Masterpiece Cakeshop Not Required To Bake Wedding Cake For Gay Couple

Masterpiece Cakeshop is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian.  In 2012, he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages, that Colorado did not then recognize, but he would sell them other baked goods, e.g., birthday cakes.

The couple then filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services. . . to the public.”  Under CADA’s administrative review system, the Colorado Civil Rights Division found probable cause for a violation and referred the case to the   Commission, which  then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favor.  In so doing, the ALJ rejected Phillips’ First Amendment claims that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion.  Both the Commission and the Colorado Court of Appeals affirmed and the United States Supreme Court granted certiorari.

 The Masterpiece Cakeshop case got crushed in a mash-up, all to familiar to local government attorneys. A member of the Commission, who was a  fact finder, compared Phelps beliefs as a defense of slavery and the Holocaust, further stating that:

“I would also like to reiterate what we said in the hearing or the last meeting.  Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Other Commissioners made no objection to these comments.

Furthermore, on three separate occasions the Civil Rights Division considered the refusal of other bakers to create cakes with images that convey disapproval of same-sex marriage, along with religious texts, concluding that the bakers acted lawfully in refusing this service.



Justice Kennedy, writing for the majority of the United States Supreme Court,  held in the Masterpiece Cakeshop case that the Commission showed a “clear and impermissible hostility towards the sincere religious beliefs of Phillips the owner of the Masterpiece Cakeshop.”    Kennedy noted: “This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law, a law that protects discrimination on the basis of religion as well as sexual orientation. After all what could be more fundamental than making sure that the fact-finding board deciding the case was fair and impartial.

Opinion Was Narrow 

Justice Kennedy,  along with seven of the nine Justices, noted that the Commissioner’s had “a clear and impermissible hostility” towards the sincere and religious beliefs motivating Phelps based upon a comment made by one of the members of the Commission. This opinion was incredibly narrow not reaching any substantive issues.

Court Did Not Consider Free Speech Claim

Even though the majority opinion rejected the free speech claim the opinion of Justice Gorsuch, joined by justices Alito and Thomas would have accepted the free speech based upon the principal that no one “…can … reasonably doubt that a wedding cake without words conveys a message.” “Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.” Obviously, with three Justices accepting the free-speech claim this theory is alive and will be the subject of intense future litigation considering that a more conservative judge, in all likelihood, will replace Justice Kennedy.

Majority Opinion Rejected Broad Exemption for Religious Motivated Merchants: 

The majority Opinion rejected a broad exemption for religiously motivated merchants, noting that gay persons and gay couples should not be treated as social outcast or as inferior in “dignity or worth.”  The courts with respect to the exercise of freedom by gays should give great weight on terms equal to others.

 What Is Next

The opinion,  written by Justice Kennedy immediately raises the question if the tea leaves provide any clues as to how the Court might rule without his presence. While seven of the Justices agreed that the Commission showed a deep and abiding prejudice towards religion,  the Justices split on  other aspects of the case. Two Justices, would have found that the refusal to bake a cake for a gay couple violated the public accommodations  law. Two Justices, in a concurring opinion,  would have rejected the example, relied upon by the majority, that the refusal to bake a wedding cake that was disparaging to gay couples  was a violation based on a plain and simple reading of the language of the Colorado law. Three Justices, would have found that the actions of the Cakeshop were not discriminatory because free speech protected the refusal of the Cakeshop to bake a wedding cake.  That leaves Chief Justice Roberts as the unknown swing vote  –   although Chief Justice Roberts seemed to be firmly in the camp of Justice Kennedy in that “…gay persons and gay couples should not be treated as social outcast or as inferior in dignity or worth.”) As you can see the tea leaves certainly do not answer the question about future cases but watch Chief Justice Roberts as the potential swing vote.  Plan on staying tuned because there is more to come. The interest groups, on both sides of this highly charged question, are well financed and highly motivated promising a fertile field for continued litigation.

Local Government should focus on training for members of boards and commissions who engage in determining “rights, duties, and obligations” under the law.  Training should include examples, like what happened in this case, showing how comments by a fact finding board member can be used to show bias and prejudice.  Particularly when a case is highly charged, local government attorneys should exercise extra caution by providing advice in advance to the board chairman and its members.  It seems to me that a written statement could easily be drafted for the board to remind them of the duties prior to taking up a case. Why not develop a written statement,  like a jury instruction, that  boards and commissions members sign, pledging that they will consider the matter based on the facts?

Howard Wright – Copyright 2018

You may find that the following Posts are of interest: 

Pay Plan That Uses Prior Pay For Starting Pay Discriminates Against Women Under The Equal Pay Act

Missouri Constitution Does Not Prohibit A Religious Institution From Participating In Program that Provided Playground Safety Materials From Recycled Tires


Does Title VII of the Civil Rights Act Prohibit Employment Discrimination Based on Sexual Orientation?

