Case note - California court rules against Bakery and Puts Statute Prohibiting Discrimination Above First Amendment Rights

 

California appellate court makes plain it considers First Amendment protections inferior to state-level statutes against discrimination

 

In Civil Rights Dept. v. Cathy's Creations (March 5, 2025, F08580) the Fifth District of  California refused to properly apply precedent upholding the breadth of First Amendment.  Recall that California all but gutted the First Amendment during the three years of the pandemic, caused by the release of the COVID-19 virus by a lab in Wuhan, China (reference:  the United States Department of Energy and the Central Intelligence Agency) and, indeed, California courts did little to stop the infringement upon freedoms guaranteed by the Bill of Rights.  Nonetheless, the lack of consideration given to the First Amendment in the recent Cathy's Creations opinion is troubling.  As the Fifth District framed the issue:

 

This appeal involves a bakery’s refusal to sell a predesigned white cake, popularly sold for a variety of events, because it was intended for use at the customers’ same-sex wedding reception. The State of California, through the Civil Rights Department (the CRD), filed suit on behalf of real parties in interest Eileen and Mireya Rodriguez-Del Rio (the Rodriguez-Del Rios) when Tastries Bakery (Tastries) refused to provide them the cake for their wedding pursuant to the bakery’s policy that prohibited the sale of any preordered cake for a same-sex couple’s wedding. The case culminated in a bench trial on the CRD’s claim of discrimination under the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (UCRA)), and the free speech and free exercise affirmative defenses of defendants
Tastries, Tastries’s owner Cathy’s Creations, Inc. (Cathy’s Creations), and Cathy’s Creations’s sole shareholder Catharine Miller (Miller) (collectively defendants).2
The trial court concluded there was no violation of the UCRA because the CRD
failed to prove intentional discrimination, and concluded Miller’s referral of the
Rodriguez-Del Rios to another bakery constituted full and equal access under the UCRA.
The trial court proceeded to consider defendants’ affirmative defenses as an alternative matter, and concluded the preparation of a preordered cake by defendants always constitutes expression protected by the federal Constitution’s First Amendment when it is sold for a wedding, and, as applied here, concluded the UCRA compelled defendants to speak a message about marriage to which they objected. . . .

 

One should further recall that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (2018) 584 U.S. 617, the United States Supreme Court ruled a bakery could not be forced to make a cake it found offensive and that the Colorado state government had evidenced hostility toward the baker's religious belief when it attempted to force the baker to do so.  As Justice Kennedy succinctly stated, "[w]hen the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires."  However, the Fifth District did not apply the holding in Masterpiece so as to constrain the ability of California to fine and harass Cathy's Creations, explaining:

 

If the mere act of providing and/or delivering a predesigned product for use at a same-sex wedding conveys a message of celebration and endorsement for same-sex
marriage, a baker could potentially refuse to sell any goods or any cakes for same-sex weddings as a protected form of expression; but this would be a denial of goods and services that likely goes “beyond any protected rights of a baker who offers goods and services to the general public .…” (Masterpiece, supra, 584 U.S. at p. 632.) Expanded logically, this reasoning would extend to a whole range of routine products and services provided for a wedding or wedding reception, including those highly visible items like jewelry, makeup and hair design for the wedding party, table centerpieces, stemware and alcohol for a toast, and catering displays. This is tantamount to business establishments being “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
(Id. at p. 634.) If mere product provision to a wedding is considered expressive conduct,
then all wedding vendors could potentially claim their refusal to serve same-sex couples. . . (Id., pp. 56-57.)

 

In other words, Cathy's Creations explained that California could not and should not actually apply the First Amendment, despite the Masterpiece holding from the United States Supreme Court, because if we do then we will not be able to enforce anti-discrimination laws. But this is exactly what the First Amendment does:  puts real limits on the scope of government powers and, of course, as Masterpiece held "anti-discriminaton" laws are not exempt from the purview of the Bill of Rights.

Analysis

 

Even if one were to factually distinguish this case from the cake-baking case ruled upon by the United States Supreme Court, the discussion and holding in Cathy's Creations is troubling.  First Amendment protections permit persons to refuse to voluntarily engage in actions which require speech and that they find offensive and/or violate their religious beliefs should be of the utmost consideration in terms of any court's legal analysis.  But Justice Meehan and his two colleagues dismissed application of these crucial limits on government power because to do so would render null a state statute prohibiting discrimination.  The justification was rather slim, resting on the silly notion that though baking a cake requires care and skill (and, as I would add, a bit of love) such care and skill is not "expressive:"

Because we conclude the cake defendants refused to provide in this instance was not an expressive activity protected by the First Amendment, defendants’ free speech defense fails. A huge number of routinely produced goods in the stream of commerce are designed with attention to aesthetic details that may reflect the designer’s sense of color, balance and perspective, and while those elements might be viewed as artistic features, they are primarily applied and intended for broad appeal and profitability—not as a medium for self-expression. While a routinely produced and multi-purpose cake like the one here might be baked and decorated with skill and creativity, we cannot conclude it is inherently expressive. (Id., p. 57.)

