Want to talk about the deep state? You have probably heard a lot about Jack Phillips, owner of Masterpiece Cakeshop, whose case is currently pending before the Supreme Court. You’ve probably heard about his sincerely held belief to politely decline to create a custom wedding cake for a same-sex couple and all the talk about First Amendment protections.
But what you may not have heard as much about is the Colorado Civil Rights Commission, the administrative agency within the Department of Regulatory Agencies, tasked with hearing claims brought under Colorado’s anti-discrimination law. The Commission and its story of coercion and arbitrary state authority are also at the heart of Masterpiece v. Colorado Civil Rights Commission.
This is an administrative agency that functions as a modern-day star chamber, with its unelected appointed commissioners, secret proceedings, arbitrary rulings, lack of accountability and transparency, lack of legal acumen (none of the commissioners are required to be attorneys), and lack of constitutional due process. It’s a gross injustice that this kind of “authority” still exists as a quasi-judicial body.
Respondents, such as Phillips, have no choice but to appear in front of this agenda-driven, nonjudicial agency and suffer the consequences for nongovernment-approved beliefs. The proceedings are “confidential” rather than held in a traditional open court setting and lack proper judicial oversight.
During oral arguments in Masterpiece, Justice Anthony Kennedy was very concerned about the obvious bias and viewpoint discrimination of Commission members, specifically Commissioner Hess. Kennedy asked, “Suppose we thought that in significant part at least one member of the Commission based the commissioner’s decision on the grounds that — of hostility to religion?” He appeared appalled at the commissioner’s statement that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.”
It is appalling. This whole segment (starting on page 51) of the oral argument transcript is worth a careful review when even Justice Sonia Sotomayor — who grilled Phillips’ counsel — questioned if one of the commissioners was “improperly biased” and how that would affect the Commission’s finding. It should invalidate their finding and at the very least, shake the public trust in the Commission’s legitimacy.
The Commission’s current monopoly on anti-discrimination cases is an incredibly important piece of this case because Phillips is by far not the only person to appear before this Commission. (How many exactly? And the outcomes? We’re not sure, because of a lack of transparency and oversight.) In America, we still require that every person, regardless of the accusation, has a right to due process, and we preserve and protect those fundamental rights for every American in our constitutional structure.
Imagine now if Phillips and his counsel had the opportunity at the very beginning of this case to invoke his due process right to be heard before an actual judge or demand a jury of his peers — with all the process rights of jury selection — in an open, public setting. Before any findings of fact or conclusions of law were made by commissioners who clearly hold personal animus, if a person defending against a claim of discrimination could instead go to court.
This “opt out” provision is currently being considered by the Colorado legislature, as part of a necessary and appropriate review of the Colorado Civil Rights Commission. Agencies occasionally get a performance evaluation, and it’s the job of the legislature to look at these agencies and determine ways to make them better, more fair, and more equitable. Colorado HB18-1256 contemplates whether to reauthorize the Commission and the Colorado Civil Rights Division, and Republicans in the Senate brought forward several amendments to make this Commission more of a legitimate entity and less of a star chamber, including a legislative audit, transparency, and changes to the commissioners’ appointments.
Predictably, the partisan political game players came out in force against these common-sense amendments, and some select community members even testified in the Senate Judiciary Committee that “the Commission has our back.” The palpable perception of bias was rank in the hearing room. No entity vested with making determinations of law should ever be that partial and biased, but a certain segment of Colorado has been successfully using the Commission as their own personal judge, jury, and executioner for anyone who may have a different viewpoint than they.
This has to stop. There are legitimate instances of unlawful discrimination in Colorado, and every person should continue to be able to bring claims. But there should not be a biased arbiter hearing those claims. This is precisely why the Founders forbade bills of attainder, instead requiring due process in our constitutional structure.
This problem certainly isn’t limited just to Colorado. This is happening all over the country with government personnel, administrative agencies, and instances of attacking people who are perceived as noncompliant with the goals of the state. There are multiple cases from other states pending with facts similar to Masterpiece — the government doesn’t like you, so it will shut you down.
We live in a society that thankfully has due process requirements. We have to preserve that constitutional protection at every level. There is absolutely no rational or nonpartisan reason that the Colorado legislature and every state legislature should not take the simple but substantial step to better preserve due process and fairness for all citizens.
The Civil Rights Commission should serve an important function. It should serve as an impartial agency and an opportunity for both sides to agree to mediate their dispute. If the Commission were truly an unbiased and legitimate agency, there are many reasons (legal and pragmatic) that respondents in a lawsuit may want to have the claim litigated in the Commission. But both parties deserve the opportunity to opt out and say, “No, I want my day in court.”
If we are truly concerned about equal protection under law and the rule of law for everyone — not just one protected class that wants to be more protected than everyone else — no one would object to this kind of opt out procedural enhancement and transparency. It is the essence of liberty to have an impartial trier of fact when a claim is brought against you.
Why reauthorize a Commission, especially when U.S. Supreme Court justices have voiced grave concerns regarding its bias for nine years, and not actually give it a performance review?
You’d only do that if you wanted it to remain unconstitutionally biased.
Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney, a fellow at the Centennial Institute, a radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.