Distribution of bibles at Gay Pride Festival



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Search Warrant Required To Track Suspect Using Cell Phone/Tower Technology

In a landmark decision the United States Supreme Court held that the Fourth Amendment, prohibiting unreasonable searches, required a search warrant by the government to obtain historical cell phone tower records.This may be the most important case of the 2017 Term because it moves the Fourth Amendment from a property rights analysis  to a personal right of privacy.

Consider, as we struggle to reconcile  new technology with the right of privacy,  the words of George Orwell in his masterpiece “1984.”

“It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. In any case, to wear an improper expression on your face… was itself a punishable offense. There was even a word for it in Newspeak: facecrime…”  
 George Orwell, “1984” – Book One, Chapter V.


Background: The Court started its analysis by reviewing the pervasive scope of the use of cell phone technology by noting that: “There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.  Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings.  Cell sites typically have several directional antennas that divide the covered area into sectors.”

“Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site.  Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features.  Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).  The precision of this information depends on the size of the geographic area covered by the cell site.  The greater the concentration of cell sites, the smaller the coverage area, making the location of the cell phone more precise.  As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic.  That has led to increasingly compact coverage areas, especially in urban areas.”

“Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites.  In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here.  While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections.  Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.”

Facts of the Case: Police officer’s arrested four men suspected of robbing a series of Radio Shack and T- Mobile stores in Detroit.  One of the men confessed that, over the previous four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio.  The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed these call records to identify additional numbers that had called around the time of the robberies.

Based on this information, the prosecutors applied for court orders under the Stored Communications Act to obtain cell phone records for petitioner, Timothy Carpenter and several other suspects.  This statute permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation,” which is less than the probable cause standard to get a search warrant under the Fourth Amendment.

The Federal Magistrate Judges issued orders directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector information for Carpenter’s telephone at call origination and at call termination for incoming and outgoing calls” during the four-month period when the string of robberies occurred. The first order sought 152 days of cell-site records from MetroPCS, which produced records spanning 127 days.  The second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter’s phone was “roaming” in northeastern Ohio.  Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.  Prior to trial, Carpenter moved to suppress the cell-site data provided by the wireless carriers.  He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause.  The District Court denied the motion.

At trial, the FBI agent offered expert testimony about the cell site data explaining that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used.  With this information, the expert produced maps that placed Carpenter’s phone near four of the charged robberies.  In the Government’s view, the location records clinched the case: They confirmed that Carpenter was “right where the . . . robbery was at the exact time of the robbery.” Carpenter was convicted on all but one of the firearm counts and sentenced to more than 100 years in prison.

The Court of Appeals for the Sixth Circuit affirmed holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers concluding that the resulting business records are not entitled to Fourth Amendment protection. An appeal based on a violation of Carpenter’s Fourth Amendment rights was taken to the United States Supreme Court.

Opinion: The question before the Court was how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his or her cell phone signals. Cell phone tracking partakes of many of the qualities of the GPS monitoring the Court considered in Jones, where it held GPS tracking of a vehicle by attaching the device to the underside of the vehicle without a search warrant, which detailed, encyclopedic, and effortlessly record collecting violated the Fourth Amendment against unreasonable searches. In the Jones case, the majority opinion written by Justice Scalia considered the installation of a GPS tracker, as a trespass based upon a property analysis.  In the Jones case, Justice Sotomayor, concurred in the majority opinion noting however that the property right theory adopted by Justice Scalia was insufficient to deal with the advancement of technology and its ability to intrude in our lives where we had a reasonable expectation of privacy. Chief Justice Roberts recognized this concern as follows:

Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts.  As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.”

Chief Justice Roberts further noted that: “Cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones.  Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,”

In addition, when individuals leave their vehicle cell phone customers compulsively carry their cell phone with them making the technology even more intrusive than the geo-tracking, which the court found to be in violation of the Fourth Amendment in the Jones case.  Therefore, the Court found that the use of cell phone/tower technology, to track the movements of a suspect, required a search warrant under the Fourth Amendment. Carpenter v. United States, (U. S. 16–402, 06/22/18)

Comment Howard: This case is incredibly important with respect to searches and seizures under the Fourth Amendment using modern technology to track individuals.  Your police officers and department policies should be immediately updated with respect to training.  Since Justice Kennedy just announced his retirement it is worth noting that he voted with the dissent, which strongly suggests that his opinion will survive the appointment of a new Justice to the Supreme Court, even though there was a vigorous dissent by four of the Justices.

Other Posts that may be of interest.

