National Law Journal



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NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Tony Mauro
Marcia Coyle
Jun 06, 2018
The big news of the week was the justices' decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. We take a look at whether the ruling—what many call a "narrow" decision—will have any heft as a future precedent. There are 25 more cases to be decided in the next three weeks or so. Stay tuned. Plus: Ross Davies offers some lessons in lawyering drawn from that great storyteller Thurgood Marshall. Thanks, always, for reading Supreme Court Brief. We appreciate feedback and suggestions. You can reach us at tmauro@alm.com and mcoyle@alm.com.
Masterpiece Cakeshop: A Precedent for the Future or One Bite Only?

U.S. Supreme Court decisions are precedents intended to give guidance to lower courts and promote uniformity of law. What kind of precedent is—or will be—the justices' decision this week in favor of the baker who refused, for religious reasons, to bake a cake for a gay couple?

Some precedents are "for this case only," as the justices said in deciding the 2000 presidential election in Bush v. Gore. “Our consideration is limited to the present circumstances,” the majority famously wrote, “for the problem of equal protection in election processes generally presents many complexities.”

But even that decision has found a home in a few lower court rulings.

Although decided by a 7-2 majority, Masterpiece Cakeshop v. Colorado Civil Rights Commission is viewed by many as "narrow" because the decision primarily rested on a few statements—deemed "hostile" to religion—made by members of the Colorado Civil Rights Commission. That apparent hostility denied baker Jack Phillips's right to a neutral review of the discrimination claim against him and, according to the high court, violated his free exercise right.

>> But in terms of precedent, what does narrow mean?

"Although the ruling is narrow, I don’t think it was for this case only," said Erwin Chemerinsky, dean of the University of California Berkeley School of Law. "First, the court clarifies what it perceives as hostility to religion. Second, Justice Kennedy’s opinion has important language about there not being a free exercise exemption from a neutral law of general applicability, specifically about civil rights laws. Both are important for other cases in the future."

Across the ideological spectrum from Chemerinsky, James Bopp Jr. of the Bopp Law Firm, agrees—well, sort of.

"I don’t think this is sui generis. The whole idea of neutrality among religious beliefs and not picking out and giving them disparate treatment is a principle they certainly applied in this case and should be applied in future cases," he said. "What we have more generally is the problem we see here in Indiana. Gay rights ordinances have very narrow religious protections. So some people's religious beliefs are protected, like if you're a priest, but Joe Blow's beliefs are not because they are not exempt. I view that as a lack of neutrality and evenhandedness."

The Supreme Court's decision was "essentially a punt, a way for the court to put the key issue of the clash between religious liberties and state anti-discrimination laws off for another day," said Richard Hasen of the University of California Irvine School of Law. "It sends the signal that decisionmakers considering religious liberty claims need to show respect and give dignity to those who raise religious liberties claims in this context, and on this point I think this opinion has some precedential value and merit."

That is really a change in emphasis rather than an actual change in the law, said William Araiza of Brooklyn Law School. The decision "doesn’t offer a lot of guidance," he added. "But if a lower court has a case featuring similarly dismissive or derogatory language about religion, then it does offer support in the future."

>> Speaking of the future, the justices at their Thursday conference will consider Masterpiece II.

The petition in Arlene's Flowers v. Washington and the same-sex couple Robert Ingersoll and Curt Freed raises the same speech and religion claims but in the context of a florist's refusal to provide a custom arrangement for a wedding. The florist's counsel is the same lawyer from Alliance Defending Freedom who represented the Colorado baker: Kristen Waggoner.

The ACLU's Joshua Block, referring to that petition, suggested on Twitter: "If they deny cert and let the ruling stand, it will be a big signal to lower courts that Masterpiece is essentially limited to its facts."
5 Lessons in Lawyering from Thurgood Marshall"It wasn’t easy being Thurgood Marshall, and it isn’t easy to emulate him. But those of us who are not Thurgood Marshall-caliber lawyers (or lawyers-to-be) can still do some good, however slight. And maybe we can pick up a few ideas from a few more looks into Marshall’s life."

That's Ross Davies of George Mason University Antonin Scalia Law School who looked into Marshall's life and offers "five little lessons in lawyering" from that gifted raconteur in a recent Oklahoma Law Review article.
Davies recounts three amazing Marshall stories: one about the landmark Brown v. Board of Education cases; one about Marshall's arrest when he was working in the South, and one about his investigation of discrimination in the Army during the Korean War.

The lessons for lawyers that emerge include: "Always look a gift horse in the mouth, because no one ever gives anything good in litigation or negotiation," and "Teach your clients, because the cases are really theirs, and you won't always be there for them anyway. Put another way: 'Eternal vigilance is the price of liberty.'"
In Case you Missed It: SCOTUS Reading• Justice Stephen Breyer says he wants changes to the clerkship process. In a commencement address, Breyer lamented the “terrible system” in place for hiring law clerks and noted that some judges are trying to “straighten it out.” Breyer joins justices Elena Kagan and Ruth Bader Ginsburg in backing the new clerkship hiring process.

• Appellate veteran Allyson Ho is leaving Morgan, Lewis & Bockius for Gibson, Dunn & Crutcher, where her husband, James, was a former partner. James Ho got a Trump appointment to the Fifth Circuit.

• In 'Masterpiece' case, why did the Supreme Court snub wedding cakes as art?

• A judiciary working group, formed at the request of Chief Justice John Roberts Jr., released its report on inappropriate conduct in the court system as well as proposed reforms.

• An Atlanta law firm lost a seven-year fee fight in the U.S. Supreme Court.

• The U.S. Supreme Court declined to punish ACLU lawyers in an abortion case against the Trump administration.

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