Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English

Justices take on First Amendment challenge to state abortion disclosure laws: In Plain EnglishIn 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with […]

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Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English

In 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options.

The act imposes two different sets of requirements. Nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. Centers that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help. California’s attorney general and local government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.

The centers went to court, arguing that the law violates the First Amendment. First, they contended, requiring medical centers to post signs containing a phone number for information about low- or no-cost abortions is at odds with the anti-abortion message they want to convey. Moreover, they said, the law requires only groups that are opposed to abortion to relay the message, singling them out based on their views. Second, they asserted, the disclosures required for centers that are not licensed to provide medical services have two undesirable effects: The disclosures are so extensive and burdensome “that it is difficult, if not impossible, for unlicensed centers to advocate their own pro-life message in most media”; and those centers are compelled to “begin their expressive relationship with an immediate unwanted or negative message that crowds out and confuses their intended message.”

A federal district court rejected the centers’ arguments, and the U.S. Court of Appeals for the 9th Circuit affirmed. But last month the Supreme Court agreed to decide whether the disclosures required by the law violate the First Amendment’s free speech clause; it declined to weigh in on whether the disclosures run afoul of another part of the First Amendment that bars the government from prohibiting the free exercise of religion.

The centers are represented by lawyers for the Alliance Defending Freedom, which also played key roles in (among others) two recent high-profile cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs; and Zubik v. Burwell, a challenge by religious nonprofits to the workarounds offered to those who objected to the Affordable Care Act’s birth-control mandate. They argue that the 9th Circuit should have used the most stringent test – known as “strict scrutiny” – to review the Reproductive FACT Act’s constitutionality because the law is based on the content of the centers’ speech and discriminates based on their viewpoint.

When that standard is used, the centers contend, the law cannot survive. It places enormous burdens on the centers, even though California has not provided any evidence suggesting that the centers are actually causing any harm, and it applies to all pregnancy centers, even if they are not doing anything misleading. If the state were truly concerned that pregnant women aren’t getting information about state-funded options, the centers conclude, it could publicize that information itself.

California counters that the act targets two problems: Women who can’t afford medical care aren’t aware of the publicly funded options available to them, and when they go to these centers they are often confused about whether they are getting care and advice from medical professionals. The notices that the medical centers are required to provide, the state argues, fall “well within the First Amendment’s tolerance for the regulation of the practice-related speech of licensed professionals.” And the notices that the unlicensed centers must provide, the state continues, are permissible to prevent confusion about the nature of their care.

The justices are expected to hear oral argument in the case early next year, with a decision by the end of June. Their ruling could have ripple effects well beyond California: As Dahlia Lithwick and Mark Joseph Stern have observed at Slate, over a dozen states have laws that are intended to discourage women from having abortions by requiring abortion providers to tell their patients, for example, that there is a link between abortion and breast cancer or that abortion increases the risk of suicide. It is not clear what a ruling for the centers in this case would mean for those laws, but the potential parallels mean that a lot of people will be watching this case closely.

This post was originally published at Howe on the Court.

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This week’s oral argument audio now available on Oyez

This week’s oral argument audio now available on OyezOyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in: Christie v. National Collegiate Athletic Association Rubin v. Islamic Republic of Iran Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission Murphy v. Smith Marinello v. United States

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This week’s oral argument audio now available on Oyez

Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

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SCOTUS for law students: Splitting the free speech community

SCOTUS for law students: Splitting the free speech communityTuesday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission showed that the justices are divided in their views on the conflict between the free-expression rights of a baker who refused to make a wedding cake for a same-sex couple and Colorado’s civil-rights law that protects against bias by businesses based on sexual […]

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SCOTUS for law students: Splitting the free speech community

Tuesday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission showed that the justices are divided in their views on the conflict between the free-expression rights of a baker who refused to make a wedding cake for a same-sex couple and Colorado’s civil-rights law that protects against bias by businesses based on sexual orientation.

The Supreme Court is not alone in being divided, however. The closely watched case has also split the community of First Amendment lawyers who advocate free-speech rights in a broad range of lawsuits, friend-of-the-court briefs, scholarly articles and panel discussions.

This is unusual, although certainly not unprecedented. Political leaders, philosophers and different groups in our society often debate and disagree about the meaning of free speech and what the First Amendment covers. First Amendment lawyers, however, often tend to view issues and controversies through a similar free-speech filter.

