Civil Rights Commissions: Enforcers of Social Justice

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Civil Rights Practice Group, was recorded on Friday, August 3, 2018 during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon our topic is titled "Civil Rights Commissions: Enforcers of Social Justice," and is hosted by our Civil Rights Practice Group. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Karen Lugo, who is the Founder of the Libertas-West Project. After our speakers give their remarks, we will go to audience Q&A. Thank you for speaking with us. Karen, the floor is yours.

 

Karen Lugo:  Thank you, Micah. As we know, the Masterpiece Cakeshop Supreme Court proceedings spotlighted the unmitigated hostility that members of the Colorado Civil Rights Commission held for Jack Phillip's Christian beliefs in declining to provide a cake in commemoration of a gay wedding. This, quote, "disparagement of Phillip's faith is despicable," end quote, provided common ground from which a seven justice Supreme Court majority overruled the findings of the Colorado Civil Rights Division, the ALJ judge, the Civil Rights Commission and the Colorado Court of Appeals.

 

      But now that the commissioners from high levels to low have been corrected for revealing overt bias and animus in administering unequal treatment, is there a danger that the bias will just be concealed, and will the treatment of those who do not comply with the Commission's favored viewpoint continue to slight constitutional protections?

 

      To this point, many may not have taken the local Commission's modeled admission much like the state level organization seriously. But although members are often volunteers and rarely have professional training, cities and counties, like Fort Worth, Texas, vest commissioners with enforcement power to, quote, "conduct investigations and issue a charge or determination if conciliation is not reached."

 

      In New York City, the unit has the authority to levy fines and file criminal proceedings against those who discriminate. Even without a specific complaint, the Commission also has the power to root out discrimination by process of investigation. But this focus on conciliation may cause many to dismiss the panels and their mission as innocuous. I did not even know that a county in which I resided and worked had such a commission, in fact in this case entitled The Human Relations Commission, until I was subject of an inquiry.

 

      At the time that I found myself under investigation, I was teaching a clinical law course at Chapman School of Law in Orange County, California. Students began demonstrating and they complained that I had engaged in hate speech during an event in my hometown. At this event, I had participated with a prominent congressman and others expressing concern about documented extreme Islamist activity in the area. The students and a few undergraduate professors were demanding that the administration terminate my position. The university's council reviewed the record and issued a vindication of my remarks as not hateful and called for an academic environment that respected free speech and robust debate.

 

      But during this time, I received a tip that the county Human Relations Commission was going to issue a public condemnation of my activity. While never receiving any formal notice, at the meeting I arrived to query the panel as to how this decision was reached. The points of condemnation were already drafted, and 11 of the 12 commissioners admitted that they had never reviewed the easily obtainable videotape of the event. They were all prepared to reach a final decision based upon the complaints that they had received.

 

      Since this time, I have watched these panels proliferate at the local and state level. The potential for legal training, oversight, professionalism, and scrutiny vary by location. On our call today, we have two presenters who have actually defended clients charged by similar commissions who have the same kind of focus. These experts will be suggesting opportunities for potential reform as well as presenting professional observation. Their biographical information is at The Federalist Society webpage that details this call.

 

      So first I would like to thank both of them for joining this discussion today, and I will first ask Jeremy Tedesco of Alliance Defending Freedom to comment. Over to you, Jeremy.

 

Jeremy Tedesco:  Well, thank you, Karen. I appreciate it. Thanks for the opportunity. I think we need to start the discussion with the natural starting point, which is Masterpiece Cakeshop, and the decision from the Supreme Court in that case. That case -- Colorado lost it because the Court said that it failed to—the commission there, the Human Rights Commission—failed to approach the complaint against Jack Phillips with a religious neutrality that the Constitution requires. And the Court rightly reminded us that the Free Exercise Clause bars even subtle departures from neutrality, and its protection applies even upon the slight suspicion that state actions stem from animosity to religion. And I think a lot of what we are concerned about with these kinds of commissions, the lack of impartiality, the due process problems, those concerns are really vindicated in the Masterpiece case by way of the religious -- the Free Exercise claim and ultimately prevailing on the religious hostility issue.

 

      Of course, it's probably pretty well-known, but the biggest problem for the Colorado Civil Rights Commission was that one of the commissioners had notoriously said that she found religious freedom to be a despicable piece of rhetoric when people like Jack Phillips raised it in these kinds of cases as a defense. And Justice Gorsuch at the argument mentioned other instances where the commissioners seemed to be dismissive.

 

      But I can tell you, you know how it's different when you're sitting in the room watching the presentation versus reading a transcript. I was in the room when the seven civil rights commissioners heard Jack Phillips's appeal of the decision against them, and I can tell you they were completely dismissive. They found it almost preposterous that anybody would come to them making the kind of arguments that Jack made under the Free Speech and Exercise Clause. And that just goes to show the problem that these folks that are on these commissions are usually political appointees that have absolutely no training or understanding of even the first principles of the First Amendment, let alone the complex issues that were raised in the case before the Commission in Masterpiece.

