Supreme Court Issues Opinion in Masterpiece Cakeshop First Amendment Case

This morning, the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  Based on his religious beliefs, Colorado baker Jack Phillips refused to create a cake for a same-sex wedding in 2012, and the Colorado Civil Rights Commission, a state Administrative Law Judge, and the Colorado Court of Appeals all found that Phillips had violated the Colorado Anti-Discrimination Act.

Today, the Supreme Court, in a majority opinion by Justice Kennedy, held 7-2 that the Colorado Civil Rights Commission acted with "clear and impermissible hostility" toward Phillips' sincerely held religious beliefs (partially from the syllabus; internal citations omitted):

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.  

Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. 

For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. . . . [T]he record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. . . . 

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. 

Justice Thomas, joined by Justice Gorsuch, wrote a concurrence because the Colorado Court of Appeals' "reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak."  Justice Gorsuch, joined by Justice Alito, wrote separately to respond to Justices Ginsburg and Kagan's attempts to defend the Commission's actions (internal citations omitted): "In the face of so much evidence suggesting hostility toward Mr. Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers—or that it could have easily done so consistent with the First Amendment. But, respectfully, I do not see how we might rescue the Commission from its error."

Whatever one's view of the background social policy debate over same-sex marriage, what happened to Jack Phillips should strike fear into the heart of every liberty-loving person who respects the rule of law.  An unelected government commission pre-judged his case according to the commissioners' own beliefs without regard for his constitutional rights.  (As a side note, this "bipartisan" commission is currently composed of four Democrats, one Republican, and two independents.  Given their outright "hostility" to Mr. Phillips, one can only imagine how fairly they evaluate Republicans that come before them.)  The Supreme Court righted this wrong today.

ATL Publishes Vulgar Attack on Former Gorsuch Clerk

Today, Above the Law (ATL) published a hit piece on Michael Davis, a Colorado attorney and RNLA member who left his law practice to clerk for Justice Gorsuch when he was confirmed.  In the second sentence, ATL calls him two curse words we won’t repeat here, claiming that it is “the only conclusion one can draw” about him.

The basis for these outrageous claims is some comments Mr. Davis made to National Law Journal’s Supreme Court Brief about shutting down his law practice in Denver to move to DC and clerk for Gorsuch.  

Of course, it is easy to attack an honorable public servant and call him or her names from the safety of a news blog.  Liberals may even rejoice to see a Gorsuch clerk's name dragged through the mud.  Is this where we want our public discourse to lie, especially among the legal profession where we have high ethical standards of conduct?  Those of us who actually know Mr. Davis know that he is both a talented attorney and a warm, genuine person.

Putting aside the venomous statements about Mr. Davis, here are other troubling things that ATL apparently believes:

• Anyone with a small or solo practice cannot enter public service, because doing so requires shutting down their practice;
• Partial-term Supreme Court law clerks "play act as a SCOTUS clerk for a couple of months" (of course, we can assume that this only applies to clerks for conservative justices);
• Supreme Court clerks for conservative justices are a "footnote in forging the anarchic hellscape that Fed Soc kids have wet dreams about";
• Then-Judge Gorsuch ruled that "employees should die rather than betray their employer" (one of liberals' favorite talking points, completely ignoring the facts, controlling statutes, and legal analysis in the case);
• "[C]onstitutionalist, textualist, originalist" are "just buzzwords dumb people use to… well, prove that they’re dumb people to anyone with more than a third grade education"; and
• It is "unmitigated gall" for an attorney to note the reduced salary when moving from private practice to government service.

ATL is looked to by lawyers for insider news on the legal profession, with a side of humor and sarcastic commentary.  Snarky gossip, yes; vulgar politically motivated attacks on conscientious public servants more appropriate for a comment on DailyKos, no.  ATL's purpose is to take "a behind-the-scenes look at the world of law. The site provides news and insights about the profession’s most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments."  ATL's readers are largely lawyers and law students, so even articles criticizing individual attorneys usually have some basis in law or fact, as expected by its discerning readership.

