October 22, 2019

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U.S. Supreme Court Rules in Favor of Colorado Baker, Leaves Unresolved Issues of Refusing to Serve Same-Sex Couples

The U.S. Supreme Court ruled June 4 in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple. The 7-to-2 decision was based on very narrow grounds and left unresolved whether business owners have a First Amendment right to refuse to sell goods and services to same-sex couples.

The case, Masterpiece Cakeshop, LTD., et al. v. Colorado Civil Rights Commission et al.,started when a same-sex couple filed a complaint with the state civil-rights commission after Jack Phillips,a baker and owner of Masterpiece Cakeshop, refused to design their wedding cake. Colorado, like most states, has a state anti-discrimination law that applies to businesses that sell to the public. The Colorado Civil Rights Commission and the Colorado Supreme Court both ruled in favor of the couple.

Observers expected a decision resolving the conflict between the baker’s First Amendment rights and the couple’s rights under the statute. Instead, the U.S. Supreme Court concluded that the Colorado Civil Rights Commission's consideration of the case was “compromised” by the comments of one of seven commissioners who disparaged the baker’s arguments as “despicable.”

The majority stressed the narrowness of its decision, saying that “the outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Although seven justices agreed that Phillips was entitled to a fair hearing from the Colorado commission, and the hearing he received didn't meet that standard, there were four separate opinions filed for the majority.

Kagan and Breyer wrote to say that bakers may refuse to make a cake with a message they find offensive, so long as they would refuse the same message to any customer.

Gorsuch and Alito argued that, because the Colorado commission had previously allowed bakers to refuse to decorate cakes with anti-gay designs, its decision to rule against the baker in this case was inherently inconsistent, and discriminated against some religious groups.

Thomas and Gorsuch, argued that cake decorating is expressive and protected from government restriction under the first amendment.

Ginsburg and Sotomayor dissented, contending that principles of anti-discrimination required ruling against Phillips. The offensive remarks of a single commission member, they said, did not taint the proceedings, which were reviewed by two courts afterward.

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Brian Casey Business & Securities Litigation Attorney
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Brian Casey is a partner in the Litigation Department of Barnes & Thornburg's South Bend, Indiana, office. He concentrates his practice on business litigation, particularly securities and ERISA litigation, as well as appellate practice.

Brian has represented issuers, and their directors and officers in private securities fraud class actions, SEC and Department of Labor investigations and enforcement actions, as well as investigations by the Department of Justice and the Internal Revenue Service. He has represented ERISA plan sponsors, plan administrators, and plan fiduciaries in...

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Mark Crandley Litigation Attorney
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Appellate adviser and litigator Mark Crandley is at his best when faced with high-stakes claims that involve issues of critical importance and concern. After nearly two decades of practice, Mark knows what does and does not work. Clients and colleagues alike rely upon him for his judgement and leadership throughout the dispute resolution process.

Mark focuses his practice on appeals, constitutional and government law, commercial litigation, and the resolution of probate disputes. He has represented government entities and businesses in courts across the country, and is valued for his skill in creating effective and efficient litigation strategies, particularly in expedited litigation.

As co-chair of the firm’s Appeals and Critical Motions practice and a founder and chair of the firm’s Government Litigation group, Mark has represented clients in scores of appeals in both state and federal courts. He has argued before the Indiana Supreme Court on numerous occasions and has also argued before the U.S. Court of Appeals for Seventh Circuit and for the Sixth Circuit Court, the Indiana Court of Appeals and the Ohio Court of Appeals. Mark has also authored dozens of amicus curiae briefs, including amicus briefs submitted to the U.S. Supreme Court. Mark collaborates with other Barnes & Thornburg attorneys to produce an annual review examining the Indiana Supreme Court’s docket that is published by the Indiana Law Review.

Mark’s practice includes representing local governments in litigation throughout the state of Indiana. He has litigated a broad spectrum of constitutional and municipal law issues, including cases involving municipal utilities, annexation, municipal finance, government contracting, the Home Rule Act, zoning and the federal and Indiana constitutions. He has represented clients in cases of first impression regarding access to public records, public-private partnerships, municipal reorganization, and election issues. He has defended complex constitutional challenges to a variety of state laws and local ordinances. In addition, Mark regularly speaks on topics affecting state and local governments and has co-taught a law school class on the Indiana Constitution.

Mark’s commercial litigation practice includes litigation in both state and federal court, where he has tried cases both to the bench and to juries. He has represented clients in cases involving breach of contract, Articles 2, 3, 4 and 9 of the Uniform Commercial Code, trade secrets and various forms of trade regulation.

Mark also represents individuals and corporate fiduciaries in probate disputes. He has tried multiple trust and guardianship cases throughout Indiana and on appeal.

Prior to rejoining the firm in 2005, Mark served as in-house counsel for the city of Indianapolis, representing the city in complex civil rights litigation and appeals in state and federal courts. As a result, Mark has an inside perspective on how government agencies operate and what drives their decision-making process, often a key component of effectively representing them today.

Before launching his legal career, Mark worked as a newspaper reporter and editor.

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L Rachel Lerman, Barnes Thornburg Law Firm, Los Angeles, Finance Law Attorney
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L. Rachel Lerman is a partner in Barnes & Thornburg LLP’s Los Angeles office and a member of the firm’s Litigation Department. Formerly a partner at Akin Gump Strauss Hauer & Feld LLP, she focuses on appellate practice and trial strategy in complex civil cases. She has handled writs and appeals in commercial, bankruptcy, patent, trade mark, trade secret, labor, insurance defense, white collar, and family law cases in state and federal courts nationwide. She works regularly with trial counsel on law and motion and trial strategy.

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Peter J. Rusthoven, Barnes Thornburg Law Firm, Indianapolis, Corporate, Finance and Litigation Law Attorney
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Peter J. Rusthoven, a partner in the Indianapolis, Indiana office, has a multi-dimensional practice. His business experience includes transactional and corporate governance work, in areas ranging from manufacturing to publishing to healthcare. He was active in drafting Indiana's corporation statute and official comments and has frequently written and spoken on corporate change-of-control issues. In the governmental services area, he is experienced in gaming and alcoholic beverage licensing and other regulatory and legislative services matters.

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