Sunday, December 10, 2017

In Gay Wedding Cake Case, Equal Rights at Stake

      Every trial lawyer knows the key to success in the courtroom is a good story to engage the sympathy of jury, judge, or both. So the opposing parties in the gay wedding cake case at the Supreme Court rushed from the courtroom last Tuesday [Dec. 5] to waiting news cameras and microphones to try to sell their competing stories of victimhood to the American public.
      Charlie Craig and David Mullins, the gay couple turned away five years ago in their search for a cake for their pre-wedding reception, introduced themselves as "regular guys" with no agenda other than a desire to be treated equally, as Colorado law seemingly requires. Craig and Mullins had come to Jack Phillips' Masterpiece Cakeshop in the Denver suburb of Lakewood that summer day because they liked the cakes Phillips had displayed in the bakery's catalogue.
      At the other end of the sidewalk, Phillips was explaining that he had "respectfully" declined to make a cake for the couple once he learned that the cake was to celebrate a wedding that his Christian faith prohibited. Down at the other end, Mullins recalled that he and Craig were "stunned" by Phillips' refusal and still pained by "the memory of the humiliation, the mortification."
      Craig's mother had accompanied the couple to the bakery and attested to her son's shock that day. "I saw that my grown son was starting to shudder," Debbie Munn recalled. "We don't want another couple to go through"  that kind of treatment, Mullins said as he wrapped up the news scrum.
      Down the sidewalk however, Phillips was himself donning the cloak of victimhood. He and his family had suffered years of "harassment" after having been found to have violated the state's civil rights law, Phillips told the reporters and assembled spectators. He also took a substantial financial hit by dropping wedding cakes altogether to avoid further legal entanglements.
      Inside the courtroom, the Court's liberal and conservative blocs used their questions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission to construct opposing stories aimed at framing the legal issue best for their opposing sides. Liberal justices Sonia Sotomayor and Elena Kagan warned that ruling in favor of Phillips' compelled-speech doctrine argument would open the door to pleas for similar civil rights exemptions for photographers, florists, chefs, make-up artists, and hair stylists with religious scruples to participating in same-sex weddings.
      Some of those scenarios might seem even less plausible than viewing a cake as speech, but in fact a florist in Washington and a photographer in New Mexico had earlier claimed religious exemptions from their state laws, like Colorado's, that prohibit discrimination on the basis of sexual orientation. The supreme courts in those states spurned the pleas, and the U.S. Supreme Court declined to take up the florist's or the photographer's appeals.
      From their side, conservative justices conjured up sympathetic hypotheses about other kinds of individuals who they said might be forced into conscience-straining services if the Court found that Colorado's civil rights law trumps First Amendment pleas. Justice Neil Gorsuch suggested that an African American baker might be forced into baking a cake adorned with a Ku Klux Klan cross. Justice Samuel A. Alito Jr. raised the possibility that  a Jewish baker might be forced to decorate a cake to commemorate Kristallnacht, the Nazi-inspired destruction of Jewish synagogues and businesses in 1938.
      Those hypotheses were enough to help persuade at least one prominent newspaper to take Phillips' side. "Imagine a Jewish baker being required to put a swastika on a cake," the Chicago Tribune wrote in an editorial. As Lambda Legal attorney Eric Lesh noted in a tweet, however, "Nazis are not a protected class." David Cole, the ACLU lawyer representing Craig and Mullins, made the same point during oral argument. "The Ku Klux Klan as an organization is not a protected class," Cole responded.
      Cole began his allotted 15 minutes by acknowledging the sincerity of Phillips' convictions about same-sex marriage but warning that a ruling in his favor would have "unacceptable consequences." He echoed a concern that Justice Elena Kagan had raised that the same religious-based objection might be raised, for example, against providing services for a gay funeral. And he rejected as impossible any effort to draw a line between valid and invalid refusals based on the supposed "expressive content" of a cake as opposed to flowers or makeup or whatever.
      From the start of what proved to be 90 minutes of arguments, all eyes were naturally on Justice Anthony M. Kennedy, the author of the Court's four landmark gay rights opinions over the last 20 years and the Court's most consistent defender of free-speech rights. He gave conflicting signals about his eventual vote.
      Kennedy signaled sympathy for Phillips at one point by complaining of a remark that one of the seven Colorado civil rights commissioners had made criticizing the use of "religious rhetoric" to deny equal rights. At another point, the justice aptly noted that a bakery that posted a sign "no gay weddings" would be "an affront to the gay community."
      Along with Alito and Gorsuch, Chief Justice John G. Roberts Jr. clearly signaled sympathy for Phillips; Clarence Thomas, silent as usual, was also counted as a likely vote. But none of the conservatives seemed to offer a clear line that, as Justice Stephen G. Breyer put it, "will not undermine every civil rights law."
      The case, it turns out, is not about a cake. It is about equal rights, just as Craig and Mullins have maintained throughout. With many observers predicting a ruling for Phillips, the real victim in the case could be the advancing national commitment to equal rights for LGBT individuals.

