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]

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.

Full Appeals Court Rules Federal Law Forbids Sexual Orientation Discrimination in Employment

You’re applying for a job/So you’re filling out a form

And for all intents and purposes/You fit into the norm

Until it says to list your next of kin/But there's no box to fit you in

In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit has held that the federal statute barring sex discrimination in employment forbids sexual orientation discrimination.  The 8-3 majority opinion by Chief Judge Diane Woods in significant measure tracks a well-reasoned decision about Title VII of the Civil Rights Act of 1964 adopted in a 2015 ruling by the Equal Employment Opportunity Commission (EEOC). Today’s decision in Hively v. Ivy Tech Community College is likely to be influential as litigants in other cases across the country continue to advocate the same interpretation of Title VII, likely leading the Supreme Court to take the issue up sooner rather than later.

The case arose when lesbian Kimberly Hively was repeatedly rejected for full-time positions and eventually had her part-time teaching contract not renewed by Ivy Tech Community College in Southbend, Indiana.  She sued pro se, arguing in part that Ivy Tech discriminated against her based on her sexual orientation and thus in violation Title VII’s ban on sex discrimination.  Her claim was rejected by the federal trial court, but on appeal she was represented by Lambda Legal.  A three-judge panel of the Seventh Circuit ruled against that argument, holding it foreclosed by older circuit precedent, which is binding on such panels until the Supreme Court or an “en banc” panel of all active Seventh Circuit judges overrules it.

Hively has now overruled such earlier Seventh Circuit precedent and held that, under Title VII, “discrimination on the basis of sexual orientation is a form of sex discrimination.”  The court concluded this as a matter of statutory interpretation, adopting its best view of Title VII without feeling obligated to defer to the EEOC’s interpretation reaching the same conclusion.  The Seventh Circuit court did follow the Supreme Court’s reasoning in a Title VII case about sexual harassment between people of the same sex, Oncale v. Sundowner Offshore Services, Inc.  The lesson it drew from Oncale?  “[T]he fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”

The EEOC’s decision in Baldwin v. Foxx had ruled sexual orientation discrimination a form of sex discrimination in part based on a sex stereotyping theory, the general bounds of which the Supreme Court had embraced in Price Waterhouse v. Hopkins in 1989.  Here, the full Seventh Circuit court concluded that “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”  Hence, although the three-judge panel had “described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin,” the en banc court “conclude[d] that it does not exist at all.”

The Baldwin case also relied on an associational theory:  Courts had regularly held that Title VII, which also prohibits race discrimination in employment, is violated when an employer discriminates against employees or applicants in interracial relationships.  The EEOC said that discriminating against women who associate with women (as opposed to men who associate with women) similarly is sex discrimination, and the en banc court in Hively agreed.  It should be no defense to say an employer would discriminate against lesbians and gay men alike, just as it was no defense of laws against interracial marriage, held unconstitutional in Loving v. Virginia (three years after Title VII was enacted) to say that such marriage restrictions discriminated against white and black people alike if they engaged in interracial relationships.

Judge Richard Posner seemingly joined Chief Judge Wood’s majority opinion (despite misgivings about its use of Oncale and Loving) but wrote separately to emphasize that “statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.”  In his view, such evolutionary interpretation is especially appropriate here because “[n]othing has changed more in the decades since the enactment of the statute than attitudes toward sex.”  (Because he gets the law right, in my view, and shows a humane view of lesbigay people, I’ll cut him his slack for identifying Renée Richards, who transitioned in 1975, as “the first transgender celebrity,” completely overlooking the widespread attention received by Christine Jorgensen, who transitioned in the early 1950s and was covered on talk shows and front pages of newspapers.)

Judge Joel Flaum, joined by Judge Kenneth Ripple, joined most of Judge Woods’s majority opinion but declined to join Part III, which invoked the Supreme Court’s trend of increasing protection of lesbigay persons in its constitutional decisions.  In their view, the statutory interpretation was fairly simple:  “discrimination against an employee on the basis of their homosexuality is necessarily, in part, discrimination based on their sex” because, in light of how sexual orientation is defined in our society, “[o]ne cannot consider a person’s homosexuality without also accounting for their sex.”

Judge Diane Sykes, joined by Senior Judge William Bauer and Judge Michael Kanne, dissented.  They pressed a by now familiar appeal to “democracy” and a view of statutory interpretation that, despite their protestations to the contrary, nonetheless closely tethers laws to presumed expectations of their enactors of how those laws would apply, rather than reasoning logically about what the words say and mean, as Oncale seems to direct. 

