Wednesday, September 5, 2018

Bryan J. Schwartz Awarded 2018 Attorney Advocate Award by The Wage Justice Center

Today, Bryan J. Schwartz, principal at the law firm Bryan Schwartz Law, will accept the 2018 Attorney Advocate Award from the Wage Justice Center at an evening fundraiser in Los Angeles, California. (See press release here).

The Wage Justice Center fights for economic justice on behalf of low-wage workers in California. The non-profit organization specializes in piercing corporate shell games to hold employers accountable when they commit wage theft. 

Bryan Schwartz Law regularly represents low-wage workers in wage and hour class actions. The firm seeks swift relief for its clients, and pursues justice for as long as it takes. 

One of the firm’s signature cases involves wage violations at restaurants in Los Angeles and Orange County, in which the wealthy owner of a defunct business attempted to shield himself from personal liability for the business’s wage violations. After workers filed the class action suit, the employer immediately fired the named plaintiff, later closed his restaurants, and filed for personal and corporate bankruptcy. During nearly eight years of litigation, Bryan and his firm won over $1.5 million in back wages, damages, penalties, fees and costs from the individual employer on behalf of the terminated employee (whose wage loss was determined to be $3,000) after victories in bankruptcy court, a bench trial, a jury trial, several trips to the Court of Appeal, and collections proceedings. See Quiles, et. al. v. Koji’s Japan, Inc. et al. (Orange Cnty. Sup. Ct.) Case No. 30-2010-00425532. (Read more about the Quiles trial here)

The firm continues its fight for the class of restaurant employees who suffered wage violations, after securing a major victory at the court of appeals. In Turman, et al., v. Superior Court (2017) 17 Cal.App.5th 969, California’s Fourth District Court of Appeal, Division Three (in Orange County), held that an individual owner and president of a closely-held corporation may be personally liable in a lawsuit to recover overtime, meal and rest period premiums, tip compensation, and minimum wages under California law. Turman provides the first published state appellate interpretation of Martinez v. Combs (2010) 49 Cal.4th 35, the California Supreme Court’s marquee decision on the definition of an “employer,” as it applies to personal rather than corporate liability. On remand, the Superior Court recently ruled that the individual owner of the restaurants was may be liable as a joint employer with respect to the class claims under the Labor Code, Wage Orders, Business & Professions Code, and Private Attorneys’ General Act. (Read more about the Turman decision on our blog here and here).

“I am honored that the Wage Justice Center has recognized my firm’s dogged representation of restaurant workers in the Quiles/Turmanlitigation with the 2018 Attorney Advocate Award,” says Bryan Schwartz. “I have the greatest admiration for my clients – who for eight years have continued this fight to seek justice on behalf of their co-workers.”

For more information about Bryan Schwartz Law, please contact Bryan Schwartz at Bryan@BryanSchwartzLaw.com.





Thursday, August 30, 2018

Bryan Schwartz Law Submits Amicus Curiae Brief on Behalf of California Employment Lawyers Association: the California Supreme Court Should Rule in Lawson v. Z.B. that Employers Cannot Compel any PAGA Claims into Arbitration


When a worker stands in the shoes of the State of California, prosecuting wage violations under the Labor Code Private Attorneys’ General Act (PAGA), that representative plaintiff cannot be forced into arbitration, because the State did not agree to arbitrate. See Iskanian v. CLS Transportation of Los Angeles, LLC, 59 Cal.4th 348 (2014).

In Lawson v. ZB, N.A., 18 Cal. App. 5th 705 (Cal. Ct. App. 4th Dist. Dec. 19, 2017, as modified Dec. 21, 2017), the Court of Appeal rejected the attempt by the defendant Bank to force a PAGA plaintiff into arbitration as to the PAGA penalty requiring restitution of underpaid wages, under Labor Code §558. On March 23, 2018, the California Supreme Court granted review. On August 29, 2018, Bryan Schwartz Law, on behalf of the California Employment Lawyers Association (CELA), submitted an amicus brief supporting affirmance of the Court of Appeal decision.

PAGA civil-enforcement claims invoking Labor Code §558 include both the default civil penalty plus the penalty concerning underpaid wages. Lawson created a split with Esparza v. KS Industries, 13 Cal.App.5th 1228 (5th Dist. Aug. 2, 2017), which held that Labor Code §558(a)’s reference to a penalty including “an amount sufficient to recover underpaid wages” created a “private dispute,” to which the Iskanian rule does not apply.

