In today's decision by the Supreme Court in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission Justice Kennedy said the treatment of the baker was "neither tolerant or respectful". In the opinion on page 2 it says:

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

What exactly did the Commission (or their representatives) say and was it really that bad? I'm looking for sources outside of the opinion, ideally verbatim quotes from the commission or their own (public) records.


See section II B of the opinion. On page 13:

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12.

The analysis of whether it was really that bad follows, ending on page 16. The first paragraph of that analysis describes the reasoning quite well, however:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

The analysis also considers that the Commission's reasoning in this case was inconsistent with its reasoning in "the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission." Those cases concerned bakers refusing orders for "cakes depicting anti-gay marriage symbolism." It then says that the ruling of the Colorado Court of Appeals, which upheld the Commission's ruling as permissible "because of the offensive nature of the requested message," was improper because "it is not, as the [Supreme] Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive."

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    @Segfault I would be interested to know more about that as well. A cursory search online did not turn up the records, but I imagine that user ohwilleke, who practices law in Colorado, and, according to his profile includes same-sex couples among his areas of specialization, will know whether they are available online. Perhaps you should add a note in the question indicating that you're interested in finding out what underlies the paraphrasing. – phoog Jun 4 '18 at 19:14
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    I'm concerned that this reasoning from Kennedy is based on a straw man. A belief need not be insincerely held to be used as a rhetorical device, & to assume so would seem to privilege religion over reason. – Dean Ransevycz Jun 5 '18 at 2:51
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    @DeanRansevycz: That's beside the point. The commissioner compared discriminating against a customer to the holocaust, which was wholly inappropriate. Regardless, Kennedy's emphasis on sentiment over substance means this opinion is basically a dead letter. The commission will retrain itself to use more neutral (boring) language and otherwise behave exactly the same. – Kevin Jun 5 '18 at 7:03
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    @Kevin Except for the last paragraph of phoog's answer. The Supreme Court decision notes that the Commission allowed bakers to refuse to make anti-same sex marriage cakes. Since the commission previously decided that a baker can refuse to bake a cake with a message he/she does not approve, it is religious discrimination to say that someone does not have the right to use religion as a justification for said approval. Note, that even two of the liberal justices joined with this majority opinion. – kingledion Jun 5 '18 at 13:50
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    @DeanRansevycz 1. You can privilege reason over religion if you want, but here in the US, I am free to privilege religion over reason. 2. What you really want to do is privilege YOUR reason over MY religion. By why right should you do that? 3. How can you not see that calling sincerely held faith a rhetorical device is as offensive as any race based slur? – kingledion Jun 5 '18 at 13:51

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