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9th Circuit Rejects Parents & Students Lawsuit Against Trans-Friendly Oregon School District

Posted on: February 18th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity.  Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).

The decision was made by a panel comprised entirely of judges appointed by Democratic presidents.  Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.

The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room.  This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.

In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima.  Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”

The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex.  The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.

The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female.  The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”

In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.

The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima.  “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.”  They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.

Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.

The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.

The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause.   They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.

Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.”  He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”

He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX.  Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation.  The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation.  These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.

The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents.  “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”

The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds.  The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs.  “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement.  The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.

The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students.  Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.

This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year.  However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step.  If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.

Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court.  In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.

The court received nine amicus briefs, none of which supported the plaintiffs’ position!  The American Civil Liberties was permitted to argue on behalf of the rights of transgender students.  All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights.  The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees.  An expanded panel of eleven would necessarily include some of Trump’s appointees.

 

Kennedy Retirement from Supreme Court May Doom LGBT Rights Agenda

Posted on: June 27th, 2018 by Art Leonard No Comments

Justice Anthony M. Kennedy’s announcement on June 27 that he would retire from active service on the U.S. Supreme Court as of July 31, 2018, opening up a vacancy for President Donald J. Trump to fill with the assistance of the bare majority of Republican United States Senators, portends a serious setback for LGBT rights in the years ahead. Kennedy cast a crucial vote and wrote powerfully emotional opinions to establish the dignity of LGBT people under the Constitution’s 5th and 14th Amendments.  Justice Kennedy will be remembered as the author of four major Supreme Court opinions that worked a revolution in United States constitutional law concerning the rights of sexual minorities.

Before his opinion for the Court in Romer v. Evans, 517 U.S. 620, was announced on May 20, 1996, the Court had never ruled in favor of gay litigants in an Equal Protection Case.   In Romer, the Court invalidated a Colorado constitutional amendment, adopted in a voter initiative that banned the state from protecting gay people from discrimination.  Kennedy condemned the measure as an attempt to render gay people as “strangers to the law,” and found it to be an obvious violation of equal protection, leading Justice Scalia to complain in dissent that the Court’s opinion was inconsistent with its ruling a decade earlier that sodomy laws were constitutional.

Before his opinion for the Court in Lawrence v. Texas, 539 U.S. 558, was announced on June 26, 2003, the Court had never used the Due Process Clause to strike down an anti-gay law. In Lawrence, Kennedy wrote for five members of the Court that the Texas Homosexual Conduct Law, by making private consensual adult gay sex a crime, had unconstitutionally abridged the liberty of gay people.  (Justice O’Connor concurred in an opinion focused solely on the equal protection clause.)  This time, Justice Scalia’s dissent denounced the Court’s opinion as opening the path to same-sex marriage.

His opinions in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), established a right to marriage equality for LGBT people in the United States, the most populous nation so far to allow same-sex couples to marry. In Windsor, Kennedy wrote for five members of the Court that the Defense of Marriage Act, a statute requiring the federal government to refuse to recognize same-sex marriages that were valid under state law, violated both the Due Process and Equal Protection requirements of the 5th Amendment, emphasizing the affront to the dignity of gay married couples.  In dissent, of course, Justice Scalia accused the Court of providing a framework for lower courts to strike down state bans on same-sex marriage.  Scalia’s dissent was prophetic, as just two years later the Court ruled in Obergefell that the 14th Amendment’s guarantees of Due Process and Equal Protection required the states to allow same-sex couples to marry and to recognize such marriages for all legal purposes.  In the intervening years, lower courts had cited and quoted from Kennedy’s Windsor opinion (and Scalia’s dissent) in finding bans on same-sex marriage unconstitutional.  Kennedy’s vote with the majority in the per curiam ruling in Pavan v. Smith, 137 S. Ct. 2075 (2017), reinforced Obergefell’s holding that couples in same-sex marriages enjoyed the “full constellation” of rights associated with marriage, as did his vote in V.L. v. E.L., 136 S. Ct. 1017 (2016), affirming that states were obligated to extend full faith and credit to second-parent adoptions granted by the courts of other states.

Justice Kennedy also joined the majority in a concurring opinion in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), rejecting a 1st Amendment challenge to a public university law school’s refusal to extend official recognition to a student group that overtly discriminated against gay students.

