Gay Rights at Issue in Case Over Wedding Websites

taking this case? Well, night reaction was that the social conservative legal organization that has brought so many of these cases, so many of these religiously based challenges to LGBT rights laws,

may finally, at long last, have found a winner. The circumstances are sufficiently different from the Masterpiece cake Shop case of several years ago that the fact of this case, combined with some changes in the court since the Masterpiece cake Shop case was decided to suggests to me that this one is going to be a tougher case and will be a case where the plaintiff here, the person challenging the law, is more likely to prevail. Let's go back to the Masterpiece cake shop case for a moment.

So the court they're ruled in favor of the Colorado baker. But the court did it on very narrow grounds. Just explain what happened there, that's right. That was a twenty eighteen decision. So you had a baker and also Colorado that cases are coming from the same state. Oddly enough, you had a baker in Colorado who said, I am perfectly happy to serve gay people. I just won't provide

a cake for a same sex wedding. And there was never any issue of the message on the cake or writing on the cake, even just a generically decorated wedding cake. He said, I can't provide that for a same sex wedding because essentially I speak through my cakes. Mike, cakes are my artistry, and the First Amendment prevents the State of Colorado from essentially common deering my artistry and forcing me to in effect endorse a wedding by providing a

cake that I can't in good conscience endorse. People criticize that reasoning and said, look, a cake is a commercial product. Nobody goes to a wedding and thinks that you know, the baker has blessed this wedding when they look at the cake. But the court ended up dodging that First Amendment speech argument by ruling on narrower grounds. Essentially, it picked out some difficult and sort of sarcastic comments that had been made by the authorities in Colorado who had

initially adjudicated that case. It was a state civil rights commission, and basically the court said that civil rights commission had shown hostility toward the Baker's religion. So, in essence, it was a way of saying he didn't get a fair hearing, his religion was treated with a sort of contempt by state officials, and that's enough to say he prevails on

his claim that his free exercise religion was violated. But the court, in doing that void at having to decide the much more novel First Amendment theory that the Baker and his lawyers had put forward. Steve explain why the baker and the web designer are making free speech claims instead of free exercise claims, and explain in more depth what they sidestepped. Steve so that the Baker had invoked both the free exercise of religion and the freedom of

speech to different parts of the First Amendment. The problem for religious challengers to civil rights laws is that the doctrine of the free exercise claws is relatively weak when it comes to challenging laws that are just general laws that apply to everybody, like civil rights laws. There was no evidence that the Baker's religion had been singled out or targeted for disadvantageous treatment, so the free exercise clause does not provide a very powerful weapon for attacking civil

rights laws. That's why organizations like the legal group that represented both Jack Phillips, the baker, and now the web designer in the new case, have really gone to the part of the First Amendment that deals with speech, and particularly a line of cases called the compelled speech doctrine, which basically stand for the principle that government can't force you to express a message that you don't seek to express, that it would violate your conscience or just your political

beliefs or your preferences to express. And the innovation here is that they've made the argument that the provider of a commercial product like a wedding cake or in this case, a web designer, that their speech, their creativity, their expression, is being compelled commandeered by the government when they have to provide a service US to a same sex wedding because they don't want to do that because it violates their religion. But their their claim is more about speech

than about religion. In fact, in the case that the Supreme Court has now decided to hear, they have basically said, we're not interested in the free exercise clause arguments. We're not opening up that can of worms. Were just interested in the First Amendment speech arguments that you have to make. Steve explain why the baker and the web designer are

making free speech claims instead of free exercise claims. The problem for religious challengers to civil rights laws is that the doctrine of the free exercise claus is relatively weak when it comes to challenging laws that are just general laws that apply to everybody, like civil rights laws. There was no evidence that the Baker's religion had been singled

out or targeted for disadvantageous treatment. So that's why organizations like the legal group that represented both the baker and now the web designer in the new case have really gone to the part of the First Amendment that deals with speech, and particularly the principle that government can't force you to express a message that you don't seek to express, that it would violate your conscience or just your political

beliefs or your preferences to express. And the innovation here is that they've made the argument that the provider of a commercial product, like a wedding cake or in this case, a web designer, that their speech, their creativity, their expression is being compelled, commandeered by the government when they have to provide a service to a same sex wedding because they don't want to do that because it violates their religion. It sounds like the web designer case is exactly the

same as the baker's case. What's different about it? It's a little different because, you know, again Jack Phillips basically said, you know, I'm no different them a web designer or a singer or somebody. You know, I I use my artistry in my work. And again, the I think a lot of people said, well, you know, yes, the government couldn't force him to bake a rainbow colored cake that said God bless this gay wedding, that that would be going too far. But he wouldn't even provide just a

generic wedding cake to a same sex wedding. He still said, I speak through my artistry and and and you know, many people sort of disagreed and said, well, you can only go so far and saying a commercial product like a wedding cake represents your speech. But a web designer is different. I mean, the web design for this wedding is presumably going to celebrate the couple, a same sex couple.