 

      I think another really interesting thing about Masterpiece is the selective enforcement aspect of the decision. You know, a lot of people will say, well, Colorado can really just clean this up by not being so openly hostile with their comments. But that's simply not true. That buys into the narrowness idea that the other side says about the decision. But the Court also said that the selective enforcement of the law showed religious hostility. And I think this is where the human rights commissions, which I agree with Karen, are largely geared towards finding discrimination. It's almost like the fix is in as soon as you get a complaint filed against you, especially in these kind of hot-button cases because the selective enforcement's going to be a problem, especially such sexual orientation, same-sex marriage, all those issues are before these commissions because these progressive-minded commissioners are not going to punish people who support same-sex marriage if they decline to criticize same-sex marriage through the things they create; versus, they have no problem punishing folks like Jack Phillips and others if they oppose same-sex marriage and are forced to create things that celebrate same-sex marriage. And so that selective enforcement thing is going to bedevil them for years, and I think the important protections against the kind of hostility we saw in Jack's case.

 

      But I also want to give you kind of a highlight reel of other things that we've dealt with these commissions. Now, Barronelle Stutzmans is another person that we're defending. That's in Washington State. Barronelle's a florist who declined to create a floral arrangement celebrating the same-sex marriage of a long-time customer. In that case, the story of the Civil Rights Commission is one of inaction. What happened there was after the court's rule against Barronelle, a story hit the news that actually went national about a secular owner of Bedlam Coffee in Seattle profanely berating and expelling a group of Christians from his shop. His actions clearly violated the Washington law against discrimination. Yet, neither the Human Rights Commission nor the state AG did anything, took any even kind of threatened enforcement action against Bedlam's owner.

 

      Now, compare this to what happened with Barronelle. The state attorney general learned of the events underlying her case in a similar way—through news reports. But what he did was call one of the gentlemen in the same-sex relationship three times and informed him that the state was devising a means to sue Barronelle. And then he followed that through, taking the unprecedented steps of completely bypassing the Civil Rights Commission, suing Barronelle in both her professional and personal capacities, and asking the state solicitor general to handle the case in the trial court. This different treatment between the situations in Barronelle -- the Bedlam Coffee shop and her certainly shows the kind of bias that we're concerned about when it comes to these kinds of commissions.

 

      It looks even worse when you look at another case we handled, Stormans v. Selecky, which involved whether pharmacists could continue to conscientiously object in context of -- and refer where they're asked to provide drugs that they objected to on moral grounds. The story in Stormans starts with Planned Parenthood [inaudible 10.08] meeting with then-Washington Governor's Senior Health Policy Advisor, and pitching the idea that the Washington Board of Pharmacy—another one of these state agencies—should issue a new rule requiring pharmacists to dispense Plan B, an abortion causing drug, despite any conscientious objection of the pharmacists. The Washington Board of Pharmacy, to its credit, initially resisted this and said they'd continue to respect the consciousness of pharmacists. Well, the Governor responded by appointing a former member of Planned Parenthood to the Board of Pharmacy and putting further pressure on the Board. Well, when the board continued to resist, the Governor's health advisor urged Planned Parenthood to go to no other than the Washington Human Rights Commission and complain.

 

      Planned Parenthood did that, and the Washington Human Rights Commission responded by sending a letter to the Board of Pharmacy, reviewed in advance by Planned Parenthood, asserting that conscientious objections to Plan B were a form of unlawful discrimination. The letter went so far as to threaten the board members with personal liability under antidiscrimination law if they voted to protect conscientious objections to Plan B. So here you see how political the Washington Human Rights Commission can be. Where Bedlam Coffee is concerned and you're in the context of what it would look like if Barronelle is not prosecuted and Bedlam is, they just -- hands off, inaction.

 

      But in the situation with the Washington Board of Pharmacy and a coordinated assault on the conscientious rights of pharmacists to refer, the Washington Human Rights Commission was all in even threatening a fellow state board with charges of personal liability if all they did was follow their duty and vote on rules before the board.

 

      We have another case, Hands On Originals. That case is a case where we represent Blaine Adamson. He's a print shop owner in Kentucky. He was approached and declined to print a shirt celebrating a pride festival in Lexington. And the Human Rights Commission in that case actually I think exhibited worse hostility than what the Supreme Court condemned in Masterpiece. At a meeting where the Commission adopted an administrative judge's earlier ruling against Blaine, the Commission's vice chair, with no objection from his colleagues, stated that the Commission needs to work to change the views of though who hold Adamson's religious beliefs about marriage. He specifically complained that the Kentucky Baptists severed ties with a Louisville church that accepts same-sex marriages. And he said that this shows the Commission needs to continue its work in this area and hope to see a change in attitude. The fact that the Commission thinks that it's its job to change its citizens and even the beliefs of religious institutions under its jurisdiction is very alarming, and that kind of open hostility to religion is problematic.

