Ciceronian Review

Kraken - No Exit Through Bankruptcy

A few more thoughts regarding the Kraken crew, Sydney Powell, Lin Wood, et al. 

I don't know what the sanction amount will be in the Michigan case.  I don't have a sense of how much time was put in by the Defendants or how many briefs got filed.  And they were  represented by government lawyers I believe (but am not sure), whose hourly rates are different from those of private firms.  I expect the number will be several hundred thousand dollars.  We shall see.  Suppose so.  The lawyers are, as a group, sufficiently wealthy to pay that sort of sanction.  Individually, it is a different matter.  I expect that one or two would be ruined if faced with the total. And, in the end, it is up to the Defendants whom they collect from -- the award is joint and several.  But just in case one is curious, the kind of sanctions imposed in this case are not dischargeable in bankruptcy.  Under 11 U.S.C. §523(a)(6), a judgment based on an injury resulting from willful and malicious conduct is not dischargeable.  Willful injury is "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury."  Kawaauhau, 523 U.S. at 61 (emphasis in original).  An act is malicious under 523(a)(6) when the person acts in conscious disregard of their duties or without just cause or excuse.  Malicious intent occurs when the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result form it."  In re Moore, 357 F.3d at 1129.   Those standards are met.  Judge Parker's order clearly and explicitly attributes to each lawyer individually bad faith conduct.  That is, each is found to have acted in conscious disregard of their duties (as lawyers) and of the rights of Defendants.  Their conduct aimed at imposing costs on Defendants, not vindication of any cognizable rights of Plaintiffs: "And this case was never about fraud--it was about undermining the People's faith in our democracy and debasing the judicial process to do so."  (3)  A point supported by the failures to correct errors or to withdraw papers that are either moot or unfounded, itself grounds for sanctions.

What sort of defense might the attorneys have put on once the Court gave notice that it was considering sanctions?  That is something I have pondered from time to time since listening to the July 12 2021 hearing.  The defense that presented at the hearing (save for Newman and Rohl) was hard to credit.  The argument was that these various 'witnesses' signed affidavits and some of the affidavits had been submitted to other (state) courts.  Attorneys are entitled to rely on affidavits as reasonable investigation and attorneys themselves are entitled to be believed by the court.  Finally, we can show that the affidavits are credible if, Judge, you will hold an evidentiary hearing so the 'witnesses' can be examined.  But none of those arguments makes sense.  The affidavits submitted to the state court had been found to be inaccurate and not credible.  Anyway, how would the fact if filing make the affidavit credible, or remove the duty to investigate?  More importantly, it would make no difference because the affidavits just do not support the allegations of the Complaint; whether true or false, the affidavits are irrelevant to the allegations of the Complaint.  It is the Complaint that the lawyers are responsible for, and that is unsupported.  It is just false that attorneys can step out from the duty of reasonable investigation by blind reliance on a party's or third party's assertions -- the assertions have to be plausible.  These weren't.  And attorneys are not entitled to credibility or plausibility merely because they are the source of some allegation.   As to the evidentiary hearing line, well, it would serve no purpose.  The affidavits are irrelevant.  Having witnesses repeat the statements cannot change that.  As the Plaintiffs' lawyers knew what the Judge was concerned about before the hearing, namely the basis for and investigation of the allegations of the Complaint and Amended Complaint, the lawyers' arguments seem to be so bad as to invite sanctions.  (I was a little surprised that the Judge did not impose further sanctions for such bad arguments.)  All I have come up with that they might have accepted fault for the conduct and requested leniency.  Which is not a defense, I know.

Another Loss For Kraken

The US District Court for the Eastern District of Michigan handed down its order on the motions for sanctions against Plaintiffs' counsel, the Team Kraken.  The decision, as expected, went against Team Kraken.  It s a long order, 110 pages, covering the jurisdiction and authority of the court, the standards for imposing sanctions, the procedure to date, the factual bases for sanctions, and individually for the offending conduct the of the attorneys sanctioned.  There are a couple of points  want to note today, before a longer discussion (perhaps) tomorrow.