Police Cannot Search Cell Phone Without A Warrant – Aug 6, 2014 7:41 AM

Search Warrant Not Required to Search Abandoned Cell Phone

Can the Police Search a Magnetic Tape on the Back of a Credit, Gift or Debit Card Without Obtaining a Search Warrant? – Dec 12, 2016 2:03 PM

No Search Warrant Required to Search Cell Phone if There Are Exigent Circumstances

Search and Seizure In World Without Walls Feb 7, 2012 11:07 AM  


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Sanctuary Cities – Federal Government Does Not Have Authority To Condition Grants To State And Local Government Based On Compliance With Federal Sanctuary City Policies

Two recent cases solidify the principle that state and local government play a large role in our federal system and that there are limits on how far the federal government can go in directing states and local governments to follow federal mandates to help enforce the immigration laws at the behest of the federal government. Think, sanctuary cities.

bill of rights

Of course, when you mention the term “sanctuary city” you immediately conjure up strong feelings, one way or another. It is one of the most contentious subjects in our political dialogue. It is hard to find somebody who has a neutral position on the enforcement of immigration laws. Despite our intense personal feelings on this subject these two cases must be viewed as a major victory for state and local government and a setback to the federal government in commandeering state and local resources to enforce federal immigration laws. Cities can always voluntarily comply.

The Seventh Circuit Court of Appeals held in May of 2018 in City of Chicago v. Sessions, (7th Cir. 17-2991, 4/19/18) that the Attorney General of the United States did not have the power to condition grants to law enforcement by requiring state and local government cooperation with respect to the immigration policy of the executive branch; therefore, the Seventh Circuit issued a nationwide injunction against the Attorney General of the United States to enjoin him from enforcing notice and access conditions imposed by the Attorney General upon recipients of grants under the Edward Byrne Memorial Justice Assistance Program (Byrne JAG program).  The Byrne JAG program is the primary program used by the federal government to provide assistance to local and state law enforcement. The Attorney General of the United States imposed these conditions, in order to eliminate sanctuary policies for immigrants by state and local government.

The “notice” condition mandated advance notice to federal authorities by local and state authorities of the release date of persons who are believed to be aliens.  The “access” condition required local officials to provide access to federal agents at correctional facilities where the aliens were being held.  The issue before the Court was described by the Court as: “…the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government, the separation of powers.” In addition:

“The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government.  If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”

After numerous failed attempts to amend the Byrne JAG grant program, to allow the Attorney General to condition grants with state and local government, to force cooperation with the Attorney General in enforcing immigration laws the Attorney General used his powers to condition grants, which were challenged in this lawsuit. The Seventh Circuit held that the Attorney General of the United States did not have the authority to promulgate regulations to prohibit states and cities from adopting sanctuary city policies by denying federal grants to states and cities adopt such policies.

In the second case, (Murphy v. National Collegiate Athletic Association) decided on May 14, 2018, the United States Supreme Court considered whether or not the provisions of the Professional and Amateur Sports Protection Act violated the anti-commandeering doctrine (recognized fairly recently by the United States Supreme Court) as part of the separation of powers in the United States Constitution.  The anti-commandeering doctrine prohibits Congress from, directly compelling states to enact and enforce a federal regulatory program.  Also the Court noted that any distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one.  The basic principle that Congress cannot issue direct orders to state legislatures applies in either event.

us sup court

U. S. Supreme Court

One of the most immediate questions, concerning these two cases, is whether or not they will continue with the addition of a new Supreme Court Justice, who will be very conservative. In the Murphy case all five of the justices who voted for the decision continue on the court. Initially, I was very skeptical of the legal theory, espoused by sanctuary states and cities – that the federal government could not commandeer local and state resources to enforce immigration federal laws by using the power of the purse to condition grants.

Howard Wright© 2018


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Pay Plan That Uses Prior Pay For Starting Pay Discriminates Against Women Under The Equal Pay Act

Judge Reinhardt, of the Ninth Circuit, starts his opinion in Rizo v. Yovino, with a roar.

The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary?

Judge Reinhardt carefully crafts a very strong opinion holding that a wage differential between male and female employees that relied on prior salary violated the Equal Pay Act. This Opinion if upheld by the United States Supreme Court would be a landmark opinion.


The facts in this case are also simple and undisputed. Aileen Rizo was hired as a math consultant by the Fresno County Board of Education (County) at step 1 with a starting pay of $62,133 for 196 days of work plus a master’s degree stipend of $600. Previously, she was employed in Maricopa County, Arizona as a middle and high school math teacher and earned an annual salary of $50,630 for 206 working days plus $1,200 per year for her master’s degrees in educational technology and mathematics education. Rizo’s new salary upon joining the County was determined by taking the hired individual’s prior salary, adding 5%, and placing the new employee on the corresponding step of the salary schedule.

During a lunch with colleagues Rizo learned that her male colleagues had been subsequently hired as math consultants at higher salary steps. She then filed a complaint about the pay disparity with the County, which responded that all salaries had been set in accordance with SOP 1440, rejecting her complaint. Rizo then sued Jim Yovino in his official capacity as the Superintendent of the Fresno County Office of Education claiming a violation of the Equal Pay Act (Act).

