Hostility Toward Christianity: Recent Federal Cases

"Commissioner Hess says freedom of religion used to justify discrimination is a 'despicable piece of rhetoric.'  Did the Commission ever disavow or disapprove of that statement?" — Justice Kennedy, U.S. Supreme Court, Dec. 5, 2017 oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

"Appellants later clarified their desired injunctive relief as removal or demolition of the Cross, or removal of the arms from the Cross 'to form a non-religious slab or obelisk.'" — American Humanist Association v. Maryland-National Capital Park and Planning Commission, 874 F.3d 195, 202 n.7 (4th Cir. October 18, 2017).

The Masterpiece Cakeshop case, which was argued before the U.S. Supreme Court this month, has garnered more media attention because it implicates same-sex marriage.  But another federal case, Maryland-National Capital Park and Planning Commission, is no less notorious.  During oral argument in the Maryland case in October, one of the federal Court of Appeals judges repeated a statement in the petitioner's brief requesting that a 40-foot-tall memorial Cross, viewable from the state highway and erected in 1925 to honor World War I heroes, either be demolished or the arms removed to form a "non-religious slab or obelisk."

If there were any doubts about the petitioners' hostility toward Christianity, the request to break the arms of the 40-foot-tall Latin Cross erases them.  The three-judge panel of the Fourth Circuit Court of Appeals left the question of what to do with the Cross to the federal district court upon remand, but shouldn't have ignored the hostility of the petitioners.  A Cross with the arms broken off would be highly offensive to large numbers of Christians viewing the monument.*  There is more going on here than just a neutral request that the government avoid supporting religious displays.

And therein lies the problem with Establishment Clause jurisprudence.  Far from being a "realization of state neutrality" toward religion, Establishment Clause challenges in the federal courts have become a means to "the establishment of a religion of secularism …."  School District of Abington Township v. Schempp, 372 U.S. 203, 313 (1963) (Stewart, J., dissenting).

And sometimes beyond secularism, into open hostility toward Christianity.  In the Masterpiece Cakeshop case currently before the U.S. Supreme Court, the facts showed that the Colorado Civil Rights Commission refused to penalize (1) an African-American cake artist for refusing to create a cake promoting white supremacy for the Aryan Nation, (2) an Islamic cake artist for refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists for refusing to create cakes opposing same-sex marriage for a Christian patron.

And yet, the Commission ruled that Masterpiece Cakeshop, whose owner holds sincere religious beliefs opposed to same-sex marriage, was in violation of the state public accommodation law for refusing to make a cake to celebrate a same-sex wedding, although he is happy to create other items for gay and lesbian clients.  There was no dispute in the case that same-sex couples in the state have numerous commercial avenues for obtaining custom-designed wedding cakes and were not dependent upon the skills of Masterpiece Cakeshop.

Masterpiece Cakeshop is similar to a recent U.S. Supreme Court case, Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), in which the Court granted a religious exemption from compliance with Obamacare's contraception coverage requirement to a business whose owners hold sincere religious beliefs against abortion (the required coverage includes forms of contraception that induce abortion, known as "abortifacients").

The business owner in Masterpiece Cakeshop propounded Free Exercise and Free Speech arguments, since the creation of custom-designed cakes implicates his speech as an artist.  However the oral arguments seemed to miss this main point, with the Justices repeatedly referring to the business owner as a "baker" rather than an "artist," although the baked cake is just the scaffolding beneath the artwork.  The speech occurs in decorating the cake, not in baking the cake, per se.  Cake decoration can be rather elaborate and, as with any piece of artwork, must qualify as speech.

While Justice Sotomayor criticized the term "artist" on the supposition that cakes are "made to be eaten," her hypothetical assumes that the medium alone is dispositive of whether the creation is "art" or "food"—an assumption that collapses when one considers that many artists work with chalk and pencil on destructible paper.  Nor is an artist whose artwork is reproduced tens of thousands of times on a magazine cover less of an artist because the work appears on paper and is intended to be consumed and discarded.

Nor does Justice Breyer's hypothetical assumption that the term "artisan" might be more appropriate than "artist" change the analysis.  A supposed "artisan" is no less entitled to exercise his or her freedom of speech than an "artist."  Perhaps the fact that Masterpiece Cakeshop is engaged in a commercial endeavor, from the Justices' perspective, disqualifies the speech for rigorous protection under the First Amendment.  (For instance, advertising, a form of commercial speech, requires only intermediate scrutiny of a content-based regulation of the speech.  See, e.g., Retail Digital Network, LLC v. Prieto, 861 F.3d 839, 848 (9th Cir. 2017) (citing Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)).