The primary Plaintiffs' lawyers were Lin Wood, Sydney Powell, Howard Kleinhendler, Stefania Junttila, Julia Haller, Brandon Johnson, Scott Hagerstrom.  Their misdeeds and misconceived arguments are set out in detail.  They got what they deserved: monetary sanctions, order to take CLE (to be attested by counsel in Michigan), and referral for disciplinary proceedings including disbarment.  More about them in a later post.

Two lawyers played much smaller roles: Emily Newman and Gregory Rohl.  Newman was contract lawyer, did not have a role in drafting the complaint, and had quite limited work on the case (about 5 hours).  (34)  Rohl was local counsel.  He filed the papers at the request of the lead counsel, and, he said, reviewed the complaint before filing -- 830 pages in about an hour. (36).  They both received sanctions.  In fact, all of the lawyers are subject to the same set of sanctions: jointly and severally liable for Defendants' fees (excluding Davis), completion of 6 hours of CLE credits on pleading standards and 6 hours on election laws, and all were referred to their respective Bar for disciplinary investigation and proceedings.

Newman's name was on at least some of the offending papers, in particular the initial and amended complaint.  In permitting (or agreeing) to have her name on the papers, she endorsed the papers, took responsibility for the papers complying with Rule 11 and attested that the papers were filed in good faith and a proper purpose.  She did not withdraw her name from any of the papers, and did not disassociate herself from the failure to voluntarily and timely dismiss the complaint when the complaint became moot.  She signed on.  Rohl is the same boat.  He signed the papers and never withdrew. 

It is not new that sanctions can be imposed on local counsel for papers drawn up by lead counsel.  The days of "dropbox" local counsel have been long gone.  There is no dispute that local counsel vouches for what they file and that they have to review the papers to make sure a reasonable attorney would file them.  Nor can local counsel get protection by having lead counsel do their own filing after the initial papers and pro hac admission.  In the jurisdictions where I practiced, the rules required local counsel to be on every paper filed and affirm that they would ensure compliance with all of the rules.  So Rohl goes with Powell and Lin.

Newman is, I think, a more sympathetic case.  Contract lawyers have little control over anything, lead economically precarious lives, more so that other attorneys I believe.  She put in few hours and had no part in the worst papers.  But her name was on them, and other offending papers.  That put her on the same block to be chopped along with Powell and Wood.  For us, that is other lawyers, she an example of risks exceeding responsibility and compensation.  Does she deserve the same treatment as Powell and Wood and thier cohort?  Perhaps not (I think not).  But how fine should the lines be drawn in this case?  I see reasons for the judge to decline making distinctions, e.g., all signed the  papers, none took proper steps to withdraw or amend, none investigated any of the allegations or claims before filing (or even after I think).  Lie down with dogs.. 

Some Questions From Union Gospel

The decision in Union Gospel is built on the ministerial exemption afforded to religious institutions under the First Amendment of the US Constitution and, presumably, state constitutions.  What sort of group qualifies as a religious institution for this purpose?  Surely religious entities that are incorporated under applicable law -- churches, temples, and the like.  Do confraternities count, i.e., lay organizations engaged in religious work or missions?  Union Gospel is an employment case.  Do its terms also apply to voluntary organizations?  May a lay group bar from membership those not in compliance with its doctrines?  I would guess it could, but that is a guess.  I do not know the areas of applicable law well enough to offer more than that.  But suppose the organization provides services, along the lines of Union Gospel.  Does that change things, or is the important line whether it has employees?  Or requests payment for (some) services? 

