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Federal Court Blocks Trump Regulation Revoking Health Care Protections for Transgender People

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

U.S. District Judge Frederic Block ruled on August 17 that a new Trump Administration Rule that rescinded the Obama Administration’s Rule prohibiting gender identity discrimination in health care will not go into effect on August 18, its scheduled date, and he granted a preliminary injunction against the new Rule’s enforcement.  Judge Block sits in the U.S. District Court for the Eastern District of New York, in Brooklyn. Walker v. Azar, 2020 U.S. Dist. LEXIS 148141.

After President Obama signed the Affordable Care Act (ACA) into law in 2010, the Department of Health and Human Services (HHS) decided to adopt a rule providing an official interpretation of the non-discrimination requirements contained in Section 1557 of that statute.  Section 1557 incorporates by reference a provision of Title IX of the Education Amendments of 1972, which forbids discrimination because of sex in educational institutions that get federal funding.  In the past, HHS and federal courts have looked to decisions interpreting the sex discrimination provision in Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment, in interpreting Title IX.

By the time HHS had finished writing its rule in 2016, both the Equal Employment Opportunity Commission and several federal appeals courts had interpreted Title VII to ban discrimination because of an individual’s gender identity.  The Obama Administration followed these precedents and included a prohibition on gender identity discrimination in its ACA rule.  Several states and a religious health care institution then joined together to challenge the rule before a federal district judge in Fort Worth, Texas, who was notoriously receptive to issuing nationwide injunctions against Obama Administration policies, and the court was true to that practice, holding that the inclusion of gender identity was contrary to the “original meaning” of the term “because of sex” when it was adopted by Congress in Title IX back in 1972.  The case is Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016).

The new Trump Administration rule that was challenged in the August 17 ruling was intended by the Department of Health and Human Services to codify the decision by district court in Franciscan Alliance.  Franciscan Alliance was issued in December 2016, just weeks before the Trump Administration took office.  Had Hillary Clinton been elected president, the incoming administration would likely have appealed the Fort Worth decision to the U.S. Court of Appeals for the 5th Circuit. But the Trump Administration informed the district court that it was not appealing and instead would not enforce the Obama Administration rule and would eventually replace it.

Judge Block emphasized this history as he set out his reasons for finding that Human Rights Campaign (HRC) and its volunteer attorneys from Baker & Hostetler LLP, were likely to succeed on the merits of their claim that the Trump Rule was both inconsistent with the ACA, and that HHS was “arbitrary and capricious” in adopting this new Rule and publishing it just days after the Supreme Court had ruled in Bostock v. Clayton County that discrimination against a person because of their transgender status was “necessarily discrimination because of sex.”

The Supreme Court had heard oral arguments in the Bostock case, which concerned the interpretation of Title VII, on October 8, 2019, while HHS was working on its proposed new rule.  The HHS attorneys knew that the Supreme Court would be issuing a decision by the end of its term, most likely in June 2020.  One of the three cases consolidated in Bostock involved a gender identity discrimination claim by Aimee Stephens against Harris Funeral Homes. The Equal Employment Opportunity Commission (EEOC) had sued the employer on Stephens’ behalf.  The 6th Circuit Court of Appeals ruled that Harris Funeral Homes violated Title VII by discharging Stephens for transitioning, and the Supreme Court granted review on the specific question whether discrimination because of transgender status violates Title VII.  HHS concedes in the “preamble” of its new rule that interpretations of Title IX (and thus Section 1157) generally follow interpretations of Title VII.

October 2017, then-Attorney General Jeff Sessions issued a memorandum to the Executive Branch explaining the Trump Administration’s position that bans on sex discrimination in federal law did not extend to claims of discrimination because of sexual orientation or gender identity.  Thus, although the U.S. Solicitor General normally represents federal agencies such as the EEOC when their decisions are appealed to the Supreme Court, that office actually joined in  arguing on behalf of Harris Funeral Homes, leaving it to the ACLU LGBT Rights Project to represent Aimee Stephens before the Supreme Court.