 

      A couple other ones I just want to raise real quickly. Michigan, the State of Michigan; in that state, LGBT advocates have been trying for years to get the state legislature to pass a law adding sexual orientation and gender identity to the state antidiscrimination law, but they had failed for years. And so instead they turned recently to the Civil Rights Commission of the state and asked them to just reinterpret sex to include sexual orientation and gender identity. And the Civil Rights Commission immediately obliged and issued an interpretive ruling saying that that's what it meant and that they would accept enforcement complaints under that theory.

 

      Several state legislators asked the attorney general for a legal opinion on that. The attorney general issued an opinion saying that the Commission had overstepped its bounds and that only the legislature or the people would amend the law and add those terms. A few days after that legal opinion came down from the attorney general, the Commission thumbed its nose at him and said they would continue to interpret the law consistent with its prior interpretation and that only a court could really stop them from doing that. Again, open hostility, open politicization of the board.

 

      The final one I want to mention is in Anchorage. In Anchorage, Alaska, the Equal Rights Commission there has a complaint before it alleging that a religious based battered and homeless women's shelter engaged in gender identity discrimination. Full disclosure, we represent that homeless shelter at this point. But while the complaint was pending and before we got involved, the executive director of the Commission [inaudible 14.39] a complaint against the center's former attorney based on statements he made to media concerning his client's religious beliefs on the facts of the case. And this is an egregious abuse of power. You have to wonder how we as attorneys can effectively represent our clients before these kinds of tribunals. If what we say about them publicly can result in complaints being filed against us before the very commissions we're practicing in front of.

 

      So with that, Karen, I give it back to you.

 

Karen Lugo:  Thank you, Jeremy, for a comprehensive survey or maybe a sampling of what's developing around the country. And now we'll turn to Herb Grey, who's an attorney practicing in Oregon.

 

Herbert Grey:  Thank you, Karen. I come to this with the benefit of having been the lead attorney for Sweet Cakes by Melissa, which dealt with a state board rather than a local board, but I agree with all the observations that Karen and Jeremy have made so far.

 

      It seems to me the fundamental problem here is a lack of accountability or standards, and even where there are some standards articulated, which is rare, they tend not to be followed. So I'd just like to make a preliminary observation that social justice without any standards is not justice but actually is tyranny.

 

      So I'd like to make four observations about what's kind of wrong with these processes based on my experience. The first is that we need to restore the concept of separation of powers. I think most of the lawyers on the call will recognize the U.S. Constitution in Article I, Section I, places all legislative power in Congress not with bureaucrats. And while rulemaking in certain contexts is authorized, we see violence in the application of that as Jeremey described.

 

      Out here in Oregon, we had a similar situation where sexual orientation was administratively determined by the Commissioner of the Bureau of Labor and Industries to include gender identity.

 

      And along with that, I think judicial matters ought to be decided by judges and juries not politicians or political appointees. Many of these statutes and ordinances that are applied by these commissions or boards have similar criminal sanctions. The Sixth Amendment guarantees a right to jury trial in a criminal prosecution, and the Seventh Amendment says you should have a jury trial if more than $20 is involved. And what we see here is that a lot of times neither of those is observed, depending on whether they're criminal sanctions or civil.

 

      The second point I'd like to make in addition to the separation of powers is that limited and arbitrary process is not due process. So what occurs in Oregon with the Bureau of Labor and Industries and its elected commissioner is regardless of whether there's a civil or a criminal sanction sought, the hearings are actually conducted by prosecutors, and that's their official title. So right from the beginning, even in a civil context, you kind of understand the mentality that you're dealing with.

 

      The second thing is that the administrative law judge, who is supposed to generate findings and recommendations, and the prosecutors bringing the case and indeed all the investigators who work, are all working for the same agency. And in our particular situation in the Sweet Cakes by Melissa case, the administrative law judge wasn't even a lawyer, and yet he was making legal rulings throughout the proceedings. And what we see generally in this type of situation that the usual procedural safeguards of the judicial system that lawyers are familiar with are completely lacking, or they are arbitrarily and capriciously limited in some fashion.

 

      So, for example, it's common that discovery would be limited. You'd have to ask permission to take depositions or to seek certain documents. The rules of evidence are usually not applicable. So, for example, heresy is often allowed by rule, and in our case, and I think with some of the cases that Jeremy mentioned, evidence was presented to the effect that the people against whom the claim had been brought had actually served the people bringing in the complaint. And in our case, we were told that evidence of serving those people at different times was irrelevant, and we weren't allowed to even bring that in at the hearing.

 

      Another issue getting to the hostility things that Jeremy spoke of is we tried three times to disqualify the elected commissioner for making public statements indicating his bias even before complaints were filed in the case. And those are rejected three times, and maybe in the Q&A I can discuss a little bit more about that.