In her concurrence, Justice Yu says: "Given our state’s long-standing commitment to eradicating discrimination and to fostering a diverse workforce, it is my greatest hope that religious institutions will recognize and embrace the choice to limit the “ministerial exception” to those employees for whom such an exception is absolutely necessary and grounded in sound reason and purpose. After all, the right to exclude the LGBTQ+ community from ministerial employment by religious institutions is not a right that must be exercised. Rather, it is a choice by that religious institution and it is a choice that is not governed by an external judicial doctrine but rather one carved out by the religious entity itself."  (¶46, emphasis added.)  I wonder what Justice Yu means by "absolutely necessary and grounded in sound reason and purpose".  In the instant case, what sort of factors would count toward "absolutely necessary and grounded in sound reason and purpose"?  Would it be enough to point to salient passage in the Christian Bible?  IS some further doctrinal defense needed?  Is the religious belief or beliefs to be grounded in reason, not revelation?  To the second emphasized phrase, is it appropriate to put the issue in such voluntaristic terms?  What does Justice Yu mean by choice?  Is it her thought that, e.g., whether to believe in pre-destination is a matter of choice for Calvinists?  Do the religious choose what to believe?  I think the answer is a rather mixed response -- conversion is not always a choice, and I think normally not really voluntaristic.  In other words, is the identity put at issue not a fundamental aspect of identity, quite unlike whether to be a lawyer or a teacher?  Or, to be a bit tendentious, is religious identity less important than sexual orientation? 

The passage, for me, reads as a call to religious institutions to minimize their religious commitments, and to embody a certain lack of respect for the religious.  Washington permits ideological legal services I believe, e.g., legal services that represent particular causes or groups.  Lawyers limit their practices in all sorts of ways.  Why would it be that modeling the religious commitment to alleviating need not count as "elucidating or teaching" the faith? 

Can The Fifth Say No?

Yesterday the Fifth Circuit Court of Appeals upheld yet another set of restrictions on abortion, vacating and reversing the district court in Whole Women's Health et al. v. Paxton et al.  The opinions in the en banc decision are here.  I skimmed the dissent, but read the majority and concurrence with care.  In recent years the Fifth Circuit's decisions on abortion have gone up to the Supreme Court twice, both times reversed by the Supreme Court.  Both times the Fifth Circuit approved restrictions on access to abortion, uncritically accepting the state governments' (Texas and Louisiana) claims.  And again this week, the Fifth Circuit finds that it really does not much matter what the burdens are.  Restriction get low scrutiny as long as the restrictions do not, by themselves and without considering any other factors (e.g, other restrictions and costs) "unduly burden" some undefined large fraction of women seeking abortion services.  This decision is notable for continuing the process of excluding from consideration the relation between the supposed benefits of the legislation and supposed burdens of the legislation.  It does not matter that removal of wisdom teeth is more dangerous for the patient than are abortion procedures, or that the health and safety regulations do not have anything much to do with either health or safety, nor that the speech compelled is inaccurate and tendentious.  This set of judges sees no burden so great that it is undue.  A concurrence also gives us the benefit of a lesson in the history of biological sciences, explaining that some discoveries are not immediately taken up by the medical community, so, of course, judges should not put much store by expert testimony (well, except in criminal cases when stuff like bite-mark testimony is accepted). Judge Ho's concurrence is unrelated to the actual issues, and is misleading even considered in the most favorable of lights.  The decision is ordinary politics. Access to abortion services is a right grounded in the Constitution, like a host of other rights not mentioned in the text, like the right to travel among states, like privacy, etc.  Legal realism is the real doctrine of these judges.

  

Kabul

The collapse of the government in Kabul and return to control of the Taliban is a disaster for a great many people, particularly women who had stepped into more westernized lives, political liberals, and many others.  Recriminations and condemnation of Biden have already begun.  The US military has been in Afghanistan for about 20 years, and with the State Department and other agencies has been building an army and civil government.  But they failed.  The Afghan army collapsed, the civil government collapsed.  I don't have any insight into why that is useful.  I pretend to have the expertise to say anything original about the situation.  I do feel comfortable noting that the efforts failed, that it the conflicts within Afghanistan and Pakistan presented what look to me be intractable problems for outsiders like the US.  I don't pretend to understand US policy with respect to Pakistan, why the US would give billions to Pakistan while Pakistan pretty openly supported the Taliban and its like.  It is a disaster created by every president beginning with George Bush.  A poorly done intervention.  As such things are.  And why it is good to read Chomsky on politics every few years.     

