16-1436), scheduled for argument October
10. However, the Court removed those cases
from the docket after the President issued
the “Presidential Proclamation Enhancing
Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United
States by Terrorists or other Public-Safety
Threats” on September 24.
An executive order, by the way, is an
official, legally binding mandate handed
down by the President to guide federal
agencies under the executive branch. By
contrast, a proclamation is a less formal
type of executive action, typically used only
for ceremonial purposes. Regardless of the
form, do not assume we have heard the last
of these “travel ban” challenges.
Looking ahead, on December 5, in
Masterpiece Cakeshop v. Colorado Civil
Rights Commission, No. 16-111, the Court
will consider whether Colorado’s public
accommodations law compels “the petitioner
to create expression that violates his sincerely
held religious beliefs about marriage and
violates the free speech or free exercise
clauses of the First Amendment.” In this case,
petitioner argues the First Amendment’s
protection of religious conscience prevents
the government from forcing individuals to
participate in religious activities to which
they object. Just as the First Amendment
protections of free speech include protection
against speech compelled by the government,
it similarly prevents government from
compelling religious exercise.
But is petitioner being asked to
participate in a religious exercise? Petitioner
Jack Phillips, owner of Masterpiece
Cakeshop, refused to create wedding
cakes for a same-sex couple, contending
that doing so would be a violation of his
sincerely held religious beliefs. Wedding
ceremonies are traditionally religious in
nature, and even if a particular wedding
is of a more secular nature, Phillips, as a
religious individual, still sees weddings as
a religious exercise, and, by extension, the
cakes he creates for weddings as playing
a role therein. Phillips argues that he is
not himself anti-gay or discriminatory
against homosexual individuals because
he is happy to bake cakes for homosexual
clientele for non-religious purposes, such
as birthdays and baby showers. His only
objection is to this alleged participation in a
religious ceremony (a wedding) to which he
morally objects (due to the homosexuality
of the participants). Supporters of Phillips’
position argue that the Court’s ruling in
Obergefell promised not only recognition
of same-sex marriages, but also a legal
framework that would allow members
of our divided, pluralistic society to each
follow their own conscience and not foment
the fires of a culture war that seeks to give
dominance to one group over the other.
In contrast, the Colorado Civil Rights
Commission’s (CCRC) position argues that
freedom of religion, while inarguably one of
the most fundamental of American liberties,
“is not a talisman that confers absolute
immunity from any personal constraints
at all: At times, the free exercise of religion
yields to other foundational values,
including freedom from harm and from
discrimination.” CCRC relies on decades of
case law, deeply rooted in the civil rights
movement, wherein parties argued that
their sincerely held religious beliefs accorded
them the right to deny service to black
Americans.
See, e.g., Newman v. Piggie Park
Enterprises, 256 F. Supp. 941 (D.S.C. 1966)
(“The free exercise of one’s beliefs ... as
distinguished from the absolute right to a
belief, is subject to regulation when religious
acts require accommodation to society.
Undoubtedly restaurant owner has a
constitutional right to espouse the religious
beliefs of his own choosing, however, he
does not have the absolute right to exercise
and practice such beliefs in utter disregard
of the clear constitutional rights of other
citizens”), aff’d 390 U.S. 400 (1968); Heart
of Atlanta Motel v. United States, 379 U.S.
241, 291 (1964) (Goldberg, J. concurring)
(upholding Title II of the Civil Rights Act of
1964, and stating that the primary purpose
of banning discrimination in public places
is “the vindication of human dignity and
not mere economics”); Romer v. Evans, 517
U.S. 620 (1996) (invalidating an amendment
to the Colorado Constitution that would
have prohibited government actions
designed to prevent gays and lesbians
from discrimination, stating that such
an amendment “classifies homosexuals
not to further a proper legislative end
but to make them unequal to everyone
else. This Colorado cannot do”); and, of
course, Obergefell, supra, which stated
unequivocally that “there is dignity in the
bond between two men or two women who
seek to marry and in their autonomy to
make such profound choices.”
Supporters of the CCRC’s position argue
that these and other similar cases make the
Court’s decision not one of religious freedom
and free speech, but rather of human dignity
and equal treatment, and that baking a
cake for a wedding one does not approve
of is not an abandonment of one’s personal
views, nor an endorsement of said marriage.
Rather, “it simply means that businesses
providing a service to the public are open to
everyone on the same terms.” They further
raise a cautionary flag as to what a ruling in
the contrary could mean: a slippery slope
where businesses may choose to whom they
provide services based on who that person is
or whom they love. If Masterpiece Cakeshop
can refuse to bake a wedding cake for a gay
couple, could a religious restaurant owner
refuse to sell food to families with children
born out of wedlock or divorcees? Where
would the line be drawn?
Fans of the Fourth Amendment are
gearing up for two cases scheduled for oral
arguments on January 9, which will focus
on the expectation of privacy in and around
a vehicle: (1) Byrd v. United States, No.
16-1371 (whether a driver has a reasonable
expectation of privacy in a rental car when
he has the renter’s permission to drive
the car, but is not listed as an authorized
driver on the rental agreement), and (2)
Collins v. Virginia, No. 16-1027 (whether the
Fourth Amendment’s automobile exception
permits a police officer, uninvited and
without warrant, to enter private property,
approach a house, and search a vehicle
parked a few feet from the house).
In Byrd, petitioner’s girlfriend of seven
years, with whom he shared a home and
was parenting five children, rented a car
and gave Byrd the keys and permission to
drive the car to Pennsylvania, where the
two were planning to relocate. On the way
to Pennsylvania, Byrd was pulled over, and
officers determined that because Byrd was
not specifically listed as an authorized driver
on the rental agreement, he had no grounds
to object to a search of the vehicle.
In its amicus brief, the American Civil
Liberties Union, writing in support of
petitioner, argues that when the Fourth
Amendment was adopted, an individual
who had been entrusted with goods by
another had a “possessory interest” in those
goods (here, a rental car), and that in this
case, that possessory interest would be
sufficient to trigger Fourth Amendment
protections around the rental vehicle
petitioner was operating with the full
consent of the renter — his fiancée — and
that those protections absolutely extend to
the laundry bag locked in the trunk of the
rental car where police found drugs leading
to Byrd’s arrest.
In contrast, the government argues that
Byrd did not have any such reasonable
expectation of privacy because the rental
agreement did not specifically authorize him
www.ParalegalToday.com Q4 - 2017 23
/www.ParalegalToday.com