 

In other words, the Court's analysis is fundamentally flawed because it failed to apply the analysis mandated by Masterpiece.  Instead, it made it very clear a state-mandated prescription against discrimination must take precedence over Federal protections because, well, otherwise, the state law could not be given its full intended effect.  

 

This begs the question:  when will religious freedom and freedom of speech be restored to California?  And an even better question:  why do those who favor unlimited government power seem especially keen on harassing small businesses that do not have the resources to fight back?

 

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Breaking News - Possible Appeal to the Ninth Circuit - Federal Court Enjoins UCLA From Permitting Pro-HAMAS Protestors to Block Access to Jewish Students

 

On August 13, 2024, Judge Mark C. Scarsi of the Central District of California issued an injunction barring the University of California at Los Angeles from permitting protesters who support Hamas and/or are protesting the State of Israel from blocking access to the school by Jewish students.  The "protestors" did so, of course, unless anyone who desired or needed to enter this space wore a wristband designed to separate out anyone who had a religious or other belief supporting the State of Israel.  UCLA must assuredly know permitting such on its campus violates the United States (as well as California's own) Constitution, as UCLA has its own Law School, including an adjacent courtyard ironically named "Shapiro." Indeed, according to the First Amendment, a person may not be denied access to a public space due to their race or religion.  Therefore, the injunction (https://becketnewsite.s3.amazonaws.com/20240813183534/injunction.pdf) seeks to enforce First Amendment rights by providing, at pages 15 to 16, that:

16. 1. Defendants Drake, Block, Hunt, Beck, Gordon, and Braziel (“Defendants”) are prohibited from offering any ordinarily available programs, activities, or campus areas to students if Defendants know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students.

17. 2. Defendants are prohibited from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas, whether as a result of a de-escalation strategy or otherwise.

    3. On or before August 15, 2024, Defendants shall instruct Student Affairs Mitigator/Monitor (“SAM”) and any and all campus security teams (including without limitation UCPD and UCLA Security) that they are not to aid or participate in any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas.

Note that UCLA not only opposed the request for an injunction but also requested a stay pending appeal, meaning they would be permitted to, inter alia, continue to take actions that include, as the injunction states, "knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s . . . areas, whether as a result of a de-escalation strategy or otherwise."

Such exclusion has, according to sworn declarations, already occurred.  As the injunction states at pages four to five:

4. On April 25, 2024, a group of pro-Palestinian protesters occupied a portion of the UCLA campus known as Royce Quad and established an encampment.  News reporting indicates that the encampment’s entrances were guarded by protesters, and people who supported the existence of the state of Israel were kept out of the encampment. Protesters associated with the encampment “directly interfered with instruction by blocking students’ pathways to classrooms.” Plaintiffs are three Jewish students who assert they have a religious obligation to support the Jewish state of Israel.  Prior to the protests, Plaintiff Frankel often made use of Royce Quad. After protesters erected the encampment, Plaintiff Frankel stopped using the Royce Quad because he believed that he could not traverse the encampment without disavowing Israel. He also saw protesters attempt to erect an encampment at the UCLA School of Law’s Shapiro courtyard on June 10, 2024. Similarly, Plaintiff Ghayoum was unable to access Powell Library because he understood that traversing the encampment, which blocked entrance to the library, carried a risk of violence.He also canceled plans to meet a friend at Ackerman Union after four protesters stopped him while he walked toward Janss Steps and repeatedly asked him if he had a wristband. Plaintiff Ghayoum also could not study at Powell Library because protesters from the encampment blocked his access to the library. And Plaintiff Shemuelian also decided not to traverse Royce Quad because of her knowledgethat she would have to disavow her religious beliefs to do so. The encampment led UCLA to effectively make certain of its programs activities, and campus areas available to other students when UCLA knew that some Jewish students, including Plaintiffs, were excluded based on their genuinely held religious beliefs. (Citations and footnotes omitted; emphasis added)

   
   

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NRA v. Vullo - Unanimous Supreme Court rules government may not engage in "lawfare" against free speech, limiting the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organization

The United States Supreme Court has recently issued one of the most important First Amendment cases in the last decade. (See National Rifle Association v. Vullo (May 30, 2024) no. 22-842).  In this unanimous decision, issued a mere 73 days after it was argued, the United States Supreme Court affirmed a state government may not seek to block the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organizations.  Your author terms this sort of conduct "lawfare" and it is readily-apparent the current regime in the State of New York will do almost anything to silence its political opponents.

When one imagines the legitimate role of a sovereign state, one does not imagine attempting to silence political views the Governor and Attorney General find repugnant, which political views cannot be banned outright due to those pesky restrictions found in the Bill of Rights.  Nonetheless, as Justice Sotomayer cogently explained at pages three to five, the NRA alleged the State of New York did exactly that:

Around that time, [the former superintendent of the New York Department of Finan- cial Services, or NFS] Vullo also began to meet with executives at the insurance companies doing business with the NRA. On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.” Id., at 221, ¶67. She also “discussed an array of technical regulatory infractions plaguing the affinity-insurance marketplace” in New York. Id., at 199, ¶21. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id., at 199–200, ¶21; accord, id., at 223, ¶69 (alleging that Vullo made it clear to Lloyd’s that it “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups”).1 Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.” Ibid., ¶69.

