment [8] 29:24,25 58:22 61: 24 widely [1] 45:14 23 73:15 88:22,23 98:20 Vietnam [1] 87:22 wife [2] 15:11 98:15 tremendous [1] 89:1 view [10] 4:17 13:20 39:5 59:3 60: will [6] 18:22 28:22 52:11 63:20 81: tried [1] 19:6 19 67:2,15 92:15,17 101:15 23 98:6 trigger [2] 10:3 13:15 viewpoint [2] 24:24 58:22 willing [2] 45:23 97:21 triggered [1] 5:6 views [4] 54:16 55:6 57:11 73:23 wills [3] 90:9,22 91:4 true [3] 74:21 75:24,25 vindicated [1] 45:5 window [4] 5:24 8:23 9:17 27:15 truly [1] 61:25 violate [3] 4:14 64:11,14 wish [2] 15:17 62:25 trump [3] 20:9,25 21:14 violates [1] 102:5 wishing [1] 75:22 [1] try 82:7 U Heritage Reporting Corporation Sheet 9 started - wishing 112 Official - Subject to Final Review withdraw [1] 32:22 within [1] 79:2 without [3] 6:23 18:4 57:23 woah [1] 14:11 woman [1] 8:4 woman's [1] 73:1 women [1] 28:24 wonder [1] 70:16 wonderful [5] 12:11 14:5 18:14 37:12 75:1 wondering [1] 13:22 word [2] 67:8 102:1 words [23] 7:14 8:5,17 11:23 15:9, 11 16:11 17:25 22:22 67:23,25 68: 2,2,14,20 76:3 77:8 80:14,18 81:7, 13 82:3 84:16 work [4] 15:24 17:15 36:21 64:8 workable [1] 40:9 works [1] 50:14 world [3] 82:8 95:6,19 worried [1] 57:9 worship [1] 63:7 worth [1] 58:5 write [7] 7:24 8:11,12 43:24 81:7, 24 82:3 writing [1] 82:9 written [2] 15:11 81:12 wrongly [1] 28:21 wrote [1] 83:18 Y YARGER [83] 2:8 3:11 46:12,13, 15 47:20 48:8,18 49:1,9,16,24 50: 4,7,11,23 51:4,17,22 52:1,15,24 53:6,13,17,22 54:5,9 55:7,12,14, 16,22 56:2,7,13,16,25 58:2,6,15 59:14,20 60:5,11,16,23 61:2,10,21, 24 62:18,23 63:13,24 64:2,4,12,23 65:1,7,11,14,23 66:2,21,25 67:10 68:5,18,21 69:24 70:3,4,6,18 71:9, 13,22,25 72:4,7,9 Yarger's [2] 81:5 90:4 yarmulke [1] 52:15 year [1] 18:24 years [4] 24:5 43:18 48:22 63:3 Heritage Reporting Corporation Sheet 10 withdraw - years