The Trump Administration was so confident that the Court would rule against Stephens that it decided to go ahead with its new Rule, effectively revoking the Obama Administration’s Rule, although the “preamble” did acknowledge that a decision by the Supreme Court in the Title VII case could affect the interpretation of Section 1557.  LGBTQ rights advocates waited impatiently for a ruling in the Bostock case as the Court began to wind up its Term in June.  The Trump Administration was no more patient, announcing its new Rule a few days before the Supreme Court announced its decision in Bostock, apparently assuming that the Court would rule against Stephens.  Without publicly reacting to the Supreme Court’s opinion, or even revising its new Rule to acknowledge that the Trump Administration’s interpretation of “discrimination because of sex” had been rejected by the Supreme Court (in an opinion by Trump’s first appointee to the Court, Justice Neil Gorsuch), HHS went ahead and published the new Rule five days later.

Over the following weeks, challenges to the new Rule were filed in four different federal courts.  HRC filed suit on behalf of two transgender women who had encountered discrimination from health care institutions covered by the ACA.  Judge Block found that their experiences gave them formal standing to challenge the new Rule. Judge Block reached his decision the day before the new Rule was to go into effect.

He found that the well established practice of following Title VII interpretations in sex discrimination cases was likely to be followed under the ACA, just as it was under Title IX, and thus the plaintiffs were likely to succeed in their claim that the new Rule was inconsistent with  the statute.  He noted that just two weeks earlier, the 11th Circuit Court of Appeals had followed the Bostock decision in finding that a Florida school district violated Title IX by denying appropriate restroom access to a transgender student.

Furthermore, the failure of the new rule, published after the Bostock decision, to mention that ruling or to offer any reasoned explanation why it should not be followed, was likely to be found to be “arbitrary and capricious,” so the adoption of the new Rule probably violated the Administrative Procedure Act (APA), the federal law that details how federal agencies are to proceed in adopting new rules and regulations or rescinding old ones.

Because of the December 2016 ruling in Franciscan Alliance and the subsequent non-enforcement policy by the Trump Administration, the Obama Administration’s Rule has not been enforced by HHS since December 2016.  But the ACA allows individuals who suffer discrimination to sue on  their own behalf to enforce the statute, and there have been numerous lawsuits under Section 1557 successfully challenging exclusion of transgender health care from coverage under health insurance policies that are subject to the ACA.

Judge Block’s stay of the effective date and injunction against enforcing the new Rule gives the green light to HHS to resume enforcing Section 1557 in gender identity discrimination cases consistent with the Bostock ruling.  While there are probably plenty of career agency officials in the HHS Office of Civil Rights who would like to do so, any significant effort in that direction seems unlikely so long as Trump remains in office.  For now, the main impact of Judge Block’s order will be to clear a potential obstacle for transgender litigants under Section 1557, as the opinion persuasively explains how Justice Gorsuch’s reasoning in Bostock compels protecting transgender health care patients under the ACA.

The  practical effect of Judge Block’s ruling now is to place the burden on HHS if it wants to  continue defending its new Rule.  HHS must provide a reasoned explanation to the Court about why the Bostock interpretation of “discrimination because of sex” should not be followed under Section 1557.  The simplest way for HHS to proceed consistent with the court’s order would be to strike those portions of the preamble discussing this subject, and to substitute a simple statement that Section 1557’s ban on discrimination because of sex includes claims of discrimination because of sexual orientation  or gender identity consistent with  the U.S. Supreme Court’s interpretation of similar statutory language in the Bostock case.

Arizona Appeals Court Cites Masterpiece Cakeshop Decision to Rule Out 1st Amendment Exemptions for Stationary Company

Posted on: June 11th, 2018 by Art Leonard No Comments

The precedential meaning of a Supreme Court decision depends on how lower courts interpret it.  The media reported the Supreme Court’s Masterpiece Cakeshop ruling as a “win” for baker Jack Phillips, since the court reversed the discrimination rulings against him by the Colorado Court of Appeals and the Colorado Civil Rights Commission.  But the opinion has a deeper significance than a superficial “win” or “loss” can capture, as the Arizona Court of Appeals demonstrated just days later in its rejection of a claim that a company that designs artwork for weddings and other special events can refuse to design and provide goods for same-sex weddings.