Not so in the friend-of-the-court (or “amicus curiae”) briefs filed in the Masterpiece Cakeshop case. Among more than 100 amicus briefs filed on both sides are a handful – also on both sides – that are written by or written for recognized First Amendment experts in private practice and in law schools. This column examines some of the amicus briefs and explores the differences in their approaches.

First, it may be helpful to give a quick summary of the core arguments in the case. Lawyers for Masterpiece Cakeshop and the baker, Jack Phillips, maintain that his wedding cakes are a form of creative expression and that he cannot be compelled by the government, in this case the Colorado Civil Rights Commission, to create expression with which he disagrees. Lawyers for Colorado and for the now-married, same-sex couple, Charlie Craig and David Mullins, argue that the state civil-rights law prohibits discriminatory business practices, such as refusing to sell a cake because of disagreement with same-sex marriage. Any burden on the baker’s free speech is incidental and allowed by anti-bias laws, they maintain.

This disagreement is not surprising. What is perhaps unusual is that there are free-speech advocates on both sides.

Robert Corn-Revere is a Washington lawyer with Davis, Wright, Tremaine and one of the most active free-speech litigators in the nation. He filed a brief for a nonprofit called the First Amendment Lawyers Association. In the brief, he argued that making a custom wedding cake is creative expression that is entitled to the protection of the First Amendment. State anti-discrimination laws, Corn-Revere argued, cannot be used to compel someone to speak or to create expression against his will. “Creativity cannot be coerced,” he wrote.

Corn-Revere’s brief relies heavily on a 1995 Supreme Court decision holding that the organizers of the annual Boston St. Patrick’s Day Parade could not be forced under an anti-discrimination law to include a gay-rights group in the event. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Supreme Court ruled that the parade organizers could not be compelled, against their beliefs, to embrace the message of supporting gay rights.

Another brief, filed on behalf of 34 legal scholars (many of them highly prominent names in constitutional law and specifically the First Amendment), argues, “This Court has refused to allow an unquestionably legitimate antidiscrimination law to be applied in a way that would seriously intrude on the freedom of expression.” Written by David Langdon, a lawyer in West Chester, Ohio, the brief says Colorado and the same-sex couple seek to violate one of the most famous axioms in First Amendment history, the statement that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The much-quoted line comes from West Virginia State Board of Education v. Barnette, a 1943 decision that said individuals could not be forced to recite the Pledge of Allegiance and to salute the flag against their beliefs.

Among those on Langdon’s brief, mostly conservatives, are former federal appeals court judge and now Stanford Law School professor Michael McConnell; Chapman Law School professor Ronald Rotonda, who has produced decades of constitutional law casebooks; Michael Stokes Paulsen of the University of St. Thomas, another constitutional-casebook author; and Robert Nagel, emeritus professor at the University of Colorado Law School and author of several books on constitutional law, to mention just a few.

The idea that government may not compel individuals to speak is clearly established in First Amendment law, but one question that divides First Amendment experts is whether this case is an example of compelled speech.

The experts on the side of the state and the same-sex couple, who argue that compelled-speech principles are not implicated in this case, are as well-regarded in the fields of constitutional law and the First Amendment as those on the side of the baker. One brief was written by Walter Dellinger, former acting solicitor general, emeritus Duke University Law professor and a partner in the Washington office of O’Melveny & Myers. Dellinger’s brief represents various First Amendment experts: Floyd Abrams, a premier litigator; Vincent Blasi, Columbia University Law School professor; Burt Neuborne, onetime legal director of the American Civil Liberties Union and New York University Law School professor; and Geoffrey Stone, University of Chicago Law School professor, among others.

Dellinger casts the case in a very different light, arguing that it is not really about freedom of speech at all. “Colorado does not regulate the creation of messages,” Dellinger writes. “The Colorado statute … regulates the conduct of selecting customers, and does so well within the parameters of First Amendment protections.” “Petitioners have a First Amendment right to pick their message,” asserts Dellinger, “but not to choose their customers based on sexual orientation.”