Perhaps the most telling point in the whole piece is that constitutionalist, textualist, and originalist are just buzzwords used by dumb people, not fully formed, mainstream theories of constitutional and statutory interpretation even adopted by Justice Elena Kagan.  While the crude personal attacks on Mr. Davis are reprehensible, this point shows that what he is really being attacked for is being a conservative who respects the Constitution.  

We thank Mr. Davis for his service to our country, even in the face of such vulgar, inappropriate criticism.

Highlights of Twitter Today on Gorsuch Hearing

Here are some highlights from Twitter coverage (aside from the RNLA's coverage) of the Senate Judiciary Committee hearing on Judge Neil Gorsuch's nomination to the Supreme Court, which began today:

The first test of SupCt nominees is to sit still and simulate interest in senators as though they were speaking intelligently.

— Matt Franck (@MatthewJFranck) March 20, 2017

Grassley's opening statement focuses on importance of judicial independence, separation of powers. Gorsuch's record shows that in spades.

— Carrie Severino (@JCNSeverino) March 20, 2017

If Feinstein's statement is indicative of Democrats' strategy, they are poised to blow this. Unfocused, unfair, and weirdly amateurish.

— Mark Joseph Stern (@mjs_DC) March 20, 2017

Sen. Whitehouse--contra Feinstein--says "originalism" favors liberal outcomes and conservative justices were being activist. So which is it?

— Randy Barnett (@RandyEBarnett) March 20, 2017

Dem senator Bennet praises Gorsuch's "outstanding INTEGRITY and intellect." Undercuts Left's baseless claim that Gorsuch is biased jurist.

— Ed Whelan (@EdWhelanEPPC) March 20, 2017

"In the West, we listen to each other." - Gorsuch in 97% unanimous rulings, 99% in majority. Legit wow. #GorsuchHearing

— Ilya Shapiro (@ishapiro) March 20, 2017

The hearing will reconvene tomorrow at 9:30 AM Eastern and is expected to go through Thursday.   For great coverage of the hearing on Twitter, follow:

• RNLA
• Ed Whelan
• Carrie Severino
• Ilya Shapiro
• Randy Barnett
• Tiffany Bates
• Elizabeth Slattery
• Senate Judiciary

RNLA will be live-tweeting and retweeting great commentary throughout the hearing.  Follow us on Twitter here.

Vote Fraud Watch: Double Voting in Colorado

In addition to problems with dead voters, Colorado also has problems with double voting:

An ongoing CBS4 voter fraud investigation has uncovered a dozen cases where Coloradans are suspected of voting twice. . . . In six of the new cases, voting records show the same people voting twice in Colorado elections. In another six cases, people are suspected of voting in Colorado and another state during the same election cycle. . . .

Five of the double voters are being prosecuted in Kansas, and people voting in both Kansas and Colorado is a perennial problem:

[Kansas Secretary of State Kris Kobach] says after each election, Colorado and Kansas crosscheck voters to identify double ballots and clean up their databases. But Kobach still believes 10,000 people are registered to vote in both Colorado and Kansas. 

“Any one of those 10,000 people could probably succeed in casting two votes,“ Kobach said. “We want to get the word out, ‘Don’t do it, we’ll catch you.’”

Problems of double voting inside Colorado are amplified by Colorado's new vote-by-mail system:

[In addition to a pending double voting prosecution in Colorado, Colorado Secretary of State Wayne] Williams admits other Coloradans are getting away with it. Combing through voter data, CBS4 found three suspected double voters in Denver, one suspected double voter in Arapahoe County and one suspected double voter in Douglas County. All five cases that CBS4 uncovered have now been referred to prosecutors for possible criminal action. 

“It’s a relatively small number,” said Williams, “But, it is a problem of any magnitude because we have close elections in Colorado.” . . .  

