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Petition of the day

By on Sep 15, 2017 at 8:20 pm

The petition of the day is:


Issue: Whether statutes of this kind, which criminalize any sexually related speech sent to a minor electronically with the intent to arouse, satisfy First Amendment scrutiny.

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He joined an amicus brief with 33 other legal scholars in support of the cakeshop in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

It is striking how easy it has become for a person to stumble into the status of a symbol – or, these days, a viral meme. Jack Phillips is, or was until fairly recently, a skilled cake artist with a small business, Masterpiece Cakeshop, in suburban Denver. Today, he is a litigant in the Supreme Court of the United States and regarded by many as embodying the tension – increasingly, the conflict – between religious conscience and equality.

Phillips regards himself, justifiably, as an artist. He is resolved to living out his vocation as an artist in a way that reflects and respects his Christian commitments. In keeping with his understanding of those commitments, he declined to accept a commission to create a custom wedding cake for two men, Charlie Craig and David Mullins, who were planning a celebration of their wedding.

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Early this week, the Supreme Court – over the dissent of the court’s four more liberal justices – granted Texas’ request to put on hold two lower-court orders that had invalidated two of the state’s federal congressional districts and the state’s maps for the lower house of the Texas legislature. The two courts’ orders had directed Texas Governor Greg Abbott to decide quickly whether to call a special session of the legislature, while also indicating that the state should be prepared to redraw the existing maps this month. Tuesday night’s orders put those rulings on hold. Today the challengers in the case, who prevailed in the lower courts, agreed with the state that the Supreme Court should treat the state’s filings as requests to weigh in on the merits of the two rulings, and they asked the justices to speed up their consideration of those requests.

In a short letter addressed to Scott Harris, the clerk of the Supreme Court, the challengers explain that the court’s disposition of the two cases will have a significant impact: It “will determine the district boundaries for the 2018 congressional and state elections.” If they prevail, the challengers continue, “remedial proceedings will be required on remand, and the State will be required to conduct primary elections under the district lines that result from those proceedings. To minimize the disruption those proceedings may have on the 2018 Texas election calendar,” the challengers conclude, they “agree with the State that the Court’s consideration of these appeals should be expedited.”

The challengers propose a briefing schedule that would allow the justices to consider the two cases at their January 5, 2018, conference. If the court were to grant the state’s request for review, the cases could be argued in the spring of 2018, with a decision on the merits by the end of June.

This post was originally published at Howe on the Court.

Event announcement

By on Sep 15, 2017 at 2:14 pm

On September 29 at 12 p.m., the Pacific Legal Foundation and National Review Institute will host an event titled “The Consequential Cases in the Supreme Court’s 2017-2018 Term.” Speakers include Michael Carvin, John Elwood and Donald Verrilli, Jr.; Ramesh Ponnuru will serve as moderator. More information about the event can be found on the Foundation’s website and Eventbrite.


Mary L. Bonauto is the Civil Rights Project Director at GLBTQ Legal Advocates & Defenders.

This case is not really about a cake. It is about equal citizenship of gay people, and whether we may engage in the kinds of ordinary transactions others take for granted in the commercial marketplace and beyond. Will moral objections to who we are and whom we love be accorded constitutional supremacy over ordinary human decency, over the Golden Rule, over the long-standing American rule of businesses dealing with all comers? Will these objections justify closing the door on LGBT people and, once again, marking them – including the youth who had begun to hope that they could live a full life – as outcasts and inviting further discrimination?

To circumvent the demands of equality, both Masterpiece Cakeshop and the Department of Justice as amicus seek to draw new constitutional lines about speech in the marketplace – either as “pure speech” or “expressive conduct” – because of the personal creativity that can be involved in making products for sale or providing services. A wedding cake is “not an ordinary baked good; its function is more communicative and artistic than utilitarian,” the government writes.

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Friday round-up

By on Sep 15, 2017 at 7:17 am

At his eponymous blog, Lyle Denniston looks at the factors that may underlie the Supreme Court’s one-sentence order on Wednesday denying a request to expedite review of a partisan-gerrymandering case from Maryland, Benisek v. Lamone. Additional coverage of the court’s order in Benisek comes from Steve Lash in The Daily Record.

In an op-ed at Bloomberg View, Noah Feldman discusses Masterpiece Cakeshop v. Colorado Civil Rights Commission, which asks whether the First Amendment prevents a state from requiring a baker to create a wedding cake for a same-sex couple, maintaining that “it would be a fundamental mistake for the court to hold that the baker’s artistry exempts them from anti-discrimination law.” At his eponymous blog, Ed Mannino suggests some approaches that would enable the court to “craft[] a narrow opinion which will garner the greatest number of justices [to] join it,” while at Casetext, David Boyle looks for a “‘compromise’ solution to the Masterpiece problem.” The editorial board of The Washington Post also weighs in on the case, arguing that “there is little reason to believe that wedding guests would attribute to the cake baker an endorsement of the festivities as a whole — or that a reasonable guest might believe that of the baker rather than of the wedding hairdresser, the caterer or the hotel providing the venue.”

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Posted in Round-up

Petition of the day

By on Sep 14, 2017 at 8:20 pm

The petition of the day is:


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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