Another brief on the side of the state and the couple was filed by professor Steven Shiffrin, who has taught courses on the First Amendment at Cornell Law School for decades and who wrote one of the leading First Amendment casebooks. Like Dellinger, Shiffrin argues that the case involves “discriminatory conduct,” not expression. Noting that the Colorado anti-discrimination law applies not just to the baker, but to hair stylists, chefs, bartenders and more, Shiffrin writes: “To stretch the First Amendment to cover this wide range of goods and services would threaten civil rights law not only with respect to sexual orientation, but also with respect to race, religion, and gender.” Shiffrin maintains that this is not a compelled-speech case because the baker was not required to convey any message.

How will the Supreme Court evaluate these diametrically opposed views of what constitutes speech and whether anti-discrimination laws may be valid even if they burden some amount of free expression? As with many of the court’s close cases, it seems that Justice Anthony Kennedy holds the key to resolving that dilemma. There are plenty of amicus briefs to offer him advice. With First Amendment lawyers writing passionately on both sides, however, it is difficult to predict whether and in what direction the handful of briefs by free-speech experts will sway him.

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Argument analysis: Is “cash only” enough for a tax law obstruction charge?

Argument analysis: Is “cash only” enough for a tax law obstruction charge?Marinello v. United States is a criminal tax case that presents a limiting-principle puzzle. It turns on the meaning of I.R.C. § 7212(a), which makes “corrup[t]” “obstruction” of “the due administration of this Title” a felony. The language is “ungodly broad,” as Justice Elena Kagan described it, because of, as Justice Neil Gorsuch suggested, the […]

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Argument analysis: Is “cash only” enough for a tax law obstruction charge?

Marinello v. United States is a criminal tax case that presents a limiting-principle puzzle. It turns on the meaning of I.R.C. § 7212(a), which makes “corrup[t]” “obstruction” of “the due administration of this Title” a felony. The language is “ungodly broad,” as Justice Elena Kagan described it, because of, as Justice Neil Gorsuch suggested, the “pervasive, continuous, brooding” nature of tax administration. Throughout the argument, the justices pressed counsel for a limiting principle, in an animated discussion that saw participation from every justice save Justice Clarence Thomas. The taxpayer argued that the government is required to prove that the taxpayer had knowledge of a “pending proceeding” by the IRS, while the government maintained that proof of a “specific intent to obtain an unlawful benefit” is the appropriate prerequisite for an obstruction charge under this section. The justices appeared to favor an interpretation that falls somewhere in between.

Carlo Marinello ran a cash courier freight business, did not pay taxes and, before he heard from the government that he was under audit, destroyed records. Matthew Hellman, representing Marinello, began by taking aim at the government’s proposed limiting principle. But the justices quickly redirected Hellman to an examination of his own client’s “pending proceeding” proposal.

Hellman compared Section 7212 to another obstruction statute, 18 U.S.C. § 1503,  which was limited with a pending-proceeding requirement in United States v. Aguilar. Both statutes, he said, have a two-part structure. The first part – what Hellman called the “officers clause” — covers interference with individuals involved in administering the tax code and participating in a court case, respectively. The second part – the “administration clause” — more broadly refers to “due administration of this Title” and “due administration of justice.” The structural parallel is clear, argued Hellman, so the obstruction statute in tax law should have a pending-proceeding requirement, just like the statute in Aguilar. Hellman argued, pointing to 18 U.S.C. § 1512(f), that Congress knows how to specify that a proceeding need not be pending.

But Gorsuch and Justice Sonia Sotomayor suggested that it is not as clear in the context of tax administration that “pending proceeding” is the right line. Perhaps the line should be drawn when the agency is, as Gorsuch put it, “doing something other than merely passively receiving taxes.” Perhaps an affirmative act on the part of the tax administrator should be required. One hypothetical involved a phone call placed by an IRS agent to a taxpayer before an audit was opened. But Hellman, perhaps unintentionally speaking in the government’s interest, said “that the line between when the IRS is doing something and not doing something at times can be a little bit blurry.”

Assistant to the Solicitor General Robert Parker argued the case for the federal government. The justices were ready with two hypotheticals. The first was a reporting-position hypothetical, posed by Sotomayor. If a taxpayer takes an aggressive tax position that turns out to be illegal, she asked, could the taxpayer be charged under Section 7212(a)? No, Parker responded, because the taxpayer has to know that the advantage is unlawful to have a corrupt intent.