 

      The final thing I'd like to talk about in terms of due process is that in most of these cases, they never come before a judge until getting to a state court of appeals or perhaps a federal court of appeals. And once you get to that point, they make decisions on whether the decision is supported by substantial evidence, and they employ various concepts of deference to the agency decisions.

 

      And the last point on this due process is in our case after the damages award was rendered by the commissioner, rather than that being bonded or somehow dealt with in a different way, my client said to pay the judgment in full and place it in trust with the Bureau of Labor and Industry pending the outcome of an appeal. So it doesn't even make it feasible for them to hang onto their money while the case plays out.

 

      So in addition to the separation of powers and the due process arguments, there seems to be a real lack of standards about how decisions are made. So in the Sweet Cakes case, what happened is the formal charges that were brought against my clients ask for a presumed amount of $150. And throughout the proceedings, what was clear is that it was presumed that they were entitled to $150 unless there was some evidence indicating that should be decreased. Those of us who function in the judicial system know that if you're seeking damages, you start with $0 and you have to work your way up to what you can prove. So it's exactly the opposite of the way it functions in court. And in the same way, part of the component of the Sweet Cakes decision as it played out was there is what was commonly referred to, by mainstream media even, as a gag order. My clients were told that they couldn’t express any opinions about the validity of the action they'd taken or the beliefs that they had because there was a statute that says you can't express an intention to discriminate. And with considerable justification even the mainstream media in Oregon and across the country was not very thrilled with that.

 

      The last point I'd like to make on this is that the laws as they currently exist make no provision for balancing the rights of protected classes. In the cases that Jeremy was describing and the same is true in Sweet Cakes, there's often a conflict of religion and sexual orientation and gender identity, both of which under almost any statute out there or administrative rule are protected classes. And yet, people with a religious viewpoint get no attention or deference whatsoever. It's something that I refer to as a one-way ratchet. There's only one way that it goes, and Jeremy alluded to that too. And often times we find even though these involve constitutional rights, they're subjected to rational basis review where the government just has to show it has a reason as opposed to strict scrutiny where they have to show that there's a compelling reason, or a compelling government interest, for what they're doing.

 

      So with that background, I'd like to engage in a little bit of dreaming about possible solutions, and I'll just say at the outset I don't have any allusions that after more than 100 years of the Administrative Procedures Act and similar types of things, we're not going to turn this around any time soon. But let me suggest that there may be some legislative fixes and judicial fixes and maybe even a change in language that would be appropriate here.

 

      From a legislative standpoint, I would argue that there should not be an administrative process offered by a legislature if a judicial process is available so that we can maintain appropriate standards for evidence and due process and all those other things I described. I think there also has to be a way of establishing the standards for the people who are going to be making these decisions and authorizing their removal if they are biased, and that's often lacking. And the idea that they all work in the same agency often times I think is very problematic. And I've already alluded to the need for standards for damages and fines and other relief that may be given by these entities. The last thing is I think that perhaps Congress and even legislatures could certainly restore a strict scrutiny standard so that the rights of different protected classes could be balanced as opposed to it being the one-way ratchet I described.

 

      From a judicial standpoint, I think that we need to limit the deference that courts show to these decisions, and I think the reason for that was well-articulated by the Supreme Court in the Masterpiece case. If the people making the decision are biased, there should not be deference according to them. And there needs to be meaningful evidentiary and due process standards rather than paying lip service to those concepts. I think they really need to be more robust than are currently recognized. And finally, we just need to be more respectful of the constitutional rights that are often implicated in these kinds of cases.

 

      So with that, I will turn it back to Karen.

 

Karen Lugo:  Thank you, Herb. That was a litany of concerns that we all need to consider seriously. And I do have a question for both of you before we open up to Q&A. In listening to this, what is apparent is that there really is no curb against this unbridled discretion or unfettered discretion that the courts will note when it comes to local government decisions in many cases. And when you have these kinds of deficiencies in the process, and then you have a lack of right to appeal due to the fact that standing and the various issues, the lack of final administrative decisions often times would bar some of these subjects of an investigation from reaching a court.

 

      And yet, it doesn’t seem that people in communities understand that what can happen is that these agencies become kind of the ultimate enforcers of a heckler's veto, that they respond at the behest of a group that complains, and they manage to chill or silence an entire point of view within a community. And so I'm wondering what you think of the idea of even starting at the political level. Most of these individuals, commissioners, are ostensibly at least responsive to some kind of political authority. And so if there was training -- I mean, it's from my conversations with a lot of individuals involved with these processes, they simply have no idea that there's supposed to be a balancing component to their exercise. Would the idea of training or some kind of a monitoring group that would report on where the deficiencies are… does this make sense?