However, there was no suggestion in Masterpiece Cakeshop that the Justices regarded the shop's activities as mere "commercial speech."  (In cases where "pure speech" is mixed with commercial speech, the appropriate scrutiny to be applied is strict scrutiny of the content-based regulation. See, e.g., Sorrell, supra, at 571 (citing Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 474 (1989)).  Further, it must be taken into account that, in modern times, artists have taken control of their destinies by becoming business owners and often work in media that are ephemeral and widely in demand.  For instance, if the demand is greater for wedding cakes than for gargoyles, an artist might choose buttercream icing as the medium rather than marble.

Masterpiece Cakeshop probably could create beautiful artwork in pottery, fashion design, jewelry making, etc., since the same skill set is required.  As a result, the oral argument at the Supreme Court was most cringe-inducing when the Justices repeatedly questioned whether "art" is involved at all merely because of the medium employed by the artist and when the Justices repeatedly referred to the artist as a "baker," which misses the point.  One thing the Justices shouldn't miss is the name of the business—"Masterpiece Cakeshop."  The artist named the shop long before the legal controversy arose over same-sex marriage.  The question is whether an artist whose activity is highly individual, unique, and expressive must be compelled to express a viewpoint that he disagrees with on sincerely held religious grounds, when there are numerous cake shops that will produce the same item without complaint and would compete for the business.

A remark by one of the Colorado commissioners, who called the artist's religious objection a "despicable piece of rhetoric," caused Justice Kennedy to comment during the Supreme Court oral argument, "Suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?"

Justice Gorsuch disapproved of an assertion by a second commissioner in Colorado's proceeding who alleged that "if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system …"

Justice Alito emphasized that the record showed "what appears to be a practice of discriminatory treatment based on viewpoint…. [T]he Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and … there were bakers who said no, we won't do that because it is offensive.  And the Commission said:  That's okay.  It's okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage.  But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage."

Justice Kennedy lectured that "tolerance is essential in a free society.  And tolerance is most meaningful when it's mutual.  It seems to me that the state in its position here has been neither tolerant nor respectful of [the artist's] religious beliefs."

Such comments by the Justices during the Supreme Court oral argument suggest that the remarks of the commissioners in the Colorado proceeding, which express unconstitutional hostility toward a religion, could be dispositive.  The religion clauses of the First Amendment state, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …."

As for the artist's Free Speech claim, there can be no doubt that forcing a Christian artist to produce artwork that celebrates a phenomenon that the Bible denounces in the strongest terms would be heavy-handed.  While it is unfortunate that discrimination against same-sex couples exists, it would be wrong to penalize an artist who doesn't actually discriminate against same-sex couples since he is happy to create other items for gay and lesbian clients, just not wedding cakes.  The same-sex couple argued that a decision for the artist might be misused by prejudiced business owners to deny services to different types of minorities, but the vast majority of small business owners won't discriminate, because it doesn't make financial sense.  Masterpiece Cakeshop isn't a multinational corporation.  Large-scale damage to society could occur when large corporations create hostile work environments for, or discriminate against, minority and female employees, for example, but to extrapolate the same type of damage here is absurd.  The Supreme Court refused such extrapolation in Hobby Lobby and should refuse it with Masterpiece Cakeshop

The hostility of the commissioners is misplaced here and must be redirected toward those individuals who genuinely discriminate against same-sex couples, rather than those who respectfully disagree with the lifestyle on sincerely held religious grounds. 

* "For the message of the cross is foolishness to those who are perishing, but to us who are being saved, it is the power of God."  1 Corinthians 1:18.

Federal Judge Dismisses Lawsuit Against “Black Lives Matter”: Social Movements Can’t Be Sued

"Plaintiff … produced a Proposed Amended Complaint that not only fails to state a plausible claim for relief against any of the named Defendants, but that also attempts to hold a hashtag [#BlackLivesMatter] liable for damages in tort.  The Court therefore finds that granting leave to Plaintiff to attempt to file a Second Proposed Amended Complaint would be futile.  The Court also notes that Plaintiff’s attempt to bring suit against a social movement and a hashtag evinces either a gross lack of understanding of the concept of capacity or bad faith, which would be an independent ground to deny Plaintiff leave to file a Second Proposed Amended Complaint...."  Judge Brian A. Jackson, U.S. District Court, Middle District of Louisiana, September 28, 2017.