The second hypothetical involved paying people in cash. Say one taxpayer hires another taxpayer to babysit, or mow a lawn, or clean gutters. The service provider prefers to be paid in cash. As the taxpayer who needs the services probably knows, the reason why the service provider prefers cash has to do with tax evasion. Parker conceded that under the government’s limiting principle, both the payor of cash and the recipient “may come within the scope” of Section 7212(a). Parker argued that an additional requirement is that the act have a “natural tendency to obstruct or impede the IRS in an unlawful manner to obtain an unlawful benefit.” Would a payment of cash have that natural tendency if a service provider charged $125 if paid by check, $100 if paid by cash? asked Justice Samuel Alito. Not necessarily, claimed Parker, when pressed by Alito, Sotomayor, Kagan, and Justice Stephen Breyer — “subjective specific intent” is required.

Failing to file an information return reporting payments to an individual independent contractor, unlike obstruction under Section 7212(a), is not a felony. This hypothetical thus nicely illustrates the “upcharge” problem that the taxpayer and his amici emphasized in their briefs and about which several justices, including Justices Ruth Bader Ginsburg and Anthony Kennedy and Chief Justice John Roberts, expressed concern. In response to questions about the government’s policy of charging “to the maximum extent reasonably possible,” Parker represented that about four percent of criminal tax cases include an obstruction charge. Kennedy was interested in whether the government’s view would change if 80 percent of cases could include such a charge under its theory of the meaning of Section 7212(a).

In rebuttal, Hellman once more took aim at the government’s position, including by arguing that a “substantial number of … misdemeanors would qualify as obstruction” and pointing out the increased leverage that the possibility of a felony charge could have in a plea-bargain negotiation. He referred back to his exchange with Gorsuch and Sotomayor, and said that “there are other ways of reading the officers clause in conjunction with the administration clause to come up with a more limited standard.” “So, what is it? … [W]hat is the limit?” asked Ginsburg, insisting on more precision. In response, Hellman attempted to characterize what Gorsuch and Sotomayor had suggested earlier. He described a requirement of an “obstructive act or omission … in the context [of] some interaction with the IRS.” Breyer had the final substantive word from the bench, a point about the text of the statute. “So I think you’re suggesting work with the word in the statute, ‘administration.’ That’s the word?” “Yes,” said Hellman.

Stay tuned. A decision is expected before the end of June.

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Argument analysis: What does it take to satisfy an award of attorney’s fees?

Argument analysis: What does it take to satisfy an award of attorney’s fees?In Murphy v. Smith, the Supreme Court is charged with interpreting statutory language that on its face appears straightforward. In prisoners’ federal civil-rights cases that result in an award of money damages and attorney’s fees, the Prison Litigation Reform Act requires that “a portion of the judgment (not to exceed 25 percent) shall be applied to […]

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Argument analysis: What does it take to satisfy an award of attorney’s fees?

In Murphy v. Smith, the Supreme Court is charged with interpreting statutory language that on its face appears straightforward. In prisoners’ federal civil-rights cases that result in an award of money damages and attorney’s fees, the Prison Litigation Reform Act requires that “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.” But that language turned out to be anything but simple, as evidenced by Justice Samuel Alito’s lament early in Wednesday’s argument that “I mean, this language can be read either way, and it’s very difficult.”

Here is the crux of the difficulty: Plaintiff Charles Murphy argues that the phrase “not to exceed 25 percent” grants district courts discretion to order that any amount, from a nominal sum up to a maximum of 25 percent of a prisoner’s award, be devoted to attorney’s fees. But the defendants, two prison guards, argue that the PLRA requires prisoners to pay attorney’s fees in full unless those fees exceed 25 percent of the damages award. That means that, in their view, prisoners must contribute toward attorney’s fees 25 percent of their money judgment or 100 percent of awarded attorney’s fees, whichever is less.

Stuart Banner, representing Charles Murphy, began by urging the justices to interpret literally the statutory phrase “not to exceed 25 percent.” But that led quickly to an exchange about the meaning of the word “satisfy,” with Alito offering a Dickensian hypothetical:

Suppose a teacher said to the parent: Your child can’t function at school because the child is hungry. Would you give the child a portion of food for breakfast to satisfy the child’s hunger?

You wouldn’t say, well, you know, if I give the child a tiny crumb, that would satisfy the hunger.

