Could one of the lawyers posting here weigh in on this? IANAL; however, I’m fairly certain that a defending attorney is not supposed to do that.
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We can’t mislead the court as to the facts or the law. But our duty is to put forward the client’s position, as long as it’s consistent with the facts and law.
For instance, in a custody case, the client might take the position that he’s the better parent and should have custody. I may have my own personal opinion about that, but that’s irrelevant. Provided the client’s position is consistent with the law and facts, I have to put that position forward.
Similar examples can be imagined for defence counsel in criminal cases, counsel acting on contract disputes, etc.
I don’t think this is the correct analytical framework. Artistic grounds is too vague. The reason whether it is art or not is important is because art is speech and generally compelling speech has a fairly high standard to meet. Consider that in Wooley v. Maynard the court ruled that even a state motto on a vehicle license plate was disallowed compelled speech.
The Civil Rights Act disagrees with you.
I don’t think they much do. Either the painter can refuse based on whatever reasons they want because their first amendment right to not speak outweighs any other equal protection right or it doesn’t. It’s clear they could refuse based on non-suspect class criteria (too tall, smells bad, can’t pay, too lazy, etc.). So the question is how far do the 1st amendment rights to not speak extend.
Using the painter example is simply to eliminate the question of art since painting a portrait is art (if you disagree, substituting anything you believe is art would work as well) and gets right to the question of weighing the 1st amendment aspects against the public accommodation aspects. However, if the court were to say that cake making in this way was not sufficiently artistic to warrant 1st amendment protections then I think the cake maker loses and the latter question doesn’t get addressed.
Not totally impossible actually. I don’t know exactly if modern bakers have such a code, but both the bakers profession and that of Court Advocates emerged from medieval guilds, who had some pretty extensive regulations about its member’s actions. Many of the modern Bar code of conducts find their roots in them.
Bolding mine.
Further to that. There is a further complication in many commonwealth countries, that is the Cab Rank Rule.. It means an Advocate in Court has to accept any work in a field in which they profess themselves competent to practice, at a court at which they normally appear, when they are available, and at their usual rates. I think the US does not have that.
In any event, I think most people can agree that there is a compelling public interest in ensuring that parties to a legal case get adequate representation, an interest that overrides Free Speech concerns. This is not necessarily the case with a Baker.
I gather it soon will be. The Republicans will do their best to slow the process down, though I doubt many of them actually care about the issue but rather see it as a wedge they can use to try to keep the more-religious/less-rational Americans voting for them.
This is a good example. Say you had a father in a custody dispute and you had prepared an argument as to why he should be the primary custodian. The night before the hearing he admits to you that he is a homosexual. You believe strongly (not really, but for this hypo) that this will be very bad for his children to have a gay person as primary custodian.
You attempt to withdraw from representation, but the judge says “Too late. No continuance, no withdrawal because it would prejudice him.” What do you do?
You go into court and argue that he should be the primary custodian regardless of your own personal views. Is that compelled speech?
I don’t know about the 2010 deadline. I think McConnell would have been fine with replacing a liberal justice with another liberal justice. It was shifting the balance of the court by replacing scalia with a liberal that he was willing to achieve by hook or by crook
But presumably you would agree that the Cab Rank Rule (thanks, AK84!) does not apply to us, and that you or I could permissibly refuse to represent a gay couple seeking - let’s say - to challenge a state law forbidding same sex adoption. We’re being asked to put forward their facts and their legal argument, but the law does not compel us to work for them as Colorado law compels the baker to. What’s the difference?
Bumping in anticipation of oral arguments at the Supreme Court. Arguments are set for Tuesday, December 5, 2017 at 10am EST.
The case is formally Masterpiece Cakeshop v. CO Civil Rights Comm’n (16-111).
The court has structured the question (pdf link - text quoted below) as follows:
There has been quite a number of amici (“friend of the court”) briefs about a variety of aspects of the case. Plenty of pro and plenty of con arguments. I found one amici (pdf link) interesting - a group of cake designers who express no opinion on how the case should be ruled but just want to emphasize that cake design is an artistic endeavor. The way the official question is stated it almost seems the court has already accepted that cake design is an artistic endeavor.
Yeah, “compel Phillips to create expression that violates his sincerely held religious beliefs” sure does sound like they’re framing it as a violation of the First Amendment.
Obviously, whoever wrote that “question presented” is spinning it like that, but who was that? I was assuming it was the people doing the appeal, which would be the lawyers for the cake place, right?
Or does the obviously biased language come from the court itself?
It comes from the petition for certiorari (or in other words from the appealing party). It’s normal. Here’s a statement of questions presented in Florida v. Georgia, also currently pending before the Court.
No, but that’s not what is at issue here. The baker refused to make a cake for a same-sex wedding. Had he refused based on the specifications provided by the couple, the analysis would perhaps be different, but he refused to create any content for a wedding - expressive or not.
I’m not sure how I missed this earlier. Yes, I agree the Cab Rank Rule does not apply. However, lawyers, like bakers, cannot refuse clients on the basis of race, religion, etc. (those things covered in the 1964 Civil Rights Act)
I can’t post a sign outside my door saying “No Black Clients Accepted.” The question arises in a state, like Colorado, that has added sexual orientation to the list of people that businesses cannot discriminate against.
If I go into court and argue that a same sex couple should be able to adopt a child, it is my speech in a way, but it is only my speech because the client hired me to say that. If Conservatives Against Gay Adoption PAC hired me, I would be arguing about how terrible it would be for the deviant sexual people to be in a position to poison the minds of the next generation.
Now, I agree that as lawyers or bakers, we don’t have to accept a particular client. But the question becomes when are we discriminating against the class. If a baker won’t bake same sex marriage cakes or if I won’t argue a case in favor of gay adoption, at what point does this violate the general public accommodation law?
And, the further question in this case, is that assuming it does violate the law, does the law compel speech on the lawyer or baker’s part? I contend that the answer to the last question, the one taken by the Court, is “no.”
The stuff I say in court has no relationship to my actual beliefs on the subject. It’s a nice case and rewarding when that happens, but my job is to represent the client. My speech in court is not my own, but done on behalf of who I represent. I do not see a First Amendment issue.
I would think it would matter what the couple asked for. Did they ask for “a wedding cake”? Or did they request a cake celebrating the specifics of their marriage, perhaps featuring their names or a cake topper with two men (women?).
Exactly. There was a NY Times Op-Ed yesterday, which I can’t seem to find today, annoyingly, that lays out that exact difference, and also includes a different case where the baker refused to design a cake based on content.
