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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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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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.

“[T]he questions about how the Supreme Court will balance LGBT civil rights and religious freedom rights in cases like this remained unanswered.”

@mark_satta with a superb analysis of Justice Gorsuch’s logical fallacy in his Masterpiece concurrence.

My wife just published her first scholarly article, "Paper Courts & Parental Rights: Balancing Access, Agency, and Due Process," in the @HarvardCRCL. I'm proud the world can see her brilliance 🙂

New essay in @HarvardCRCL: Safety, friendship, and dreams should be central to 21st c. racial justice agenda; begins with "empirical poetry" drawing from interview participants' narratives. Eager for feedback...

Thoughtful piece co-authored by Alisha Jarwala, an alum of @relmanlaw. Breaking new ground. Watch out for this new generation of civil rights warriors!

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:

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.

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