 

Alliance Defending Freedom (ADF), the same anti-LGBT legal outfit that represented Jack Phillips before the Supreme Court, represents Brush & Nib Studio, LC, a for-profit company that sells both pre-fabricated and specially designed artwork.  The company provides retail goods and services to the public, so it comes within the coverage of the city of Phoenix, Arizona’s, public accommodations anti-discrimination ordinance.

 

Although Brush & Nib had not received any requests to produce invitations for a same-sex wedding since such marriages became legal in Arizona, the owners had determined, based on their religious beliefs, that they would not provide their goods and services for such ceremonies.  Represented by ADF, they sued in the state trial court in Phoenix, seeking a preliminary injunction to bar enforcement of the ordinance against them in case such a customer should materialize in the future.

 

As described in the Court of Appeals’ opinion by Judge Lawrence F. Winthrop, the owners “believe their customer-directed and designed wedding products ‘convey messages about a particular engaged couple, their upcoming marriage, their upcoming marriage ceremony, and the celebration of that marriage.”  And they did not want any part of it.  They “also strongly believe in an ordained marriage between one man and one woman, and argue that they cannot separate their religious beliefs from their work.  As such, they believe being required to create customer-specific merchandise for same-sex weddings will violate their religious beliefs.”

 

They not only wanted to be assured that they could reject such business without risking legal liability; they also wanted to post a public statement explaining their religious beliefs, including a statement that they would not create any artwork that “promotes any marriage except marriage between one man and one woman.”  They haven’t posted such a statement yet out of concern that it would violate a provision of the Phoenix ordinance, which forbids a business from posting or making any communication that “states or implies that any facility or services shall be refused or restricted because of . . . sexual orientation . . . ,  or that any person, because of . . . sexual orientation . . . would be unwelcome, objectionable, unacceptable, undesirable, or not solicited.”

 

Maricopa County Superior Court Judge Karen Mullins rejected the motion for preliminary injunction, finding that the business did not enjoy a constitutional exemption.  The Court of Appeals held up ruling on ADF’s appeal until the Supreme Court issued its Masterpiece Cakeshop ruling on June 4, then quickly incorporated references to it into the opinion by Judge Winthrop issued on June 7.

 

After reviewing the unbroken string of state appellate court rulings from around the country that have rejected religious and free speech exemption claims in such cases over the past several years, Judge Winthrop wrote: “In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute a ‘grave and continuing harm,’” citing the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.

 

He continued with a lengthy quote from Justice Anthony Kennedy’s opinion for the Supreme court in Masterpiece Cakeshop:

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, ‘[t]he 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.’ Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such 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. See Newman v. Piggy [Piggie] Park Enterprises, Inc. (1968) (per curiam); see also Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) (‘Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments’).”

 

The cases cited by Justice Kennedy in the quoted paragraph evidently sent a strong message for lower courts. Piggie Park is a classic early decision under the Civil Rights Act of 1964, holding that a restaurant owner’s religious opposition to racial integration could not excuse him from serving people of color in his barbecue restaurant.  Hurley was the famous St. Patrick’s Day Parade case from Boston, where the Supreme Court upheld the 1st Amendment right of parade organizers to exclude a gay Irish group from marching under their own banner proclaiming their gay identity.  The quoted language from that decision made clear that state’s may pass laws forbidding sexual orientation discrimination by businesses, but in this case the Court found that the parade organizers were not a business selling goods and services, but rather the non-profit organizers of an expressive activity who had a right to determine what their activity would express.

 

The points are clear: States can forbid businesses from discriminating against customers because of their sexual orientation, and businesses with religious objections will generally have to comply with the non-discrimination laws. The “win” for baker Jack Phillips involved something else entirely: the Supreme Court’s perception that Colorado’s Civil Rights Commission did not give Phillips a fair hearing because members of the Commission made public statements denigrating his religious beliefs at the hearing.  Justice Kennedy insisted for the court that a litigant’s dignity requires that the tribunal deciding his case be neutral and not overtly hostile to his religious beliefs, and that was the reason for reversing the state court and the state agency.  Kennedy’s discussion of the law clearly pointed in the other direction, as Justice Ruth Bader Ginsburg observed in her dissent.  And the Arizona Court of Appeals clearly got that message.