When LGBT litigants lost Kennedy’s vote, however, they lost the Court. In his most recent LGBT-related decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172, 2018 U.S. LEXIS 3386 (June 4, 2018), while reiterating his concern for the dignity of gay people to be able to participate without discrimination in the public marketplace, Kennedy could not bring himself to reject the religious free exercise claims of a Christian baker, and so engineered an “off ramp” by embracing a dubious argument that the Colorado Civil Rights Commission was so overtly hostile to the baker’s religious beliefs that he had been deprived of a “neutral forum” to decide his case.  Thus, Kennedy was able to assemble a 7-2 vote to overturn the Colorado Court of Appeals ruling in that case, without directly ruling on whether the baker’s religious objections would override the non-discrimination requirements of Colorado law, leading to oversimplified media headlines suggesting that the baker had a 1st Amendment right to refuse to make the cake.

Kennedy also joined the majority (without writing) in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a 5-4 ruling holding that the Boy Scouts had a 1st Amendment right to deny membership to an out gay Assistant Scoutmaster, based on BSA’s rights of free speech and expressive association. He was part of the unanimous Courts that rejected a constitutional challenge to the Solomon Amendment, a law denying federal money to schools that barred military recruiters (mainly because of the Defense Department’s anti-gay personnel policies), in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), and that, reversing the Massachusetts Supreme Judicial Court, held that a gay Irish-American group could be barred from marching in Boston’s St. Patrick’s Day Parade in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995).  However, in those cases all of the more liberal members of the Court joined in the unanimous opinions, so Kennedy’s vote did not make a difference to the outcome.

While Justice Kennedy’s majority opinions in the major LGBT rights cases were triumphs for LGBT rights, they were not viewed as unalloyed triumphs in the halls of legal academe. Commentators who agreed with the results were frequently harshly critical of Kennedy’s opinions in terms of their articulation of legal reasoning and doctrinal development.  The Romer decision left many scratching their heads, trying to figure out whether the Court had applied some sort of “heightened scrutiny” to the Colorado constitutional amendment, puzzled about the precedential meaning of the ruling for later LGBT-related equal protection challenges.  There was similar criticism of the opinions in Lawrence, Windsor, and Obergefell.  Kennedy failed to use the doctrinal terminology familiar to constitutional law scholars and students, such as “suspect classification,” “heightened scrutiny,” “compelling state interest” and the like, leaving doubt about the potential application of these rulings.  Indeed, three justices dissenting in Pavan v Smith in an opinion by Justice Gorsuch claimed that the Court’s Obergefell ruling had left undecided the question in Pavan – whether Arkansas had to list lesbian co-parents on birth certificates – and the Texas Supreme Court expressed similar doubts about the extent of Windsor and Obergefell in refusing to put an end to a dispute about whether the city of Houston had to extend employee benefits eligibility to the same-sex spouses of city employees.  While some courts, such as the 9th Circuit Court of Appeals, saw Kennedy’s opinions as extending protected class status to gay people for equal protection purposes, others insisted that those rulings had produced no such precedent.

Justice Kennedy’s retirement effective July 31, 2018, seemed to signal a likely retreat from LGBT rights leadership by the Supreme Court. Assuming that President Trump will nominate and the Republican majority in the Senate will confirm a justice with the ideological and doctrinal profiles of Neil Gorsuch or Samuel Alito, the crucial fifth vote to make a pro-LGBT majority would most likely be missing, although Supreme Court appointments are a tricky business.  In the past, some presidents have been astounded at the subsequent voting records of their appointees.  President Dwight Eisenhower called his appointment of William J. Brennan one of the worst mistakes of his presidency, as Brennan went on to be a leader of the Court’s left wing.  Had he lived long enough to see it, President John F. Kennedy might have been similarly disappointed by the rightward drift of Byron R. White, his nominee who wrote the blatantly homophobic decision in Bowers v. Hardwick, 478 U.S. 186 (1986), that upheld Georgia’s felony sodomy law, calling a claim to constitutional protection by gay people “at best facetious.”  President Richard Nixon was undoubtedly disappointed with the leftward drift of Harry Blackmun, author of Roe v. Wade, 410 U.S. 113 (1973), the Court’s key abortion rights decision, and vigorous dissenter in Bowers v. Hardwick.  President Ronald Reagan appointed Anthony Kennedy assuming he would provide a vote to strike down abortion rights, but Kennedy was part of a moderate Republican coalition (joining with Justices Sandra Day O’Connor and David Souter) that joined with the remaining Democratic appointees to reaffirm those rights in Planned Parenthood v. Casey, 505 U.S. 833 (1992).  President George H. W. Bush’s appointment of Souter ended up being a massive disappointment to conservatives, as Souter frequently voted with the Democratic appointees and the leftward veering John Paul Stevens, who had been appointed by President Gerald Ford and ended up being much more liberal than expected.  Souter was so disillusioned by the Court’s 5-4 decision in Bush v. Gore, 531 U.S. 98 (2000), handing the presidency to George W. Bush after Albert Gore decisively won the national popular vote and may well have been entitled to the Florida electoral votes needed to put him over the top, that he retired from the Court prematurely.