Which Ones Are Fundamental?

 

              ^{In Wood v. Seattle’s Union Gospel Mission, Washington Supreme Court reversed a summary judgment in favor of Union Gospel in an employment discrimination dispute. The plaintiff, Wood, had been a volunteer at Union Gospel for some time and, following graduation from law school, applied for an open position as a staff attorney. He was denied the position after he disclosed that he was in a relationship with another man and that he hoped one day to marry. When Woods first began work with Union Gospel as a volunteer, he had signed a statement of faith affirming that his commitment to upholding biblical values. The primary state law applicable to the case is Washington’s Law Against Discrimination (WLAD), chapter 49.50 of the Revised Code. WLAD exempts religious nonprofits from the definition of “employer”. On that basis the trial court granted Union Gospel summary judgment. The Washington Supreme Court accepted Woods’ appeal to address whether the exemption of religious nonprofits was unconstitutional on its face, or, if not, is its application to Woods invalid. The Court reviews the history of the statute and the applicable state and federal caselaw, with extended discussion of Our Lady of Guadalupe. The upshot is that the Washington Supreme Court adopted the analysis of Our Lady of Guadalupe, which limited a religious exception to anti-discrimination employment laws to positions which involve a significant ministerial function. The exception is upheld against a facial challenge. But then the question, which is sent back to the trial court to consider, is whether Woods’ potential role as a staff attorney is sufficiently intertwined with religious teaching and ministerial activities, to be within the exception of religious nonprofits from the reach of WLAD. In other words, the district court will need to consider the factors and analysis of Our Lady of Guadalupe to make a judgment about the religious nature (or lack) of staff attorney for Union Gospel.}

              ^{One gets a sense, however, that the Supreme Court, notwithstanding that teh issue had not been addressed below, is inclined to the conclusion that Woods should win in the end:}

^{WOODS acknowledges that all SUGM employees are expected to evangelize, but there is no evidence that staff attorneys had titles as ministers or training in religious matters comparable to Hosanna-Tabor’s teacher. And while staff attorneys are expected to share their faith with clients as opportunities arise, there is no evidence that they are expected to nurture their converts’ development in the Christian faith similar to the job duties performed by the teachers in Our Lady of Guadalupe and Hosanna-Tabor. Further, neither SUGM nor ODLS is a church or religious entity principally responsible for the spiritual lives of its members. SUGM employees are expected to be active members of local churches; SUGM employment alone does not appear to be sufficient religious affiliation. Employees held to be ministers in Our Lady of Guadalupe and Hosanna-Tabor led faith groups and taught religious doctrine. The record indicates that these duties occur outside SUGM, in local churches for SUGM employees. Moreover, WOODS sought employment with SUGM as a lawyer specifically, not as a religious minister or teacher, and there is no indication that religious training is necessary for the staff attorney position, unlike the teachers in Hosanna-Tabor. (¶41)}