Bryan Schwartz Law’s brief on CELA’s behalf demonstrates that Lawson was correctly decided, and Esparza was wrong, because all PAGA actions are representative actions, not individual actions. The amicus brief illuminates the breadth of the State’s police power, which cannot be limited by a mandatory, pre-dispute arbitration agreement with an individual worker. The language, legislative history, and purposes of PAGA and Labor Code §558 demonstrate the Legislature’s clear intent to permit PAGA plaintiffs to recover the full measure of relief that would be available to the State in a public enforcement action. Defendant ZB Bank’s contention that PAGA and Labor Code §558 would be preempted by the Federal Arbitration Act (FAA), 9 U.S.C. §§1, et seq., clearly contravenes the Supreme Court’s analysis in Iskanian and McGill v. Citibank, N.A. (2017) 2 Cal. 5th 945. The FAA does not strip the State of its enforcement authority, or strip employees of their non-waivable, substantive state law right to pursue vital workplace protections.

CELA is an organization of approximately 1400 California attorneys whose members primarily represent workers in a wide range of employment cases, including wage and hour actions and PAGA actions. CELA and its members have taken a leading role in protecting the rights of California workers, including by submitting amicus briefs and oral argument in such groundbreaking employment rights cases such as Iskanian, Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, Gentry v. Superior Court (2007) 42 Cal.4th 443, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, and Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903. Bryan Schwartz Law has been instrumental to CELA’s amicus briefing in a host of key California cases.

The California Supreme Court’s decision in Lawson will have widespread ramifications for California workers. If the State’s PAGA penalty provisions forcing restitution to victims of wage theft can be shunted to individual arbitration, it will deeply undermine PAGA’s goal to strengthen the State’s enforcement power against wage law violators who steal from workers and unfairly compete against law-abiding businesses.

If you are seeking to assert wage claims representing your co-workers and are facing an employer who seeks to force you into individual arbitration, contact Bryan Schwartz Law.

Thursday, July 26, 2018

California Supreme Court Delivers Workers a Victory in Troester v. Starbucks Corp.

Though the U.S. Supreme Court’s recent decision in Janus v. AFSCME dealt a major blow to workers, and the nomination of Brett Kavanaugh to the high court might mean more devastation will follow, California has once again claimed its position as a progressive counter to an oppressive federal agenda. The California Supreme Court’s ruling today in Troester v. Starbucks Corp. defends the interests of working people by ensuring greater protection for those who regularly perform small amounts of uncompensated work - which add up to valuable unpaid wages, over time.

The plaintiff, a Starbucks employee named Douglas Troester, has argued Starbucks owes him wages for the time he spent running end-of-day computer software, activating a building alarm, locking the door, and walking coworkers to their cars as required by company policy. All of these duties, alleges Troester, add up to four to ten additional minutes each shift. Over a seventeen-month period, Troester’s unpaid time totaled twelve hours and fifty minutes, adding up to $102.67 at the then-applicable minimum wage of $8 per hour.

Troester first filed his case in Los Angeles County Superior Court, but Starbucks removed the case to federal court, and the district court granted summary judgment for Starbucks based on the federal “de minimis” doctrine. First set forth in the 1946 U.S. Supreme Court decision, Anderson v. Mt. Clemens Pottery Co., the de minimis doctrine holds that employers need not compensate employees for small amounts of otherwise compensable time if the employer can show tracking that time is administratively difficult. On appeal, the Ninth Circuit recognized that although the de minimis doctrine applied to federal wage and hour law, the California Supreme Court had never addressed whether the doctrine applied to wage claims under California law. The California Supreme Court agreed to the Ninth Circuit’s request to answer specifically whether the doctrine applied to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197. 

In today’s decision, the California Supreme Court first held that, based on a review of the relevant statutes and Industrial Wage Commission (“IWC”) Orders, California had not previously adopted the federal de minimis doctrine. The California Supreme Court, explains the decision, must interpret the Labor Code and IWC Orders liberally to best further their purposes. And, the Court held, California is free to offer greater protection to workers than federal regulations, which the state already has done, regarding, for example, on-call employees’ compensation for sleep and other personal activities (Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015)), the definition of “employ” (Martinez v. Combs, 49 Cal.4th 35 (2010)), and transportation time (Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000)).