In other words, the past records of Supreme Court nominees are not inevitably accurately predictive prologues to how they will vote on the Court over the long term. Supreme Court justices frequently serve for several decades (Kennedy’s service stretched over 30 years), and the looming constitutional issues at the time of their appointment are inevitably replaced by new, unanticipated issues over the course of their service.  Also, the Supreme Court is like no other court in the United States, in which the constraints of precedent faced by lower court judges are significantly loosened, since the Supreme Court can reverse its prior holdings, and in which theories and trends in constitutional and statutory interpretation evolve over time.  The examples of Brennan, Souter and Kennedy have caused the confirmation process to change drastically, and the possibility of an appointee turning out a total surprise appears diminished, but it is not entirely gone.  One can hope that a Trump appointee will not be totally predictable in the Alito/Gorsuch orbit, although that may be unduly optimistic when it comes to LGBT issues.  In his first full term on the Court, Justice Gorsuch has not cast 100 predictable votes. . .

The Colorado Wedding Cake Case

Posted on: December 8th, 2013 by Art Leonard No Comments

A Colorado Administrative Law Judge ruled on December 6, 2013, that a bakery had violated the state’s public accommodations law when its owner refused to sell a wedding cake to a gay male couple on July 19, 2012.

Colorado does not have same-sex marriage, and only enacted a civil union law open to same-sex couples early in 2013.  Back in 2012, however, Coloradans Charlie Craig and David Mullins planned to get married in Massachusetts and then have a big celebration event for family and friends back home.  Accompanied by Charlie’s mom, they went to Masterpiece Cakeshop, which sells wedding cakes, and sat down with the proprietor, Jack Phillips, at the “cake consulting table.”  According to the factual findings in the opinion by ALJ Robert N. Spencer, “They introduced themselves as ‘David’ and ‘Charlie’ and said that they wanted a wedding cake for ‘our wedding.'”  Phillips immediately said no, he doesn’t make wedding cakes for same-sex weddings.  “I’ll make you birthday cakes,” he said, “shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”  Without any further discussion, David and Charlie and Charlie’s mom got up and left, went to another bakery, and make their cake arrangements without incident.  The next day, Charlie’s mom called Phillips, who told her that he refused to make a wedding cake for David and Charlie because of his religious beliefs and because Colorado does not recognize same-sex marriages.

Although Charlie and David got their wedding cake, they felt humiliated by their experience with Phillips and decided to file a discrimination complaint to establish that his actions were unlawful.  The Civil Rights Commission sided with Charlie and David, ruling that Phillips violated their statutory rights.  When Phillips rejected that ruling, the case was referred for trial before an administrative judge.   As an administrative judge, Spencer does not have authority to declare statutes unconstitutional, but he does have authority to determine whether the application of a statute in a particular case violates the constitutional rights of the defendant.

Judge Spencer found, based on Phillips’ testimony, that he is a practicing Christian who believes that “the Bible is the inspired word of God, that its accounts are literally true, and that its commands are binding on him.”  He finds in the story of Adam and Eve and in a passage from Mark 10:6-9 (NIV) that only different-sex couples can marry.  “Phillips also believes,” wrote Spencer, “that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way.  Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents.  Phillips believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.”

Phillips did not contest that his bakery is a public accommodation subject to the state’s anti-discrimination law, but he argued in defense that the law could not be applied in such a way as to violate his 1st Amendment rights of freedom of speech and free exercise of religion.  His bakery is incorporated but wholly owned by him, and he claims for his business the same 1st Amendment rights that he enjoys.  Judge Spencer pointed out that at least for now in the states comprising the federal 10th Circuit, which includes Colorado, family-owned closely-held corporations do enjoy 1st Amendment free exercise of religion rights (as a result of a 10th Circuit decision that the Supreme Court recently agreed to review), and the Supreme Court held several years ago in the notorious Citizens United case that corporations have 1st Amendment free speech rights.  Thus, Phillips argued, he should enjoy immunity from this discrimination charge on 1st Amendment grounds.  In effect, Phillips was arguing that the 1st Amendment protects businesses and individuals from having to comply with anti-discrimination laws if their personal beliefs based on religion would be violated by compliance with the law.

