Ciceronian Review

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.

Rudy At Half-Time

Rudy Giuliani has been suspended from practice pending the completion of the a disciplinary investigation.  The suspension is based on Giuliani's knowing misstatement of fact to a court and many third parties and on knowing misstatements of facts to third parties made during the course of representation of Trump.  The temporary suspension is based on uncontested facts, i.e., Giuliani offered no basis for treating the allegations as disputed.  Page 5.  Bare denials do not create a dispute.  Page 19.  He had the opportunity to offer evidence that would counter the elements of the charges, in particular evidence that his statements were not knowing misstatements.  Giuliani chose not to.  What he did instead was aver that there was such evidence, somewhere or other, but not offer it.  The tribunal treated those claims as they should have, as not responsive.  With the factual allegations uncontested, the question was whether the requested temporary suspension was warranted.  Not having any contested facts made that determination a good deal easier.  Giuliani is suspended, but it should be noted that the proceeding is not concluded.  He can come back to the tribunal with the evidence he says exists a so challenge the charges against him. 

There is commentary that the disciplinary proceedings, including and in particular the temporary suspension, violate Giuliani's free speech rights.  See Blackman and Green & Roiphe, for examples.  I do not think that argument succeeds, and I am unsure the advocates see the implications for Giuliani's defense should the first amendment argument carry forward.

There is no significant doubt that the speech of lawyers in the context of representation of a client can be controlled, that their speech rights are limited in this context.  It is mostly a matter of litigation (although the rules apply across all forms of representation).  And here at least one court appearance is involved.  That count asserts that Giuliani knowing made misstatements in an oral argument (again, uncontested).  There is no doubt at all that this conduct is subject to discipline, both by the judge to whom the statements were made and by the appropriate bar disciplinary process, independently of any sanction or discipline by the judge.  Lawyers do not have as a legitimate option lying to the court.  It is likely that the criticisms of the temporary suspension rest on the other allegations, but one final note on this point.  That Giuliani later corrected the misstatements is only a mitigation.  the offense is knowing misstatement, i.e., lying.  The violation is completed when he lied, and he is properly subject to sanction whether he voluntarily corrects the lie or not.  There is no first amendment issue involved in discipline for lying to a judge during a court proceeding.  The rules of civil procedure and inherent powers of the courts have long been immune from that sort of challenge.  Indeed, there could not be a rule against perjury if lying in court was acceptable.

So limit the objections to temporary suspension for lying to third parties.  (Actually, those lies are mostly, but not exclusively, the lies to the court which were publicly available during the hearing and heard by several thousand people.)  It is important to keep in mind here that the it is uncontested (at this point) that Giuliani lied, that is what knowing misrepresentation is, lying.  That takes it out of normal advocacy, expressions of opinion and puffery that is a normal part of litigation.  Giuliani asserted that, e.g, more absentee ballots were returned than sent out, and that George Foreman was a listed voter.  That is not saying 'my client is innocent', it is asserting as facts things known to be false.  Now, true that civilians (for lack of a better word) can make such statements without legal repercussion. And lawyers too, when they are acting as civilians, can offer up such assertions.  They are as free to lie as others when they act as civilians.  But Giuliani was not acting in a civilian capacity, he was making these statements as part of and in the course of his representation of Trump.  That also is not contested, at least at this point.  Constraints on the speech of professionals acting in that capacity are commonplace and widespread -- consider the regulation of speech of doctors in the context of reproductive health treatment and consultation.  

Blackman purports concern over the scope of 'in the course of representation', that the phrase may be or is too vague for disciplinary purposes.  That seems to me an ill-considered critique.  The phrase is not unique to this context.  The scope of attorney client privilege is partly defined by or responsive to just that delineation.  Privilege attaches to communications in the course of representation (other factors are needed as well).  There is body of cases and law describing what the phrase means in that context, so we are not at sea with respect to 'in the course of representation.'  What lawyers say and do in the course of representation is regulated in other ways.  A lawyer may not make statements contrary to the client's interests, the lawyer may not disparage the integrity if the client, in the course of representation, or disclose confidential information without permission of the client.  These do not seem to be serious First Amendment problems.