Second, the Court held the relevant IWC Order and statute did not permit application of the de minimis doctrine to the particular facts of Troester’s case. For one, the Court explained, the modern availability of class actions undermines the rationale behind the de minimis rule for wage and hour actions. “The very premise” of wage and hour class actions, stated the Court, “is that small individual recoveries worthy of neither the plaintiff’s nor the court’s time can be aggregated to vindicate an important public policy.” The Court also found that the rationale behind the de minimis rule in Anderson is less relevant now because time-keeping technology has advanced far beyond what it was seventy years ago. The problems of recording employee time discussed in Anderson “may be cured or ameliorated by technological advances that enable employees to track and register their work time via smartphones, tablets, or other devices,” explained the Court. Although the Court found the de minimis doctrine did not apply to Troester’s case, it left open the possibility that certain circumstances may exist where compensable time is “so minute or irregular that it is unreasonable to expect the time to be recorded.”

The phrase “de minimis” comes from the longer maxim de minimis non curat lex, meaning “the law does not concern itself with trifles.” In this case, Starbucks argued the additional time Troester worked was insignificant. But while $102.67 may be insignificant to a multinational corporation, Justice Liu defended common sense and the dignity of working people in writing that $102.67 “is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls ‘de minimis’ is not de minimis at all to many ordinary people who work for hourly wages.” 

The lawsuit now returns to the Ninth Circuit, which will factor in the California Supreme Court’s decision when it rules on Troester’s case. We hope that fairness for working people will prevail, as it did today in our state’s high court.

If you believe your employer has violated wage and hour laws, contact Bryan Schwartz Law.

Tuesday, July 10, 2018

There Is Always Hope, Even With The Kavanaugh Nomination

UPDATE (September 13, 2018): For a comprehensive review of the many reasons to oppose the nomination of Brett Kavanaugh to the United States Supreme Court, please read this statement from the Leadership Conference on Civil and Human Rights.

There is always hope.

Even when Brett Kavanaugh – who voted in favor of forcing a child to give birth in federal lockup against her will - is nominated to serve for an anticipated 30-40 years as a Justice of the Supreme Court of the United States.


Even if this same man believes the President is above the law, meaning he or she can commit any crime he or she wants without anyone being able to do anything about it while the President is in office.

The reason for maintaining hope? As President Barack Obama noted in his farewell speech, it’s certainly not the Constitution alone, which is “just a piece of parchment. It has no power on its own.”

There is hope because we resist. We give the Constitution “meaning with our participation and with the choices that we make and the alliances that we forge. Whether or not we stand up for our freedoms, whether or not we respect and enforce the rule of law, that's up to us.”

In this spirit, this firm has come to you before to oppose what was then a threat to our constitutional system, poised to take root.  

We ask you to stand with us again because we no longer just face the prospect of a threat. Instead, we are in the midst of the most dangerous attack on our cherished rights since the late 19th and early 20th centuries, when the Supreme Court wrongly decided that bakers working in nauseating, filthy conditions should have the “freedom” to work for less than minimum wage (in Lochner v. NY) (see also http://bryanschwartzlaw.blogspot.com/2018/06/the-us-supreme-court-exploits-first.html), when the Supreme Court endorsed “separate but equal” conditions that led millions of African-Americans to live under the oppression of Jim Crow laws for decades (in Plessy v. Ferguson), and when the Supreme Court gave its seal of approval to prison camps for Japanese-American citizens based solely upon their national origin (in Korematsu v. US; George Takei talks about his experience living through internment by his own government here).

If you believe in fair wages, equal dignity under the law, and women’s right to control their own bodies, then you should join one of these Strategic Resistance Groups:

  • Sister District Project: This organization seeks to flip state legislatures blue, a vital step in ensuring fair redistricting come 2020.
  • Swing Left: This organization seeks to flip U.S. Congress seats.
  • Flip the 14: This organization seeks to flip every single U.S. Congress seat up for grabs in California.
  • Working America: This organization canvasses flippable districts in California.
  • Local Indivisible groups: Indivisible is setting up a national phone bank this Sunday, July 15 to reach progressive voters in flippable senate districts so that Democrats can retake the Senate in November.
I know you are exhausted. We and our families, friends, and neighbors are too. But we cannot and must not forget, there is no one coming to save us. No one else will fix what has been broken nor protect what remains except you, me, and the people who will stand with us in this moment.

