Constitutional Cake Wars Continue in Colorado: Baker Found to Have Discriminated Against Transgender Customer

Scardina v. Masterpiece Cakeshop and Jack Phillips, No. 21CA1142 (Colo. App.). Opinion January 26, 2023.


On the day that the U.S. Supreme Court granted certiorari in a case involving Masterpiece Cakeshop and Jack Phillips, petitioner Scardina telephoned the bakery to request a pink cake with blue frosting.  Having secured Phillips’ spouse’s agreement to provide the cake, Scardina stated that the cake was inteded to celebrarte gender transition.

The cake shop and its proprietor then declined to provide the cake. Expressive and religious reasons were cited.

Scardina sued, citing violation of the Colorado Civil Rights Act.

The Colorado Civil Rights Commission settled with Masterpiece Cakeshop and Phillips.  After procedural maneuvers of note only to attorneys, Scardina prevailed in court, and the Colorado Court of Appeals has upheld the trial court’s conclusions.

The Court of Appeals observed Masterpiece Cakeshop’s and Phillips’ refusal to provide the pink cake with blue frosting, because it bore no written message, could not fall within the “offensiveness rule,” a loosely constructed, somewhat doubtful, secular corollary to religious objections.  

The court rejected the compelled speech challenge, observing that not all expressive conduct is protected.  Here, where the cake that admittedly have been provided to others but for the customer’s wants, the court found it impossible to conclude that protected expression was in issue.

The bakery’s and the baker’s objection to being tied to an expression also failed, as the court likened the provision of the cake, even if it could be seen as carrying a message, carried no more connection to a message than would attach to a person who provided balloons for a birthday party.  

While recognizing the Phillips’ deep religious convictions, the Colorado Court of Appeals found that those convictions must yield where a neutral statute of general applicability, like the anti-discrimination law, is involved, and where no additional constitutional right, as intimated in Employment Division v. 0 Smith, 494 U.S. 872 (1990) could be found, no more heightened analysis would be needed.

The appellate court refused to hear concerns about bias in the proceedings below.  Although there were some minor issues concerning pronouns, the appellate court could find no way in which the bakery or the baker had been treated less than civilly.

Scardina v Masterpiece Cakeshop Inc 2023 COA 8 Colo App 2023

 

Social Media Providers Resist as Unconstitutional New York’s New Law Requiring Monitoring of Online Activity for “Hate Speech”

Volokh, et al. v. LetitiaJames, Attorney General of the State of New York, No. 22-cv-10195 (S.D.N.Y.)

A legal scholar and blogger and two related internet platforms seek to enjoin enforcement of New York’s new law, effective tomorrow, December 3, 2022, that will require them to monitor content appearing on their site for “hate speech.” The plaintiffs must develop and publish a statement about “hate speech” and must not only monitor for “hate speech,” but also provide mechanisms for submission of complaints and must respond to all complaints.

Failure to comply with the state’s plan for eradication of certain disfavored speech will result in per violation per day penalties. In addition to imposing penalties for perceived non-compliance or violations of the law, the Attorney General may issue subpoenas and investigate the social media entities themselves. Plaintiffs argue that the compliance and non-compliance features of the law are unconstitutional burdens, and that the law in its entirely chills constitutionally protected speech.

Plaintiffs submit that the law unconstitutionally burdens protected speech on the basis of viewpoint and unconstitutionally compels speech. Plaintiffs object to the law as overly broad and vague, offending not only the First but also the Fourteenth Amendment of the U.S. Constitution, as established in controlling Supreme Court precedent. Moreover, plaintiffs argue that New York’s new “online hate speech” law is preempted by Section 230 of the Communications Decency Act. New York cannot compel the social media providers to act as publishers where the federal law precludes doing so.

The law appears to have been hastily cobbled together after a mass murder last summer said to have been racially related. While similar measures have languished in the New York legislature, the undeniably horrible losses of life provided a political moment through which New York might seek to impose speech restrictions online. No legislative findings justifying the law’s enactment were made, and many significant terms are undefined. Similarly problematic is that the law requires no intent in order for the state to impose penalties on the online platforms. The perception of one reading or seeing the online content controls whether “hate speech” exists.

