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Thursday, August 16, 2018

Masterpiece Cakeshop redux

Jack Phillips of Masterpiece Cakeshop has filed a federal civil action against the members of the Colorado Civil Rights Commission, challenging the constitutionality of a new threatened enforcement of the state's public-accommodations law. This case arises from his refusal to sell a cake with a blue exterior and pink interior to a lawyer (clearly doing this as a test case) celebrating her birthday and her male-to-female transition. The lawyer complained to the Civil Rights Commission; the Director of the Commission found probable cause to believe a violation occurred (sex and transgender status) and order edthe parties to mediation, but Phillips instead filed suit. Some thoughts after the jump.

• The parade-of-horribles comparison I thought of was a person requesting a cake that was white on the inside and black on the outside to celebrate his biracial identity or the biracial identity of his child, which conflicted with a baker's belief that "the fact that God separated the races shows that he did not intend for the races to mix."

• There is language in the Complaint about Colorado ignoring SCOTUS's decision in Masterpiece. But here is where judicial departmentalism kicks in. The judgment in Masterpiece (if there was one--the Court was cryptic about this) was that the Commission's sanction for refusing to bake the wedding cake violated the First Amendment. At best, that should have meant a reversal of the injunction the Commission entered against Phillips for refusing to bake that cake. That judgment does not preclude the Commission from pursuing a new case based on a new refusal to bake a different cake with a different message for a different customer. A government entity does not violate the judgment in a prior case by attempting to enforce the law against the same person on a new set of facts arising from a new transaction or occurrence.

As for the precedent of Masterpiece, I do not believe control the Commission' s actions, other than to the extent it does not want to lose in a court that is bound. Even than, that precedent does not squarely answer this case. The problem in the previous case was the purportedly anti-religious remarks by Commission members, which may not be present here; a majority of the Court did not hold that a baker enjoys a First Amendment opt-out from public accommodations laws.

• There is a Younger problem here. A government-initiated administrative enforcement action is an ongoing proceeding that triggers abstention. The question is whether a finding of probable cause commences that proceeding. It triggers a statutory conciliation process, including compulsory mediation, leading to an adversary proceeding if unsuccessful. It may depend on what the court defines as the proceeding--the conciliation element or the entire thing. In any event, the Complaint recognizes this, including allegations of bad faith by the Director in finding probable cause and a "rigged" process, given the make-up of the Commission. These seem designed to move the case into the Younger exceptions for bad faith or unusual circumstances, such as biased decisionmakers.

On the bad-faith point, this presents an additional way that judicial departmentalism pushes towards judicial supremacy. Bad faith for Younger purposes is defined as a prosecution undertaken without hope or expectation of securing a valid conviction. If a government official initiates an action to enforce a law in the face of SCOTUS precedent declaring that law constitutionally invalid, he has no realistic hope of securing a conviction--he knows he will lose the prosecution. So an attempt to pursue that prosecution, while consistent with his oath, may mean the target of the prosecution could seek to enjoin the prosecution even though pending and argue the bad-faith exception. I had not considered that possibility.

Posted by Howard Wasserman on August 16, 2018 at 11:04 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


RE: other concepts like the "biracial cake" etc. - it seems to me that the pivot is to what degree a bake will take specific directions as a business option. "Cakes of frosting and cake color of any of this list of colors". If the baker is selling stock cakes and only makes custom colors as part of a "emotional dialogue where he will divine the spirit of a person's request" .. first the baker is a kind of artistic kook to want to 'connect' with the buyer - marking the transaction for any buyer a bit-off and different than just a point and pick order.

If it was just an offhanded comment when ordering, clearly (to me) that would be a different level of discrimination - where the baker refused to make what he would have made for any buyer ( if he took orders by a list of colors without a stated occasion ) ... "oh, i would have made you a purple cake if you didn't tell me that" is different than "I don't make purple cakes as a standard, .. only when an odd urge strikes me"

Posted by: Mike | Aug 21, 2018 3:57:26 PM

I feel that Kennedy's opinion is continually misread - there were two points repeatedly addressed, the aspects of hostility AND the disparate treatment of different latitude that the commission allowed based on offensive messages other bakers could disallow.

The hostility was a lack of recognition that there was a legitimate grounds for the Baker to be offended based on his belief. Had the commission said "we understand you find the expression offensive but this case is different because it involves a protected class, as well as that you refused to discuss any more neutral cake that would not require the cake to be customized to the level we have allowed latitude in other cases, we cannot apply the same rules of refusal we did for explicit depiction and lettering of racist views as a yet to be determined and possibly a cake indistinguishable from any other wedding cake by a third party looking at it"

The commission made no attempt to respect a religious opinion they found offensive rather than respecting his right to it as expression and differentiating why this case was different that the others they had ruled on in that it required less expression than the others.

