Thursday, June 7, 2018

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 CakeshopBrush & 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]

Tuesday, June 5, 2018

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.