The County asserted that, Rizo was paid less than her male counterparts for the same work was based upon her prior salary, which was a permissible affirmative defense to her concededly lower salary than her male counterparts under the fourth, catchall clause, a “factor other than sex” under the Act. The district court denied summary judgment, reasoning that SOP 1440 “necessarily and unavoidably conflicts with the Act ” because “a pay structure based exclusively on prior wages is so inherently fraught with the risk—indeed, here, the virtual certainty— that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand.” The district court then certified the following legal question to the Ninth Circuit, which eventually ruled on the question sitting en banc (the full Circuit):

“whether, as a matter of law under EPA, 29 U.S.C. § 206(d), an employer subject to the EPA may rely on prior salary alone when setting an employee’s starting salary.”

In order to better frame the issue let’s start with how a violation is proven under the Equal Pay Act.

“…a plaintiff must show that her employer paid male and female employees different wages for substantially equal work; however, not all differentials in pay for equal work violate the Equal Pay Act, because the Act includes four statutory exceptions—“(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex”— which operate as affirmative defenses.”

The County argued that (iv) “any other factor other than sex,” (referred to the catchall exception), allowed an employee’s prior salary to be used by an employer in setting the starting salary.

Therefor, the determinative question was the meaning of the phrase “a differential based on any other factor other than sex” under the catchall exception to the Act. The answer to this question is a matter of statutory construction; therefore, the court used a number of well-recognized analytical legal tools to discern the meaning of this language.

The Ninth Circuit reasoned that the pay plan violated the purpose of the Act because Congress enacted it to put an end to the “serious and endemic problem of employment discrimination in private industry” and to carry out a broad mandate of equal pay for equal work regardless of sex. “The purpose of the Act is clear: to put an end to historical wage discrimination against women.”

The Ninth Circuit reasoned in light of the clear intent and purpose of the Equal Pay Act, it could not construe the Act as justifying setting employees’ starting salaries on the basis of their prior pay because this perpetuates existing wage disparities between men and women. “Congress simply could not have intended to allow employers to rely on these discriminatory wages as a justification for continuing to perpetuate wage differentials.”

Next the Court looked at the text noting that the text showed that the phrase “any other factor other than sex” follows a series of exceptions. Several rules used to determine the meaning of the text now come into play. The Court applied the canon noscitur a sociis— “a word is known by the company it keeps.” The three specific exceptions prior to the catchall exception are based on systems of seniority, merit, and productivity; therefor, since these three terms all relate to job qualifications, performance, and/or experience it follows that the catchall exception should be limited to legitimate, job-related reasons as well. A related canon, ejusdem generis, also supported the Courts interpretation of the catchall term because general terms at the end of a list of more specific ones are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. The Court concluded that allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the statutory language.

In addition, the legislative history of the Act also supports the Court’s interpretation that the catchall exception is limited to job-related factors. During the legislative proceedings industry leaders argued that the earlier exceptions to the Act were specific and under inclusive; therefore, the Court concluded that the catchall exception was added to the final Equal Pay Act in direct response to these employers’ concerns that their legitimate, job-related means of setting pay would not be covered under the exceptions already in the bill. Representative Robert Griffin, author of the Landrum Griffin Labor Law, put it best by describing the catchall exception, as a broad principle, and those preceding it are really examples.”

Furthermore, interpretations of the Act lend support to the interpretation that prior salary used as a basis to establish initial salary for an employee was not a legitimate measure of work experience, ability, performance, or any other job-related quality although it may bear a rough relation to legitimate factors other than sex.

Based on the above analysis the Court held that the Act was violated by using prior salary as the basis for the starting salary for female employees making this a landmark case in the 55-year history of the Act, if it upheld by the United States Supreme Court.

Judge Reinhardt, the “Liberal Lion” of the liberal 9th Circuit, ends his opinion with gigantic roar:

“‘Collectively, the gender wage gap costs women in the U.S. over $840 billion a year.” If money talks, the message to women costs more than “just” billions: women are told they are not worth as much as men. Allowing prior salary to justify a wage differential perpetuates this message, entrenching in salary systems an obvious means of discrimination—the very discrimination that the Act was designed to prohibit and rectify.’”

But not so fast. Judge Reinhardt, the author of the opinion and the Ninth Circuit are big targets for the United States Supreme Court. Even though the opinion is strong and very well reasoned the Ninth Circuit as a liberal bastion has been overruled many times by the Supreme Court including some of the opinions authored by Judge Reinhardt. Stay tuned.

If you have a pay practice similar to the issue in this case, you should exercise extreme caution in following that practice until there is some final resolution. You may also want to check your pay plan since my experience is that pay plans generally have similar provisions, which are used to resolve the fundemental question of where an employee starts on the pay plan.

Howard Wright© 2018

For a more detailed analysis of Rizo v, Yovino see April 2018 MMAA Newsletter.

 Posts That Are Related

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Does Title VII of the Civil Rights Act Prohibit Employment Discrimination Based on Sexual Orientation?