^{Maybe that is an accurate account of the record: Maybe Union Gospel made no real effort to show the religious aspects of the staff attorney position. But, as the Court itself says earlier in the opinion, the issue was not litigated below. The Court’s views also come out in the concurrence. “I would hold that there areno reasonable grounds to afford the privilege of the Washington Law Against Discrimination, ch. 49.60 RCW, exemption to Seattle’s Union Gospel Mission (SUGM) because SUGM cannot enjoy a free exercise right to discriminate against an employee who performs nonreligious duties, such as a staff attorney. However, because there are factual questions regarding the duties of the staff attorney, I ultimately concur in the court’s decision to remand.” (¶44) These two sentences are in some tension. Justice Yu first says staff attorney position are nonreligious (so no exemption applies) and then says, second, that there are factual questions about the duties of staff attorneys. The first strikes as more sincere than the second. Or consider the following two paragraphs, which are a short lecture directed at religious institutions that they really would be better changing their doctrinal commitments, e.g., to marriage as one man and one woman, or prohibitions on extramarital sex. Not much room there for minority views of what conscience demands. To be sure, the concurrence recognizes that Union Gospel’s claim is not frivolous, there are “some circumstances” weighing in its favor: it describes the legal service as a ministry that operates with an evangelical purpose. But, of course but, Union Gospel does not hold the attorneys out as ministers, and does not require a significant degree of religious training. “And in the context of a nonprofit legal aid organization serving the civil legal needs of vulnerable populations, I believe it is simply not possible to simultaneously act as both an attorney and a minister while complying with the [Rules of Professional Conduct].” (¶52) Religious consideration are not prohibited, that much is conceded. (¶53.) At least, clients are permitted religious conscience. For lawyers, it is quite unclear whether Justice Yu thinks attorneys are permitted a conscience, nor, in the event the lawyer has moral reservations about a client’s requests the lawyer is permitted to withdraw or is instead required to elide their moral concerns. I wonder if, in Washington, Union Gospel can require its employees to be Christian, or is it required not to inquire into religious beliefs, or their absence? That would be discrimination on the basis of creed, which WLAD bars. Or is the analysis limited to discrimination related to fundamental rights, marriage and sexual orientation, and religious commitment is no so connected to a fundamental right?}

Kraken Under Siege

^{Back in July (the 12th I believe) the District Court in Detroit Michigan held a hearing on imposing sanctions on the team of lawyers who filed a lawsuit seeking to have the election results thrown out. An all day hearing, which was interesting to listen to and watch. The judge permitted the parties to file supplemental briefs, which have now been filed. I want to discuss the hearing, although it was a month ago. But before that a couple of notes about other related developments.}

^{First, the District Court in Colorado has imposed sanctions on the Kraken legal team who filed there: they must pay the legal fees of the defendants, who ranged from Dominion Voting Systems to the Secretaries of State for Georgia and Pennsylvania. Sanctions are likely to run to several hundred thousand dollars. Sanctions were imposed under Rule 11 and the inherent powers of the Court.}

^{Second, in the District of Columbia, Sydney Powell is facing a defamation suit by Dominion Voting Systems, based on Powell’s claims of voter fraud, stolen elections, switched votes. In her motion to dismiss the suit, Powell argued that no reasonable person would believe her statements were factual. A reasonable person would consider her various allegations that Dominion Voting Systems rigged election outcomes and manipulated tabulation were merely opinions and not statements of fact. That Dominion Voting Systems’ Complaint labels the allegation as wild, and outlandish was part of her argument. I guess the idea was that the more outrageous the defamatory statement the less likely it is that a reasonable person would believe it a statement of fact, and so no defamation action would be possible. Well, that theory is not quite so bad as Powell’s claims, or the theories of Kraken suits, but it is pretty bad. My guess is that it is just short of sanctions. More interesting is the conversations that occurred in drafting the motion. I wonder what the lawyers told one another as they wrote it, and what they said in signing it. The Motions to Dismiss (by Powell, Giuliani, and Mike Lindell heard together as related cases) were denied. In D.C., Powell and Lindell claimed that the court did not have personal jurisdiction over them. Unfortunately, Powell made defamatory statements in D.C., transacted business there, and Dominion suffered injury there. So too Lindell.}

^{Third, there are host of disciplinary complaints still pending. Or they might be pending. Attorney disciplinary processes are almost always secret, at least until sanctions are imposed, so it is hard to tell when there is an investigation. But given that court imposed sanctions are still coming down, it is likely that disciplinary investigations are also still going on.}

