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.