I should add, this case is being brought by the web designer on the anticipation that she will be charged with violating the law if she goes through with her plans. There is actually no one that she has denied service too. But she's saying, look, you know, inherently, if I design a website for a wedding that is going to celebrate that particular wedding, it's going to send a message about a same sex couple that is one of joy and celebration and endorsement. And I can't do that as a

matter of my conscience. So it's more like the situation, which was not the case in Masterpiece. But where if if a if if if a customer requested a specific message on a cake, I think many people were more willing to say Okay, that involves the baker's conscience and

he can't be forced to do that. That's why I think the wedding web page designer is a much more attractive plaintiff for that argument, because a web design a website is inherently a medium of communication in a way that that wedding cake is the best kind of disputable whether that's a medium of communication or not. A website is, and inevitably this website is not going to be some

generic thing. It's going to have pictures of the couple and again endorse the idea in some sense that this gave the same sex wedding is a good thing, and that's what the web designer says. Look in good conscience. Respectfully, I just can't do that. I will refer you to somebody else who can do that. If you're a gay person who wants a website for your birthday party, I'm

happy to do that. Um. What what she's saying is, I can't get on board with the idea of using my writing, artistic skills, technical skills to create something which communicates a message of approval and endorsement and celebration for something that violates my religious conscience. So the ten Circuit ruled against the web designer, and the Supreme Court often takes cases in order to reverse the results. And the Court has changed a great deal since the Masterpiece Cake

Shop case. Two justices who championed gay rights, the late Justice Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court. Do those factors point to what the result may be in this case? I think they do it because of the way the Court chose to resolve the Masterpiece Cake Shop case that was a seven to

two decisions. Even some of the more liberal justices such as Justice Kagan and Justice Brian joined the outcome theres So we don't know what Briar and Kagan would have done on those pure First Amendment speech questions that the Court didn't adjudicate. But the Court is more conservative than it was. Justice Sparitt is sort of known to be especially interested in and sensitive to questions of religious liberty, and so I think, yes, it does make a difference

that it's a somewhat more conservative court. I don't know that it makes a huge difference, because again, we didn't really get a decision on the same question as Masterpiece it's not as though the court is being asked to now reconsider something it decided in that case, but unbalanced. Yes, it is an even more conservative court, and this, again, I think, is a more attractive vehicle if you're going to challenge gay rights laws on the basis of a

First Amendment claim of right. So now let's turn to another issue involving transgender bathroom rates. What is the issue in this case before the Eleventh Circuit Court of Appeals. Law is really now grappling in a very serious way with the different forms that discrimination against transgender people can take. That there have been cases about employment, there have been cases about the right to medical care, and there have been cases about access to certain gendered public facilities such

as bathrooms and locker rooms. This case involves a high school student who was anatomically and at birth assigned the gender of female, who transitioned and now identifies as a gender identity of male, presents to the world as a male, is undergoing medical care to facilitate a gender transition to being male, and this student said, I am male. That is my identity. I dress as a male. I feel I am a male, and so I should be able to use the male washroom at school, in the male

locker room, that's who I am. And even though it's different from my anatomical or the sex on my birth certificate,

how I identify now is what matters. In a similar case involving of Virginia high school student, the Fourth Circuit Court of Appeals basically agreed and said in not letting that student use the facilities that were consistent with his gender identity, in saying, you have to use a separate, private bathroom, that's our way of accommodating you, the Fourth Circuit said, in that case, a transgender boys writes under both the Constitution and federal sex discrimination law type of

nine were violated, and so here in Florida, involving another case involving a transgender boy, the lower courts and the