Sunday, December 3, 2017

At High Court, Party Labels Matter in Patent Case

      The Supreme Court was simultaneously at its best but also its worst during oral arguments last week [Nov. 27] in a closely watched, high-stakes patent case. The question presented in Oil States Energy Services, LLC v. Greene's Energy Group, LLC was whether Congress had created a rights-violating, fast-track procedure for the U.S. Patent and Trademark Office (PTO) to invalidate a previously issued patent as part of an omnibus reform bill six years ago.
      Congress approved the new administrative procedure in 2011 as part of the America Invents Act in response to widespread concern in the intellectual property world that the PTO was impeding instead of promoting innovation by issuing too many patents of dubious validity. The bill, cosponsored by Vermont's Democratic senator Patrick Leahy and Texas's veteran Republican congressman Lamar Smith, was approved by substantial bipartisan majorities in both the House and the Senate.
       Despite that record of bipartisan support, the justices appeared to divide mostly along party lines in either supporting or opposing the new procedure with their questions from the bench during the hour-long arguments. Republican-appointed justices seemed inclined to rule the law unconstitutional while three of the four Democratic-appointed justices clearly signaled they were ready to uphold it.
      The issue in the case is one of those legal questions with no evidently correct answer based either on precedent or constitutional logic. Yet the justices split predictably along party lines, defying efforts by Chief Justice John G. Roberts Jr. among others to portray judges as  something other than politicians in black robes.
      The case pitted two companies in the oilfield services business, one with a patent that the other challenged under the new procedure. Oil States was awarded a patent for apparatuses and methods of protecting wellhead equipment during hydraulic fracturing, according to the summary of the case in the American Bar Association's publication Preview.
      Oil States accused Greene's of infringing the patent, but Greene's responded by successfully challenging the patent as invalid before the newly created Patent Trial and Appeal Board (PTAB) and prevailing in Oil States' appeal of that decision to the U.S. Court of Appeals for the Federal Circuit. In taking the case to the Supreme Court, Oil States argued that the new administrative procedure violated the protections in the Constitution's Article III and the Seventh Amendment for trials before judge and jury in "suits at common law," such as patent disputes.
      The new procedure, known as inter partes re-examination, expanded the PTO's previous procedure known as ex parte re-examination by allowing an outside party to initiate reconsideration of a patent. Liberal justices saw the logic of the new procedure. "There must be some means by which the patent office can correct the errors that it's made," Justice Ruth Bader Ginsburg said as soon as Dallas lawyer Allyson Ho had finished listing five reasons why the procedure violated Oil States' rights.
      Liberal justices Elena Kagan and Sonia Sotomayor echoed Ginsburg's view. Kagan was incredulous that the government could be challenged for creating "a set of procedures that will actually increase the government's accuracy in figuring out whether it made a mistake." For her part, Sotomayor countered Ho's concerns by noting that a PTAB ruling invalidating a patent could be appealed, just as Oil States did, to a federal appeals court.
      Roberts and the court's newest Republican-appointed justice Neil Gorsuch were clearest of the conservative bloc in questioning what the three liberals depicted as eminently sensible. Both raised unrealistic hypotheticals to test the arguments defending the new procedure from Greene's attorney, Tallahassee lawyer Christopher Kise, and deputy solicitor general Malcolm Stewart arguing for the government.
      With Kise at the lectern, Gorsuch asked whether the government could re-examine a land patent — legal jargon for a land grant — "at any time, even hundreds of years" after the land had been farmed, sold, and developed. With dripping disdain, Gorsuch asked whether the hypothetical land grant could be "revoked by the government by bureaucracy in, I suppose, the Department of the Interior" — referencing one of the least popular federal agencies in Gorsuch's native Colorado.
      Gorsuch tied up the analogy by citing precedents and the Constitution as describing patents as a property right. "[O]nce it's granted," Gorsuch concluded, "it's a right belonging to the inventor." Gorsuch renewed the point when Stewart stepped to the lectern by returning to a question about investments and reliance interests that Justice Stephen G. Breyer had raised earlier. Stewart stood his ground. "It has always been part of the scheme that a patent could be re-examined," the veteran government lawyer said.
      Stewart also turned aside a hypothetical that Roberts had posed to Kise to allow the government to fire an employee based on a coin toss instead of a formal adjudication. No, Stewart said in returning to Roberts' question, "the procedures still have to be fair." Roberts, a stickler for judicial powers with a record of throwing barbs at administrative agencies, was evidently unpersuaded.
      By the hour's end, the pivotal vote seemed likely to lie with Justice Anthony M. Kennedy, the only one of the nine who regularly crosses the court's ideological fault line. His questions seemed to indicate an open mind on the case. But conservative justice Clarence Thomas, silent as usual, and fellow conservative Samuel A. Alito Jr. seemed likely to stick with their Republican-appointed colleagues Roberts and Gorsuch.
      Gorsuch quotably rejected party labels when up for confirmation this spring. "There's no such thing as a Republican judge or a Democratic judge," he told the Senate Judiciary Committee. But with Gorsuch on the bench, the Roberts Court remains as neatly divided along party lines in close cases as it has been ever since the retirements of two line-crossing Republican-appointed justices, John Paul Stevens and David H. Souter. Judicial purists may resist this description, but in this case and many others party labels matter very much at One First Street even if the justices wear black robes on the job.