In case you missed it in all the coverage of Colorado’s latest attack on religious freedom, Colorado Gov. John Hickenlooper (D) was interviewed by NPR last week, following the Colorado Civil Rights Commission allowing a likely set-up claim of discrimination to move forward again against cake baker Jack Phillips. The Alliance Defending Freedom filed a federal lawsuit to protect Phillips from the continued hostility of the Commission, and Hickenlooper is a named defendant.
Here are the three most disturbing aspects of Gov. Hickenlooper’s interview with NPR (the full audio can be heard here on Colorado Public Radio, with the relevant portion beginning 11 minutes into the program):
1. Hickenlooper can’t guarantee that the Colorado Civil Rights Commission will treat people fairly and without religious hostility — but he continues to support them.
The NPR reporter asked, “Do you think all the people who come before the Civil Rights Commission get a fair shake?”
The governor responded (with nervous laughter), “I don’t have enough information to give you an exact answer to that … but certainly that’s the goal.”
The exact answer is that we have a judicial branch to guarantee fair and impartial arbiters, which is part of constitutionally required due process. The Commission is notoriously biased, and we would hope Gov. Hickenlooper has read the Masterpiece opinion. The U.S. Supreme Court issued that opinion admonishing the Commission’s overt hostility and animus against religious freedom just 24 days before that same Commission defied the Court and issued another finding of probable cause against the same baker for an even more ridiculous charge of discrimination.
The Commission is not part of the state’s judicial branch, but a legislatively created administrative entity under the state’s department of regulatory agencies. Sound bureaucratic enough? Even worse, the governor makes all appointments to the commission unilaterally and the commissioners don’t have to be attorneys or have virtually any other qualifications except that a majority must be from a traditionally discriminated class, which as of 2008 included sexual orientation and transgender status.
But there is also no requirement for diversity of class, thus, the governor could appoint a majority or even all commissioners who openly identify as LGBT and seek a seat on the commission specifically because of that identification. Religion is also a traditionally protected class, so I’d love to see a future governor appoint a majority of commissioners who are specifically Christian and watch how fast the Democrats would try to shut down the Commission then.
This is why traditional judicial forums and fair and impartial arbiters matter to meaningful due process for everyone.
2. Hickenlooper clearly forgets the Constitution protects expression / speech, when asked.
Hickenlooper said, “I believe and I think almost everyone in Colorado believes in freedom of religion and freedom of expression, but just because you don’t agree with someone’s religion, I don’t think means that you should be able to deny them service or deny them goods. That doesn’t seem American. That doesn’t seem Coloradan.”
Since when does the majority have to “believe in” the Constitution to ensure that it’s applied? Just because something “doesn’t seem” American according to a non-attorney, we’re supposed to foreclose constitutional protections for enumerated rights? Is Hickenlooper actually that stupid or is he just hoping we are? Either way, this is totally absurd and embarrassing for someone who occupies the state’s highest office to not know the basics of the First Amendment.
We all know this isn’t about denying anyone goods or services. Jack Phillips serves everyone who comes into his shop, regardless of who they are. If the transgender attorney in this new case had asked for a cake that expressed a message that did not go against Phillips’ religious beliefs, Phillips would have made it. Conversely, if a heterosexual Christian asked for a cake expressing a message supporting same-sex marriage for example, Phillips would not be able to make that cake. It’s about the message, not the person.
3. Hickenlooper doesn’t understand what an artist is, and compares expression to selling bikes; also gives arbitrary answer on swastikas.
He said, “If you’re making someone a cake or you’re making a bicycle, it’s something that you do every day for a broad cross-section of people and it’s open to the public. I don’t think there should be bias involved in who you choose to serve and who you don’t.”
Hickenlooper conveniently forgets that there’s a difference between a cake that’s specifically intended to convey a message celebrating a transgender change (which is exactly what the transgender attorney said he was ordering the cake for) versus a bicycle that expresses no artistic message. If a bike seller was asked to spray paint “I support same-sex marriage” on the side of the bike, we would have an entirely different set of facts.
The reporter followed up, “Should you be forced to make a cake with a swastika on it?”
Hickenlooper responded, “Again, I’m not sure how that is worked out in terms of the courts, I’m not a lawyer, but that is certainly not a religious belief, but it is certainly under many categories a hate message.”
Again, the non-attorney governor may want to read the Masterpiece opinion and take a Constitutional Law 101 course before he comments further or continues to support a constitutionally problematic position.
The Colorado Civil Rights Commission needs to be defunded.
The point is that everyone, regardless of their personal beliefs (whether religious or LGBT or both) has a right to free speech and free exercise of religion that the Commission is unwilling to protect, and also a fundamental right to due process that the Commission is unwilling provide.
So why does Colorado even have a Civil Rights Commission? That’s the question The Daily Wire asked Colorado Rep. Dave Williams (R-15), who is contemplating legislation in the next session that would seek to defund the Commission and protect the constitutional guarantee of due process in the application of Colorado’s anti-discrimination law.
Williams said, “What’s not discussed enough is that aggressive Democrats, along with Gov. Hickenlooper, have weaponized Colorado’s civil rights law against Christians, while simultaneously hijacking the commission by stacking its membership with people belonging to the radical homosexual lobby. Given the recent Supreme Court ruling in favor of Jack Phillips, and the commission’s arrogance in doubling down on their own discriminatory animus toward Christians, the legislature should highly consider doing away with the commission altogether.”
Gov. Hickenlooper is term-limited in Colorado, and any meaningful legislative change to the Commission will depend on which party controls the legislature and governor’s office, so this is a key example why voting in the midterms on the state and local level in every state is absolutely as important as voting on federal offices.
Jenna Ellis (@jennaellisJDFI) is director of public policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.