New York Law School

Art Leonard Observations

Posts Tagged ‘Justice Neil Gorsuch’

Supreme Court Sets Aside Colorado Commission Ruling in Wedding Cake Case, Condemning Government Hostility to Religion

Posted on: June 4th, 2018 by Art Leonard No Comments

The United States Supreme Court ruled on June 4 that overt hostility to religion had tainted the decision process in the Colorado Civil Rights Commission when it ruled that baker Jack Phillips and his Masterpiece Cakeshop had unlawfully discriminated against Charlie Craig and Dave Mullins in 2012 by refusing to make them a wedding cake.  Writing for the Court, Justice Anthony M. Kennedy reaffirmed the right of the states to ban discrimination because of sexual orientation by businesses that sell goods and services to the public, but insisted that those charged with discrimination are entitled to a respectful consideration of their religious beliefs when charges against them are being adjudicated.  Five other members of the Court – Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Elena Kagan and Neil Gorsuch – joined Kennedy’s opinion.  Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, 2018 U.S. LEXIS 3386, 2018 WL 2465172.

Kennedy found that the particular circumstances of this case fell short of the requirement that government be neutral in matters of religion.  During the oral argument of the case in December, he had signaled this concern, making a troubling observation during the argument by Colorado’s Solicitor General, Frederick Yarger, who was defending the state court’s decision against the baker.  Kennedy said, “Counselor, tolerance is essential in a free society.  And tolerance is most meaningful when it’s mutual.  It seems to me that the State in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”  In his opinion for the Court, Kennedy, noting comments made at the public hearing in this case by two of the state Commissioners, said, “The neutral and respectful consideration to which Phillips was entitled was compromised here, however.  The Civil Rights commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

At the first public hearing, wrote Kennedy, “One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’”  This commissioner also said, “If a businessman want to do business in the state and he’s got an issue with the – the law’s impacting his personal belief system, he needs to look at being able to compromise.”  At the second hearing, a different commissioner spoke disparagingly about how “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”  Kennedy found these remarks to constitute disparagement of religion by commissioners who were supposed to be neutral when acting for the government in deciding a case. He emphasized that the record of the hearings “shows no objection to these comments from other commissioners” and that the state court of appeals ruling affirming the Commission’s decision did not mention these remarks.

Kennedy also noted that as of 2012, Colorado neither allowed nor recognized same-sex marriages, so Phillips could “reasonably believe” that he could refuse to make a cake for such a purpose. The factual record suggests that Phillips cited the state ban on same-sex marriage as a reason for his refusal, in addition to his own religious beliefs.

Kennedy invoked a 1993 decision by the Supreme Court, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, in which the Court held that overtly anti-religious bias by a legislative body that had enacted a ban on ritual slaughter of chickens directly aimed at the practices of a minority religious sect violated the Free Exercise Clause.  Even though the statute, on its face, was neutral with respect to religion, and thus would normally be enforceable against anyone who engaged in the prohibited practice regardless of their religious or other motivation, the Court found that the openly articulated anti-religious sentiments of the legislative proponents had undercut the requirement of government neutrality with respect to religious practices.  The only reason the municipality had passed the ordinance was to forbid ritual slaughter of chickens by members of this particular religious sect.  Thus, it was not a neutral law, since it specifically targeted a particular religion’s practice.  Similarly, in this case, Kennedy said, evidence of hostility to religion by the Commission members tainted the decisional process.

Kennedy observed that when the Court decided in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that same-sex couples have a fundamental right to marry, it had also noted that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  At the time, dissenting Justices Alito and Antonin Scalia had emphasized the inevitable clashes that might occur in future as those with religious objections confronted the reality of same-sex marriages, and Scalia – as was his usual practice in dissents from Kennedy’s opinions in gay rights cases – ridiculed Kennedy’s statements as falling short of dealing with the clashes that were sure to occur.  In this opinion, Kennedy develops the Obergefell dictum about religious objections further, but does not suggest that religious objectors enjoy a broad exemption from complying with public accommodations laws.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, generally joining the Court’s reasoning but disavowing Kennedy’s reliance on evidence from a stunt conceived by William Jack, a religious opponent of same-sex marriage who filed an amicus brief in the case. Upon hearing about the Masterpiece Cakeshop discrimination charge, Mr. Jack had approached three other Colorado bakers, asking them to make a cake decorated with pictures and Biblical quotations derogatory of same-sex marriage and gay people, and all three bakers refused his request because they found the desired product to be offensive.  Jack filed charges of religious discrimination against them, but the Colorado commission rejected his charges, finding that the bakers had a right to refuse to make cakes conveying messages they found offensive.  Jack then argued – persuasively, in the view of Kennedy, Roberts, Alito and Gorsuch – that the Commission’s different treatment of the charges against the other bakers as compared to its treatment of Jack Phillips showed the Commission’s hostility to religious beliefs.  Justice Clarence Thomas, whose separate concurring opinion was joined only by Gorsuch, also found Jack’s arguments persuasive.

Kagan’s concurring opinion argued that the other baker cases were distinguishable. She pointed out that Jack had asked the bakers to make a cake that they would have refused to make for any customer, regardless of their religion or sexual orientation.  By contrast, Phillips refused to make a wedding cake that he would happily have sold to different-sex couples but refused to sell to same-sex couples.  In the former case, there is no discrimination on grounds prohibited by the Colorado statute.  Gorsuch, in his separate concurrence (with which Justice Alito joined), insisted that the three bakers were discriminating against Jack based on his religious beliefs, and insisted on distinguishing between a cake to “celebrate a same-sex marriage” and a generic “wedding cake.”