It was unclear if Alito was satisfied by Banner’s answer – that depending on context, “satisfy” may mean either “satisfy in full” or “satisfy in part” – because Justice Ruth Bader Ginsburg then asked about how courts that read the statute as Murphy urges divide responsibility for attorney’s fees in prisoners’ civil-rights cases. According to Banner, courts weigh the seriousness of the conduct, often limiting plaintiffs’ contributions toward fees to a negligible amount in “really egregious cases.” This response prompted some puzzlement from Chief Justice John Roberts and Justice Anthony Kennedy, both of whom suggested that it would at least be unusual for Congress to have used fee apportionment as a way of punishing serious violations of plaintiffs’ civil rights.

The argument then turned to the purpose of the PLRA in general, and its fee-allocation provision specifically. For example, Justice Elena Kagan observed that several provisions of the PLRA seemed to be aimed at reducing district courts’ discretion in prisoners’ civil-rights cases, suggesting that it would have been incongruous for Congress to leave district courts with substantial discretion over fee allocation. However, Justice Sonia Sotomayor offered a contrary reading that Banner was quick to endorse, reasoning that whereas many of the discretion-limiting provisions in the PLRA sought to curb frivolous lawsuits, the attorney’s fee provision comes into play only in cases in which the prisoner plaintiff has prevailed.

Banner’s argument ended with an extended exchange over whether the PLRA sought to put prisoners in the same position as plaintiffs in cases to which no fee-shifting statute applies. Roberts suggested that the defendants’ reading of the statute would make sense if Congress was trying to place prisoner plaintiffs in a similar position to plaintiffs proceeding under a contingent fee arrangement. However, Justice Stephen Breyer asked whether those litigants were really the correct comparators, or whether the Supreme Court should instead consider the PLRA against the baseline of victorious civil-rights plaintiffs who are eligible to have their attorney’s fees paid in full by defendants.

Arguing for the defendants, Brett Legner began where Roberts left off, arguing that Congress’ intent in enacting the fee-allocation provision of the PLRA was to “replicate a contingent fee arrangement”; he later added that Congress also sought to make prison litigation less expensive for defendants. However, Breyer suggested that Congress could have had a different calculation in mind: “You can have a reasonable attorney fee here … and the prisoner doesn’t pay the whole 25 percent. We put some of it on the prison guard, the state, that’s acted so abominably.” Breyer posited that Congress could have feared that, under the defendants’ interpretation of the statute, district courts might shrink fee awards in order to avoid eating into a badly mistreated prisoner’s judgment. In contrast, Murphy’s interpretation would allow district courts to achieve two goals – awarding a reasonable attorney’s fee, and allowing prisoners to keep a substantial amount of the judgment awarded.

Legner’s argument also included substantial discussion of the text of the statute, ultimately circling back to the definition of the word “satisfy.” Here, Kagan tipped her hand, stating that “what I’m suggesting is that this language should be read … to say … shall go towards satisfying. So a dollar would go a small way towards satisfying.” Legner responded that this interpretation made superfluous the phrase “to satisfy the amount of attorney’s fees.” Later, Alito returned to this point (and to food analogies) by pointing out that a single carrot wouldn’t “satisfy” his hunger for dinner, even if he could later augment his diet with other food in the refrigerator. The ensuing discussion of Alito’s dinner requirements ended with a reference to “17 percent of [a] casserole,” but no mention of what kind.

Toward the end of the argument, Ginsburg asked a question that seemed to encapsulate the heart of the dispute: “[I]f … we conclude that the statute is ambiguous … why shouldn’t we take [42 U.S.C. §] 1988 as the closest [baseline], rather than … the American rule?” In other words, should the Supreme Court assume, as Ginsburg was suggesting, that Congress was attempting to make a relatively minor modification to the fee-shifting provision that routinely applies to civil-rights plaintiffs? Or should it assume that Congress was trying to place prisoners in a position very similar to tort plaintiffs, who must pay their own lawyers? The justices seem divided on that question, which is likely to inform their assessment of what Congress meant by “satisfy.”

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Argument transcripts

Argument transcriptsThe transcript in Murphy v. Smith is available on the Supreme Court’s website; the transcript in Marinello v. United States is also available.

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Argument transcripts

The transcript in Murphy v. Smith is available on the Supreme Court’s website; the transcript in Marinello v. United States is also available.