A gay couple married. The next day when they reported to work they were fired because they were gay. They had a constitutional right to get married  but no protection from  employment discrimination  based on  their sexual  preference. Sounds widely contradictory and fundamentally unfair but that is the current status of federal law except in the 2nd Circuit thanks to a recent landmark  opinion by the 2nd  Circuit  in Zarda v. Altitude Express,that held Title VII prohibits sex discrimination based on sexual orientation.

The United States Supreme Court has not addressed whether  Title VII prohibits sex discrimination based on sexual orientation making this  one of the big unanswered legal questions. To understand the import of this case see  an excellent discussion  related to an earlier case with similar issues that got sidetracked before it could be appealed to the Supreme Court in  Constitution Daily by Lyle Denniston. The opinion by the Second Circuit in Altitude Express could set the stage for review by the United States Supreme Court on whether or not the Title VII prohibits discrimination based on sexual orientation because the opinion creates a split in the Circuit Courts  making it more likely that the United States Supreme Court will step in and answer this important question.

Missouri courts have also struggled with whether or not the Missouri Human Rights Act (MHRA) prohibits discrimination based on sexual orientation. So far the Missouri Supreme Court has not addressed whether or not the MHRA prohibits sex discrimination based on sexual orientation although a recent case decided by the Western District in Lampley v. Missouri Commission On Human Rights, held that sex stereotyping was gender discrimination.  My December 5, 2017, Post on the Lampley case provides an update on the current status of sex discrimination cases in Missouri.

The facts in Altitude Express, are straightforward. Donald Zarda, a gay man, worked as a skydiving instructor at Altitude Express.  As part of his job, he regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients.   Zarda told a female client with whom he was preparing for a tandem skydive that he was gay and he had an ex-husband to prove it.  Zara was fired because of his comment. parachute

Zarda filed a complaint with the EEOC, which was eventually appealed to the Second Circuit.

In determining whether or not Title VII prohibits sexual orientation discrimination, the 2nd Circuit was guided by the text and, in particular, by the phrase “because of ․ sex.”  In interpreting this phrase, the court construed the text in light of the entirety of the statute and relevant precedent.

Title VII, provides that an employer has engaged in “impermissible consideration of sex in employment practices” when “sex was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” Therefore the 2nd  Circuit concluded that , if the action was “because of sex” it was “a motivating factor” and the employer had violated the Act. The 2nd Circuit further concluded that Congress intended to make sex “irrelevant” to employment decisions and that if the if sexual orientation discrimination is motivated, at least in part, by sex it is sex discrimination.

Furthermore, “… the most natural reading of the statute’s prohibition on discrimination… ” is that if it is “because of sex” it extends “…to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”

Local governmental officials need to be aware that the law in this area is currently in a state of flux at both the federal and state level; therefore, if presented with similar issues extra care needs to be taken until there is a resolution of whether or not an employment decision based on sexual orientation constitutes employment discrimination. For a more detailed examination of Zarda v. Altitude Express, see my comments in the March  2018 edition of the MMAA Newsletter.

Howard Wright © 2018

Posts that are related and may be of interest

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Search Warrant Not Required to Search Abandoned Cell Phone

Both the United States and Missouri Supreme Courts require a search warrant for a police officer to search a cell phone, except in certain circumstance. One well-recognized exception to this rule is exigent circumstances, defined as “whether the facts… would lead a reasonable, experienced officer to believe that there was an urgent need to render aid or take action.”

Are there other exceptions? An Eighth Circuit Court of Appeals opinion recently held that the police do not need a search warrant in order to search an abandoned cell phone.

cell phoneIn this case police officers in St. Paul, Minnesota received a report of two vehicles exchanging gunfire and were dispatched to a scene where a Buick crashed into a house. The wrecked Buick had bullet holes along its passenger side and a shot-out rear window.  The officers noticed a key in its ignition and a handgun on the driver’s side floorboard.  A witness informed the officers that after the crash the other vehicle’s shooter continued to fire at the Buick. The two male occupants of the Buick fled on foot leaving behind a cell phone. The officers found a man matching the description hiding behind a shed, a block and a half away, who was identified as Prentiss Crumble.

The police then obtained a search warrant for the cell phone left in the car and then conducted a search of the phone finding a video of Crumble on the phone brandishing his handgun similar to one that was recovered from the abandoned vehicle. The cell phone video was recorded shortly before the shooting. Crumble was then charged with a felony possession of a firearm. He then moved to suppress the evidence recovered from the cell phone. The federal district court concluded that the evidence from the cell phone was admissible because Crumble had abandoned his cell phone. Crumble appealed to the Eighth Circuit Court of Appeals.

The Eighth Circuit noted that the Fourth Amendment protects citizens “against unreasonable searches and seizures.”  In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he or she personally has a “reasonable expectation of privacy in the place searched․” The Opinion starts with the premise that a defendant does not have a reasonable expectation of privacy in abandoned property; therefore, the police had the right to search the cell phone without a warrant.  The Court noted that case law strongly supports the proposition that a “… warrantless search of abandoned property does not implicate the Fourth Amendment, for any expectation of privacy in the item searched is forfeited upon its abandonment.”

