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Petition of the day

By on Sep 14, 2017 at 8:20 pm

The petition of the day is:

17-212

Issue: Whether completely severing ties with an organization engaged in a conspiracy constitutes “affirmative action . . . to disavow or defeat the purpose” of the conspiracy that establishes withdrawal from the conspiracy.

Eric Rassbach and Hannah Smith are deputy general counsel and senior counsel at the Becket Fund for Religious Liberty, which filed an amicus brief in support of the petitioners in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The views expressed here do not necessarily reflect those of the Becket Fund or its clients.

Weddings are kind of a big deal. What some have called the “wedding-industrial complex” seems to grow larger every year, and by some accounts, the average American wedding now costs over $25,000. So it is no surprise that wedding ceremonies themselves have become one of the first flashpoints to arise in the wake of Obergefell v. Hodges. Who has to participate? Who has to help celebrate? And when may the state employ its monopoly of force to require individuals to participate, even when they have conscientious religious objections? These questions are front and center in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and its companion (but not-yet-granted) case Arlene’s Flowers, Inc. v. Washington.

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Tobias Barrington Wolff is Professor of Law at Penn Law. He served as lead appellate counsel for Vanessa Willock in Elane Photography, LLC v. Willock, in which the Supreme Court declined to review a ruling by the New Mexico Supreme Court that a photography studio violated the state’s anti-discrimination laws when it refused to photograph a same-sex commitment ceremony.

One question lies at the heart of the First Amendment argument that Masterpiece Cakeshop is advancing before the Supreme Court: When a customer buys goods or services from a business that operates in the general marketplace, whose message (if any) is communicated by the item or service? Masterpiece’s argument depends on the proposition that the company, and not the customer, is the speaker who owns the message. If that proposition fails, then the speech clause plays no role in this case. And as I will explain, that proposition does fail.

To start, we must take stock of how a public-accommodation law operates. Anti-discrimination laws are content-neutral, as First Amendment doctrine uses that term. They do not target particular messages or expressive acts, and they do not regulate with reference to the content of expression. Neither do they target only businesses that sell goods and services that include some creative or artistic element. On its face, an anti-discrimination law like Colorado’s has nothing to do with expression. Rather, the law targets commercial conduct: the decision whether to do business with a customer, and the act of discriminating against customers when turning them away.

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Event announcements

By on Sep 14, 2017 at 9:38 am

On September 28 at 5 p.m., the American University Washington College of Law will host a panel entitled “On the Docket: Looking Ahead at the New Supreme Court Term.” Panelists include Tom Goldstein, Janai Nelson, Jayesh Rathod and Richard Wolf; Steve Wermiel will moderate the panel. More information is available at the college’s website.

In addition, on September 28 at 1 p.m., the Washington Legal Foundation will host a preview of the upcoming Supreme Court term. Speakers include Allyson Ho, Jeffrey Lamken and Andrew Pincus; Judge Jay Stephens will serve as moderator. More information about the event, which will also be live-streamed, is available at the Foundation’s website.

Additionally, on October 5 at 7 p.m., the National Archives, in partnership with The Constitutional Sources Project, will host a panel entitled “Women and the Supreme Court.” Panelists include Judge Patricia Millett, Deanne Maynard, Sarah Harrington and Marlene Trestman; Amy Howe will moderate the panel. More information about the event, which will also be live-streamed, is available at the Archives’ website.

Finally, on October 20 at 1:30 p.m., the Syracuse University College of Law will host a preview of the upcoming Supreme Court term. The event will begin with a lecture by Amy Howe entitled “When Elections Matter: The Supreme Court, the Scalia Vacancy, and the 2016 Election.” Following the lecture, Judge Rosemary Pooler, William Wiecek, Lauryn Gouldin and Andrew Kim will join Howe on a panel discussion moderated by Keith Bybee. More information about the event is available at the college’s website.

 
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Thursday round-up

By on Sep 14, 2017 at 7:31 am

At NPR, Nina Totenberg looks back at the life of Edith Windsor, “the plaintiff in the landmark Supreme Court case that required the federal government to recognize same-sex marriages,” who became “an octogenarian rock star in the gay rights community.” Another look at Windsor’s life and her legal challenge to the Defense of Marriage Act comes from Lisa Keen at Keen News Service.