On July 9, 2016, during protests in Baton Rouge, Louisiana, following the police-involved killing of Alton Sterling, who was subdued and under police control (face down on the ground) when he was shot by police, the Plaintiff ("John Doe Police Officer") was injured by a shooter during the protests.  The complaint does not identify the shooter (maybe he was never caught), but the injured police officer blamed Black Lives Matter.

Officer John Doe's Proposed Amended Complaint for Damages failed to pinpoint how the named Defendants ("Black Lives Matter" and several leaders/members who appeared in media interviews) were responsible for his injuries.  Federal District Judge Brian A. Jackson dismissed Doe's cause of action.  His complaint failed to mention a gun or bullets traced to the named Defendants.  

The actions of the Defendants, as described in the complaint, were peaceful and Constitutionally-protected—appearing on news broadcasts to denounce police brutality, organizing protests, and live-streaming their arrests.  The Plaintiff's complaint sought to impose liability under theories of agency and "respondeat superior," which have been used to hold corporations liable for torts committed by employees, but the Court rejected those theories:

"Because 'Black Lives Matter,' as that term is used in the Complaint, is a social movement rather than an organization or entity of any sort, its advent on social media merely was a 'fortuitous creation of a community of interest'; 'Black Lives Matter' was not created through a 'contract of association' and is not an 'entity whose personality 'is distinct from that of its members,'" and therefore it is not a 'juridical person' that is capable of being sued.  Ermert v. Hartford Ins., 559 So. 2d 467, 474 (La. 1990) (quoting La. Civ. Code art. 24)."  

Instead of blaming the shooter or trying to identify the shooter, the Plaintiff sought to blame a social movement.  It's strange reasoning and perhaps why the Court was so concerned that the complaint could have been filed in bad faith.  The complaint, as drafted, attempted to extract compensation from the activists, which could have had a chilling effect on their First Amendment rights to freedom of speech, expression, association—which are protected activities.  The Judge's Order emphasized:

"Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence."  NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982).  

Indeed, attributing blame to a group for the actions of individual members is fallacious reasoning, especially where, as in Doe's complaint, the shooter wasn't identified.  Even assuming arguendo that the shooter had a connection to the social movement, the Constitution requires more than mere association before liability can be imposed on members who were not the shooter:

"For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims."  Claiborne, supra, at 920.  

The Court emphasized that, for liability to be imposed, the named Defendants had to have "authorized, directed, or ratified specific tortious activity."  The Plaintiff cited no proof that the named Defendants directed the shooter; indeed, they were live-streaming their own arrests at the time.  The complaint was incomprehensibly drafted and dismissal was appropriate.  

Marijuana: Seizure of Evidence

Under federal law, possession of even small amounts of marijuana is still a crime in the District.  Federal law enforcement can still arrest anyone for possession in D.C., although local law enforcement (the Metropolitan Police Department) complies with local decriminalization of possession of up to 2 ounces by a person over age 21.  But whether you’re 21 and under, or over 21, the government must not exceed constitutional prohibitions against unreasonable searches and seizures (whether seizure of a person or evidence of an alleged crime).  The Fourth Amendment of the U.S. Constitution gives enhanced protection to preserving the sanctity of the home.  Privacy in your home extends to all types of warrantless “searches,” whether the search is conducted in person by police, or through infrared technology.  Your privacy might even be protected from warrantless surveillance flights above your property, depending on how common such flights are, if you maintain a “reasonable expectation of privacy” from such intrusions.

You can voluntarily relinquish your Fourth Amendment protections by volunteering to let government and enforcement authorities into your home.  The main question in these cases is whether you voluntarily consented, or gave in to unlawful coercion.  If the authorities forced you to comply with an unlawful search, you may have grounds to prevent the evidence from being used against you. 

The circumstances of your case also impact the unlawfulness (or lawfulness) of the search.  For example, use of infrared technology does not mitigate the intrusion, Kyllo v. United States, 553 U.S. 27 (2001), and a surveillance flight over a covered portion of your acreage still requires a warrant in most circumstances, Florida v. Riley, 488 U.S. 445 (1989).  But the courts have allowed warrantless searches of garbage bags placed at the curb for pickup, asserting that the police did nothing more than what anyone on the street could have done lawfully, in California v. Greenwood, 486 U.S. 35 (1988), and have allowed police to bring drug-sniffing canines into a private driveway to sniff the outside of the garage door, in U.S. v. Holley (5th Cir. 2016).  If the canine alerts police to the presence of contraband, warrants are obtained to seize the evidence in the garage. 