Court of Appeals had come to the same conclusion. Had basically said, in not allowing this student to express their gender identity and use facilities consistent with their gender identity, it was a form of discrimination that violated the anti sex discrimination provisions of both Title nine and the Constitution's Equal Protection clus But the Full leven Circuit decided to rehear the case on bank and it's a court where

conservative judges out number liberal judges. The hearing that took place, the arguments that took place, suggested that this full on bunk court maybe coming to a different conclusion than the panel had come to, and might decide either that the school is entitled to require students to use one facility or the other boys or girls based on their anatomical sex or their sex at birth, or the court might say letting them use a private, gender neutral bathroom is

a sufficient accommodation, that we not only have to worry about the rights and the dignity of the transgender student, but we also have to be concerned about the privacy concerns that other students might have, and that cases like this call for a more delicate balancing than say, an employer who simply wants to fire an adult transgender person from a job. So I think we're seeing some tension there.

If the eleven Circuit rules in favor of the school here and against the transgender student, that would create a split in the circuits. Would you say the Supreme Court has been avoiding the transgender bathroom issue so far? The conventional wisdom among Supreme Court litigators is that a circuit split where you know, one federal court takes one view,

another federal court takes another view. That that is potentially the best ticket to the Supreme Court, because that then you've got federal law means different things in different parts of the country. UM, I don't know that. I'd say there's a lot of evidence the Supreme Court has been avoiding the issue. The Supreme Court did decline to grant sert in the Virginia case. I mentioned McGavin grim case, but again, that was a case that ruled in favor

of the student. It didn't invalidate or strike down any law, just said that the bathroom policy as to that student was unconstitutional. That wasn't necessarily a case that was crying out for the Supreme Court's review. In fact, it might have been kind of extraordinary if the Court had taken that.

A circuit split where you have two different courts looking at essentially the same set of facts and coming to different conclusions under federal constitutional and and statutory law, that is probably something that would be harder for the Supreme Court to ignore. Thanks Steve. That's Steve Sanders of Indiana

University's Moral School of Law. Some Supreme Court gentices appeared annoyed with how the Biden administration rescinded a hot button Trump era immigration policy as they wrestle with the tangled legal aftermath and what to do about it. The concerns crossed ideological lines at oral arguments on Wednesday overhandling of the so called public charge rule. Joining me is Leon Fresco, a partner at Hollandon Knight Leon. This gets awfully confusing,

So start by explaining the issue. The substantive issue that precipitated the litigation was a two thousand, nineteen public Charge rules that was issued by President Trump. And what the public charge rule did was as followed. There has been a law for hundreds of years, literally in our statute that says that a person is not allowed to get immigration status in the United States if they're likely to become a public charge. That's all it said. And so

then the question is, well, what does that mean? What does it mean that you're going to be dependent on the state. And so the Trump administration decided to issue a regulation that would put a lot for beasts of those bones, and the regulations that they put in essentially said something along the lines of if you've ever received any cash assistance from any state or local government which were new that was not previously in the law, you

would be considered a public charge. But also it added these nebulous fasters that could be considered that had never been considered before, such as the age of the person, their still level, their knowledge of English at veteran That would allow an adjudicator, on a case by case basis to decide if someone was likely to become a public charge even if they had never collected previously any bede

cads from the US government. And so as soon as that rule came out, states across the country and cities uh to the federal government and said we don't want this public charge rule to go into effect. And that litigation was going on, and the government was winning the litigation in the Supreme Court. They were losing in the lower court, but they were winning it in the Supreme Court, and it looked like all of it was going to be dispensed with when Joe Biden gets elected and says, well,

I want to get rid of this policy. And there's one court whose decision hasn't been reversed by the Supreme Court, and so that's where this case begins. The states here, Republican led states, are trying to basically fight for a rule that the Biden administration has abandoned. Right, So here's what happened. So, once the Biden administration gets elected and goes into power, they say, we want to get rid

of this public charge rule. And so ordinarily, if there's a rule that you want to get rid of that is in effect, you have to do with all they notice a precision of the rule, and then that has to go through public comment for thirty or sixty days, you have to give reasons for why you're resending the rule,

and then you finally resend the rule. In this case, that didn't happen because there was one court in Illinois, in the District of Illinois that had a ruling that was still in effect when the Biden administration came into power that said that this Trump public charge rule was unlawful and could not go into effect and had a nacent wide injunction. And that ruling was for a different reason than the Supreme Court who had ruled in other cases that the public charge rule could go into effect.