 

Turning to ADF’s free speech argument, Justice Winthrop wrote, “Appellants argue that [the ordinance] compels them to speak in favor of same-sex marriages. We disagree.  Although [it] may have an incidental impact on speech, its main purpose is to prohibit discrimination, and thus [it] regulates conduct, not speech.”

 

The court found this case similar to Rumsfeld v. FAIR, a case in which the Supreme Court rejected a free speech challenge by an organization of law schools to a federal law that required schools to host military recruiters at a time when the Defense Department’s policies discriminated against gay people. The law schools claimed that complying with the law would violate their 1st Amendment rights, but the Supreme Court said that the challenged law did not limit what the schools could say, rather what they could do; that is, conduct, not speech.

 

“We find Rumsfeld controlling in this case,” wrote Winthrop. The court found that the “primary purpose” of the city ordinance is to “prohibit places of public accommodation from discriminating based on certain protected classes, i.e., sexual orientation, not to compel speech. . .  Like Rumsfeld, [the ordinance] requires that places of public accommodation provide equal services if they want to operate their business.  While such a requirement may impact speech, such as prohibiting places of public accommodation from posting signs that discriminate against customers, this impact is incidental to property regulated conduct.”

 

Further distinguishing this case from the Hurley decision, the court said that requiring the business to comply with the law “does not render their creation of design-to-order merchandise for same-sex weddings expressive conduct. The items Appellants would produce for a same-sex or opposite-sex wedding would likely be indistinguishable to the public.  Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa).  This invitation would not differ in creative expression.  Further, it is unlikely that a general observer would attribute a company’s product or offer of services, in compliance with the law, as indicative of the company’s speech or personal beliefs.  The operation of a stationery store – including the design and sale of customized wedding event merchandise – is not expressive conduct, and thus, is not entitled to First Amendment free speech protection.”

 

The court also rejected an argument that the ordinance violated the right of expressive association. “We do not dispute that some aspects of Appellants’ operation of Brush & Nib may implicated speech in some regard,” wrote Justice Winthrop, “but the primary purpose of Brush & Nib is not to convey a particular message but rather to engage in commercial sales activity.  Thus, Appellants’ operation of Brush & Nib is not the type of expressive association that the First Amendment is intended to protect.”  Certainly not like a parade, which the court in Hurley described as a “quintessential” expressive activity.

 

However, the court found that the portion of the ordinance dealing with forbidden communications used vague language that was overbroad and unclear about which statements might constitute violations. “We are unable to interpret [the ordinance’s] use of the words ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ in a way that would render [it] constitutional,” wrote Winthrop.  “The presence of one invalid prohibition, however, does not invalidate all of [the ordinance].”

 

“Here, by striking the second half [of the offending section] – which bans an owner of a place of public accommodation from making a person feel ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ based on sexual orientation – does not render the remainder of the ordinance unenforceable or unworkable. . .   The remainder of [the provision] operates independently and is enforceable as intended.”

 

Turning to the free exercise of religion issue, the court had to deal with the state’s Free Exercise of Religion Act, which prohibits governmental entities in Arizona from substantially burdening a person’s exercise of religion “even if the burden results from a rule of general applicability” unless the rule is both “in furtherance of a compelling government interest and is the least restrictive means of furthering that governmental interest.” The statute’s language is taken verbatim from the federal Religious Freedom Restoration Act.

The court rejected the argument that requiring the business to provide goods and services for same-sex weddings imposed a substantial burden on the religious beliefs of the business owners. “Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite sex couples,” wrote Winthrop.  “Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples.  [The ordinance] merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation.”  They could stop selling wedding-related goods altogether, but what they “cannot do is use their religion as a shield to discriminate against potential customers,” said the court.  Although providing those goods and services to same-sex couples might “decrease the satisfaction” with which they practice their religion, “this does not, a fortiori, make their compliance” a substantial burden to their religion.