We are the ones we have been waiting for. We cannot afford to wait any longer.

Eduard Meleshinsky

Thursday, June 28, 2018

The U.S. Supreme Court Exploits the First Amendment to Endorse Public Union “Free Riders”

by DeCarol Davis and Eduard Meleshinsky


With its decision yesterday in Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466 (U.S. June 27, 2018), the U.S. Supreme Court marches forward in its sweeping campaign to erode workers’ rights to engage in protected concerted activity. See, e.g., Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018) (holding that an arbitration agreement can bind an employee to individual arbitration and thereby prevent that worker from participating in class or collective action) (read our analysis of the decision here). In a 5-4 opinion, authored by Justice Alito, with Justice Kagan dissenting (joined by Justices Ginsburg, Breyer, and Sotomayor), the Court held that state government workers who choose not to join a union do not have to pay a share of union dues for covering the cost of negotiating and administering collective bargaining agreements. The Court’s decision overrules its long-standing precedent in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which required non-union employees to pay a portion of union dues, known as “agency fees,” to cover the out-of-pocket costs of collective bargaining and prevent “free riders” (i.e., workers who get the benefits of a union contract, like higher wages, better healthcare insurance, and competitive retirement plans without paying for it). Such mandatory agency fees do not fund any type of political campaigning by the union.

In Janus, the Supreme Court found that an Illinois law, which required public employees benefiting from union-organized collective bargaining agreements, to pay agency fees violated non-members’ free speech rights. Janus, No. 16-1466, at *1. The Court majority held that unions, in their “political and ideological projects” (including negotiating for better working conditions) may come at odds with a worker’s beliefs, and thereby violate a worker’s First Amendment rights. Id. The majority reasoned that requiring public employees to pay union dues would be “compelling” the worker to “subsidize” the speech of other private third party in violation of First Amendment. Id. at *9.

Justice Kagan, joined by the three other dissenting Justices, eloquently spoke to the majority’s radical departure from the Court’s established precedent:

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special justification,” (citation omitted)—but the majority offers nothing like that here. In contrast to the vigor of its attack on Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Abood’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to. Id. at **26-27.

The First Amendment in 1977 was the same as it is today, and yet, the Supreme Court again tramples on long-established American public policy favoring workplace peace and shared prosperity through collective bargaining between labor and management—one of few remaining mechanisms for workers to stand toe-to-toe with employers. The Court, despite its “pull-your-boots-up” philosophy, now gives “free-riders” the right to reap the fruits of hard-fought collective bargaining without chipping in anything.

Even conservative legal experts like Eugene Volokh agree that the majority’s opinion fails to reckon with the many ways in which “the First Amendment ‘simply do[es] not guarantee that one’s hard-earned dollars will never be spent on speech one disapproves of.’” Dissent at p. 15; Eugene Volokh, Why There’s No First Amendment Problem With Compulsory Union Agency Fees, (published Jan. 29, 2018), available at: https://reason.com/volokh/2018/01/19/why-theres-no-first-amendment-problem-wi. Were it otherwise, the Court would be compelled to upend many other well-entrenched arrangements where the government requires mandatory fees to subsidize various activities it believes serve an important governmental interest but which individuals may oppose, such as mandatory bar dues for attorneys, certain administrative fees for public university students, and, more generally, taxes spent on controversial governmental activities.

The Janus opinion is another example of the Roberts Court “turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” Slip. Op., Dissent at 27. Working people should remember this decision as they head to the ballot box this November.

Tuesday, June 26, 2018

Supreme Court Upholds Trump's Bigoted Travel Ban in Trump v. Hawaii



Today, in Trump v. Hawaii, No. 17-965 (U.S. Jun. 26, 2018), the Supreme Court has enshrined Donald Trump’s bigotry into our nation’s jurisprudence. In a 5-4 decision, the Court reversed a preliminary injunction against the third iteration of President Trump’s travel ban. The Court determined the preliminary injunction was an abuse of discretion and remanded the case for further evaluation on its merits. But further proceedings are unlikely to change the Court’s result, which found the travel ban permissible under the Immigration and Nationality Act (INA) and the First Amendment’s Establishment Clause despite Trump’s vehemently anti-Muslim motivation for the ban.