Interestingly, the Court’s opinion focused on free exercise of religion and evaded ruling on the other main argument advanced by Jack Phillips: that requiring him to bake the cake would be a form of compelled speech prohibited by the First Amendment freedom of speech clause.  The Trump Administration had come into the case in support of Phillips’ appeal, but limited its argument to the free speech contention, which Gorsuch and Thomas also embraced in their concurring opinions.

Justice Ruth Bader Ginsburg dissented in an opinion joined by Justice Sonia Sotomayor.  She minimized the significance of the statements by the two Colorado commissioners.  “Whatever one may think of the statements in historical context,” she wrote, “I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.  The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.  First, the Division had to find probable cause that Phillips violated [the statute].  Second, the [Administrative Law Judge] entertained the parties’ cross-motions for summary judgment.  Third, the Commission heard Phillips’ appeal.  Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo.  What prejudice infected the determinations of the adjudicators in the case before and after the Commission?  The Court does not say.  Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council.”

Ginsburg focused her dissent on a series of statements from Kennedy’s opinion which make clear that the Court’s ruling does not endorse some sort of broad exemption for religious from complying with anti-discrimination laws, including the following:  “It is a general rule that [religious and philosophical] objections 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.”  “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”  “Purveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’”  Gay persons may be spared from “indignities when they seek goods and services in an open market.”  She pointed out that all of these statements “point in the opposite direction” from the Court’s conclusion that Phillips should win his appeal.

The narrowness, and possibly limited precedential weight of the Court’s opinion were well expressed by Kennedy, when he wrote, “the delicate question of when the free exercise of [Phillips’] religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.  That requirement, however, was not met here.  When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”  Taking together the date of the incident (2012), the inconsistency Kennedy saw with the Commission’s treatment of the bakers who turned down Jack’s order for the gay-disparaging cakes, and the comments by the commissioners at the hearing, Kennedy wrote, “it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.”  Justice Kagan agreed that in this case the State’s decision was “infected by religious hostility or bias,” although she (and Breyer) disagreed that the Commission’s treatment of Jack’s complaint against the three bakers supported this conclusion, finding that situation distinguishable.

Gorsuch and Thomas would have gone beyond the Court’s opinion to find a violation of Phillips’ freedom of speech as well.  Kennedy wrote, “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”  But he took this issue no further, instead focusing on the hostility to religion he found reflected in the Colorado commission record.  Thus, the Court’s holding is narrowly focused on the requirement of neutrality toward religion by government actors.  Gorsuch and Thomas, by contrast, found the compelled-speech argument compelling.

The next shoe to drop on the possible significance of this ruling may come quickly.  Also on June 4, the Court listed for conference distribution the petition and responses filed with the Court in State of Washington v. Arlene’s Flowers, Inc., 187 Wash.2d 804, 389 P.3d 543 (Wash., February 16, 2017), petition for certiorari filed, July 21, 2017, for discussion at its June 7 conference, the results of which will probably be announced on June 11.  Arlene’s Flowers refused to provide floral arrangements for a same-sex wedding, and was found by the state civil rights agency and the Washington state courts to be in violation of the public accommodations statute.  Arlene’s petition was filed last summer, but no action was taken by the Court pending a decision of the Masterpiece Cakeshop case.  If the Court denies the petition, that would reinforce the view that the Masterpiece ruling is narrowly focused on the evidence of “hostility to religion” by the Colorado Civil Rights Commission, and that absent similar evidence in the Washington state adjudication record, the Court is willing to leave the Washington Supreme Court ruling against Arlene’s Flowers in place.  However, the Court might grant the petition and remand the case to the Washington Supreme Court for reconsideration in light of Masterpiece.  This could respond to Justice Kennedy’s observation that the Colorado Court of Appeals decision did not even mention the commissioner remarks that aroused Justice Kennedy’s ire at oral argument and that were a significant factor in the Supreme Court’s decision.  A remand to the Washington court could implicitly direct that court to examine the adjudication record for any signs of hostility to religion at any stage in that proceeding.

Interestingly, the Oregon Supreme Court recently heard oral argument in a similar wedding cake case, Klein d/b/a Sweetcakes by Melissa v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Court of Appeals of Oregon, December 28, 2017), appeal pending before the Oregon Supreme Court (argued in May, 2018).  A ruling by the Oregon court could provide the first sign of how lower courts will interpret Masterpiece Cakeshop, depending whether the Oregon adjudication record shows signs of hostility to religion.  Interestingly, this case was instigated not by the same-sex couple who were denied service but rather by the state’s attorney general, reacting to press reports about the denial.

It is occasionally difficult when the Supreme Court issues a ruling in a controversial case to determine exactly what the ruling means for future cases.  Ultimately, the meaning of a case as precedent will depend on the factual context of subsequent cases, and on which statements by the justices are seized upon by lower court judges to support their conclusion about how the later cases should be decided.  Kennedy’s own words suggest that these analyses will necessarily be heavily influenced by the facts of those cases.  As he wrote in conclusion: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

At the oral argument, Phillips and Masterpiece Cakeshop were represented by Kristen K. Waggoner of Alliance Defending Freedom, the Scottsdale, Arizona, based religious advocacy firm whose donors are funding this appeal. Donald Trump’s appointee as Solicitor General, Noel J. Francisco, made his first appearance before the Court in this capacity to argue the Administration’s freedom of speech position.  As noted above, Colorado Solicitor General Frederick R. Yarger appeared in support of the Commission’s ruling, and David D. Cole, an ACLU attorney, argued on behalf of Craig and Mullins.

I did an interview on NYC-based radio station WBAI on Monday, June 11, focused mainly on discussing this case.  Here’s the link:

 

https://archive.org/details/ProfArthurLeonardSeg61118MGH

 

 

 

 

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.