Since ballots were mailed out last week, CBS4 has been contacted by a handful of voters who have received more than one ballot.

We applaud Secretaries of State Williams and Kobach for taking the problems of double registration and double voting seriously.

ICYMI: Democrats Keeping the Zombie Vote Alive

Even partisan Democrats and professional vote fraud deniers such as Rich Hasen grudgingly admit to a potential vote fraud problem associated with vote-by-mail.  Hasen discusses it in the context of vote buying but it is a much bigger problem than that.   

Another example of the problem is “Zombie Voting,” or the dead voting, detailed in the video by CBS Denver attached to this article:

We found voter fraud in Colorado that essentially waters down your vote. . . . 

[Colorado Secretary of State Wayne Williams stated]:  "It is impossible to vote from the grave legally.” 

He says in most cases we found, after someone died, mail ballots kept coming to their home.  Someone else filled them out.

Is this a reason that Democrats advocate so strongly for vote-by-mail and against efforts to clean up voter lists?  Let’s compare where this has been reported recently. 

In California, where other instances of dead voting have been uncovered this year,  Democrat Secretaries of State have adamantly opposed any efforts to clean up the voter lists for years and the Democrat Party has refused to comment on dead people voting.  

In Colorado, to his credit, Secretary of State Williams is taking this seriously.  However, his job has been made much harder due to Colorado’s recent turn to voting entirely by mail, led by Democrats over the opposition of Colorado’s Republican Secretary of State.  

Turning out the vote should not involve the graveyard.  Thank you, Secretary Williams, and shame on you, Democrats in California.  

Colorado All-Mail Election Creates a Situation Ripe for Vote Fraud

As you may recall, Colorado passed a law in 2013, the Voter Access and Modernized Elections Act, which made it the third state with all-mail elections. (Washington and Oregon are the other two).

As one might imagine, this situation is ripe for fraud and many Coloradans are concerned about it, as they should be. As Valerie Richardson writes in The Washington Times,

Now that all-mail voting is the law of the land in Colorado, the challenge for campaigns is to persuade voters to drop off or mail in their ballots — or hand them to the foot soldiers who turn up on their doorsteps offering to do it for them.

While it’s legal to give your ballot to someone else — one person may turn in up to 10 ballots — election watchers worry that the practice is ripe for abuse.

Marilyn Marks, the president of the Citizen Center, an Aspen-based group that focuses on election integrity is concerned, stating

These are totally unauthorized people coming to the door and gathering ballots and doing whatever they want to them.

If I have collected your ballot, I could do the honest thing and put it in the mail for you, or take it to the clerk’s office and drop it off — or I could look inside, open it gently, see how you voted, and if I didn’t like it, I could make some changes. Or the other thing I could do, if I don’t like the way you’re voting, I could throw your ballot in the trash can.

Both Ms. Marks and the Secretary of State Scott Gessler have warned and urged voters to not turn their ballots over to strangers, and to only give their ballots to people they know. Mr. Gessler has also suggested voters go to GoVoteColorado.com to ensure their ballot was received by the polling authorities.

James O'Keefe went to Colorado to further investigate this all-mail election, and to see if there might be Democrats perpetuating vote fraud there. Disguised as a college professor, he was told by Meredith Hicks, the director of Work for Progress (a liberal group funded through Democratic Super PACS)  to fill out unused ballots that are mailed to each household. She said,

That is not even like lying or something, if someone throws out a ballot, like if you want to fill it out you should do it.

She took her fraud a step further, even offering O'Keefe a job with her group to essentially participate in fraud.

O'Keefe's videos show other encounters with other vote operatives as well. One Greenpeace employee responded positively to O'Keefe's claim that he might have access to unused ballots from people who have recently move out of fraternity houses. Christina Topping, the employee, said,

I mean it is putting the votes to good use. So really, truly, like yeah, that is awesome.