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Argument analysis: Conservative majority leaning toward ruling for Colorado baker

Argument analysis: Conservative majority leaning toward ruling for Colorado bakerLines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear […]

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Argument analysis: Conservative majority leaning toward ruling for Colorado baker

Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear that, at least in one respect, the case is just like so many others: It is likely to hinge on the vote of Justice Anthony Kennedy, who initially seemed sympathetic to the same-sex couple but later expressed real concern that Colorado had not been sufficiently tolerant of the baker’s religious freedom.

The dispute before the Supreme Court today dates back to 2012, when Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a special cake to celebrate their upcoming marriage. But Jack Phillips, the owner of the bakery, refused to make them a cake. Phillips, who describes himself as a “cake artist,” is also a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce or same-sex marriage. The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had “no free speech right” to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.

An appeals court in Colorado rejected Phillips’ argument that forcing him to make a cake for a same-sex couple would violate his right to free speech and to practice his religion freely, but his argument found more traction at the Supreme Court today. At first, Kennedy seemed to acknowledge the impact that a ruling for the baker could have for gays and lesbians. He told Solicitor General Noel Francisco, who argued on behalf of the United States in support of Masterpiece Cakeshop, that if the baker were to win, he could put up a sign indicating that he would not bake cakes for same-sex couples. That, Kennedy suggested, would be “an affront to the gay community.”

But later, Kennedy asked Colorado Solicitor General Frederick Yarger, representing the state, about a statement by a member of the Colorado Civil Rights Commission who noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust. It is, the commission member contended, “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” If we thought that at least this member of the commission had based his decision on hostility to religion, Kennedy asked Yarger, could the judgment against Masterpiece stand? Kennedy returned to this idea again a few minutes later, telling Yarger that “tolerance is essential in a free society.” But Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case.

The other conservative justices who spoke during the argument – Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch – also seemed to favor Masterpiece’s arguments, while the court’s four more liberal justices largely supported the state and the same-sex couple. But even if there are five votes in favor of Masterpiece, it’s not clear how or whether the justices will draw a line that respects the religious beliefs of people like Phillips without opening up a Pandora’s box that, as Justice Stephen Breyer put it, could “undermine every civil rights law since year 2.”

A decision is expected by summer.

(This post will be expanded shortly.)

This post was originally published at Howe on the Court.

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Argument analysis: Subdued justices parse immunity law

Argument analysis: Subdued justices parse immunity lawThese days, the Supreme Court is known as a “hot bench”: Lawyers who argue there usually have to respond to a barrage of questions from all sides. That fast and furious questioning can make it hard for advocates to advance their arguments, but it also makes it easier for both the attorneys and spectators to […]

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Argument analysis: Subdued justices parse immunity law

These days, the Supreme Court is known as a “hot bench”: Lawyers who argue there usually have to respond to a barrage of questions from all sides. That fast and furious questioning can make it hard for advocates to advance their arguments, but it also makes it easier for both the attorneys and spectators to figure out what the justices care about, and how they might rule. The flip side of this is that when the justices are quieter, the advocates have more time to talk, but it’s harder to know what the justices are thinking.

The latter scenario was on display this morning at the Supreme Court, when the justices heard oral argument in Rubin v. Islamic Republic of Iran. The case is the latest chapter in efforts by American victims of a series of suicide bombings in Jerusalem in 1997 to recover a $71.5 million default judgment from the Islamic Republic of Iran for its role in providing support to Hamas, the terrorist group that claimed responsibility for the blast. After approximately 45 minutes of oral argument, the justices seemed likely to rule against the victims, but their relative silence made it difficult to know for sure.

Today’s case centers on the interpretation of the Foreign Sovereign Immunities Act, a federal law that carves out several narrow exceptions to the general rule that foreign countries cannot be sued in U.S. courts. One of those exceptions is known as the “terrorism exception”: It allows private citizens to bring lawsuits against countries that have been designated as state sponsors of terrorism. Another provision of the FSIA, Section 1610(g), provides that when a judgment is entered against a foreign state under the terrorism exception, both the state’s property and the property of its “agencies or instrumentalities” – that is, organizations or companies owned by the state –can be transferred to the prevailing party, without having to consider five different factors related to the foreign government’s control over the property.

Representing the victims at the Supreme Court today, attorney Asher Perlin told the justices that in 2008, Congress overhauled the FSIA terrorism exception to close a gap that had allowed state sponsors of terrorism to “thumb their noses” at U.S. judgments holding them liable for terrorism. Section 1610(g), Perlin asserted, was the “centerpiece” of that overhaul: It allows victims of terrorism to seize the property of either a foreign state or its agencies or instrumentalities, without having to satisfy any of the other conditions imposed in Section 1610 to “pierce the veil” separating a foreign state from such an organization or company.