So what does this mean or more specifically when have you abandoned your cell phone? After all emails, text messages, pictures, calendar, photos, call records, contacts, music, and other important personal matters can be found on our cell phones. Surely when you lose your cell phone have not abandoned it.  In fact, if you’ve ever lost your cell phone, as I have,  your anxiety level is high and I guarantee you that you are frantically searching for your cell phone.

It seems pretty clear to me that the Eighth Circuit has teed this case up for review by the Supreme Court because the opinion does not rely upon the fact that the police officers obtained a search warrant.  The search warrant is simply a backup in case the abandonment theory fails.  If this case stands, it would be a major victory for law enforcement. Since our entire lives seem to be tied up with information stored on our cell phones I would be very cautious about this opinion because courts will be very careful in laying down guidelines as to when a cell phone has been abandoned.  I expect that the court will be very cautious in determining that losing a cell phone constitutes abandonment.  Stay tuned.

Howard Wright© 2018

Other Posts that are related and may be of interest:

Can the Police Search a Magnetic Tape on the Back of a Credit, Gift or Debit Card Without Obtaining a Search Warrant? – Dec 12, 2016 2:03 PM

Police Cannot Search Cell Phone Without A Warrant – Aug 6, 2014 7:41 AM

Search and Seizure In World Without Walls Feb 7, 2012 11:07 AM



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High Speed Police Chase Highlights The Need For Risk Management Training

Risk Management

Municipal officials are charged with setting policy for local governmental operations ranging from highly complex situations, like training  for the high-speed chase described below, that resulted in serious injury to an innocent person that cost the Kansas City one million dollars, to the rather mundane but important issue of making sure the property of the city is safe. In many ways, this is a risk management exercise that can pay off in significant dividends by reducing unnecessary injuries to citizens and costs to the taxpayers by utilizing good risk management policies.

High Speed Police Chase Highlights The Need For Risk Management

A recent lawsuit involving a high-speed chase in Kansas City highlights risk management issues. In the early morning hours a police officer observed a vehicle speeding through a red light. This information was forwarded to other police officers that observed the vehicle having difficulty in maintaining its lane of travel, speeding through stop signs, and stop lights before the officer lost sight of the vehicle.  Later the vehicle was again located parked near an intersection with the driver’s leg and arm outside the fully opened driver door.  Before the driver exited the vehicle, the officer’s spotlight alerted the driver who then sped off at high speeds approaching 100 mph while continuing to run through red lights and stop signs swerving out of the drivers lane and nearly running two vehicles off the road.

In coordination with other police officers, the officers decided to deploy “stop sticks,” or tire-deflation devices in the anticipated line of travel. When the vehicle hit the stop sticks, the SUV veered, flipped, and crashed into Mr. Moody’s vehicle, which was stopped because the officers were in the roadway deploying tire-deflation devices.   This resulted in serious injuries to Mr. Moody (a totally innocent person and cooperating citizen). Mr. Moody could not remember anything about that night, except it occurred after he left work, while driving to his security job at a nightclub. You know how it works. The innocent get punished. Sad but true.

cars hitting3426374007_b30a65d407

Naturally, Mr. Moody sued everyone in sight for damages and eventually obtained a $1 million dollar jury verdict against the Board of Police Commissioners of Kansas City (Board). The evidence supporting the jury verdict showed that:

“…the dash-cam video showed that Mr. Fields accelerated from about 60 miles per hour to about 100 miles per hour over the course of 20 seconds during which time Officer Brulja did not report that this was occurring until just before the crash.  He had conceded on cross-examination that the KCPD tire-deflation-device deployment policy indicated that stop sticks cause a “rapid” release of air when struck.  It would not have been unreasonable for jurors to conclude that the natural and probable consequence of Officer Brulja’s failure to accurately report the SUV driver’s speed and acceleration as stop sticks were deployed was the crash that injured Mr. Moody.”

Based on this evidence the appeals court concluded that vehicle policies of the Board were violated by the following actions:

“(1) the officers’ conversations indicated that the chase was a personal challenge; (2) the officers had information from which they could have identified Mr. Fields and apprehended him at a later time, but chose instead to pursue him; (3) the pursuit took place over roads with icy patches, and Mr. Fields drove the SUV erratically at very high speed, forcing other vehicles off the road, creating danger to the public that a jury could have found exceeded the danger presented by his remaining at large; and (4) tire-deflation devices were deployed in a manner that did not ensure public safety.”

 Policy And Training

In this case, the Board had established policies, which the police officers were required to follow in the case of a high-speed chase. Writing good policy seems like the easy part. The more difficult part is how to train officers to implement the policy. Whether or not the officers were properly trained in this case is unknownalthough they were not able to implement the policy in real time.  I do recognize that a police officer’s job is extremely difficult making it hard to be judgemental. What is clear (in my mind), is that this case offers a real-life model for a training exercise with respect to high-speed chases. You may want to include it in your training.