The travel restrictions, established in Presidential Proclamation No. 9645, claimed to protect national security by restricting the flow of nationals from eight foreign countries the Trump administration labeled as having deficient systems for managing and sharing information about their nationals. See Trump, slip op. at 3. These nations originally included Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, all of which are majority Muslim except for North Korea and Venezuela. See Trump, slip op. at 5.

In his opinion, Chief Justice Roberts found the plain language of § 1182(f) of the INA granted the President wide-ranging power to restrict which foreign nationals may enter the United States. Section 1182(f) provides that the President can “suspend the entry of all aliens or any class of aliens” whenever he “finds” their entry “would be detrimental to the interests of the United States.” See Trump, slip op. at 11. According to the Chief Justice, the President had presented sufficient evidence showing that the entry of those covered by the ban into the country would be “detrimental” to the national interest. See Trump, slip op. at 10.

But the crux of the debate focused on whether or not the anti-Muslim rhetoric surrounding the travel ban ran afoul of the Establishment Clause, which forbids government policies “respecting an establishment of religion.” U.S. Const., Amdt. 1. Accordingly, the government “may not adopt programs or practices . . . which aid or oppose any religion.” Epperson v. Arkansas, 393 U.S. 97, 106 (1968). But for Chief Justice Roberts, only laws that “lack any purpose other than a ‘bare . . . desire to harm a politically unpopular group’” are illegitimate under the Court’s deferential standard. See Trump, slip op. at 33 (citing Dep’t of Agric. v. Moreno, 413 U. S. 528, 534 (1973)). Despite the anti-Muslim rhetoric coming from the Trump administration, the Chief Justice held that the Court could not strike the travel ban “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.” Trump, slip op. at 34.

In her forceful dissent, Justice Sotomayor catalogues in laboring detail the substantial record of the travel ban’s anti-Muslim purpose, including Trump’s statement “calling for a total and complete shutdown of Muslims entering the United States” that remained on his campaign website several months into his Presidency. Trump, slip op. at 4 (Sotomayor, J., dissenting). Over the course of seven pages, Justice Sotomayor details myriad other egregious statements, including Trump’s December 2015 comment analogizing his ban to the internment of Japanese-Americans during World War II and Trump’s February 2016 repetition of an apocryphal story to a cheering crowd in South Carolina about how U.S. General John J. Pershing executed Muslim insurgents with bullets dipped in pigs’ blood. See Trump, slip op. at 5 (Sotomayor, J., dissenting). Justice Sotomayor rightfully points out the absurdity of Chief Justice Roberts finding an insufficient level of animus to strike down the travel ban in the face of Trump’s statements, his refusal to retract them, and his insistence that his second Executive Order was simply a “watered down version of the first one.” Trump, slip op. at 8 (Sotomayor, J., dissenting).

Justice Sotomayor also calls out the hypocrisy of the Court’s decision today in light of its decision earlier this month in MasterpieceCakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (U.S. Jun.4, 2018). While the majority in Masterpiece Cakeshop found state commissioners’ hostile comments about Christianity to be evidence of unconstitutional government action, the majority here renders Trump’s statements, far more numerous and hateful than in Masterpiece Cakeshop, to be irrelevant. See Trump, slip op. at 26 (Sotomayor, J., dissenting). A clear message emerges from these two decisions: a different First Amendment applies to Christianity than to Islam.

The Court’s decision today disturbingly parallels the Court’s horrific approval of interning Japanese-Americans during World War II in Korematsu v. U.S., 323 U. S. 214 (1944). See Trump, slip op. at 26-28 (Sotomayor, J., dissenting). In a move to legitimize today’s decision, Chief Justice Roberts explicitly condemns Korematsu, saying it was “gravely wrong the day it was decided.” See Trump, slip op. at 38. But the Court has not truly abandoned Korematsu. It has only repackaged the same xenophobia for a new era. And one day, Justice Sotomayor’s dissent will be praised by the judiciary as having the same foresight and moral clarity as Justice Jackson’s dissent in Korematsu. Until then, we keep fighting.

See our previous posts covering the travel ban from February 10, 2017 and June 15, 2017.