The Colorado law passed with not one single Republican vote, and is a prime example of the way Democrats pass laws to loosen voting laws to create a situation where vote fraud can be conducted, and with little chance of being caught, so they can continue their narrative that “vote fraud doesn’t exist”.

Another "Win" for Campaign Finance Freedom

On September 20, 2014, a Colorado District Court ruled on the pending case regarding political party contribution limits for the Colorado Republican Party’s independent expenditure committee (IEC). District Judge Robert L. McGahey, Jr. granted summary judgment for the Colorado Republican Party (CRP).

This summary judgment permits CRP to sponsor, maintain and operate the IEC as would any other person under Colorado law.

This IEC has a set of Standing Rules which state:

All IEC activities and expenditures will be conducted independent of any CRP staff, and that the State Party Chairman may only remove a member of the IEC management committee for cause upon the recommendation of the majority of the management committee.   

Further, no member of the IEC management committee may hold any office or position within the regular political party organization of the CRP, nor may they serve as a delegate to any Republican assembly or convention where any Republican candidate is to be nominated or designated to the primary election ballot.

In their motion for summary judgment, the CRP argued that it is:

Entitled to summary judgment because under the Colorado Constitution, independent expenditures, which may be made by any person, are permissible so long as there is not coordination, and are not subject to contribution limits or source prohibitions.

Judge McGahey wrote:

           

Because political parties are “persons” in Colorado and C.R.S. § 1-45-107.5(2) does not prohibit certain persons from accepting independent expenditures, CRP may establish the IEC to accept independent expenditures subject to the reporting and disclosure provisions contained therein.

The Colorado Ethics Watch (CEW), who intervened in the case, tried to argue that the IEC is “controlled by and coordinates with” the CRP and therefore, is subject to the same contribution limits and prohibitions as the political party. Judge McGahey realized that the safeguards implemented by the CRP and the IEC to keep both entities separate are enough to do just that, keep activities separate. He stated,

CEW believes, but has offered no evidence that the IEC will, in the future, not abide by its own rules.

Judge McGahey ended his grant for summary judgment by saying:

Because CRP is a person in Colorado, it may establish the IEC, so long as the IEC is independent. I find no genuine issue of material fact exists regarding CRP’s control over or coordination with, or lack thereof, the IEC.

This summary judgment marks another win for campaign finance freedom.

Will Colorado be the New Vote Fraud Capitol of the US?

The Democrat claims of “voter suppression” in the recent Colorado recall elections were so ridiculous that even CNN dismissed them.  However, there is a problem that CNN and others should not dismiss; Colorado’s new voting laws make fraud laughingly easy, as Jon Caldara, President of the Independence Institute showed:

Caldara made headlines by switching his voter registration from Boulder to Colorado Springs — roughly 100 miles away — so that he could “vote” in the Sept. 10 recall election. He cast a blank ballot. 

But his larger point was to show that a new Democratic-sponsored election reform law that allowed him to do so was ripe for abuse. It allows people to register as late as Election Day and to affirm that they intend to make the district their permanent home, even if they “moved” to the district that day.

Caldara and others have pointed out that such a promise is impossible to enforce. Shortly before the election, he rented a room in a friend’s house in Colorado Springs, told elections officials that he planned to make it his permanent home and was allowed to cast a ballot.

“Not only did I intend to move to Colorado Springs, I did move to Colorado Springs,” he’s quoted as saying in a statement responding to the article.

The Colorado Springs Gazette calls this a publicity stunt but realizes the seriousness of the problem and calls for Governor Hickenlooper to fix the bill right away in a stinging editorial that should be read by anyone who supports “same day registration”.  The Gazette points out:

That was a high-profile stunt, and authorities could do nothing to stop it because of HB1303. Even prosecution, which seems difficult given the language of the bill, would not have stopped Caldara's vote from counting had he actually completed the ballot. Imagine how many special-interest votes could be cast stealthily if election officials can't even stop an act of civil disobedience committed in broad daylight with cameras rolling. Heck, it wasn't even real disobedience. Some lawyers argue the law allowed it. . . .