If these restrictions are problematic, what to make of attorney client privilege?  More specifically, if Giuliani's statements at issue here were not made in the course of representation, then he was not representing Trump when he made the statements.  And strongly suggests that Giuliani and Trump do not have an attorney client relationship, at least as to these statements and Giuliani's doings at the time.  So communications between Giuliani and Trump are not privileged during the period, at least some of them.  That is an outcome that would be surprising to Giuliani, to Trump, and to the critics of the temporary suspension.

Whispers Only Allowed

Commentary on Mahanoy Area School Dist. v. B.L. continues to focus on the vulgarity" of the woman's statements, and not the substantive content.  See, e.g., Dorf.  The oral argument before the Supreme Court did not much concern the use of "Fuck".  It focused on criticism of a school and its personnel and how the criticism was voiced.  As it should have been.  I cannot believe that a Cheer Squad member would be suspended for 1 year because she said "Fuck" within hearing of another member of the squad. It is not credible to maintain that there was any disruption of school or negative effect on team solidarity or cohesion because of the use of the word.  Usage is entirely too common for that to be sustainable.  Would the school have done nothing if only she had expressed her frustration and disappointment more politely?  The argument was about the reach of school control of speech, and the argument was properly about how far outside a school itself its control should reach.  And Cohen made clear a long time ago that the mere presentation of the word is not sufficient basis for discipline.  This thought is also supported by the arguments in favor of the school, which had to do with pervasive criticism -- students criticizing an administrator daily in online media.  One interesting thing about the responses to the case, before and after the decision, is how far across the political spectrum can be found a rejection of Tinker.  Students do not shed their rights at the school house is great left back in opposition to the Vietnam War, but not now.  This case was about a private statement about something important to the student.  Is it a good idea to set the boundaries of permissibility by the size of the audience?  Or by whether third parties spread the message?  She is fine to say what she wants to six friends in person but not.... 

An I For An I

In deciding Fulton the Supreme Court sidestepped both the question of whether to overrule Smith and how far accommodation of religious beliefs in conflict with anti-discrimination policies may go. In summary, the Supreme Court found that the Philadelphia policies and laws were not of general application, because they provided for exceptions, and so the requirements of Smith had not been met and the case could be decided without addressing the standing of Smith.  Catholic Social Services won, at least for the moment.  The litigation is likely to continue in another form, as one response Philadelphia may make is to amend the relevant statutes and policies to eliminate exceptions, thereby curing the lack of general applicabiity of the laws.  That route would result in another suit and the Supreme Court facing directly whether to preserve or overrule Smith.  A reason not to go that route is that there are already three Justices prepared to overrule Smith, and another 2 or more thinking about overruling Smith.  My impression is that, when the question comes to the Supreme Court, Smith will be overruled. Philadelphia then ought to take the loss and let others litigate the status of Smith. The result in Fulton surprised me.  I thought that the Court would both address Smith and either find for, or suggest a method of analysis favorable to, Catholic Social Services. That did not happen, obviously, but there is writing on the wall. 

The ACA decision (California v. Texas) took up most of the commentary on the decisions handed down Monday.  That seemed to me an easier case, indeed, one that would not have made it to the Supreme Court had the lower courts not be so ideological.  The technical nature of Fulton also helped lower its profile, but the problems the case presented are not going away.  The conflict between religious belief and anti-discrimination laws and regulations is not solved.  The apparent commitments of a majority of the Supreme Court look to me to invite further litigation, that is, the Court will overrule Smith and will try to work out means by which there will be greater accommodation of religious views as exempted, to a limited but real degree, from anti-discrimination law.  Stay with CSS as an example.  It is not a simple anti-gay bias that is at work.  CSS serves unmarried gay men and lesbians along with their heterosexual counterparts.  (So the Supreme Court says anyway.). CSS draws a line only between married same-sex and married different-sex couples.  Married couples is the locus of conflict here.  CSS has religious commitments concerning the nature of marriage that entail that preclude treating same-sex marriages as equal with different-sex marriages.  But as it willing serves unmarried persons of various sexual orientations, it is not really true that it is excluding or denigrating gay men or lesbians.  If the analysis of Bostock gets applied that fact may not matter because denial of service to same-sex married couples would seem to be in virtue of sexual orientation of the married couple.  But Bostock does not yield a clean answer because it is, after all, just within the set of married couples that different treatment arises.  I.e., it is not solely sexual orientation that matters, as was the case in Bostock. 