Posted by: Mike | Aug 21, 2018 3:46:29 PM

Or they're responding rationally to their predictions that new developments in the law will be disadvantageous to them, regardless of whether they believe "the law" includes those predictions?

Posted by: Patrick | Aug 20, 2018 1:05:38 PM


Alison Frankel from Reuters has an article now that argues that gay advocacy organizations may be embracing a prediction theory of the law.

Posted by: James | Aug 20, 2018 12:13:16 PM

@Howard writes, "Masterpiece I cannot be read to mean that all enforcement against a baker with a religious objection is impermissible, where there were not similar statements showing religious animus."

That all depends on the legal theory one subscribes to. Because if one takes Justice Holmes "Prediction Theory" of the law to heart I think Masterpiece I can read exactly in the way you say it can't be read.

Posted by: James | Aug 19, 2018 3:54:52 PM

How does this compare with Arlene’s Flowers? Should we suspect that the Supreme Court is at a stage where it is OK letting the states wrestle with balancing religious freedom, freedom of speech/freedom from compelled speech, and anti-discrimination?

It would seem fitting that Colorado would be the ultimate arbiter of whether or not something runs afoul of the Colorado anti-discrimination laws. Of course, I thought there was some nice logic to allowing the people of Missouri to sort out the balancing between religious freedom/religious establishment. I also thought that Michigan, Kentucky, Ohio, and Tennessee should have been able to sort out state marriage laws for themselves.

Could this sort of conflict lead to some rethinking of the incorporation doctrine? (I can only hope.)

Posted by: HokieEngineer | Aug 18, 2018 8:51:06 PM

He refused service to a person on a basis that, there is probable cause to believe, violates state law. That is conduct independent of the refusal to sell the wedding cake at issue in Masterpiece I. And even if one rejects departmentalism and the power of the executive to act inconsistent with SCOTUS precedent, Masterpiece I cannot be read to mean that all enforcement against a baker with a religious objection is impermissible, where there were not similar statements showing religious animus.

Posted by: Howard Wasserman | Aug 18, 2018 3:34:47 PM

"Because he is continuing to violate the law..."

Continuing? Tell me more, Captain Impartial.

Posted by: YesterdayIKilledAMammoth | Aug 18, 2018 12:46:09 PM

James asks "Why they hell, after having lost once, couldn't they just leave him alone?"

Because he is continuing to violate the law, and a citizen who has the right to have the law enforced, brought a complaint against him. Do you really think that once someone has been to court once, they have the right to break laws with impunity in the future because they deserve to just be "left alone"?

Posted by: J | Aug 18, 2018 12:24:54 PM


Superficially your proposal sounds like a nifty idea but I don't think it is a good fit in the larger public accommodations arena. Imagine a hotel that printed all the pillows in its rooms with an anti-gay slur like "Death to Fags". In that case the hotel would claim that it is willing to provide a service--a room for the night--to all comers, including gays, but that the gays had no right to insist on any particular message (or no message at all) on its pillows because that was protected speech of the hotel owner. The obvious problem is that such a formal approach allows the hotel to offer services to gays only in a formal sense but as a practical matter would discourage gays from staying there. It sort of makes a mockery of the notion of "public" in public accommodation. Gays can stay at such a hotel but only on the condition that they put up with the owner telling them how much the owners wish there didn't stay there. So much for hotels being in the "hospitality" business.

Posted by: James | Aug 17, 2018 4:01:22 PM

As Forrest Gump said "stupid is as stupid does"

Posted by: sam tenenbaum | Aug 16, 2018 9:43:32 PM

I had predicted the Supreme Court’s decision in the original cake case, and also suggested a compromise result similar to the recent ones in Kentucky and in Colorado which balanced the two apparently competing interests.

The Kentucky court struck an interesting balance between the free speech and religious freedom rights of businesses which oppose messages based upon their content, and gay people who insist upon being served by a business regardless of their sexual orientation. It follows a legal analysis similar to that I originally proposed, which suggested that anti-discrimination statutes by their terms prevent discrimination based upon the characteristics of a potential customer (e.g., being gay), but not upon a refusal to send a message related to that characteristic (e.g., preparing a same-sex wedding cake).