 

And, even if it did impose such a burden, the court found that the city of Phoenix “has a compelling interest in preventing discrimination, and has done so here through the least restrictive means. When faced with similar contentions, other jurisdictions have overwhelmingly concluded that the government has a compelling interest in eradicating discrimination.”  The court quoted from the Washington Supreme Court’s decision in Arlene’s Flowers, but could just as well have been quoting Justice Kennedy’s language in Masterpiece Cakeshop, quoted here.

 

Finally, the court rejected an equal protection challenge to the ordinance, finding that it did not treat people with religious beliefs about marriage differently than others, and that the owners of the business could not claim that they are members of a “suspect class” for purposes of analyzing their equal protection claim. “Phoenix has a legitimate governmental purpose in curtailing discriminatory practices,” wrote Winthrop, “and prohibiting businesses from sexual orientation discrimination is rationally related to that purpose.”

 

A spokesperson for ADF promptly announced that they would seek review from the Arizona Supreme Court, which has discretion whether to review the decision. Seeking review, however, is a prerequisite to petitioning the U.S. Supreme Court.  ADF is clearly determined to get this issue back before the Supreme Court.  It represents Arlene’s Flowers, whose petition is now pending, and it also represents a videography company in a case similar to Brush & Nibs, affirmatively litigating to get an injunction to allow the company to expand into wedding videos without having to do them for same-sex weddings.  The district court’s ruling against them in that case is now on appeal in a federal circuit court. One way or another, it seems likely that this issue will get back to the Supreme Court before too long.

 

California Judge Issues Unprecedented Ruling in Favor of Baker Who Declined to Make Wedding Cake for Same-Sex Couple

Posted on: February 8th, 2018 by Art Leonard No Comments

Breaking a consensus among courts that has developed over the past several years that people with religious or moral objections to same-sex weddings are not entitled to exempt their business from selling goods or services for such events, Kern County (California) Superior Court Judge David Lampe ruled on February 5, 2018, in Department of Fair Employment and Housing v. Miller, BCV-17-102855, that Cathy Miller, owner of Cathy’s Creations, Inc., doing business as Tastries Bakery in Bakersfield, California, is entitled to a First Amendment exemption from complying with California’s law that bans sexual orientation discrimination by businesses.  Judge Lampe is the first to rule in favor of a business in such a case.

Miller refused to make a wedding cake for Eileen and Mireya Rodriguez-Del Rio, who came to her bakery in August 2017 to plan for a celebration to take place in October.  They had selected a design of a cake in the display case, but since their celebration would not be until October, the transaction would be for Miller to prepare a cake specifically for their event.  “The couple did not want or request any written words or messages on the cake,” wrote the judge in his opinion.  Nonetheless, Miller refused to make it because of her religious objections to same-sex marriage, and offered to refer them to another bakery in town that was happy to make wedding cakes for same-sex couples.

Eileen and Mireya filed an administrative complaint, charging Miller and her business with a violation of the Unruh Civil Rights Act, California’s law that prohibits discrimination by businesses.  The Department of Fair Employment and Housing, with is charged with enforcement of the law, filed suit against the bakery, asking the court to issue an injunction requiring that Miller’s business not refuse to make wedding cakes for same-sex couples.

Miller’s defense relied on two provisions of the First Amendment of the U.S. Constitution, one forbidding laws that abridge freedom of speech, and the other forbidding laws that prohibit the free exercise of religion.   Judge Lampe decided that this case could be resolved most easily by reference to the free speech provision, and did not render a ruling on whether the free exercise of religion clause would protect Miller in this case.

The judge accepted Miller “cake artist” argument, the same argument that Jack Phillips of Masterpiece Cakeshop in Colorado is making in his case pending before the U.S. Supreme Court.  Miller and Phillips argue that when they are contracting to produce a cake for a specific event, they are engaging in a creative effort that communicates a message of endorsement for that event.  Under this theory of symbolic speech, they argue, requiring them to make the cake when they do not approve of the event is compelling them to voice a particular message.

They rely on past decisions in which the Supreme Court has found that government officials had violated free speech rights by compelling people to voice particular messages with which they disagree, such as the famous “flag salute” cases first decided during World War II and most recently reiterated in  Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court famously reversed direction on this issue, overruling its own prior precedent to find that the government cannot compel a student to recite the pledge of allegiance.  Although there are circumstances where the courts have held that government requirements did not impose a substantial burden on free speech, the compelled speech argument has taken on particular weight in several important LGBT-related rulings.

