Is It the End of the Line for Charlie Craig & David Mullins’s suit against Jack Phillips?  Masterpiece Cakeshop as Bush v. Gore

“Why leave me standing here?

Let me know the way”

A number of commentators have already noted a similarity between the Supreme Court’s decision yesterday in Masterpiece Cakeshop and its decision in 2000 in Bush v. Gore.  Both opinions self-consciously frame their judgments in narrow terms, raising a question whether they provide much if any guidance for other similar disputes.  In holding that the presidential election recount in Florida deprived voters of equal protection of the laws, the Court’s per curiam (“for the court,” unsigned, with authorship attributed to no specific Justice) opinion in Bush v. Gore stated:  “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  In Masterpiece Cakeshop, the introduction of the Court’s opinion concludes: “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the [Colorado Civil Rights] Commission’s actions here violated the Free Exercise Clause; and its order [directing the bakery not to discriminate against same-sex couples such as Charlie Craig and David Mullins] must be set aside.”  Both these pronouncements have supported concerns that the Court is treating its authoritative declarations of law as being (to borrow Justice Owen Roberts’s words in dissent from Smith v. Allwright (1944)) in “the same class as a restricted railroad ticket, good for this day and train only.”  People could long debate whether those, or other, instances are appropriate judicial minimalism, examples of the Supreme Court not deciding more than it needs to, or if instead they are unhelpful punting, ducking hard constitutional issues on which the nation needs definitive guidance.

But there’s another respect in which the Court’s decision in Masterpiece Cakeshop resembles its ruling in Bush v. Gore.  Both cases not merely vacated but “reversed” the judgments of the courts below.  Bush v. Gore held that the election recount ordered by the Florida Supreme Court violated that state’s voters’ right to equal protection of the law; Masterpiece Cakeshop held that the remedial order entered by Colorado’s Commission violated the baker Jack Phillips’s right to the free exercise of religion.  So, both decisions direct outcomes in the suits at issue.

But, in another point of commonality, it’s not clear these Supreme Court reversals had to/have to end the litigation at issue. In Bush v. Gore, the U.S. Supreme Court thought that after its ruling no recount would be possible consistent with Florida law and the notion that Florida election law contemplated finishing recounts by December 12, a so-called “safe harbor” date regarding slates of electors.  But in addressing that earlier, the Florida Supreme Court was talking about earlier phases of electoral disputes (“protests”), not the kind of electoral “contest” that was at issue in Bush v. Gore.  It should have been open to the Florida Supreme Court on remand to say, ‘the U.S. Supreme court misunderstood our opinion and misinterpreted Florida law, so on this election contest, let’s have a recount now that addresses SCOTUS’s equal protection concerns and gets our electors selected before the (later) time Congress actually will count electoral votes.’  It did not do so, perhaps intimidated by SCOTUS’s per curiam opinion.

In Masterpiece Cakeshop, the Supreme Court was even less forthcoming about the remedy. It reversed the court below, finding a constitutional violation in the Commission’s order where that court had seen none.  It specified that “the order must be set aside” and, more comprehensively later, “the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.” (my emphasis)  But the Supreme Court did not hold that Colorado’s Anti-Discrimination Act (CADA) could not be applied against the baker and the cakeshop; SCOTUS only held that it could not be applied with hostility toward religion.  And SCOTUS did not say that a newly constituted Commission (perhaps with one commissioner whose comments gave some Justices pause recusing; the other Commissioner is already no longer seated) could not revisit the questions whether or not the baker’s conduct violated CADA and, if so, what consequences should follow.  Justice Gorsuch’s concurring opinion, joined by Justice Alito, may have given the impression that they believed that was what must follow; they opined:  “Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.”  But a majority of the Court did not say even that.  And while Justice Thomas, joined by Justice Gorsuch, would have held that the baker’s free expression rights prevent Colorado from enforcing CADA against him even in the absence of anti-religious hostility, again, the Court did not reach that broader constitutional question.  Absent some procedural obstacle in Colorado law, if the Colorado state court and then the Commission have the courage of their convictions, it seems to me that they may address those broader questions – fairly and without hostility to religion – even after complying with the U.S. Supreme Court’s decision in Masterpiece Cakeshop.