At this writing, the state has not responded to the plaintiffs’ requests for injunctive and declaratory relief. The matter has been referred to a special master. No scheduling order or information concerning a hearing, if any, concerning the request for injunctive relief has been found.

Volokh v. James, No. 22-cv-10195 (S.D.N.Y.)

Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries


Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  


The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)

Referrals to Potential Adversaries Not Required: U.S.D.C. in Massachusetts Strikes Down Landlord’s Compelled Speech, Opines that Injunctive Relief Will Be Denied, Declines to Opine Further, and Promises a Written Opinion

Baptiste et al. v. Commonwealth, No. 1:20-cv-11335 (D. Mass.). Hearing on September 10, 2020.

_________________________________________________

Today the court declined to deliver an opinion on injunctive relief and dismissal orally, offering that the issues were sufficiently complex that doing so would be ill-advised, and promising to deliver a written opinion, admittedly still in draft.

The court noted that it would deny injunctive relief except that it had found the Commonwealth’s requirement that any landlord notifying tenants of nonpayment must provide referrals to representation was unconstitutional compelled speech under National Institutes of Family and Life Advocates v. Becerra, 585 U.S. ____ (2018). Applying principles of severability, that determination would not extend to other portions of the regulations promulgated in connection with the eviction moratorium enacted in response to the COVID-19 pandemic.

The court noted that much of the law imposing the moratorium would not survive strict scrutiny analysis, but the court is inclined to the view that strict scrutiny analysis is not warranted.

The court indicated that counsel should discuss how they wished to proceed going forward, bearing in mind changed conditions since the beginning of the moratorium and impending state action concerning continuation or cessation of the moratorium on evictions in mid-October.

The court offered that it would deny injunctive relief and that its reasoning on injunctive relief and dismissal would be presented all in one decision. The admonition to counsel to consider the future is some indication that dismissal will not be granted.

The court appeared to be focused on precedent from Chief Justice Stone of the Supreme Court who relied on Justice Holmes for the principle that it is within a court’s purview to consider whether an exigency that prompted state action has ceased to exist. Notwithstanding that the court seemed inclined to the view that the exigencies apparent last spring may no longer be present, the court also indicated fear that any action might be perceived in hindsight as being of a caliber of the now discredited Korematsu v. United States, 323 U.S. 214 (1944).

No Treats Here: Federal Court Enjoins Sheriff of Butts County, Georgia from Posting Warning Signs on Registered Sex Offenders’ Property

Reed, et al. v. Long, et al., No. 5:19-cv-00385 (M.D. Ga.) October 29, 2019.


A federal judge has enjoined a county sheriff from placing signs near the homes of several of the plaintiffs in this case, who are rehabilitated, yet registered, sex offenders.  The signs announced that no one would be permitted to seek Halloween treats at the address. The sheriff also left leaflets at the plaintiffs’ homes stating that the signposts were there because of their registered status.  

At least one plaintiff was threatened with arrest if he removed the sign.  

The court concluded that the sheriff’s acts compelled plaintiffs to speak in violation of the First Amendment, which restrains the government from inhibiting or requiring speech.  The court rejected the notion that the signs, as government speech, were wholly exempt from review as compelled speech.  

The court likewise rejected that notion that the signs were the least restrictive means of addressing the admittedly compelling government interest in child safety.  Where less intrusive measures had been effective in the past, and where the county had the capacity to caution without offending plaintiffs’ First Amendment rights, defendants had not shown that theirs was the least restrictive means of serving the government’s interest. 

In awarding preliminary injunctive relief to three plaintiffs, the court declined to extend the injunction to all members of the class, as the court was concerned about whether some have been classified as more likely to pose a threat to others than the plaintiffs.

Reed v. Long, No. 5:19-cv-00385 (M.D. Ga.) Order of October 29, 2019.