Even the late U.S. Supreme Court Justice Antonin Scalia, a strict constructionist of the U.S. Constitution, wrote for the U.S. Supreme Court’s majority in Florida v. Jardines, 133 S. Ct. 1409, 569 U.S. ___ (2013), that a canine sniff of a homeowner’s front porch was an unconstitutional warrantless search.  But the U.S. Court of Appeals for the Fifth Circuit reasoned that a driveway is not a porch, because the private home life of the individual does not extend into the driveway, and that a drug-sniffing canine is not sense-enhancing technology (on the order of Kyllo).  Holley, supra.  Holley filed a petition for certiorari on February 3, 2017.  

Unusual circumstances in warrant execution and investigation also allow the government to chip away at the Fourth Amendment’s protections.  One of the most relevant for the marijuana debate is the use of illegally-seized evidence in sentencing, that is, even when the Fourth Amendment prevents use of the evidence to determine guilt, if other evidence exists that convinces a jury to find guilt, the illegally-seized evidence can be used to increase a sentence—in some cases, to the same extent as if the illegally-seized evidence had been admitted at the trial.  As the U.S. Court of Appeals for the Sixth Circuit emphasized:

[G]iven that disputed facts at sentencing need only be established by a preponderance of the evidence, see U.S.S.G. § 6A1.3, comment.; United States v. Herrera, 928 F.2d 769, 774 (6th Cir. 1991), rather than beyond a reasonable doubt, state officers now have the somewhat perverse incentive to rely more heavily on sentencing than trial to establish facts that may be of overriding importance in determining a defendant’s length of imprisonment—for example, the total amount of drugs involved in a criminal scheme.  As a result, sentencing has to a significant extent replaced trial as the principal forum establishing the existence of certain criminal conduct.  United States v. Nichols, 979 F.2d 402 (6th Cir. 1992). 

Relief was afforded to criminal defendants, however, in Alleyne v. United States, 570 U.S. _____ (2013), in which the U.S. Supreme Court held that facts that aggravate the prescribed range of sentences to which a defendant may be exposed (e.g., such as possession of a firearm during commission of the offense) are not merely "sentencing factors" but "elements" of the offense(s) of which the defendant is accused, and, therefore, must be submitted to a jury and proven beyond a reasonable doubt.  

Therefore, if the admission of illegally-seized evidence during sentencing aggravates the permissible range of sentences (by either lowering the minimum sentence, or increasing the mandatory sentence), the sentence is an unconstitutional violation of a defendant's right to jury trial.  See Alleyne, supra.  

If you have an arrest record for possession of marijuana, you may be eligible to have the record of the arrest sealed.  The Criminal Record Sealing Act of 2006 opened a pathway to sealing for many former criminal defendants charged with “eligible misdemeanors,” such as possession, or felony failure to appear (the only “eligible felony”).

Foreclosure of D.C. Condo Lien Extinguishes First Mortgage

Residential real estate lenders are still reeling from the August 2014 ruling of the D.C. Court of Appeals in Chase Plaza Condominium Association v. JPMorgan Chase Bank, 98 A.3d 166 (D.C. 2014), in which D.C.'s highest municipal court held that foreclosure of a condo association’s “super-lien” (a super-priority lien for 6 months of unpaid assessments) extinguishes all junior liens, including a bank's lien for a first mortgage (or first deed of trust). 

JPMorgan Chase had argued that the condo association’s “super-lien” (which was enacted by statute in 1991 as an amendment to the D.C. Condominium Act) was entitled only to priority of payment.  But a three-judge panel of the D.C. Court of Appeals held that the “super-lien” was a true senior lien, which, under common-law principles of lien priority, extinguishes all junior liens in a foreclosure sale.

Reversal of the ruling is unlikely, despite the unease of banks regarding (1) the statute's lack of a notice requirement, until the 2017 amendment,* and (2) the assertion that the “super-lien” might be considered an unconscionably low purchase price for a condominium unit (the unit at issue was mortgaged for $340,000, while the purchase price was a mere $10,000; the amount of the super-lien was $9,415). 

JPMorgan Chase had argued that extinguishment of the bank’s lien under such circumstances would cripple mortgage lending in D.C., while the condo association had argued that it must be permitted to enforce its super-lien to prevent the condo community from falling into disrepair due to unpaid assessments.  As to such competing policy considerations, the Court of Appeals indicated it would take no position, deferring to the D.C. Council on matters of policy.