For a more detailed discussion of this case you may want to review my analysis in the December 2017 Missouri Municipal Attorneys Newsletter.

Howard Wright© 2018

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No Constitutional Right To Grow Marijuana

St. Louis City police detectives went to Shanklin’s residence after a “utility inquiry” showed excessive electricity use, consistent with marijuana cultivation. The police discovered more than 300 live marijuana plants, several hundred grams of packaged marijuana, a mesh dryer, and a digital scale commonly used to prepare and package marijuana for distribution.

pig with lipstick

Constitutional Amendment

Shanklin was charged with producing a controlled substance in violation of state law. Shanklin was found guilty and he appealed to the Missouri Supreme Court arguing that the state law was unconstitutional because it violated his constitutional right to farm guaranteed by article I, section 35, which provides:

“That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy. To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.” (Amendment)

The Court reasoned in State of Missouri v, Shanklin, that the first sentence of the Amendment was prefatory and did not provide a constitutional right to engage in unregulated agriculture. The Amendment did not include any language suggesting that it was intended “to nullify or curtail long-standing laws regulating or prohibiting, cultivation, and harvest of controlled substances.” In addition, the Amendment recognizes farming and ranching practices are subject to local governmental regulation making it absurd to conclude that the Missouri voters intended to curtail state and federal regulatory authority over illegal drug trade while allowing local government to regulate the practice. State of Missouri v, Shanklin, (No.  SC96008, 12/5/17)

In an earlier Post, I noted that the hopes of the Missouri Farm Bureau, that the constitutional Amendment, guaranteeing the right to engage in farming and ranching would be interpreted broadly, was dashed by the Missouri Supreme Court in Shoemaker v. Kander. The Court’s statement in  Shoemaker  that “…no constitutional right is so broad as to prohibit all regulation” poured cold water over the Farm Bureau’s effort to make farming a constitutionally protected activity free from regulation.  

 Howard Wright© 2017

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Sex Stereotyping Is Gender Discrimination

In the last two years, the Court of Appeals for the Western District of Missouri (Western District) has decided three significant cases, all interrelated, dealing with gender discrimination, gender identity and sex stereotyping. The latest, decided by the Western District in October of 2017, (Lampley v. Missouri Commission On Human Rights), is a case of first impression, holding that sex stereotyping was gender discrimination; thereby, violating Missouri employment discrimination laws. Before discussing the sex stereotyping case in Lampley, it is useful to look at two earlier cases by the Western District because they provide important background.statue-of-liberty-1758290_960_720

In Pittman v. Cook Paper Recycling Corp., (a 2015 case) the President of Cook Paper repeatedly called Pittman a homosexual male who worked as a controller for Cook Paper obscene names and stated that he did not approve of the male companion that Pittman was seeing. When Pittman terminated his relationship with his male companion Pittman filed suit alleging that Cook Paper had created a hostile work environment, which led to Pittman being treated differently than persons who separated while in a traditional male/female relationship. The Western District held that Pittman did not state a cause of action because employment discrimination under the Missouri Human Rights Act (MHRA) applied only to male female gender discrimination. In other words, the meaning of the word “sex” in the MHRA meant gender (male or female); therefore, the statute was intended to only apply in situations where females were discriminated against by being treated differently than males or vice versa.

In the Pittman case, there was a vigorous dissent by Judge Gabbert, who argued that the definition of “sex” was much broader then gender discrimination and included “the phenomena of sexual instincts and their manifestations,” thereby making the MHRA applicable to other forms of sex discrimination than just gender. For a more detailed discussion of this case see my Post (“All About Sex”) arguing that the Western District majority opinion was in error. Unfortunately, the Missouri Supreme Court did not review the Pittman case leaving us with the holding by the Western District that sex discrimination in employment was limited to discrimination based upon gender. Gays, homosexuals, and transgender persons claiming sex discrimination need not apply.

The second case, (R. M. A. v. Blue Springs) a public accommodations case based on sex discrimination, was decided in August of 2017. This case involved a junior high school student (R.M.A.) who alleged that he was a female to male transgender teenager who transitioned to “living as a male” by changing his name to a male name and by changing his birth certificate to show that he was a male, based upon a certification by a doctor that a medical procedure has occurred making this change. As a result the state changed the gender on the birth certificate of R.Sex M.A. from female to male as permitted by Missouri law.

Based on these changes to his sexual identity, R.M.A. contended that he should be able to access the same locker rooms and restrooms as other boys who participated in physical education, which request was denied by the school district. R.M.A. sued and the Western District noted  that the history of the MHRA showed numerous attempts by the legislature to change the law to include sexual preference in the MHRA leading the court to conclude that the legislature never intended to include discrimination based upon gender identity in its original legislation, discrimination based on gender identity. In addition, the court relied on its earlier Pittman opinion, which held that the legislature did not intend to include within the definition of “sex” the concept of sexual orientation because it intended the word “sex” to relate to male/female “gender related traits.” Again, Judge Gabbert dissented arguing that this case represented a clear example of discrimination based on sex. After all, as Judge Gabbert noted that “but for” R.M.A.’s sexual anatomy the discrimination would not have occurred.

