Respectfully, You Lose: Masterpiece Cakeshop gets cited in state court

“Oh baby refrain from breaking my heart”

     In what appears to be the first judicial opinion to cite the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an Arizona appeals court has rejected a claim by a hand-painted and hand-lettered stationery business and its Christian owners for a religious exemption from Phoenix’s law forbidding sexual orientation discrimination.  Decided three days after Masterpiece Cakeshop, Brush & Nib Studio v City of Phoenix rejected the Arizona state constitutional and statutory free speech and religion claims brought by the same Christian right advocacy organization – the Alliance Defending Freedom (“ADF”) – that represented the Masterpiece Cakeshop.  This time, however, there was not even colorable hostility toward the plaintiff owners’ religion, and ADF and the plaintiffs lost.

     The plaintiff business and owners had filed a preemptive suit seeking a declaration that it would violate their free speech and religious rights under the Arizona Constitution and the Arizona Free Exercise of Religion Act (“FERA,” parallel to the federal Religious Freedom Restoration Act or “RFRA”) if Phoenix applied its public accommodations nondiscrimination law to require them to custom-make merchandise for any same-sex wedding. The appeals court in Brush & Nib rejected each of their arguments.* It noted that the plaintiffs did not expressly argue that Phoenix’s law would violate the Free Exercise Clause of U.S. Constitution, but the court pointedly observed – citing Justice Kennedy’s majority opinion in Masterpiece Cakeshop – that the obligation under that clause was not to act with anti-religious hostility, which it concluded Phoenix had not done: “There is no evidence in the record to support any suggestion that Phoenix’s adoption of [the city’s public accommodations provision], or its interpretation as it relates to Brush & Nib, has been anything other than neutral toward and respectful of their sincerely-expressed religious beliefs.” (This is unsurprising: This was a suit in advance of any enforcement action due to rejection of a client, unlike the facts in Masterpiece Cakeshop.) The Arizona court went on to agree with Justice Kagan’s Masterpiece concurrence that “‘a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait.’”

     As “background” to its analysis of each of the plaintiffs’ claims, the Brush & Nib court quoted the Masterpiece Cakeshop opinion at length.  In particular, it included Justice Kennedy’s pronouncement that “it is a general rule that [religious and philosophical] objections [to same-sex couples’ marrying] do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law[,]” as well as Kennedy’s supporting citation to Newman v. Piggy Park Enterprises (1968), where the U.S. Supreme Court had rejected a business owner’s claim that the First Amendment exempted him from a law against racial discrimination because of his religious beliefs.  Later, in rejecting the plaintiffs’ free expression claim, the Arizona court insisted that “allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in ‘a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations’” (again quoting Justice Kennedy’s Masterpiece Cakeshop opinion).  And in rejecting the plaintiffs’ free speech argument challenging the part of Phoenix’s public accommodations law specifically banning businesses from advertising or displaying signage indicating their intent to engage in discrimination forbidden by that law, the court quoted and characterized Masterpiece Cakeshop as “disapproving of [a] baker or other businesses posting signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ observing such would ‘impose a serious stigma on gay persons.’”

     The Arizona court took the U.S. Supreme Court at its word, applying the holding of Masterpiece Cakeshop and following its statements about the legitimacy and importance of laws forbidding sexual orientation discrimination.  (And it did so even in a case decided under state law, in part because it relied on federal constitutional law as a guide to some of its state law interpretations.)  May other courts follow its lead.


* The court did hold unconstitutionally vague a portion of the Phoenix law barring signs or communications indicating that a person “would be unwelcome, objectionable, unacceptable, undesirable or not solicited” on one of the forbidden grounds of discrimination, but it upheld the sufficiently powerful ban on ads or communications “stat[ing] or impl[ying] that any facility or service shall be refused or restricted because of” one of the forbidden grounds.

[Edited June 8, 2018 to add footnote]

Virginia Assembly Denied Vote to Gay Judicial Nominee

“It’s  a sorry state, I say to myself”

(photo: Richmond Law magazine, University of Richmond, 2009)

The Washington Post has reported that the Virginia House of Delegates has voted to close its session without voting on the proposed appointment to state District Court of Tracy Thorne-Begland, a prosecutor from Richmond, thus killing his nomination.  The effort was spearheaded by Delegate Bob Marshall, who claims not to have objected to Thorne-Begland’s sexual orientation, which the state’s governor insisted should not be a factor, but because he was a “gay activist.”  Thorne, as he was known at the time, publicly came out as gay while serving in the U.S. Navy and unsuccessfully challenged his discharge pursuant to the military’s “Don’t Ask, Don’t Tell” policy.  

According to the Richmond CBS affiliate, “Marshall said that such gay rights advocacy is okay while serving in an elected capacity, but not as a judge–which calls for one to be impartial.”  Of course, since Marshall had no basis for assuming Thorne-Begland would suffer from role confusion and as a judge act the way an elected policymaker would, he needed some other reason to oppose Thorne-Begland with a straight face (so to speak).

Marshall found that reason in the fact that Thorne-Begland had been married in another state to a man, with whom he was living and raising children.  Virginia has a state constitutional amendment restricting civil marriage to male-female couples, which was enough for Marshall to conclude that “Thorne-Begland’s ‘life is a contradiction to the requirement of submission to the [state] constitution,’” according to the Post.  This overlooks the fact that Virginia cannot control whether other states allow same-sex couples to enter legal marriages, nor may it consistent with the First Amendment prohibit such a couple from holding themselves out as married (regardless of whatever it may be able to do when they are completing state governmental forms, for example).  Thus, there appears to be no legitimate basis for opposing Thorne-Begland beyond bare disagreement with his support for marriage equality, or because he is making a family life as a gay man.  It’s a sorry state when civil rights advocacy – or being gay – can disqualify one for judicial office.

Supreme Court Strikes Down Corporate Campaign Expenditures Limit

"Money makes the world go 'round"

In a special session, the U.S. Supreme Court today in a 5-to-4 First Amendment decision (Citizens United v. Federal Election Commission, official opinions here) invalidated key parts of the Bipartisan Campaign Reform Act of 2002 (BCRA or the McCain-Feingold Act) and overruled a twenty year old precedent about corporations' speech rights. I'll almost certainly have more to say after wading through the 183 pages of opinions, especially Justice Stevens's dissent joined by Justices Ginsburg, Breyer, and Sotomayor. For now, for-profit corporations and reunions are probably already planning the elections on which they plan to spend huge sums to run ads in support of candidates they favor.