 

 

Jeremy Tedesco:  I think those are great ideas. I think education is enormously important in this area. Having a watchdog of the human rights groups, potentially. But I don't think we should neglect the litigation options. That's primarily what I think about and deploy in my practice. And the reality is some people are more at risk of having these human rights commissions, especially in our day and age today where, you know, Herb was talking about how religion in in these laws but doesn't seem to provide any protection. Yeah, it's that, plus the left has really turned these nondiscrimination laws into swords to punish religious believers on certain issues and topics, and as Karen was talking about, chill and silence people.

 

      So from my practice area what I've spent a lot of time with is cases like Masterpiece Cakes, cases like Herb's case out in Oregon on the behalf of Sweet Cakes. And so it's not -- a lot of folks are really at risk. And, Karen, to your point about there being a chill, I've talked to so many creatives who are Christians that were once in the wedding industry that have just completely abandoned it. And what that means is they’ve abandoned, for them many times, what they feel is their genuine calling from God on how He wants to have them live their lives. He's given them, they believe, talents and skills and abilities that they're supposed to use to provide for their families and honor Him, and they just abandon it because they don’t know what to do, and they're afraid. And they should be.

 

      And so there's litigation options that you can go and file pre-enforcement lawsuits against these commissions under the rights and areas. So I'll just raise one as an example, but in Minnesota, we filed a pre-enforcement action against the Minnesota Civil Rights Division, the division responsible for enforcing the Minnesota Public Accommodations Law because that division, their enforcement officials had said quite a few times that they were essentially targeting people whose religious convictions oppose same-sex marriage. They had also had a practice of using testers to set people up. So this commission would have their own employees call people -- and they could do this sua sponte; they didn’t even have to wait for a complaint to be filed against somebody. They could just read an article or find out information about a business that may be exercising their beliefs on this issue and just send out testers, have them call, set them up for an actual complaint filed by the division.

     

      So you can go to court and try to get a ruling from -- a declaratory ruling or even an injunction against that commission from enforcing the law in a way and manner that we're all concerned about. It being enforced—that would violate free speech or free exercise rights. And I think that those kinds of rulings, if we can get them, would be very strong medicine for these commissions and make them think twice about the way in which they exercise their power.

 

[CROSSTALK] Karen Lugo:  Good point. Herb, do you --

 

[CROSSTALK] Herbert Grey:  Well, and if I could add to that a little bit. In the case of Sweet Cakes, the ultimate decision was made by the Commissioner of the Bureau and Labor and Industries, who happened to be a recovering civil rights lawyer. So he knows exactly what the law is, and he applied it in the way that he thought it ought to be applied. And the first public statement that he made when the situation first cropped up was "our goal is to rehabilitate people, not to put them put out of business," which presupposes that they need to be rehabilitated. So he knew exactly what he was doing and obviously passed the word to all of his subordinates to make sure they got the right answer.

 

      I think what's common with a lot of local boards is that they're political appointees, and I'm not sure many times that there's an adult in the room when those people get together. And it's anyone's guess what kind of training or direction they get from anybody in observing normal legal protocols.

 

Karen Lugo:  It's interesting that there seems to be a lack of forethought when it comes to something like wielding a heckler's veto that it is -- that the viewpoint that is advanced is transitory, and what is popular or approved by government today should be something that the current forces that are in ascendancy don’t approve of or would be victims of in the future. It's something that can swing both ways, but it doesn’t seem to be anything that they're thinking about as far as the way that this current trend has developed unchecked, at least primarily. And that is why we're assembled today to ask a lot of questions and see what answers there might be.

 

      And at this point, I'd like to open the line for Q&A, Micah. But we're looking first for Mark David Hall, if he's on. He has written very thoughtfully on some of these issues, and if he is available, we had hoped to direct the first question to him.

 

Micah Wallen:  All right. Thank you, Karen. I see Mark Hall here is up first, so without further ado, let's go to our first question.

 

Mark David Hall:  Hi. Well, thanks very much. And Jeremy and Herb, wonderful presentation, and as a non-attorney, I really appreciate you all being down in the trenches. And Herb more than anyone else has helped me understand that these administrative law proceedings are just ridiculous, Kafkaesque, and should be done away with.

 

      But my question has to do with those cases that actually started before real judges or of course eventually they get to real judges, and these real judges seem to just blow past the legal requirements. In Washington State, the Barronelle Stutzman case, for instance, went to a real judge and he just blew past the strict scrutiny requirement. And this makes me wonder, and I know we have to litigate these cases, but if we perhaps should start looking to legislative solutions. Perhaps something along the lines of the Utah Compromise, where we have clear legislative accommodations crafted to protect small business owners and creative professionals, and perhaps as a trade-off, I'll also adopt laws banning discrimination on the basis of sexual orientation. So I'd just be real curious what you all think about that sort of compromise.

