How Jeff Sessions accidentally threw away his legal fig leaf.

this is obviously not jefferson beauregard sessions.

In countless oral arguments, law school classrooms, and legal briefs, legal thinkers advance a defense that, to be reductionist about it, basically goes something like this:

“my clients are not really [racists / sexists / homophobes / anti-Semites / Islamophobes]. If you could show evidence of that bias, that would be a completely different case.”

Indeed, in his concurrence in Kerry v. Din, Justice Anthony Kennedy articulated a legal standard that tracks this sort of argument:

Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa — which Din has not plausibly alleged with sufficient particularity — Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.

Kennedy’s conditional “look behind” here is structurally reminiscent of his majority opinion in Romer v. Evans:

“[The] sheer breadth [of the challenged amendment] is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

A cynical bigot who wants to engage in discrimination might state the lesson here thus: “just don’t be obvious about it, and don’t say why you’re doing it.” And speaking generally (and without citation), this is a lesson that some seem to have learned quite well.

***

…but everything changed when Jeff Sessions attacked. In his fervor to take action that pleases his inconstant master, Jeff Sessions’ DOJ has probably made a critical error.

Sessions’ DOJ (here, I will be describing the brief as Sessions’ work product, even if he did not actually sign the thing) submitted a brief in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (“Cakeshop”), arguing that the Supreme Court ought to allow discrimination against gay couples.

Or — and you would be forgiven for missing this — more specifically, taking a very firm stance that making a cake is artistic expression:

“[a] custom wedding cake is a form of expression, whether pure speech or the product of expressive conduct. It is an artistic creation that is both subjectively intended and objectively perceived as a celebratory symbol of a marriage.”

Sessions needs this to be true. Because that’s the real issue in the case. It is, in fact, not about sexuality at all. The question the Supreme Court certified for appeal is this:

“Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

And Masterpiece Cakeshop describes the sole question the case presents thus:

“Whether applying Colorado’s public accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

(all emphasis mine). Neither the individual Respondents (Craig and Mullins — the couple who sought to buy a cake) nor the Colorado Civil Rights Commission has filed a merits brief just yet. Undoubtedly, however, one of their primary arguments will be that that making cakes in a bakeshop is simply not the kind of artistic expression that, say, being a writer is. While it is fairly uncontroversial to say it is repugnant to the Constitution to say writers must write anything someone offers pays them to write, whether a baker has a legitimate objection to in what ceremony an elaborate cake will be used it is a tougher one.

Indeed, one more interesting piece of information! There is even a brief “In Support of Neither Party” filed on behalf of “Cake Artists,” that claims their interest is “that their work, like that of [P]etitioner Jack Phillips, requires artistic exertion within an expressive endeavor to generate works of art,” and they argue that “[the Supreme] Court’s cases make clear that the artistic nature of cake-making is not diminished by its ‘non-traditional’ medium.” In short, they want the Court to answer that cake-making is art, but don’t care about anything else.

Regardless, the case really does turn on the question of whether cake-making is artistic expression. If cake-making is not artistic expression, then there is no protectable First Amendment interest here, just as a restaurant owner can’t refuse service to interracial couples, regardless of what his religion says about the matter. See N.Y. State Club Ass’n v. City of N.Y., 487 U.S. 1, 20(1988) (O’Connor, J, concurring) (“Predominately commercial organizations are not entitled to claim a First Amendment associational or expressive right to be free from the anti-discrimination provisions triggered by the law”). On the other hand, if cake-making is artistic expression, then the there is a question of whether expressive conduct is being burdened, and a balancing test for the courts to engage in.

Now, here’s the catch. Sessions’ DOJ is weighing in as an amicus, not as a party required to file a brief. I’m pretty sure — but I’d be willing to be contradicted — that the Supreme Court did not ask Sessions to file a brief. So, by filing this brief, Sessions has in essence said that the artistry vel non of cake-making is something so deeply important to the Department of Justice that it will, on its own initiative, devote the considerable resources involved in creating a Supreme Court brief to the matter.

Of course, that’s horseshit.

Sessions does not believe LGBTQ folks are entitled to civil rights protections. His DOJ is weighing in because of that.

If we assume — as is probably right — that Obergefell extends protections to LGBTQ folks under the Equal Protection, then Craig and Mullins (the couple) can probably win a lawsuit against Sessions’ DOJ. See, for example, Neely v. Wyo. Comm’n on Judicial Conduct & Ethics, 390 P.3d 728, 739 (Wyo. 2017) (finding a violation of Equal Protection under Obergefell when a judge refused to perform same sex marriages because of her religion and imposing disciplinary action).

The theory of such a claim would look something like this:

1. Craig and Mullins have an Equal Protection right to be free of government discrimination because of their sexuality. Obergefell.

2. Sessions’ DOJ’s purported interest in the artistry vel non of cake-making is a fig leaf for forbidden animus.

3. Civil discovery will bring to light documents showing precisely this animus — and discovery can easily be tailored to this issue. For example, running searches of DOJ internal emails that hit for slurs like “fagg*t,” “f*g,” “dy*e,” “queer,” (obviously without the stars — and probably also with them, just in case) &c. would avoid documents about which the DOJ might legitimately have privilege concerns.

4. If a jury/judge, weighing the evidence, concludes that the real motivation behind the DOJ’s brief was to deny Craig and Mullins their right to equal protection under the law, they are entitled to relief.

This matches the standard for Malicious Prosecution — probably the most ready analog for this kind of claim — where a claim for malicious prosecution is successful if it is “conducted with the purpose of denying plaintiffs their right to equal protection.” Cline v. Brusett, 661 F.2d 108, 112 (9th Cir. 1981), see also Pitts v. State, 646 F.3d 151, 158 (3d Cir. 2011) (jury correctly found for the plaintiff on an Equal Protection claim where “[t]he testimony circumstantially demonstrated that [a police officer] acted with a discriminatory purpose and effect.”).

The only real question left would be what remedy Craig and Mullins are entitled to. There are definitely some interesting and difficult immunity questions involved there. But at the least, they could have a massively embarrassing injunction entered against the DOJ, and would probably be able to get a good number of humiliating emails into the public record.

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