On April 19, 2018, Vullo issued two virtually identical guidance letters on DFS letterhead entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” Id., at 246–251 (Guidance Letters). Vullo sent one of the letters to insurance companies and the other to financial services institutions. In the letters, Vullo pointed to the “social backlash” against the NRA and other groups “that promote guns that lead to senseless violence” following “several recent horrific shootings, including in Parkland, Florida.” Id., at 246, 249. Vullo then cited recent instances of businesses severing their ties with the NRA as examples of companies “fulfilling their corporate social responsibility.” Id., at 247, 250. 

In the Guidance Letters’ final paragraph, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organzations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Id., at 248, 251.2

The same day that DFS issued the Guidance Letters, Vullo and Governor Cuomo issued a joint press release that echoed many of the letters’ statements. The press release included a quote from Vullo “ ‘urg[ing] all insurance companies and banks doing business in New York’” to join those “‘that have already discontinued their arrangements with the NRA.’ ” Id., at 244. The press release cited Chubb’s decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: “‘The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.’ ” Id., at 213, Complaint ¶51.

The State of New York therefore targetd "affinity products" in the insurance marketplace and therefore sought to discourage these businesses from doing lawful business with the NRA in order to "weaken" it.  

The NRA sued Vullo in Federal District court.  While the case survived a motion to dismiss in District Court, it did not survive a review of this ruling in the Second Circuit, which held the NRA could not state a First Amendment claim.  

With the assistance of the American Civil Liberties Union, the NRA sought and was granted certiorari by the United States Supreme Court, which found the alleged coercion of other entities, if proven, violates the First Amendment rights of the NRA. Specifically, while Vullo could criticize the NRA, she "could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy." (Id., p. 8.)

As the unanimous court stated clearly, a governmnent official may not use their power to do something indirectly that they may not do directly; namely, punish an entity that does not disassociate itself from a political opponent whose advocacy offends those in power:

To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech. See 372 U. S., at 67–68. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.

Consider first Vullo’s authority, which serves as a backdrop to the NRA’s allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official’s communication as coercive. See id., at 66–67. Generally speaking, the greater and more direct the government official’s authority, the less likely a person will feel free to disregard a directive from the official. For example, imagine a local affinity group in New York that receives a strongly worded letter. One would reasonably expect that organization to react differently if the letter came from, say, the U. S. Attorney for the Southern District of New York than if it came from an out-of-state school board.

As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. See N. Y. Fin. Servs. Law Ann. §§202, 301. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties. (Id., pp. 12-13.)

The suit will therefore be remanded to the United States District Court for the Northern District of New York for further proceedings.

Concurrences

Justice Brown Jackson wrote separately to stress her view that while governmental coercion can implicate the First Amendment, such coercion is not always tantamount to a violation of freedom of speech and other First Amendment rights and that one must analyze whether the coercion does in fact violate a party's right to freedom of speech.  

Justice Gorsuch also wrote separately and posited that while the majority opinions provided "guideposts," there may indeed be a violation of the First Amendment whether or not any guideposts are found.  In other words, the ultimate test is whether the offending action "could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech.” (Id., p. 25.)

Analysis 

It is difficult to imagine how Judges Pooler, Chin, and Carney of the Second Circuit could have come to a more wrong decision.  Indeed, the Solicitor General of the United States (a Biden appointee, no less) filed an amicus brief in support of vacating the Second Circuit's opinion. The ease with which Vullo was apparently able to intimidate a sophisticated nationwide entity such as Chubb into terminating a program providing liability insurance to gun owners, a result that no reasonable person could argue would be beneficial to victims of gun violence, is also disheartening.

There should be no doubt, then, that the actions of New York's government, currently led by Governor Kathy Hochel (who could have put a stop to this anti-liberty nonsense by settling this action) were both unconstitutional and blatantly authoritarian.  So much so, in fact, that this should cause grave concern for anyone who lives in, does business with, or even visits New York.  One can imagine such Stalinist abusive tactics being used against, for example, the Sierra Club if they were to lobby against fracking or oil drilling and another state government were to find these actions against the interests of its citizens.  It would be equally odious if such a government would press banks and other financial institutions to cease doing business with the Sierra Club notwithstanding the fact their actions are protected activity under the First Amendment.

Finally, the fact a decision was issued in a timely fashion in a case of such import indicates the Court can move quickly where the outcome is determined by settled Constitutional principles.  It is sad to say that this is not always the case, as the Court often appears to be bogged down by dissenting opinions in cases decided by the vote of one or two justices where the dissenting justices, for want of a better word, simply refuse to acknowledge the clear language of our nation's founding document.

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