 

Jeremy Tedesco:  Sir, the Utah Compromise as I understand it wouldn’t protect Barronelle Stutzman, and most of the offerings I've seen that have been attempts—they were described as Utah Compromise-esque—typically leave a whole swath of religious either institutions or believers open to the same kind of problems that we see happening with Jack Phillips and with Barronelle. Religious institutions have just as much concern. So what I've seen from Utah Compromise-type propositions is largely our side compromising almost everything and getting back only what -- you know, the bare minimum or what the Constitution already very clearly requires.

 

      The only other point I'd make about Utah Compromise, and this is not a point I make happily, but our experience is that when we engage in these kinds of compromises on these issue with the folks that are opposed to us on the other side, that's just one more step towards our ultimate submission because that's not going to satisfy the other side. I've never seen one of these compromise positions satisfactory. Some of the legislative things going on around -- I can't remember the name of the law. It was AB-something in California. But it dealt with all of the religious colleges in California having an exemption from the sexual orientation and gender identity restrictions put on funding for California grants for students attending schools. And in what the legislative brouhaha was over that about a year ago was that they no longer wanted to provide that exemption to religious schools. And the position of our opponents was they can no longer have that; it's an affront to our community and to LGBT persons to continue to allow these schools to engage in what they see as unlawful activity.

 

      And so I just think that's a perfect example of where compromises were made, but then it just wasn't sufficient, ultimately, for the other side. And so I think it's -- to me, it's concerning for us to go down that path because I think that path ultimately leads to the erasing of all the exemptions that we may negotiate at one point or another in the process.

 

Mark David Hall:  Thank you.

 

Hebert Grey:  The only thing I would add to that is in Oregon, the only religious exemptions, which are very minimal, only apply to matters of employment, and they don’t apply to public accommodation or to housing. So often times there's a problem with even having a legislative recognition of the importance of religious beliefs and practices in some of these areas. And in my judgment, that's where the attention ought to start first, probably, legislatively because I agree with Jeremy. It tends to be very difficult to have a conversation and have any meaningful principle discussion about how this should be handled.

 

Jeremy Tedesco:  Well, and I would just, you know, just a couple more comments to add very briefly. One is a lot of the new nondiscrimination laws that we're seeing pass now either don’t have religious exemptions, or they're adding sexual orientation or gender identity, one or the other or both; and they're not adding a religious exemption at all, or they're adding an incredibly narrow one. And I'd also raise that the Connecticut Civil Rights Commission, I don't know if that's exactly the name of the body there, but they have interpretive and enforcement authority for the nondiscrimination laws in the state. They recently issued an opinion that said that the religious exemption under the law, which is pretty broadly written, very similar to but I don't think completely tracking with Title VII's exemption. But nonetheless, they interpreted their relatively broad language to only apply to organizations that are engaged in religious worship, and that's it. And so, I think that that's the trajectory that the other side is on, and I think it's important for us to recognize that.

 

Micah Wallen:  All right. Let's go to our next question.

 

Dawn:  Hi. I'm Dawn, and I'm from Michigan. And I was recently sitting in a Civil Rights Commission meeting, and the leader that was appointed is an openly homosexual person, and he's the director. And our attorney general here in Michigan when he issues an appointment -- I mean a decision, a document that has a binding of a law, and he sent his attorney in to let them know that they went beyond the law. And they just sort of laughed and did nothing, and they were sort of mocking the attorney from the attorney general's office. And I'm just wondering what remedy do we have when our attorney general issued a statement, his lawyer was there saying, "You're breaking the law," and they're just laughing at him saying that it's an opinion; it means nothing. And in fact their opinion's stronger than the lawyer and the attorney general of our state.

 

Jeremy Tedesco:  This is Jeremy. It's go to court and get a declaratory judgment that the Civil Rights Commission has indeed exceeded the scope of its statutory authority and is making law, and it is doing it in a way that's improper, that this is something that the legislature needs to handle and not the Civil Rights Commission. It has no power to do that. I mean, I think even the Civil Rights Commission's public statement was essentially, you know, we’re not going to stop and cease in enforcing the law in the way that we interpreted it, saying that sex means sexual orientation and gender identity, unless a court tells us not to. That is the essence of what they said.

 

      And so I think that has to be the next step because I'm not sure -- perhaps the attorney general and his office has some kind of way to enforce it. I don't know. That's outside of my scope of understanding. But people who are at risk because of the state's interpretation of the law -- I'm sorry, the Civil Rights Commission's interpretation of the law, could very well go to court and get a declaratory judgment.

 

Dawn:  Okay. Thank you.

 

Micah Wallen:  And Karen, we don’t have any further questions lined up in the queue, so if you had any more questions for Jeremy and Herb, I'll let you know when another -- oh, wait. We do actually have a question. It just popped up. Without further ado, we'll go to the next question. 

 

Chris Burger:  Hi. This is Chris Burger from Lawrence, Kansas. We have a commission that limits what you can present to them, even to a point sometimes of limiting you to three minutes in a presentation, other than making just a -- I mean, how can you create a record in front of a commission that limits you with regard to what you can speak and without having to go through -- I'm not sure what the documentation would look like?