For many, any exemption would be anathema, i.e., any exemption will denigrate gay and lesbian married couples, and so gay and lesbian persons.  They would be an affront to their identities.  And the absence of any exemption denigrates the adherents to the Church.  CSS is not a business; it is part of the religious practice and mission of the Church and its members.  Forcing them to abandon the mission denigrates the importance of religious identity, denigrates beliefs fundamental to identity.  Which I carries the day?  I am not at all certain.  Tentatively, my thought is that the accommodation and exemptions is the better route.  In Philadelphia, there are 21 or 22 other agencies involved in offering credentialing to prospective foster parents.  I think all of the other agencies work with same-sex married couples, so there are lots of alternatives to CSS, and its presence has no material effect reducing opportunities for same-sex couples.  Certainly the continued presence of CSS doe snot impose an undue burden on prospective same-sex married couples with to become foster parents.  Permissible obstacles to abortion are higher.  Pharmacists, who are engaged in business, are able to opt out of service involving contraceptives.  These too involve rights grounded in the Constitution, and yet exemptions and accommodations are to many quite acceptable.  Tentative thoughts.

Difference

The Utah Bar collects demographic information as part of its annual fee payment process.  The announced purpose is an interest on the part of the Bar Commission (although I think the page uses the term "Bar Leadership" instead) in how the Bar membership reflects or fails to reflect the demographics of the state.  Quite usual, and so too are the categories, which are just the census categories.  The Bar Commission wants greater demographic diversity in the Bar and the Bench, along those lines anyway.  There is evidence that defendants in criminal cases have more confidence in the process when the judge appears similar to the defendant.  I suppose there is something similar going on in civil processes as well.  So one of the ideas is to shore up confidence in the legal system through changing the appearance of those in the power positions in the process.  I wonder whether the effects remain when the defendant learns the judge is a former prosecutor.  That history has an effect on the performance of the judge and how the judge will treat the defendant.  Maybe, maybe not; I don't know of studies on such topics.  My experiences in court led me to believe that prior practice was more important that race, gender, sex, ethnic identity, sexual orientation.  it was almost always trouble when a complicated financial case was before a judge whose prior practice was felony prosecutions or worker compensation. I never saw much difference on other dimensions, but then this is just anecdote.  It is possible I was blind to the differences or that the sample was too small or to subtle for me.  When I have talked with the Bar President about such things, she points to studies showing that better and more creative decisions come out of groups with diverse membership.  The ones I have looked at are not so helpful.  They are studies of business decision-making in medium and large companies, and concern problems where it is possible to make an ordering of decisions.  I don't know quite how that works for a courtroom, where there is only one judge.  There are some studies of jury decision-making claiming the same thing.  I am unsure how the assessments are made however.  Is it real cases that are looked at, or is it the abbreviated and tailored panels of jury advisors?  Presumable the latter are sufficiently reflective or what real juries do that there is a science involved.  One hopes so.  

Reflective of the demographics of the general population (of the state, I suppose).  Not too accurately reflective.  Do not want judges who did not go to college or law school.  Do not want people with substance abuse issues on the Bench or in the Bar.  And religious affiliation, that also is not a category the Bar Commission cares to collect information about, nor is political or social affiliations, or economic status.  Or background and identity that is more fine-grained than sexual orientation of non-Hispanic white.  It is curious kind of essentializing, or maybe just looks like essentializing.  There are lots of ways of being an outsider not captured by the survey.         