The Supreme Court unanimously ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, that Massachusetts civil rights authorities could not compel the organizers of the Boston St. Patrick’s Day Parade to include an LGBT rights contingent in the parade with a banner proclaiming their identity.  The court said this would unconstitutionally compel the parade organizers to include a message in their event that they did not want to include.  Similarly, although more controversially, the Court later ruled in Boy Scouts of America v. Dale, 530 US 640 (2000), that the BSA was not required to allow an openly gay man to service as an adult leader, because that would be compelling them to implicitly send a message of endorsement for homosexuality which they did not want to communicate to their members or the public.  Unlike the unanimous parade decision, however, the Court split 5-4 in the Boy Scouts case, with a minority rejecting the contention that the BSA’s free speech rights would be unconstitutionally burdened.

Despite these rulings, the Court concluded that Congress did not unconstitutionally burden the free speech rights of law schools when it required them to allow military recruiters equal access to their facilities, reasoning that the schools were free to communicate their disagreement with the anti-gay policies then followed by the Defense Department and that hosting the recruiters was not necessarily sending a message of agreement with their policies.  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).  And the Court concluded that a state university law school was not violating the free speech or free exercise rights of conservative Christian students when it required a Christian Legal Society chapter to allow gay students to be members if CLS wanted to be an officially recognized student organization.  Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).

It is difficult to follow a consistent thread of reasoning through these cases, each of which presents a slightly different factual context, which is why there is some suspense about how the Supreme Court is going to decide the Masterpiece Cakeshop case.  So far, however, lower courts have been unanimous in ruling that bakers, florists, photographers, videographers, non-religious wedding venues are all required to comply with public accommodations laws (in states where they exist) and provide their services and goods to same-sex couples celebrating their unions.

Judge Lampe, the first to depart from this consensus, accepted Miller’s compelled speech argument.  “No public commentator in the marketplace of ideas may be forced by law to publish any opinion with which he disagrees in the name of equal access,” wrote the judge.  “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”

But, he wrote, this case is different. “The difference here is that the cake in question is not yet baked.  The State is not petitioning the court to order defendants to sell a cake.  The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids.  For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.”

Judge Lampe acknowledged that there was a clash of rights here, and no matter which way he ruled, somebody would feel insulted. “The court finds that any harm here is equal to either complainants or defendant Miller, one way or the other. If anything, the harm to Miller is the greater, because it carries significant economic consequences.  When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted.  The most effective Free Speech in the family of our nation is when we speak and listen with respect.  In any case, the court cannot guarantee that no one will be harmed when the law is enforced.  Quite the contrary, when the law is enforced, someone necessarily loses.  Nevertheless, the court’s duty is to the law.  Whenever anyone exercises the right of Free Speech, someone else may be angered or hurt.  This is the nature of a free society under our Constitution.”

The judge acknowledged that the case is more difficult if it is treated as a free exercise of religion case, because the Supreme Court has ruled that neutral state laws of general application do not include within them a constitutional exemption for religious dissenters. “Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an open question,” he wrote, “and the court does not address it because the case is sufficiently resolved upon Free Speech grounds.”

Interestingly, the judge’s approach mirrors that of U.S. Solicitor General Noel Francisco in the Masterpiece Cakeshop case before the Supreme Court. In briefing and argument, the Solicitor General placed the government’s support for Jack Phillips’ right to refuse to make the wedding cake entirely on Free Speech grounds, and disclaimed taking any position on his right of free exercise of religion – despite the Trump Administration’s more general position, expressed in a “religious freedom” memorandum by Attorney General Jeff Sessions, that religious free exercise rights should be treated as superior to just about any other legal claim.

Perhaps Judge Lampe’s decision is truly an outlier in the ongoing controversies stemming from the Supreme Court’s ruling in 2015 that same-sex couples have a constitutional right to marry, but on the other hand it may be an accurate prediction of how the Supreme Court will deal with the issue, at least in cases where the goods or services at issue could be plausibly described in terms of expressive content.