In an op-ed and an accompanying op-doc in The New York Times, David Feige urges the court to seize a “rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans,” by reviewing two cases that “concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed on them.” At ACS Blog, Bidish Sarma focuses on the cert petition in one of the cases, Karsjens v. Piper, a class action challenging Minnesota’s sex-offender civil commitment regime[‘s]” “profound and persistent failure to ensure that individuals who pose no danger to society actually get released.”

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Petition of the day

By on Sep 13, 2017 at 8:20 pm

The petition of the day is:

17-208

Issues: (1) Whether the lower courts are correct to apply the Supreme Court’s decision in University of Texas Southwest Medical Center v. Nassar to cases brought under the Family and Medical Leave Act of 1993 and to require plaintiffs asserting claims for interference and retaliation in violation of that statute to prove but-for causation rather than the motivating factor causation; (2) whether the regulations of the United States Department of Labor providing for a mixed motive or motivating factor standard to apply to claims brought under the Family and Medical Leave Act of 1993 are entitled to controlling deference under the Supreme Court’s decision in Chevron v. Natural Resources Defense Council; and (3) whether Petitioner was erroneously denied a jury trial on his claims for interference and retaliation in violation of the Family and Medical Leave Act of 1993 when the lower courts explicitly found that the Respondent gave one rationale for his termination at the time he was terminated and offered a different rationale later, and he presented other substantial evidence that his request for leave was a motivating factor in the termination decision.

Helen Alvare is a professor of law at Antonin Scalia Law School, George Mason University.

Many advocates have written about why a wedding cake is itself constitutionally protected expression. This proposition is clearly true based upon common knowledge about the processes involved in wedding cake design and decoration. Less has been written, however, about how the cake might be “expressive conduct” under the standards of Texas v. Johnson, although the brief for the petitioners in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission refers to the cake as the “centerpiece” of an “inherently celebratory event.”

There is another, more obvious way, however, to understand the wedding cake as expressive conduct: Wedding cakes in every case celebrate an event and a union that are by law and not merely by custom, expressive. This is because long-established marriage law, adopted in every state, explicitly endorsed by the Supreme Court, and resoundingly affirmed in Obergefell v. Hodges, holds that marriage is never just a private contract between two people, but always also a “status” – bestowed and contented by the state, and by the interaction of law with social norms and meanings.

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Eric Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law.

Jack Phillips, the co-owner of Masterpiece Cakeshop, refused to sell a wedding cake to a same-sex couple because supporting their wedding violated his religious beliefs. The couple filed suit in Colorado state court, arguing that a Colorado civil-rights law required Phillips to provide his services to all customers regardless of their sexual orientation. Phillips responded that the free speech and free exercise clauses of the First Amendment to the United States Constitution prohibit Colorado from enforcing its civil-rights law against him under these circumstances. He argued that he is a wedding-cake artist, and that the state can’t force him to express a message (support of same-sex weddings) that he does not want to communicate because of his religious conscience.

The Supreme Court held in Employment Division v. Smith that the free exercise clause of the First Amendment is not violated by generally applicable laws not specifically directed at religion even if those laws substantially burden the ability of people to exercise their religion. Phillips does not argue, and could not argue, that Colorado’s anti-discrimination law was passed with the intent to burden religious practices. Furthermore, unlike many states, Colorado does not have a Religious Freedom Restoration Act that might provide statutory redress to people who believe that neutral laws substantially burden their religious exercise.

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Event announcements

By on Sep 13, 2017 at 9:22 am

On September 14 at 9 a.m., the American Constitution Society will host a preview of the upcoming Supreme Court term. Panelists include Dale Ho, Anil Kalhan, Marty Lederman, Erin Murphy and Claire Prestel; Steve Schwinn will serve as the moderator. More information about the event is available at the society’s website.

 

 
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Wednesday round-up

By on Sep 13, 2017 at 7:19 am

Yesterday the Supreme Court granted the federal government’s request to stay a lower-court ruling that would have exempted from the government’s entry ban up to 24,000 refugees covered by formal agreements between the U.S. government and resettlement agencies. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Greg Stohr at Bloomberg, Lyle Denniston at his eponymous blog, Richard Wolf at USA Today, Adam Liptak in The New York Times, Robert Barnes and Matt Zapotosky in The Washington Post, Ariane de Vogue at CNN, and Brent Kendall in The Wall Street Journal, who notes that “[i]t was the third time the justices have intervened since June to set interim rules on travel while the court more fully considers the legality of President Trump’s March 6 executive order.” Coverage of the broader entry-ban controversy comes from Steven Mazie at The Economist.

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