Amicus Blog
Why You Can’t Sell Your Cake and Control it Too: Distinguishing Use from Design in Masterpiece Cakeshop v. Colorado
Justice Neil Gorsuch argues that it is impossible to make a principled legal distinction between (a) a baker’s refusal to make a cake that the customer will use to celebrate a same-sex marriage and (b) a baker’s refusal to make a cake designed with religious text or symbols expressing disapproval of same-sex marriage, when both sexual-orientation and religion are protected characteristics. On his view, neither refusal is discriminatory, because both cases are “about the kind of cakes, not the kind of customers.” Gorsuch’s claims that in both cases these refusals are objections to supporting specific messages and not refusals made because of the potential customers’ protected characteristics. Here I argue that a principled distinction can be made between the two cases. In the former, the baker is trying to control the use for which an item he ordinarily sells is used based on the users’ sexual-orientation. In the latter, the baker is refusing to make an item that she would refuse to make for anybody, regardless of the characteristics of the potential customer. I further argue that for this reason, among others, the former case ought to be ruled discriminatory while the latter case ought not.
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Census 2020: Race, Self-Determination, & Voter Suppression
In late April 2019, the Supreme Court heard oral argument for the Department of Commerce v. New York, 139 S.Ct. 1316 (2019), a case which asks whether the Secretary of Commerce’s decision to add a question to the Decennial Census about responders’ citizenship status violated the Enumeration Clause of the U.S. Constitution, art.I, §2, cl.3? [1] The last time the census inquired about citizenship was in 1950. The question asks “Is this person a citizen of the United States?” If you answer “yes,” the question then asks for more details about where you were born and whether your parents were born in the United States.
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The Real Crisis at the Nexus of Education and Incarceration
Conversations among the political left have increasingly centered on student loan debt as the amount of loan debt, and the number of Americans saddled by it, has ballooned in recent years. The student loan debt crisis, which first gained traction as a mainstream...
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This Week in Civil Rights and Civil Liberties: May 6, 2019
Welcome to This Week in Civil Rights and Civil Liberties. At the federal level, the Trump administration announced this week that medical professionals will be allowed to invoke religious and conscientious objections to rendering certain services and procedures,...
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This Week in Civil Rights and Civil Liberties: April 29, 2019
This week, the Redacted Mueller report was released, Supreme Court experts warned of a potentially devastating decision on the citizenship question for the 2020 Census, multiple states imposed new aggressive regulations on voter registration efforts, and a US Attorney indicted two Massachusetts state court officials for allegedly allowing an undocumented person to avoid ICE enforcers at a state courthouse.
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Where the Confrontation Clause Gets it Wrong: Police Brutality Cases
As police officers continue to shoot and kill unarmed civilians, we must examine the disparity between police brutality and police accountability. Too many officers kill unarmed Black people with little to no consequences. One barrier to accountability is gathering witnesses, as witnesses are required to present themselves for trial to testify against accused officers.
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Border Flooding, the Wall, and a Failure of Government Accountability
Guest post by Victoria Ochoa. Victoria is a 1L at the University of Pennsylvania Law School. Victoria is a Harry S. Truman Scholar, and was a Schedule C Presidential Appointee in the Obama Administration, where she worked as an assistant in the Secretary of Commerce’s...
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Corporate Criminal Responsibility: Banning Criminal Corporations from Lobbying Should Be Investigator’s #1 Tool
If there is a problem with corporate power undermining regulation and fomenting corruption, lawmakers should consider temporary incapacitation of the corporation’s political spending or lobbying activities. This practical tool addresses a corporation’s ability to skirt rules and regulations through artful use of their financial resources.
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Masterpiece Cakeshop: A Hostile Interpretation of the Colorado Civil Rights Commission
In Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719 (2018), the Supreme Court’s seven-member majority claimed that the Colorado Civil Rights Commission had exhibited “hostility” toward a Colorado baker’s religious beliefs.[1] But upon closer...
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Book Review: Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, by Emily Bazelon
“Numbingly normal.” It’s how Emily Bazelon describes the outcome in Connick v. Thompson, a 2011 Supreme Court case that shielded prosecutors’ offices from liability for Brady violations resulting from the offices’ failure to train their attorneys. This immunity from...
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This Week in Civil Rights and Civil Liberties: April 8, 2019
Welcome to This Week in Civil Rights and Civil Liberties. This week, Donald Trump visited the U.S.-Mexico border, arson attacks destroyed black churches, and uncertainty continued to surround the Mueller Report. President Trump Visits the U.S.-Mexico Border. On...
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Abuse of Power by ICE and CBP: Perspective from an Immigration Attorney and Water Drop Volunteer
Guest post by Kirsten Zittlau. Ms. Zittlau is an immigration attorney living in San Diego, California. She has volunteered dropping water in the California desert near the Mexico border for over two and half years. Ms. Zittlau has been an attorney since 2002 but made the switch to immigration law last year in order to advocate for immigrants and fight against the abuses of power by the current administration.
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In Masterpiece v. Colorado, Justice Gorsuch argues there is no principled way, on First Amendment grounds, to distinguish refusing to make a cake for a same-sex wedding versus refusing to make a cake with anti-LGBT words and symbols.
I argue that this conclusion is mistaken. https://t.co/TF7zhkuYIo
Thoughtful piece co-authored by Alisha Jarwala, an alum of @relmanlaw. Breaking new ground. Watch out for this new generation of civil rights warriors! https://t.co/11pghTAtJu
This is an excellent piece about an important problem that too few people know about. Well worth the read. https://t.co/QCXdqajl50
Chronic nuisance ordinances evict people for being people of color, survivors, disabled, or some combination of all three. That’s why Alisha and I argue that they violate the Fair Housing Act, the ADA, and the Constitution. You can read it for free here: https://t.co/pNpZlTU1KS
Predictably, nuisance ordinances impact people of color — for example, @NYCLU found they were enforced almost 5x as much in the parts of the city with the most people of color. @just_shelter found that CNOs were enforced 2.5x as often in predominantly black parts of Milwaukee.