 

Herbert Grey:  Is this someone that is trying to present who's actually had some sort of charges preferred against them?

 

Chris Burger:  Yes. It's always put in terms of an investigation.

 

Herbert Grey:  Well, my sense based on my experience at the Sweet Cakes case is that you have to mindful of which stage of the proceedings it's at. But you look first of all at what the statute requires, and secondly, what any applicable administrative rules may require in terms of the presentation. If it's left to the discretion of whoever is presiding, and it's an open-ended thing, and they're just arbitrarily deciding it's three minutes, then what we did repeatedly in Sweet Cakes was we kept filing motions trying to tee up things like that, like the bias of the commissioner, who was an elected public official. And even though there wasn't a statutory basis for us making that, we wanted to inject exactly the same sort of bias that was manifested in Masterpiece. So the idea that there can be some sort of judicial sanction imposed against someone and they're only allowed three minutes to defend themselves seems preposterous, and you just have to make a record and hope that somebody further up takes matters more seriously.

 

Chris Burger:  Thank you. That's encouraging.

 

Herbert Grey:  And if I can just speak further to that, one of the things that I just chose to do in the Sweet Cakes case when I was dealing with the administrative law judge in the hearing, I never referred to him as judge or Your Honor because he wasn't even a lawyer, let alone a judge. And I tried to be respectful, but I always referred to him as Mr. So-and-so. And part of it was candidly just saying -- I had to have a stiff spine and say, "With all respect, that's not appropriate," or "We need to be heard on certain things." And I was much more assertive than I probably would've been in front of most judges. Because if it's not in the record, it never happened.

 

Micah Wallen:  Let's go to our next question.

                                    

Reed Smith:  My name is Reed Smith. I work at First Liberty Institute. Full disclosure, we actually represent the attorney that you mentioned earlier in Alaska who's representing the shelter. But one question I had, and this kind of goes to that issue because as you mentioned the attorney kind of stepped down from his representation while he was under investigation himself, is I think you all have very good suggestions on improvements to the process, but as we've seen a number of times in the past, a lot of times it's indented that the process is the punishment. And I'm wondering if you have any suggestions on how to alleviate that aspect of it. And I'll give up the floor. Thank you.

 

Jeremy Tedesco:  Well, I don't think there's any silver bullet. I think you have to avoid the process to the best of your ability. Like I talked about before, there's opportunities to file pre-enforcement actions. The whole idea behind pre-enforcement actions is that certain kind of threatened punishments chill speech. And yeah there's standing problems and rightness problems that you've got to overcome, but those are overcomeable. And I think that that's a good avenue if you've got clients that know that their number will come up sooner rather than later.

 

      The other thing is I don't think it's -- I think it's entirely reasonable to, if you've got the grounds to do it, turnaround as soon as something happens to your client and sue in federal court. The most important thing is to extract your client from this process—this implicitly, often times overtly bias process because you're going to be in a much better position if you're in federal court and at least have the opportunity to develop a full record in under relatively fair procedure.

 

      And so it's definitely a roll-the-dice to try to pull a case out of the state administrative tribunal and into federal court, and you'd have to do it early in the process. But abstention is not a hard doctrine. It's a mushy doctrine with a lot of grey, and if you can position the case with the right atmospherics and paint the right concerns about the nature of how unfair the proceeding is that you're looking at in state court -- I mean, there's a lot of different things you could do. I just think we need to be creative and proactive as much as we can because as Herb talked about before, one of the things that concerns me the most when I get in front of one of these tribunals is I'm going to be hampered, severely hampered, in my ability to create the kind of record, do depositions, and do all the things that I would normally do to create the kind of record that I would need on appeal to ultimately prevail in the case.

 

Herbert Grey:  This is Herb. I agree with Jeremy, but I can also point to the Sweet Cakes case as a case study in how that may not work. The public firestorm in our situation started immediately, but the formal complaint wasn't launched with the Bureau of Labor and Industries until six months later. And so it would've been, even though we thought about it, it would've been very difficult to bring a pre-enforcement action, if there wasn't even a complaint pending. And by the time we were eight to ten months into the situation, our clients had been put out of business because of the relentless protests and other things that cut them off from their customers and their vendors and so on like that.

 

      So I agree with Jeremey that if you have the opportunity, that's absolutely the way to go. It's just that sometimes that's not within your control, if there's nothing that's actually been filed quite yet.

 

Micah Wallen:  Let's go to our next question.

 

Mike Padden:  Hi. Mike Padden here from Chicago. Let me apologize in advance, I came in during the latter part of Jeremy's presentation, so I hope this isn't repetitive. But I thought in the Masterpiece Cakes case, it was very important to have that counter-example of the cake with the preferred message where nothing was done. I'm wondering whether there's any organized attempts to get other examples of that sort in other contexts where these commissions will give a pass to certain -- similar conduct on the other political side.