^{Now to the arguments at the July Kraken hearing in Detroit. The judge held he hearing so that she could hear from the plaintiff attorneys what basis they had for the allegations of their complaint, in other words, what was the evidence from which a reasonable attorney might conclude that the allegations had a plausible basis in fact. The attorneys over and over again pointed to declarations attached to the complaint as providing reasonable grounds for the complaint. And then to ask for an evidentiary hearing. Neither line of argument got traction with the judge. The recurring problem for the plaintiff attorneys was that the declarations either had no relevance to the allegations of the complaint, or were facially implausible or incredible, giving the attorneys reason to check on the veracity of the witness statements. In response to such points the attorneys raised the argument that they were entitled to believe sworn statements without more, and that some at least had been filed with other courts and so were entitled to be believed. To which one might reply, and the judge did several times, that attorneys are not entitled to just accept whatever a client or witness says particularly when the statements are facially implausible. And, in many instances, the the declarations had no relevance and so did not support any of the allegations or claims. This went round and round and round, the judge asking for the basis for reasonable belief in the allegations and claims and the attorneys pointing to declarations and asking for an evidentiary hearing (so the witnesses would be before the court and they could answer any questions). This did not strike me as a persuasive course of argument. And repetition did not make it more persuasive, but instead less. The strategy seemed to be to stand on the work and ask for a hearing over and over becuase at a hearing they would be able to put on their case. As the judge had dismissed the complaint, it seems oddly hopeful to think the judge would now relent and have an evidentiary hearing on a case that was already dismissed. But what else could they have done? Admit the errors and hope for leniency? Well, yes, that does seem to be what reasonable lawyers would do as there was no defense.}

^{Only one lawyer seemed to me to be deserving of leniency, perhaps even dismissal form sanction, a contract attorney who had put in a few hours (5) on the case. Seemed to em that such a person does not have sufficient control or influence over the work to be tagged with sanctions.}

^{As noted above, the supplemental briefing is done. We await the decision of the judge. Given the outcomes in other Kraken cases, I think it will be a bad day for plaintiffs’ counsel.}

Creative Dissent

From the dissent, by Judge Tymkovich, in 303 Creative:

It is important to understand from the outset that Ms. Smith and Colorado agree that she will serve anyone, regardless of protected class status. In the district court, both she and Colorado stipulated that: (1) Ms. Smith is ”willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender”; and (2) Ms. Smith does “not object to and will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites do not violate [her] religious beliefs, as is true for all customers.” Aplt. App. 2+322. Ms. Smith and Colorado also agree that she “will decline any request to design, create, or promote content that: contradicts biblical truth; demeans or disparages others; promotes sexual immorality; supports the destruction of unborn children; incites violence; or promotes any conception of marriage other than marriage between one man and one woman.” Id. At 2-323. And counsel for Ms. Smith confirmed at oral argument that she would represent clients regardless of sexual orientation in creating websites that celebrate opposite-sex weddings. (55-5)

This establishes that there is no discriminatory intent, and that the policies are applied uniformly, i.e., flow from religious belief. And it makes clear that it is her involvement in and expressive action that are the basis for her commitments - the design work is expressive of her, including her religious commitments which do, after all, go to her identity. 

The dissent then makes what I think is the key point. On the majority’s approach, 303 Creative is compelled to create expressive content celebrating same-sex weddings (contrary to religious beliefs) as long as she creates expressive content celebrating opposite-sex weddings (consonant with religious beliefs). Compelled speech, in other words, is what the majority approves of. (55-56) The Supreme Court cases on compelled speech require a different outcome. (56-64) ”A state may not regulate speech itself as a public accommodation under anti-discrimination laws. But CADA does so here, making Ms. Smith’s artistic talents the vehicle for a message anathema to her beliefs.” (69) As CADA by its own terms and as administered by Colorado has exceptions, its application to religious beliefs here clashes with Supreme Court holdings. I think the dissent is right to point to application to other sorts of artistic endeavors, that the majority’s view entails compelled speech in a host of situations where it is not justified, i.e., violates the constitutional order. Islamic artists compelled to provide Zionist murals, Jewish cantors required to perform Catholic services, and so on. (All of these involve someone who is paid for their work, so well within the scope of CADA according to the majority.)