Traditionally, one had to have roots in a community before voting in it. Not now. The wording below clearly shows that one can show up in a jurisdiction on the day of an election and vote with nothing more than an "intention" of making the place a permanent home.

This gives almost any Coloradan - especially those among us who are willing to lie - an easy opportunity to vote in local elections. Want to pass or kill a local school tax? Bring in voters willing to state an "intention" to move. Want to undo a municipal gun law? Ask impassioned gun-rights activists to show up and state their intentions to move. Supporters of Morse and Giron may never know whether out-of-jurisdiction voting hurt their senators, though no good evidence suggests it did.

Even if county officials can prosecute, they have no good means of detecting such activity. If they did, tracking down suspects and prosecuting them - by disproving their intentions beyond reasonable doubt - is a long way around. Even if successful, prosecutions won't undo the damage.

This is not a hypothetical situation that is limited to Colorado elections or even in-state voters.  It is documented as happening in multiple places in most detail in Wisconsin in the 2004 presidential election by a special task force of the Milwaukee police.  Out of state employees and volunteers for a liberal C4 and Kerry for President all voted in Wisconsin with no intent to reside there.  In their report found 16 staffers had voted this way but they thought there were many more (emphasis mine). 

Where proof could not be provided to Election officials that these staff members could vote in Milwaukee, other staff members who were registered voters vouched for them by corroborating their residency.  More alarmingly, other staff members who were deputy registrars for this election simply registered these individuals as Milwaukee residents, bypassing Election officials altogether.  The actions of the listed campaign and 527 staff members appear to be violations of State of Wisconsin Law as it relates to registering of voters and the casting of ballots in an election.  …There does remain a strong possibility that the discovery of these random staffers voting illegally is the proverbial ‘tip of the iceberg’ as it relates to an illegal organized attempt to influence the outcome of an election in the state of Wisconsin.” 

They were never prosecuted.  The kicker is Colorado’s law is even looser than Wisconsin.  So while voter suppression in Colorado is a myth, vote fraud in Colorado has never been easier.   

155 Suspected of Voting Illegally in Colorado

It appears the national media decided to ignore yet another major voting scandal in a potential swing state. In fact, the motives of Colorado Secretary of State Scott Gessler are being called into question for simply doing his job by trying to stop people from voting illegally. It is despicable that in some places public officials who try to stop voter fraud and have open and honest elections are seen as villains.

The names of 155 suspected non-Colorado citizens who have cast ballots in Colorado elections are in the process of being sent to prosecutors, Secretary of State Scott Gessler said.

The voters are among 4,201 people who have received letters from Gessler, the state's elections chief, asking them to clarify their status since last summer in the lead-up to the 2012 contests. The 155 have voted in one or more past elections, and did not reply to the letters, Gessler's office said.

Gessler said he had "no choice but to refer these cases to law enforcement for investigation and prosecution."

Letters were sent to people who once showed proof of non-citizenship, such as a green card, when getting a driver's license and then later appeared on voter rolls. Gessler is also using a federal immigration database known as the Systematic Alien Verification for Entitlements. The database tracks who is a legal resident eligible to receive government benefits but is a good tool and can be used for determing the eligibility of voters.

Rich Coolidge, a Gessler spokesman, said:

District attorneys have access to another database that elections officials don't, and that it could help verify the citizenship status of individuals. Coolidge said the names of the voters are "officially part of an investigation and not subject" to Colorado open records law.


"We can no longer turn a blind eye to this vulnerability in our election system," Gessler said.

It is admirable that Secretary of State Gessler is trying to get to the bottom of the situation with these illegal voters despite critics attacking him for doing his job. The people of Colorado deserve fair elections and those who choose to vote shouldn’t have the power of their votes watered down by the ineligible.