Remember, Title VII prohibits discrimination because of sex.  Even were we to think the dissenters right that “[t]o a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation[,]’” that would not make their position right. I’ve advanced parallel arguments elsewhere for why Title VII’s sex discrimination ban forbids anti-transgender discrimination (see pp. 264-265 of my article Acknowledging the Gender in Anti-TransgenderDiscrimination).  Even if “sex” refers to “male” and “female” and we set aside the circumstances of intersex persons, it remains the case, as the Hively en banc majority persuasively argued, that discrimination against someone because she is lesbian is discrimination “because of” sex.

Here, and in rejecting the comparisons the majority appropriately draws, the dissenters seem to think that we should pair up instances of discrimination, so that an employer who discriminates against gay men because of sex (though hiring women similarly attracted to men) and who discriminates against lesbian women because of sex (though hiring men similarly attracted to women) engages in no sex discrimination, rather than two instances of sex discrimination.  This is wrong, as legal scholars including Kenji Yoshino (see p.441 of The Epistemic Contract of Bisexual Erasure) and myself (see Making up Women:Casinos, Cosmetics, and Title VII) have argued in a variety of contexts.

To quote the dissent, “I could go on, but the point has been made.”  The majority opinion offers sound rejoinders to many of the dissenters’ subsidiary contentions.  With luck, other courts will see that and rule the same way.  This would go far toward reducing the discrimination lesbigay people face in many places throughout the country.

Trump and the Promise of LGBTQ Equality

I’ve always got my head in the clouds

Hope that I could find

One of them that’s silver-lined

As I write, it appears that Donald J. Trump will take office as the forty-fifth President of the United States.  Some (many?) people, myself included, deeply feared this and are anxious or worse about the prospect.  So, in an effort to help myself confront this new reality, I offer this brief exploration of one possible way to deal with it.

“As your president, I will do everything in my power to protect LGBTQ citizens,” Trump promised in his nomination acceptance speech to the Republican National Convention in July 2016.  Americans should hold him to that promise.  It doesn’t mean, as Trump seemed to think, we should embrace blatantly unconstitutional anti-Muslim immigration policies.  But it could and should mean a great deal.

(Reuters/Carlo Allegri)

Trump’s promise to protect LGBTQ persons – and, yes, I’m deliberately overlooking his rhetoric extending solicitude to citizens, since the Constitution guarantees equal protection of the laws to persons, not just citizens – means he should support the Equality Act and use the power of the presidency to help it become part of the law of the land.  In 2000 he publicly supported amending the Civil Rights Act of 1964 to ban sexual orientation discrimination (see his interview with The Advocate here); the Equality Act would accomplish much the same, but in a more comprehensive matter that would also protect against anti-transgender discrimination and that leaders on these issues in Congress believe would be most effective.

Trump’s promise to protect LGBTQ persons means he should abandon his intention to nominate Supreme Court Justices who would overrule the Court’s 2015 Obergefell decision, which held that the Constitution forbade government to exclude same-sex couples from legal marriage (aka “civil marriage”) on the same terms and conditions civil marriage is offered to different-sex couples.  The interaction of civil marriage and the U.S. legal order generally may be criticized on various grounds – why should any of us have to count on employment benefits that may or may not be offered in order to secure a basic right such as healthcare for us and our marital partners and children?  But so long as that is how the U.S. system is structured, LGBTQ people and our families will not be protected, and certainly not be protected equally with heterosexually identified persons, if we are denied access to or recognition of our marriages.

Trump’s promise to protect LGBTQ persons also means he should reject efforts to exempt us from the benefits of our state, local, and national antidiscrimination laws.  He should not repeal executive orders that forbid sexual orientation and gender identity discrimination, which would expose us to the harms of the discrimination those orders are designed to prevent.  He should not support the so-called First Amendment Defense Act, which would grant a government sanctioned right to discriminate to people who disapprove of the marriages or other relationships of LGBTQ persons.  Such targeting of us is the opposite of protection.

There is much, much more that Donald Trump would have to do as President to live up to his promise to “do everything in my power” to protect LGBTQ persons.  Let us hope that he does.  And more than that, let us insist that he does.  Let us never let him forget his words.  Some of Trump’s campaign pledges were unjust; some were unconstitutional.  But the pledge to protect LGBTQ persons to his utmost extent is in itself noble, worthy of our constitutional order.  We all need to press our representatives in government to hold Donald Trump to this promise of equality.