The dissent also makes out a strong case that CADA is not neutral as to religious beliefs and that it involves exemptions that are based on the content of message, e.g., secular reasons for refusal to produce expressive content are accorded more consideration than are religious reasons. This decision puts the Tenth Circuit into conflict with the Eighth Circuit. There is hope that the Supreme Court will take up this case and sort out at least some of the boundaries for interaction between the First Amendment and anti-discrimination statutes.

A final few small points. The majority downplays the import of the holding of the Supreme Court in Masterpiece Cakeshop, brushing aside the religious bigotry of the record as found by that Court. It is a little troubling that the majority is not concerned that, on remand to Colorado, one of the commissioners asserts that the remarks noted with disapproval by the Supreme Court were right, or that counsel for the commission describes religious beliefs as beliefs “termed” sincere religious beliefs. Perhaps not enough to vitiate the decision-making, but also not the language of people intent on playing an unbiased adjudicatory role. The beliefs are not “termed”, they are religious beliefs and should be treated as such. Just so it would be an improvement if the majority here (and other courts) would stop using quotation marks around sincere religious beliefs and religious belief -- it signals a lack of sincerity by the courts, that they hold the beliefs as sincere religious beliefs in name only, as window-dressing.

303 Creative - Tenth Circuit Confusion

           At the end of July, the Tenth Circuit Court of Appeals handed down a decision in 303 Creative v. Elenis, et al., (19-1413), a Colorado case concerning whether a wedding web designer could, consistent with her religious beliefs, decline to do web design work for same sex marriages. The Tenth Circuit said no, affirming the district court’s decision. The law at issue was CADA (Colorado Anti-Discrimination Act), the Act which was involved in the Masterpiece Cakeshop case. Under CADA, a public accommodation is “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” It has exemptions for places used principally for religious purposes and for some sex-based restrictions. 303 Creative is a web-design company, planning to expand its business to offer design services for websites celebrating weddings. The owner and sole member adheres to religious beliefs that do not condone same sex marriages. In her view, same sex marriages conflict with God’s will. She will, however, provide graphics and website design services to LGBT customers purposes. She will not provide services to anyone for same-sex marriages. She also plans to include in her website a statement explaining her religious objections. The issue is, then, focuses on whether her religious objections to same-sex marriage survive CADA or she must provide design services for same-sex marriages if she offers design services for opposite sex marriages.

           I pass over the discussions of standing and injury. They are interesting, but not necessary to discussion of the substantive holding. To the substance then. First, the Court found that 303 Creative’s creation of websites is pure speech. “[C]reating a website ... implicates Appellants’ unique creative talents, and is this inherently expressive.” (22) The Accommodation Clause [of CADA] also ‘compels’ Appellants to create speech that celebrates same-sex marriages.” (24) Because the Accommodation Clause compels speech -- if 303 serves opposite-sex weddings it must serve same-sex weddings, it is a content-based restriction. (25) Hence, strict scrutiny applies, i.e., Colorado must articulate a compelling state interest and show that the restrictions are narrowly tailored to achieve that purpose. (26) The compelling state interest is “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” While the Accommodation Clause is not narrowly tailored to prevent dignitary harms, it is narrowly tailored to ensuring equal access to available goods an services. (27-8) “The question then becomes whether Colorado’s interest in ensuring access to the marketplace generally still applies with the same force to Appellants’ case specifically -- i.e., ‘whether [Colorado] has such an interest in denying an exception to [Appellants].’” (29)

           Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition unavailable elsewhere. As discussed above, our analysis emphasizes the custom and unique nature of Appellants’ services, For rthe same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services o the same quality and nature as those that Appellants offer. Thus, there is no less intrusive means of providing equal access to those types of services.