In cases of many other circuits that have been filed and So what the Biden administration did is it said, here's what we're gonna do. We are going to say we're dismissing all of these cases. So there was a case coming into Supreme Court where oral argument was going to happen nine Circuit case. There was cases all around the country. And what the Biden administration said is these people seeing us California, the cities and the localities, we agree with them. And so what we will say is, look,

we're not going to defend this case. We're not gonna defend this public charge rules, and so dismiss your cases. So everybody dismisses their cases if Copreme Court case gets its mess. And what the Biden administration says is this public charge rule is no longer in effect because the only case that has not been dismissed is the Illinois case. And in the Illinois case, we locked. We were enjoying

from putting in this rule. And so thus the state of play before Arizona and other states get involved, they then see that this offen Wait a second, the public charge rule has been invalidated through this interesting method where all the lawsuits were dismissed except the one where the federal government laws that can't be right. We need to revive one of these other lawsuits where we were winning so we can bring it back to the Supreme Court

and we can win. And even if the federal government doesn't want to defend this, we as the state, should be allowed to defend this. So Arizona goes to both the Ninth Ticket and the Seventh Circuit, which is Illinois, and says we want to intervene, meaning we want to take the plate of the federal government so that we can defend the Trump public charge regulation. And the Ninth Circuit says, no, you can't do this because one the

case has already been dismissed. It's too late. And to this injunction that we had in place was only for California and Washington anyway, it wasn't a nation wide injunction case. And so Arizona, you have nothing to do with this. So why are you even involved. You're not being harmed by this case. And so that's the issue that goes

up to the Supreme Court. And where yesterday there was an argument about whether the Ninth Circuit should have permitted Arizona to resuss and take the Ninth TA case and bring it back to the Supreme Court for a decision. So it struck me that some of the justices were, you know, annoyed with what the Biden administration did. So you had Justice Elena Kagan saying the Supreme Court shouldn't be green lighting that behavior for your administration or any

other administration. Chief Justice Roberts saying it would be really quite a license for collusive action for any incoming administration to change the rules. Then there were other justices who said, you know, administrations change and the rules change. Clarence Thomas that I've been through five administrations, the rules change, So explain how the justices sort of saw this. So the

issue comes down to this. I think there was a contented that the idea way that you would normally want to handle something like what happened here would be to file a brand new lawsuit against the federal government that says, we don't like the way you retended this rule because you did it in an illegal way. You should have gone through the normal recission process and not do this funky thing you did where you dismissed all the cases you didn't like and you kept the one case you

did like. So that's what the justices wanted. But where the Arizona Solicitor General really made a little bit of traction is to say, we don't know if a case like that would have succeeded. It's possible that all the courts, including the Supreme Court, would have said no, no, no, you can't file a lawsuit like this because they didn't rEFInd the rule. But they did was they actually esced to a bad judicial ruling, so they didn't change anything.

When a judge enjoined the rule, then you're not allowed to follow that rule anymore. You have to stop following the rule. You have to go back to the status quo.

And so they did that, they didn't resis it, and so that's the problem is Arizona was caught in a catch twenty two about whether the right solution here was to file a new lawsuit saying that this recision was done improperly, or whether to intervene in the existing lawsuits so that they could get this issue feed back up to the Supreme Court about whether the public charge rule

was lawful or not. And this is where I think the Supreme Court is stuffed because nobody knows what the right solution is your argument was very laborious and confused about what the right solution should have been. There, we'll give us an idea where the justices stood. So there was basically four different camps. One camp was you didn't do anything about this, and that was sort of the sort of major camp, um, there's nothing you can do here.

There was a second camp that said, maybe intervention is the right move, but you should have done it in the Seventh Circuit case, the Illinois case, because that's the case where the injunction actually exists. And what's weird about that is that seems to make a lot of sense, but that's just not the case that's before the Supreme Court. The men that we need to just list this case and admit it just wasted everyone's time and then wait for the Illinois case to come back up and literally

decide this exact same issue. And so that's possible. That's what that's the most logical, easy way to solve this problem. But it will literally have been that all of this briefing and oral argument and time and expense and everything was completely useless and this just was a waste of time for everybody. But that is a possibility. That's the setting.