Hastings Needn't Pay for Christian Legal Society Discrimination

“We’re different in a good way/Together’s where we belong”

In Christian Legal Society v. Martinez, the U.S. Supreme Court today rejected an effort by CLS to challenge a rule at Hastings College of Law in San Francisco limiting “registered student organization” (RSO) status to groups that allow all students to participate, become members, and seek leadership positions, regardless of the student's status or beliefs.  Because CLS limits participation to students who subscribe to a specified set of religious beliefs (thereby excluding “unrepetant” sexually active lesbigay students), Hastings, a public law school in the University of California system, denied the group RSO status, which comes with certain benefits including financial support.  CLS filed suit, arguing that this “all comers” rule violated their First Amendment rights (applicable to the states because of the Fourteenth Amendment) to free speech and expressive association.  Voting five to four, the Court rejected those arguments today (full opinions here), leaving only a possibility that CLS might try on remand to the lower courts to show that Hastings discriminatorily applied its all-comers policy.

Associate Justice Ruth Bader Ginsburg wrote the majority opinion, which was joined by Associate Justices John Paul Stevens, Anthony Kennedy, Stephen Breyer, and Sonia Sotomayor.  At the outset, the majority limited the constitutional claims they would consider to challenges to the all-comers policy, which is how Hastings interpreted and implemented a rule written in terms as prohibiting specified forms of discrimination.  Because CLS had stipulated that this is how the policy is now interpreted and applied, and that is how the lower courts had analyzed the case, the Supreme Court majority held CLS to that concession.  The dissenting Justices (Associate Justice Samuel Alito joined by Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas), in contrast, tried at some length to call this factual stipulation into question, though they were unable to persuade the majority Justices to look at the other arguments CLS wanted to pursue.

The majority analyzed the RSO program as a kind of “limited public forum,” created by Hastings’s decision to open property (including money) under its control but to limit it “to use by certain groups.”  When the government creates such a limited public forum, its regulations of speech or association must be reasonable in light of the purposes and function of the forum and “all the surrounding circumstances,” and they must not discrminate on the basis of the viewpoint of the speakers, here, students groups admitted to the RSO program.  Hastings program ensured that students were not subjected to mandatory fees that could then go to groups that would exclude them; avoids inquiries into student groups’ motivations to discriminate; brings together diverse students and thus Hastings believed contributes to tolerance and understanding; and it reflected Hastings’s decision not to subsidize discriminatory conduct of sorts disapproved by state antidiscrimination laws.  CLS had other ways to insist on its membership principles and still get its message out and even to meet in school facilities, but “CLS enjoys no constitutional right to state subvention of its selectivity.”  The all-comers policy applied to all student groups regardless of their beliefs and so was viewpoint-neutral, the Court held.  The lower courts would have to determine whether CLS had properly preserved its argument that the all-comers policy was discriminatorily applied to them and, if it was, whether that was in fact the case and if so whether that violated CLS’s rights.

Justice Stevens joined the Court’s opinion but also wrote a separate concurring opinion to address one argument in Justice Alito’s dissent.  Hastings’s written Nondiscrimination Policy prohibits unlawful discrimination on various grounds, including discrimination on the basis of religion.  Alito and his dissenting colleagues asserted that, if Hastings refused to grant CLS an exemption from that policy, that would be “plainly” unconstitutional because applying the ban on religious discrimination to CLS would discriminate against the group on the basis of religion.  Justice Stevens’s concurrence explained why “[t]here are numerous reasons why this counterintuitive theory is unsound. Although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.”  (Justice Kennedy also wrote a short concurring opinion, underscoring how the RSO program operated to bring diverse students together and how that differentiated it from a different public forum program that he had years earlier found to be unconstitutionally restricted in a case called Rosenberger v. Rector and Visitors of the University of Virginia.)

Justice Alito’s dissenting opinion as noted addresses different constitutional claims than just the one considered by the majority.  It views the all-comers policy as a pretext for Hastings to penalize CLS because of disagreement with or disapproval with CLS’s views.  And it complains that “the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups.”

Public Park Not Public Forum for Donated Monuments

Supreme Court rejects free speech challenge to park displaying donated 10 Commandments monument but rejecting Summum 7 Aphorisms monument

The United States Supreme Court has unanimously decided Pleasant Grove City, Utah v. Summum. When Pleasant Grove refused to display in the park a monument with the Seven Aphorisms of the small religion known as Summum, which adherents offered to donate, event though the city park permanently featured eleven other donated displays including a donated Ten Commandments monument, Summum sued. They argued that the city was unconstitutionally restricting their speech because of its content in a public forum, i.e., in the park.

But the Supreme Court has now held that the permanent monument was government speech, and so not subject to free speech challenge. (The question of whether the city was violating the Establishment Clause by displaying the Ten Commandments monument was not in front of the Court.) The Court was unanimous, although Justice Breyer concurred in the 8-Justice majority opinion and Justice Souter concurred only in the judgment, both writing separately to emphasize that the Court should not be too categorical in its conclusion that all permanent monuments are government speech not restricted by the Free Speech Clause of the First Amendment.