           Amici dispiute whether subjecting businesses to the Accommodation Clause ultimately chills commerce by discouraging businesses from entering the market, due to fears that they will be compelled to create objectionable products. ... With respect to amici, we find the dispute beside the point. This case does not present a competitive market. Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist. And, as amici agree, monopolies present unique anti-discrimination concerns. ... It is not difficult to imagine the problems created where a wide range of custom-made services are available to a favored group of people, and a disfavored group is relegated to a narrower selection of generic services. Thus, unique goods and services are where public accommodation laws are most necessary to ensuring equal access. ... To us, whether an exception limits market access depends upon the uniqueness of the public accommodation’s goods and services -- not the sincerity of the public accommodation’s beliefs. (30-2)

Let me stop here for discussion, leaving other aspects of the majority opinion for later consideration.

           The market discussion is surprising. The majority seems to be saying that 303 Creative has no competition, it is a monopoly. The services offered by 303 Creative are not available anywhere else (“Appellants’ unique services are, by definition unavailable elsewhere.”) This is, shall we say, a curious claim. First, anyone offering the least bit of customization or design is offering a unique service in this sense. That doe snot, however, tell us that the entity is in a unique, single member market. Web-design and graphics services are big markets. It is just false, in the ordinary everyday meaning of not true, that 303 Creative offers services “unavailable elsewhere.” The services are available from lots of other sources. Her services are unique in the same way every person performing service work is offering something unique, i.e., trivially so. 303 Creative is not unique because it is the only web design service in some geographic market.

           The majority do think that a commercial artist, that is, someone providing artistic services for profit, is each and every one in their own market, that none competes with anyone else. That is false. Web designers compete against one another, and each tries for its own mix of offerings to achieve economic success. They also compete against DYI applications. I.e., some generic and cheap and some personalized and more expensive, are all competing for the same general set of consumers. It is a little stranger in that 303 Creative does not yet offer wedding website design services, and, given the decision of the court, likely will not offer such services. So her wedding website design services, unique in the market and so a monopoly, do not even exist yet.

           According to the majority, 303 Creative not offering wedding website design services for same-sex weddings illegally constricts the market for same-sex wedding website services, excluding LGBT consumers from that unique market, even though 303 Creative does not offer anyone wedding website services. LGBT consumers are left with an inferior, constricted market -- exactly the market such consumers are already in because 303 Creative has not offered wedding website services to anyone as yet.

           On the majority view, every for profit enterprise that offers customized services is in a unique, single firm market. Maybe there is some special, non-economic meaning of “market” in the context of public accommodation law, divorced from economics and the rather well-developed law of competition.

           How is any artist selling to the public in Colorado not a public accommodation? Well, maybe the background thought is that public accommodation only matters if the artist engages in discrimination. But that may mean, e.g., a painter cannot specialize in portraits of African-Americans, or Catholic religious paintings, etc.

           It is also interesting that the compelled speech cases come in for discussion in the question of standing, but effectively disappear from sight when the merits are discussed. How does this case fit with Hurley, in which the Supreme Court held that the New York St. Patrick’s Day Parade could not be compelled to include a contingent of gay marchers? Is it really just that 303 Creative is for profit and the parade is nonprofit?

           In Masterpiece Cakeshop there was extended discussion in the briefs and in argument before the Supreme Court over whether making cakes was sufficiently artistic to take the service outside the scope of CADA. That discussion was based on the view, including caselaw, that artistic creations are within the protections of the First Amendment and subject to public accommodation requirements only in extraordinary circumstances. Requiring speech, which is what is being talked about, is not normally within the scope of legitimate government powers. Well, not so in the Tenth Circuit now. 303 Creative has religious objections to same-sex weddings, wedding web-site design services involve personal artistic speech -- that was agreed by all parties and so given. Requiring 303 Creative to design websites for same-sex weddings looks like compelled speech, and is.