Several justices were skeptical, however, that this interpretation was what Congress intended. Instead, Justice Ruth Bader Ginsburg suggested, Congress enacted Section 1610(g) to allow plaintiffs like the victims in this case to overcome the presumption that a judgment against a foreign state cannot be enforced against that state’s agencies and instrumentalities. The provision, she posited, “does so perfectly,” making more assets available for plaintiffs. But it doesn’t say anything about immunity, she observed.

Justice Sonia Sotomayor appeared to agree. She observed that in at least three cases seeking to seize the assets of a foreign state’s agency or instrumentality, the plaintiffs could not recover because there wasn’t a sufficiently close relationship between the state and agency or instrumentality. “So there was a real issue,” she concluded, that Section 1610(g) was addressing.

Justice Samuel Alito asked Perlin to explain what role another phrase in Section 1610(g) – which allows the property at issue to be seized “as provided in this section” – would play under his interpretation.

Perlin responded that the phrase was intended to signal that Section 1610(g) only applies to judgments entered under the terrorism exception, and it also extends the remedies available to plaintiffs in such cases, including punitive damages. But Alito appeared unconvinced, telling Perlin that the phrase was really “superfluous” under his reading.

The justices allowed Perlin to speak at some length without interruption. Among other things, he emphasized exactly what is at stake in the case. “My clients,” he told the justices, “have been waiting 20 years to enforce their judgment against Iran. But “Iran doesn’t pay judgments,” he said. “Congress finally said ‘enough is enough’” and created a “tool” to allow victims like his clients to enforce their judgments.

Arguing on behalf of the University of Chicago, where the ancient Persian artifacts that the victims are trying to seize are housed, attorney David Strauss agreed that – as Perlin had argued – the history of Section 1610(g) indicated that Congress had intended to “eliminate barriers” facing victims of state-sponsored terrorism. But Strauss parted ways with Perlin at that point, emphasizing that Congress sought to remove those barriers by “changing the legal standards” for piercing the veil between a foreign state and its agencies or instrumentalities. And the phrase “as provided in this section,” Strauss asserted, means that even victims of state-sponsored terrorism must still satisfy the other requirements to seize property under Section 1610 – specifically, that the foreign state use the property for commercial activity in the United States. The justices allowed Strauss, even more than Perlin, to speak at length, and he sat down early.

Representing the United States, which filed a “friend of the court” brief in which it urged the justices to affirm the narrower interpretation of Section 1610(g) advanced by the University of Chicago and Iran, Assistant to the Solicitor General Zachary Tripp faced even fewer questions than the advocates who went before him and sat down after having used less than half of his 10 minutes. Tripp made clear that the United States “has a very strong interest in combatting state-sponsored terrorism.” But at the same time, he added, the federal government also has concerns about how its own property overseas will be treated if the court rules for the victims in this case. “Particularly in light of those concerns which are quite weighty,” Tripp emphasized, “if Congress was really going to take the step of allowing execution against property of a cultural and historical significance to another country and its people, that would be a big deal and it would not be the kind of thing you would expect to see buried in a conforming amendment without remark.”

It’s hard to know what to make of the relative dearth of questions today. Sometimes a quiet bench can mean that the justices agree with the arguments being made, but other times it can signal that the justices have already made up their minds and don’t feel that additional questions will be useful. At today’s argument, the justices seemed more skeptical of the victims’ interpretation than the university and Iran’s, but we won’t know for sure until the court issues its opinion sometime next year.

This post was originally published at Howe on the Court.

The post Argument analysis: Subdued justices parse immunity law appeared first on SCOTUSblog.

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Argument transcripts

Argument transcriptsThe transcript in Christie v. National Collegiate Athletic Association is available on the Supreme Court’s website; the transcript in Rubin v. Islamic Republic of Iran is also available.

The post Argument transcripts appeared first on SCOTUSblog.

Argument transcripts

The transcript in Christie v. National Collegiate Athletic Association is available on the Supreme Court’s website; the transcript in Rubin v. Islamic Republic of Iran is also available.

The post Argument transcripts appeared first on SCOTUSblog.

from http://www.scotusblog.com