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.



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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Posted in Round-up

Just a few hours after it put an order by the U.S. Court of Appeals for the 9th Circuit on hold in the litigation over President Donald Trump’s “travel ban,” the Supreme Court blocked two more lower-court orders, which had invalidated two of Texas’ federal congressional districts and the state’s maps for the lower house of the Texas legislature. The lower courts’ original orders, issued last month, had given the Texas governor three days to decide whether to call a special session of the legislature, and it directed the state to be ready to redraw the maps by early September. Tonight’s rulings by the Supreme Court put those orders on hold to give the state time to file its appeals; they will remain on hold until the justices rule on those appeals.

Texas’ request had gone first to Justice Samuel Alito, who – acting alone – temporarily blocked the lower-court rulings while the challengers responded to the state’s requests. Those responses were due last week. But once the briefing on the stay requests was finished, Alito referred the disputes to the full court, which acted tonight. Unlike tonight’s order in the travel ban case, four justices noted their disagreement with the court’s orders in the federal congressional and Texas House cases: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated that they would have denied the state’s applications.

This post was originally published at Howe on the Court.

Petition of the day

By on Sep 12, 2017 at 8:20 pm

The petition of the day is:


Issue: Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.

At least for now, the federal government will be able to rely on President Donald Trump’s March 6 executive order, often known as the “travel ban,” to bar nearly 24,000 refugees from entering the country. In late June, the Supreme Court allowed most of the order – which froze the issuance of visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States – to go into effect. But it did not disturb the part of the lower-court rulings that prohibited the government from enforcing the ban with regard to the named plaintiffs in the case and other foreign nationals who have a “credible claim of a bona fide relationship with a person or entity in the United States.” Today the justices blocked a later ruling by the U.S. Court of Appeals for the 9th Circuit that interpreted the category of refugees who are eligible to enter the country more expansively than the government would have liked. For the foreseeable future, and possibly until the Supreme Court can rule on the broader dispute, refugees will not be exempt from the travel ban if their only connection with the United States is an agreement between the federal government and a refugee resettlement agency for the agency to provide the refugees with assistance after their arrival in the United States.

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Vanita Gupta is the president and CEO of The Leadership Conference on Civil and Human Rights.

More than five decades ago, our country wrestled with the issue of whether businesses open to the public should be open to everyone on the same terms, regardless of their race. Among other reasons offered at the time for perpetuating the wholesale exclusion of African-Americans from restaurants, movie theaters and hotels was the importance of sincerely held religious views: the conviction, by some, that their religious faith prohibited mixing of the races. In the Civil Rights Act of 1964, Congress resolved that debate in favor of rectifying “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

On that principle, there ought to be no question that Colorado’s law allowing Charlie Craig and David Mullins to buy a wedding cake from any bakery they choose – notwithstanding that they are gay – should trump claims by a bakery that providing the cake would violate the owner’s religious beliefs. Yet that is the question the Supreme Court will take up this term in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

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Event announcements

By on Sep 12, 2017 at 11:39 am

On September 19 at 12 p.m., the Heritage Foundation will host a preview of the upcoming Supreme Court Term. Speakers will include Paul Clement and Pratik Shah; the discussion will be moderated by Elizabeth Slattery. More information about the event, which will be live-streamed, can be found at the foundation’s website.

In addition, on September 27, from 12 pm to 2 pm, the Federalist Society will host a panel entitled, “Supreme Court Preview Panel: What is in Store for October Term 2017?” Panelists will include Kyle Duncan, Samuel Estreicher, Orin Kerr, Andrew Pincus and Carrie Severino; Jan Crawford will serve as moderator. More information about the panel, which will be live-streamed, is available at the Society’s website.


The state of Hawaii fired back this morning, urging the Supreme Court to stay out of the most recent skirmish in the battle over President Donald Trump’s March 6 executive order, often known as the “travel ban.” Yesterday the Trump administration went to the justices to ask them to block a ruling by the U.S. Court of Appeals for the 9th Circuit that would have carved out an exemption from the ban for the approximately 24,000 refugees who are covered by an agreement between a refugee resettlement agency and the U.S. government. Justice Anthony Kennedy, who handles emergency appeals from the 9th Circuit, quickly acquiesced to the federal government’s request, at least temporarily, and directed the challengers to respond.

In today’s 32-page filing, Hawaii describes the current dispute as a “highly fact-intensive scenario” in which the Supreme Court would not normally get involved. In its June 26 order allowing part of the ban to go into effect, the state explains, the Supreme Court “laid out a legal standard” that the lower courts have “diligently and correctly applied,” removing any need for the justices to intervene.

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Mithun Mansinghani serves as solicitor general for the state of Oklahoma. Michael K. Velchik and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, joined a 20-state amicus brief led by the state of Texas in support of the petitioners, a bakery corporation and its owner, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Gay marriage has been one of the most significant cultural issues of the past several decades. At one time, the majority of voters in many states held the view that legal marriage should only encompass relationships between one man and one woman, and they enacted laws forbidding state recognition of same-sex weddings. In Obergefell v. Hodges, the Supreme Court invalidated those laws, ruling that those who hold the traditional view of marriage cannot codify that belief into law and force those on the other side of the cultural debate to abide by it. Today, most Americans support legal recognition of same-sex marriage. The question in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is whether the logic of Obergefell applies now that the majority view has changed: Can those who support same-sex marriage codify their view into the law and force the new cultural minority to participate in same-sex weddings?

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