While Chase Plaza Condo Association did send notice of the scheduled foreclosure sale to the record beneficiary of the first deed of trust (Washington Mutual, a.k.a. WAMU), that interest was subsequently acquired by JPMorgan Chase.  The evidence is unclear as to whether the condo association knew that JPMorgan Chase had subsequently acquired the first deed of trust after WAMU filed for bankruptcy (apparently the issue of who succeeded WAMU as the beneficiary had been litigated extensively in the bankruptcy courts, and so JPMorgan Chase’s claim was on the public record). 

The condominium association would have faced practical difficulties attempting to send notice to a lienholder whose interest was unrecorded, in any event.  Constitutional Due Process does not require a party to do the impossible, that is, send notice to an unknown entity whose name and address are not "reasonably ascertainable through the exercise of reasonably diligent efforts."  Small Engine Shop, Inc. v. Cascio, 878 F.2d 883 (5th Cir. 1989) (citing Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983)).  Furthermore, "state action" would have to be established for Due Process protections to attach.  A footnote in the Court of Appeals’ opinion questions whether the lack of a notice requirement in the Condominium Act might render that portion of the statute unconstitutional, either facially or as applied to JPMorgan Chase, but the Court declined to consider the issue since the parties had made no constitutional arguments in the trial court.*

The Court of Appeals opinion also expresses doubt that an association could waive its statutory right of priority by contract.  As the Court of Appeals observed, the Condominium Act, D.C. Code § 42-1901.07, states that “[e]xcept as expressly provided by this chapter, a provision of this chapter may not be varied by agreement and any right conferred by this chapter may not be waived.”  See Chase Plaza, supra, at 178.

* UPDATE: On February 9, 2017, the D.C. Mayor signed into law an amendment to the D.C. Condominium Act requiring among other things notice to a first mortgage holder before an association forecloses its lien for unpaid assessments. 

Waiving Miranda Rights Through Ambiguous Conduct

The U.S. Supreme Court held in the case of Berghuis v. Thompkins, 560 U.S. 370 (2010), that a suspect in custody who has been read his Miranda rights must invoke his right to remain silent unambiguously.  That is, if he does not expressly state that he wants to remain silent, the police need not end the interrogation, and need not ask for clarification of ambiguous conduct that may or may not indicate that the accused wants to remain silent. 

On the other hand, if a suspect wants to waive his right to remain silent, he need not make a formal waiver.  Ambiguous conduct is sufficient to waive Miranda rights.  Thompkins, supra (citing North Carolina v. Butler, 441 U.S. 369, 376 (1979)).

Before a statement given after waiver of Miranda rights can be used against the suspect in court, the prosecution must show that the defendant voluntarily waived his rights, and that he knew what rights he was giving up.  Although the Miranda decision in 1966 emphasized that the prosecution had a heavy burden to demonstrate a knowing and intelligent waiver, a later decision in the Miranda line of cases stated that the "heavy burden" is no more than a preponderance of the evidence.  Thompkins, supra (citing Colorado v. Connelly, 479 U.S. 157, 168 (1986)).

In Thompkins, the suspect was taken into custody and shown a piece of paper that contained the Miranda warnings (right to remain silent; anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer before answering and to have the lawyer present during questioning; if you cannot afford a lawyer one can be appointed to represent you before any questioning; you have the right to decide at any time before or during questioning to use your right to remain silent and to talk with a lawyer). 

The Thompkins suspect was asked to read the last warning out loud to determine if he could read and understand English.  The Court also noted that there was no basis in the case to conclude that the defendant did not understand his rights. Nor was there any contention by the defense that the suspect did not understand his rights.

The interrogation by police was skillfully done.  The suspect was silent for most of the three hours of interrogation, with limited “yeah,” “no,” or “I don’t know” responses.  Then the detective asked, “Do you believe in God?”  The suspect then admitted that he did believe in God, as his eyes welled up with tears.  The detective asked, “Do you pray to God?”  The suspect answered “yes.”  The detective asked, "Do you pray to God to forgive you for shooting that boy down?”  The suspect answered “yes” and looked away.  But he refused to make a written confession. 

The Court held that a "suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police."  Evidently the Court believed that the suspect’s confession, as described above, was uncoerced.  The Court also emphasized that the suspect could have invoked his Miranda rights at any time, even after he had begun speaking.