Kentucky’s Court of Appeals held that a t-shirt firm which refused to print t-shirts promoting a gay pride festival did not discriminate against gays, drawing a distinction between refusing to serve customers who are gay, and refusing to print shirts which support gay activities: “the ‘service’ [defendant] HOO offers is the promotion of messages. The ‘conduct’ HOO chose not to promote was pure speech.”

This simple distinction is also illustrated by two decisions involving bakeries. In the first, recently decided by the Supreme Court, the Colorado Civil Rights Division had ruled that a cake shop could not refuse to make a wedding cake for a gay couple, calling it discriminatory, because its refusal was based upon the sexual orientation of the customers.

However, when a man ordered cakes with writing a Denver bakery considered derogatory towards gays, its refusal to provide the cakes was upheld because the bakery would refuse to provide a cake with that language to any potential customer - gay or straight, Christian or atheist, etc., and for any purpose. Although the customer claimed that the refusal to provide a cake with this message was "demeaning to his beliefs," the agency said the owner could refuse to put a message on cakes which included "derogatory language and imagery," provided it would do so for all customers.

In the Kentucky case, although the business accepts and serves all customers, the messages the company is willing to print are “limited by the moral compass of its owners,” and it refuses “any order that would endorse positions that conflict with the convictions of the ownership.” This is a clear and simple distinction between the customer and the message he wishes to send. To refuse to sell any t-shirt to a person simply because he is gay would violate the statute, whereas refusing to print a t-shirt which promote a gay (or transgender) lifestyle or activities, for anyone regardless of sexual orientation, is not illegal discrimination.

The court noted that agency’s analysis (which it reversed) - which asks whether the message was discriminatory - would lead to “absurd” results: for example, “a man who requests t-shirts stating, ‘I support equal treatment for women,’ could complain of gender discrimination if HOO refused to print the t-shirts because it disagreed with that message.”

Similarly, my published analysis had suggested that a baker who refused to bake a swastika-shaped cake for a white supremacist group would not be guilty of illegally discriminating on the basis of race if he had a policy against baking a cake in the shape of a swastika, whether it is ordered by a German Nazi sympathizer, a racist fraternity, a Jewish student seeking to "take back" the hated symbol (similar to a recent situation at GWU), an insensitive person who wanted it as a joke, etc.

Posted by: LawProf John Banzhaf | Aug 16, 2018 3:59:34 PM

Domestic lawfare.

Posted by: YesterdayIKilledAMammoth | Aug 16, 2018 2:25:51 PM

I think you say "language in the opinion" when you mean complaint.

Posted by: Asher Steinberg | Aug 16, 2018 2:20:22 PM

Thanks for drawing our attention to it . What a poor guy , it looks as if there is a sort of crusade on him , I qoute from the complaint :

In the meantime, some Colorado citizens, emboldened by the state’s prosecution of Phillips, have targeted him. On the same day that the Supreme Court announced it would hear Phillips’s case, a Colorado lawyer called his shop and requested a cake designed with a blue exterior and pink interior, which the caller said would visually depict and celebrate a gender transition. Throughout the next year, Phillips received other requests for cakes celebrating Satan,featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use.Phillips believes that some of those requests came from the same Colorado lawyer.

End of quotation :

And more even threats on his life and so forth described there .... This is really wrong .

However , in federal and civil action terms , we deal here with a law (Colorado's Anti-Discrimination Act ) . It is hard to see right now , how the state of Colorado , could violate so , clearly established law or constitutional right ( in accordance with Supreme court tests ) . That is the law of Colorado , and even if there is something wrong here , they acted reasonably it seems , and interpreting it seems in a very reasonable way the law .


Posted by: El roam | Aug 16, 2018 2:10:04 PM

What Colorado did is one of the most mind-numbling dumb things I have seen down in a long time. Let's look at the reasons why it is dumb. First, it is dumb in the court of public opinion because it plays into the narrative that Colorado is bent on persecuting this guy. Why they hell, after having lost once, couldn't they just leave him alone? Make someone else an example. The second reason is that when one has five votes on SCOTUS one is not above the law, one is the law! Does anyone really believe that Kavanaugh is going to be more liberal than Kennedy on this point?! Why poke the dog in the eye with a stick? Third, it is dumb because the person is trangender and whatever the courts may have done SCOTUS has not placed transgenders on legal parity with homosexuals that were at issue in Masterpiece. Finally, it is legally dumb because there is plausible case, as Howard notes, that the civil rights case against Phillips taken in bad legal faith.

So this decision was politically dumb, it strategically stupid, it rests on shaky legal grounds, and it is plausible it was done in bad faith. /facepalm.

Posted by: James | Aug 16, 2018 12:16:04 PM

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