The third would be that they would say, in the future, when something like this happened, you have to file a brand new at A lawsuit administrative produe direct lawsuits that says this is a this is a the fast so improper recision without known as in common and so you can't do things this way. That would be the third way to do this, or the fourth way to do this, which Justice Guard it to us seizing at with the federal government, would be to say that, look, you can't

issue nationwide injunctions in the first place. To this district court ruling wouldn't stand anyway, because you can, they shouldn't have been able to issue a nationwide injunction. I don't think they'll be able to go there because this case doesn't even have the Illinois case in it, So it

would be two months judicial activism there. And that seems to be the fourth solutions they're trying to be which one they think it's going to happen, and so the second on and the third one thing the most likely, which is either that we wait till be the Illinois case comes, or they should have filed a new a p A lawsuit and they can go ahead and do that now they want to. So let me ask you this, does everyone agree that the Biden administration went about this

in the wrong way? I think out of the justice there's probably about six of them thought that this was kind of an irregular, creative, tricky way of doing things,

But nobody said it was illegal. People just stopped at this thing created an imprecedented situation that needed to be resolved so that there couldn't be these kinds of uh collequive actions in the future with future administration, that there would actually be some way for people who wanted to defend an existing regulation to be able to do it. And so the question is what mechanism will be created to allow that the bind administration, if it goes through

the right procedural process, can resend this rule. Yes, and that's that's another thing that the federal government was claiming is that now the Biden administration has issued a new public charge rule that just happened last and so we should just forget everything else that happened and pretend that this is now the recision and we're starting from that place. So why is Arizona wasting time with this lawsuit when the Biden administration is going to rescind the rule through

the regular process and institute a new rule. What's the point of this. Two or three of the justices made that point. Brier made that point, in my made that point,

and Taken made that point. The date of Arizona basically wanted to be able to go batch the cords and get an advisory opinion, essentially saying that the Trump administration rule was legal, so that they could take that advisory opinion and use it in any other forum to prevent the Bible in the Lisperation from either invalidating that rule or from putting in a new rule in the future. To the point, and we've discussed this before, some justices

said it was unprecedented. Others said this happens all the time. Arizona can't force the federal government to keep a rule that the federal government doesn't want to. That's what happens when administrations change. And yet it seems like in this case and in the Return to Mexico case, that's just what they're trying to do. Correct with one caveat, So the issue isn't in Arizona force or not force the

federal government to have a particular rule. Everybody conceded that the federal government has that prerogative to rEFInd the rule. But the question is, does the federal government, if it doesn't follow the actual pro feature that normally followed to rEFInd the rule, is it able to resend the rule by means of dismissing some lawsuits and keeping others and with the ones that it keeps not allow people to intervene in those lawsues to try to at least defend

the position of the prior administration. And so that's where it gets a little bit complicated here, And from that perspective, that's what the courts can have to decide is is that a grievance that is so valid that you do need to create an ability for safe they intervene there, or is that grieving noted? But in the end it doesn't matter because this is just something they can do, and their solution is just to file a new lawsuit saying that the new rule is arbitrary and camprecionate and

just leave it eva. And so maybe that's what they can do in that situation, But that's what the courts canna have to decide. And what you mean is just that This is just a very rare set of fact, which is that an administration things is there's some decisions in your favor, there's some opposed, and then the court moots out the ones that are opposed but keeps the one that's in the favor. But that's it's just that hot pattern that's new. But the changing of positions is

definitely not a new thing. After the Trump administration, after four years of the Trump administration not following the Administrative Procedures Act, I would think that all these questions would have been answered by this time. You would have thought so. But just in this one instinct prevents a new set

of fact. Now. I do think if what had happened was that the Biden administration had entered into a settlement with the plaintive, the court would have been much angrier and would have said, way a second, there is so much collusion here. We absolate the states get involved. But that's not what happened here. There was not a settlement rate. It was just that they agreed with the one court that agreed with them, and then they mouted out all

the cases where the courts didn't agree with them. It took guys that hadn't happened before, and so the question is is not gonna be away and I mean you're not gonna be able to intentionally ever be up. So five it has to be accidental in every future case. But in future cases where there's an administration that changes and there's a version of opinion, then can you take advantage of that to refined rules? And that's what this is ultimately going to come down to. Thanks Leon for

helping us untangle that procedural mess. That's Leon Fresco of Hollanden Knight. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, Slash Law, And remember to catch The Bloomberg Law Show every week night at ten from PM Wall Street Time. I'm June Blawsow, and you're listening to Bloomberg