Bryan Schwartz Law is proud to represent workers from Muslim, immigrant, and other oppressed communities. If you believe your employer has violated your workplace rights, please contact our office.

Monday, June 4, 2018

U.S. Supreme Court Sides with Baker and Emboldens Anti-LGBTQ Efforts in Masterpiece Cakeshop Decision

The Supreme Court issued today its highly-anticipated decision in MasterpieceCakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (Jun. 4, 2018). While the opinion’s narrow holding sets no groundbreaking precedent, it strengthens anti-LGBTQ activists and their narrative of state-led, anti-Christian persecution as the substantive debate returns to lower courts.

In 2012, Jack Phillips, owner of the bakery Masterpiece Cakeshop outside of Denver, refused David Mullins and Charlie Craig a wedding cake because he believed creating a cake for a same-sex wedding violated his religious beliefs. (Slip Op. at 1). Mullins and Craig filed a charge under the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in any “place of business engaged in any sales to the public and any place offering services . . . to the public.” (Slip Op. 5). The Colorado Civil Rights Commission sided with Mullins and Craig, and the Colorado Court of Appeals affirmed. (Slip Op. at 8).

The Supreme Court’s reversal in favor of Phillips, authored by Justice Anthony Kennedy, comes as a surprise given Justice Kennedy’s career-defining support for LGBTQ rights. Among his authored opinions are Lawrence v. Texas, 539 U.S. 558 (2003), invalidating anti-sodomy laws, United States v. Windsor, 570 U.S. 744 (2013), declaring the Defense of Marriage Act unconstitutional, and Obergefell v. Hodges, 135 S.Ct. 2584 (2015), legalizing same-sex marriage nationwide.

In Masterpiece Cakeshop, Justice Kennedy acknowledges “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” (Slip Op. at 9). But the Court still sided with Phillips, finding that the state had not met its obligation of religious neutrality. (Slip Op. 2). Instead of giving Phillips “neutral and respectful consideration,” the Court found the Commission exhibited anti-religious hostility in violation of the Free Exercise Clause. (Slip Op. at 9). Especially troubling to Justice Kennedy were the comments of one Commissioner who likened Phillips’s position to defenses of slavery and the holocaust and disparaged Phillips’s religious beliefs as “despicable” and merely “rhetoric.” (Slip Op. at 13-14). Justice Kennedy also took issue with the Commission’s treatment of Phillips compared to secular bakers who had refused to bake cakes with homophobic messages in other discrimination claims. (Slip Op. at 14-16).

By reversing the lower court on these narrow grounds, the Supreme Court avoided ruling on the case’s main issue of to what extent religious freedom can justify discrimination based on sexual orientation. “The outcome of cases like this in other circumstances must await further elaboration in the courts,” writes Justice Kennedy. (Slip Op. at 18). While his motivation is unclear, limiting the decision to the case’s particular facts may be an attempt to prevent further polarization in an already divided culture.

But even with its narrow holding, Masterpiece Cakeshop will negatively shape the debate over LGBTQ rights as the issue returns to lower courts. Most significant may be Justice Kennedy’s broad definition of “hostility.” In their dissent, Justices Ginsburg and Sotomayor criticize Justice Kennedy’s conclusion that statements made by one or two Commissioners can taint proceedings involving “several layers of independent decisionmaking, of which the Commission was but one.” (Slip Op. at 7). Finding such a low level of “hostility” violates the state’s obligation of religious neutrality expands on Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the only case cited by Justice Kennedy as support. Lukumi involved only one decisionmaking body, compared to several in Masterpiece Cakeshop, and anti-religious animus motivated the passing of an entire law, not just a couple of a law’s enforcers. (Slip Op. at 7-8). As a result, Masterpiece Cakeshop may embolden those discriminating based on sexual orientation to seek redress in court by claiming that their animus against gay people is based upon religion.

The Supreme Court has dealt LGBTQ rights a blow with Masterpiece Cakeshop. But the wound is not fatal, and the widespread “recognition that gay persons and gay couples cannot be treated as social outcasts” provides hope that the civil rights of the LGBTQ community will prevail as the substantive issues of law return to the lower courts.

If you have experienced discrimination based upon your sexual orientation or gender identity and need help, please contact Bryan Schwartz Law.