This brings us to the third and most recent case, Lampley v. Missouri Commission On Human Rights, decided in October of 2017. Lampley an employee alleged his employer discriminated against him based on sex stereotyping, because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers.   Lampley argued these stereotypes motivated his employer to harass him and treat him differently from similarly situated male employees who conformed to male gender stereotypes.

Lampley filed a sex discrimination case with the Missouri Commission on Human Right (MCHR). The MCHR, after investigation, terminated the proceedings, stating it lacked jurisdiction over claims based on sexual orientation. Lampley appealed to the Missouri Court of Appeals, Western District, which held in a case of first impression that “gender stereotyping” is a form of sex discrimination based on gender and is actionable under the MHRA. Interestingly, Judge Gabbert, who had dissented in the two earlier cases, wrote the opinion in Lampley v. Missouri Commission On Human Rights, relying upon the narrow definition of “sex” (sex refers to only male-female gender).

In Lampley v. Missouri Commission On Human Rights, Judge Gabbert relied upon the 1989 opinion by United States Supreme Court in Price Waterhouse, which held by a plurality that:

“we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

The Western District also relied on earlier Missouri cases where the Missouri courts recognized that stereotyping based upon the type of work a pregnant woman could perform or a person’s age was a limitation for eligibility to work was discrimination based on stereotypingFor a more in depth analysis see MMAA November 2017 Newsletter.

So where are we with respect to resolution of these important issues? Will the Missouri Supreme Court review the Western District’s opinion in Lampley v. Missouri Commission On Human Rights or will it turn down Lampley like it did in Pittman, leaving us to dangle in the wind?

Outside federal forces may affect whether or not Missouri courts no walk or slow walk the review of Lampley v. Missouri Commission On Human Rights. See excellent article on July 11, 2017 by Lyle Denniston, in the Constitution Daily on “Major sex quality dispute on the way to Supreme Court.” Venturing a guess it would seem to me that Missouri might delay any decision until there are further developments at the federal level.

Howard Wright @ 2017

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Eastern District Issues Landmark Decision Upholding The Power Of Home Rule Cities To Tax Without A Grant From General Assembly

St Louis

The opinion in Neuner v City of St. Louis is one for the ages.  It is the most significant opinion, with respect to constitutional home rule powers, since the adoption of the 1971 amendmenOnt to the Missouri Constitution granting constitutional home rule cities all powers that the general assembly could grant that are not denied by its charter or by statute.  This opinion is extremely well reasoned and written (brilliant) and should (hopefully) withstand the scrutiny of the Missouri Supreme Court.

Article 6, Section 19(a) grants to constitutional home rule cities all the powers that the general assembly has the power to confer unless limited by its charter or by statute.

The question: Are the power in Article 6, Section 19(a) limited by Article 10, Section 1 of the Missouri Constitution, which provides that the taxing power of political subdivisions may only be exercised “under power granted to them by the general assembly”?  The 2017 opinion by the Western District in Neuner v City of St. Louis answers this question by concluding that Article 6, Section 19(a) is not limited by Article 10, Section 1, thereby, answering one of the most perplexing questions for municipal attorneys.

There are three parts to the Court’s opinion.  First, there is a historical analysis, which conclusively shows that the drafters of the 1875 Missouri Constitution did not intend Article 10, Section 1 to limit the taxing power of the City of St. Louis as a city authorized to adopt its own charter, provided that the city charter included provisions for such taxation.  This view prevailed for 64 years until 1943 when the Missouri Supreme Court reversed its earlier opinions by holding that the charter provisions that authorized the City to tax without a grant to tax from the General Assembly to the City of St. Louis were limited by Article 10 Section 1.  The Missouri Supreme Court did not discuss any of the pre-1943 opinions other than to simply overrule a 1933 opinion.  The 1943 opinion and subsequent opinions prevailed until 2017, at which time the Eastern District concluded in Neuner v City of St. Louis that the home rule city constitutional amendment in 1971 allowed constitutional home rule cities to tax without a grant of power to tax from the general assembly.

What does this mean? 

The most obvious is that when faced with problems   requiring a revenue source constitutional home rule cities in Missouri  (approximately 43 cities) have the power to provide funds through taxation to solve these problems subject to approval of a tax by the voters. This has the effect of unleashing the full creative power of  constitutional home rule cities to solve problems.

To read the full analysis of the opinion see my full Post in the October issue of the Missouri Municipal Attorneys Newsletter by clicking  here.

Howard Wright© 2017

Appeals in Neuter v City of St. Louis,  have now but exhausted making the above decision final since the Missouri Supreme Court did not cause case to be transferred to the Supreme Court.

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