Discomforting

The US Supreme Court denied certiorari in Republican Party of Pennsylvania v. Degraffenreid yesterday.  The case was a challenge to the procedures used in the last election in Pennsylvania.  It was, more recently, a vehicle to test the latest Republican theory on how to constraint voting, a sort of state legislative supremacy view of election rules.  With the election over and no likelihood that a decision in the case would have any effect on the electoral outcome, there was a genuine question of mootness, and that is the basis for denial.  There were dissents by Thomas and Alito.  The key point in Thomas' dissent was that the problem raised by the case is not going away, and that it will return at a point hen the briefing and consideration will be quite compressed.  It makes sense for all to address the question about regulation of election now when there is time and quiet to do so. 

I think Thomas and his co-dissenters are more interested in getting a case that will enable them to restrict voting, and see this as a respectable means to achieve that end (because it sounds like a neutral judicial effort), whatever the outcome.  Take away a potential shadow on a next election.  In other words, the dissents seem to me disingenuous.  But, the dissenters have a good point.  It does make more sense to solve the problem now rather than wait for the contested election that makes resolution crucial, and highly political.  It leaves me in the unexpected and somewhat uncomfortable position of reluctantly agreeing with Thomas -- the only reason I see for denial is the thin hope that several justices on the way out right side of the bench will retire or die or be disabled in the next couple of years.  In addition to very poor odds, there is something at best unseemly and perhaps worse, in having such a hope.

Well, then, fall back to the mantra - the Supreme Court is a super legislature, and all courts are reduced politics.  The oath is a lie or we give allegiance to an unjust state. 

False Report

Some months ago there was a good deal of news coverage of a white woman, Amy Cooper, whose dog was off leash and annoying a Black man, also named Cooper, engaged in bird watching in Central Park.  She was later arrested and charged with filing a false report.  (She reported the man had threatened her while the video of interchange precludes that claim.)  Now the charges have been dropped.  The NYT has a longish story about it, including comments from the prosecutors, her counsel, and Mr. Cooper.  The overall story is interesting, and seems to be accurate and to see the important points.  Ms. Cooper was involved in a diversionary program built on notions of restorative justice.  She did service and, more importantly, took part in education programs that led her to a better understanding of the things she did.  It is, in fact, a kind of success story.  The comments from Mr. Cooper, the victim, are particularly interesting and I will return them in a moment.

The story describes a success because, first, someone did not serve time in circumstances when a jail sentence would not serve any purpose.  Non-violent crime, one which the perpetrator can be educated out of repeating and, in the course, develop a better understanding of the social context and effects of her conduct.  That the second point: Amy Cooper came out a person.  And it cost a lot less than prison.

Mr. Cooper's comments are the most interesting piece:

"Asked about the dismissal of the charge, Mr. Cooper said there were more important issues for people fighting for racial justice to worry about, such as the political battle to make Washington, D.C., a state.

“I am far more outraged by the U.S. Congress, which continues to deny the mostly Black and brown people of the District of Columbia statehood, and the representation every American deserves, than by anything Amy Cooper did,” he said. “That gross racial injustice could be fixed by Congress now, today, and that is what people should be focused on, not last year’s events in Central Park.”"

There was one point in the story that was in a different key.  One of the candidates for Mayor of NYC:

"Eliza Orlins, a candidate for Manhattan district attorney, said in a tweet that the dismissal “isn’t surprising.”

“This is how the system was designed to function — to protect the privileged from accountability.”  Because Amy Cooper would be accountable only if she went to jail? 

What was most interesting int he story, to my mind, was this statement about the charge filed against Ms. Cooper: "one of the first charges a white person in the United States had faced for filing a false report involving a Black person."  There is a link to a prior NYT article about her arrest, where the reporter states "The pending criminal charge against Ms. Cooper appears to be among the first that a white person in the United States has faced for wrongfully calling the police to make a complaint about a Black person."  Could be.  But it is a claim that in the old days would have been called an empirical claim.  I wonder about it because it suggests that there is a database somewhere that includes a category for false reports, and that does surprise me a little bit.  Or maybe there isn't and the reporter is just saying, indirectly, that they have not heard of other such cases.  Or is it that there were no others in the search of news reports the reporter did but neglected to tell us about).  To be clear, I do not exactly doubt the reporter - I am not in a position to offer anything more than groundless speculation on the question.  But if Amy Cooper's charge was unique, or close to unique, that would be interesting empirical information.