Tuesday, July 25, 2017

Masterpiece Cakeshop v. Colorado - Question Presented and briefing schedule

Masterpiece Cakeshop
Alms for ADF on the counter at Masterpiece Cakeshop
I wonder if the ACLU or SPLC have donation cans
Masterpiece Cakeshop v. Colorado Civil Rights Commission is the case of the Washington State baker (Jack Phillips) who declined to bake a cake for a same-sex wedding in defiance of the state's nondiscrimination law. I expect Colorado to prevail but the Question Presented Report is biased in favor of the baker which is as expected since it was written by Alliance Defending Freedom, Masterpiece's lawyers. The QP is undated but here is what it says:
QUESTION PRESENTED:

Jack Phillips is a cake artist. The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado Anti- Discrimination Act ("CADA'') when he declined to design and create a custom cake honoring a same-sex marriage because doing so conflicts with his sincerely held religious beliefs.

The Colorado Court of Appeals found no violation of the Free Speech or Free Exercise Clauses because it deemed Phillips' speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of Phillips' cakes and the Commission's exemption of other cake artists who declined to create custom cakes based on their message. This analysis (1) flouts this Court's controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third, Sixth, and Tenth Circuits.

The question presented is:

Whether applying Colorado's public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
Masterpiece's brief is due on August 31. The state's reply is due October 23.

Free Speech:

ADF will argue that the requirement to comply with the law is impermissible compelled speech. Colorado will argue that baking a damned cake is conduct.

Masterpiece Cakeshop
Free Exercise:

ADF will argue that Jack Phillips, Masterpiece's proprietor, has the right to live out his Christian faith in the public square. Colorado will argue that Free Exercise does not license otherwise unlawful conduct.

Colorado will probably quote extensively from Justice Scalia's opinion for the majority in Employment Division v. Smith which held that religious exemptions to otherwise valid laws makes those laws entirely unenforceable. I have no idea what precedents ADF is relying on.

Aftermath:

Were Masterpiece to prevail then no nondiscrimination law would be enforceable. Ask any Klansman and he will proudly proclaim that his is a Christian organization. What about Christians who do not like Jews or Protestants who do not like Catholics? The possibilities and potential for discrimination are endless.

If Colorado prevails you would think that, once and for all, it would put an end to ADF's and Liberty Counsel's bullshit. Wrong! Neither operation ever seems to get sanctioned so they are going to continue to clog state and local dockets with those poor, victimized, Persecuted Christians™.

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