In addition, Phillips argued that he did not actually discriminate because of David and Charlie’s sexual orientation, and thus could not be found to have violated the statute.  He said that he would be happy to do business with them, so long as it didn’t involve a wedding cake for a same-sex wedding.  He testified he would also refuse to sell a wedding cake to a same-sex couple to celebrate a civil union, so his ground of objection is not really that Colorado does not recognize same-sex marriages, but rather that he feels that selling a cake for any celebration of a same-sex relationship would be state-compelled speech that violates his freedom of speech, as well as forcing him to act in conflict with his religious beliefs.

Judge Spencer first rejected Phillips’ argument that his refusal to sell the wedding cake was not sexual orientation discrimination.  “The salient feature distinguishing same-sex weddings from heterosexual ones is the seuxla orientation of its participants,” he wrote.  “Only same-sex couples engage in same-sex weddings.  Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not ‘because of’ their sexual orientation.”  Drawing a telling analogy, he wrote, “If Respondents’ argument was correct, it would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage,” but this kind of theory was refuted by the Supreme Court in 1983 in Bob Jones University v. United States, where the Court upheld the IRS action in revoking the university’s tax exempt status because it denied admission to interracial couples in violation of laws forbidding discrimination because of race.

On the free speech claim, Spencer rejected Phillips’ argument that “preparing a wedding case is necessarily a medium of expression amounting to protected ‘speech,’ or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to ‘an ideological point of view.'”  Spencer distinguished between wedding cakes and “saluting the flag, marching in a parade, or displaying a motto,” all forms of conduct that have been found to constitute protected speech.  Spencer noted that Phillips refused to do business with David and Charlie without any discussion about how the cake would be decorated or what might be written on it.  “For all Phillips knew,” wrote Spencer, “Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.”  In a footnote, Phillips mentioned that the cake they had eventually obtained from another bakery had a “filling with rainbow colors,” but questioned whether that could be seen as some sort of endorsement of same-sex marriage by the baker.  Spencer characterized Phillips’ attempt to elevate making a wedding cake to the symbolic level of a compelled flag salute as an argument that “trivializes the right to free speech.”

Finally, Spencer rejected Phillips’ free exercise of religion argument.  He said that this case is not about the government trying to regulate what Phillips believes, but rather a regulation of commercial conduct.  “The types of conduct the United States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare,” Spencer commented, and cited a list of Supreme Court cases upholding neutral laws that incidentally regulate conduct, where the conduct involves some religious belief.  “Respondent’s refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation,” he asserted, mentioning that the Supreme Court itself had ruled that laws prohibiting sexual orientation discrimination by public accommodations have specifically been mentioned by the Supreme Court as legitimate.   The Supreme Court has ruled that a valid law that is neutral with respect to religion and generally applicable will be upheld if it is rationally related to a legitimate government interest.  The Colorado public accommodations law meets that test.

As an administrative judge, Spencer does not have authority to impose fines or penalties.  Upon finding that Masterpiece Cakeshop and Phillips had violated the law, his remedy was to issue a “cease and desist order” and take such other corrective action as is deemed appropriate by the Colorado Civil Rights Commission.  If Phillips appeals this ruling, it might get to a stage where he would incur financial liability, however.

The ACLU LGBT & AIDS Project and the ACLU Foundation of Colorado and attorneys from King & Greisen, LLC, represented the complainants at the hearing before ALJ Spencer.  Phillips enjoys legal support from Alliance Defending Freedom, a law firm that specializes in opposing gay rights under the guise of preserving the 1st Amendment rights of those who discriminate against gay people.   Given ADF’s participation, it is likely this ruling will be appealed.

The Colorado bakery case is one of only several contesting the applicability of public accommodation laws to businesses that want to avoid providing goods and services for same-sex ceremonies.  In Washington State, litigation proceeds against a florist shop, and in New Mexico, the state Supreme Court ruled earlier this year that a wedding photographer had violated the state’s public accommodations law by declining to provide photographic services for a same-sex commitment ceremony.  The Supreme Court has received a petition to review the New Mexico case.