 

Jeremy Tedesco:  Yeah. Well, first I'd want to point out that the situation in Masterpiece was organic and not organized. I certainly would welcome real-life complaints that are turned away by commissions in other places so that we can have those same kind of facts, but I don't think they're necessary. And I say that because you can do that same work and get those same facts just through the deposition process. Now, again, who knows when you're in front of one of these biased tribunals whether the prosecutor will put on his impartial judicial hat and allow you to do depositions. But assuming you do, assuming you have an opportunity for depositions, you can really get some great admissions of the exact same thing.

 

      We did that in the Hands On Originals case. We don’t have any similar complaints that were filed that would present the opposite side, but we got the commissioners admitting at deposition that they would allow -- they would not prosecute businesses that took secular-based objections to requests that were very similar to what Blaine Adamson did in the print shop. But in that case, declined, just on the opposite side.

 

      We had them making the same kind of admissions about -- you know, Masterpiece talked about how it was inappropriate for the commission to say, well, we're not going to force people to promote ideas through their work that the state—we—deem as offensive. And so that whole idea about the state having the authority to figure what out what's offensive and what's not, and you will be forced to do things that the state says are not offensive. But if the state thinks they're offensive, you don’t have to do them. That was a problem, also in Masterpiece. You can get admissions like that, too. Very clear paths for those kinds of admissions in deposition testimony. So I'm just saying I think there's a lot of avenues to get them, and one of them certainly is the kind of facts that we had in Masterpiece, where somebody actually got declined in the Civil Rights Commission, exonerated the businesses even though their situations were on all-fours with Jack Phillips.

 

Micah Wallen:  Let's go to our next question.

 

Chris Garvey:  Hi. This is Chris Garvey. I'm the Libertarian candidate for Attorney General in New York, and all my experience in civil rights has been in the federal courts. And I'm wondering if anyone knows in New York if you have similar problems to this and what role the attorney general might take in dealing with them.

 

Jeremy Tedesco:  Unfortunately, I don't have any knowledge base to answer that question about what specifically in New York. But I'm guessing that the state attorneys general in every state have investigatory and enforcement possibilities when it comes to these and things they can do to maybe reign in civil rights commissions or other kinds of government bodies that are out of control.

 

Micah Wallen:  Thank you, Jeremy. And Karen, there are no more questions lined up, so if you or our speakers had any closing remarks, please feel free.

 

Karen Lugo:  I would like to ask a very quick question, and that is we've demonstrated that these commissions reach an entire range of expressive rights. And yet, we also touched in the discussion of the fact that attorneys have also, at times, had their own speech rights called into question. And I know that the ABA had proposed a model rule that would address attorney remarks when off-duty, but in a social or other than legal setting. And I'm wondering if either of you know what the acceptance of that model role has been in any particular states. Is that also something that attorneys are becoming mindful of?

 

[CROSSTALK] Herbert Grey:  Well, --

 

[CROSSTALK] Jeremy Tedesco: Yeah, I can take that -- go ahead, Herb.

 

Herbert Grey:  Well, I was going to say this is Herb. I know the only state where it's been formally adopted, the amended Model Rule 8.4(g), has only been adopted in Vermont, which doesn't have a public process. It's been rejected or it's in the process of receiving comments everywhere else. In my experience serving on some nationwide committees and just talking to people more locally, I think it's something that's come to the attention of almost all lawyers, and there's a pretty healthy skepticism about the wisdom of a rule that's as extensive as the ABA model rule. So there seems to be a real resistance that comes from across the political spectrum, and only a few people that are really true believers continue to advocate it.

 

Jeremy Tedesco:  Yeah, I was going to say similar to what Herb said as far as the status goes. It has only been adopted in Vermont. It's actually been rejected in multiple states. I don't know that it's a lot of states, but it's certainly five or six states have said no to it at this point. That doesn't mean that they can't come back and ask again in each of those states.

 

      And, you know, Karen, I had the same thought when the Anchorage situation occurred was while this is exactly what we've been concerned about and been talking about with other attorneys and groups we work with that 8.4(g), the proposed rule, ultimately could put our licenses at risk simply for what we say in the context of our activities as attorneys in how we represent clients, even exceeding the scope of our work in just our non-work related expression. And Anchorage, doing what it did, I think is an indicator of how these kinds of regulations can be abused.

 

Herbert Grey:  My own sense is that what Anchorage has done in the case of the lawyer up there, they've overplayed their hand because people who are paying attention that have heard about that are appalled for all the reasons that Jeremy just said. And I think it lends credence to the concerns expressed in opposition to Model Rule 8.4(g).

 

Karen Lugo:  Thank you, both. Micah, I think we're ready to turn it back over to you for concluding remarks.

 

Micah Wallen:  All right. Thanks, Karen. And on behalf of The Federalist Society, I want to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback at email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.