The U.S. Supreme Court has declined to review a case filed in 2018 by the Pasadena Republican Club against the Western Justice Center, then-Western Justice Center Executive Director Judith Chirlin, and the city of Pasadena for alleged political and religious discrimination.
“The Court declined our request for review,” Anthony Caso, the attorney who filed the case on behalf of the Pasadena Republican Club, said of the Supreme Court’s decision last Friday. “The case is now at an end.”
Reputation in Danger
In early 2017, the Pasadena Republican Club rented space in the Western Justice Center’s Maxwell House in west Pasadena for $190 for their April 20, 2017, meeting, which was to feature as a speaker Dr. John Eastman, a conservative lawyer and former dean of Chapman University’s Fowler School of Law. Eastman had also previously chaired the National Organization for Marriage, an organization that spearheaded Proposition 8 in 2008 to ban same-sex marriage in California.
Upon finding out about Eastman’s views, the Western Justice Center’s executive committee, which included federal judges, decided to cancel the Pasadena Republican Club’s meeting less than three hours before it was set to begin. That, according to Eastman and Caso, a clinical professor of law at Chapman and director of the Claremont Institute’s Center for Constitutional Jurisprudence, which is based at Fowler, was a civil rights violation.
“While I knew that Prof Eastman was a professor and author, we learned just today that he is the President [sic] of the National Organization for Marriage [NOM],” Chirlin, a retired L.A. Superior Court judge, wrote in an email to the Pasadena Republican Club the day of the event. “NOM’s positions on same-sex marriage, gay adoption and transgender rights are antithetical to the values of the Western Justice Center. The Western Justice Center works to improve campus climates with a special focus on LGBT bias and bullying. We work to make sure that people recognize and stop LGBT bullying. Through these efforts we have built a valuable reputation in the community, and allowing your event in our facility would hurt our reputation in the community.”
The Western Justice Center also adopted a policy banning political organizations from future rentals of the Maxwell House, including the Pasadena Republican Club. The Maxwell House is owned by the city of Pasadena, which leases the space to the Western Justice Center for $1 a month. The Pasadena Republican Club had held meetings with other speakers there before.
Caso filed a complaint on Nov. 28, 2018, in federal district court on behalf of the Pasadena Republican Club alleging viewpoint discrimination, religious belief discrimination and violation of the free exercise of religion in violation of the First Amendment, as well as an additional charge of conspiracy to deny civil rights against Chirlin. It sought declaratory and injunctive relief and unspecified monetary damages.
“The essence of the complaint is that they’ve taken public property and they’ve decided who can use it based upon political or religious viewpoint,” Caso told this reporter at the time. “Take your pick; both are unconstitutional.”
‘Cancel Culture’
On KPCC’s “AirTalk with Larry Mantle” in November 2018, Eastman said that if the city were to rent the Maxwell House out as a public forum, “there’s no question constitutionally it would be required to lease it out without discriminating on the basis of viewpoint. The real question is, by signing a dollar-a-month lease, can it avoid those constitutional duties and pass the buck to a nonprofit organization to do the discriminating for it? I don’t believe it can do so.
“The Western Justice Center has some decisions it’s going to have to make,” he continued. “If they want to continue to discriminate on the basis of viewpoint, they can’t do that with sweetheart deals using publicly owned facilities. If they want to continue serving as an agent of the city, renting out this spectacular facility for community organizations’ meetings, then they have to comply with the Constitution just like the city does.”
Two courts, however, did not agree. According to Caso, both the trial court and the Ninth Circuit Appeals Court ruled that the Western Justice Center was not a state actor and that the city of Pasadena could not be held responsible for its actions in discriminating against the Pasadena Republican Club because “there was no allegation that the city participated in or had knowledge of the Western Justice Center’s viewpoint and religious discrimination.”
Caso argued that these rulings contradicted previous court rulings that established that a government entity isn’t required to have direct knowledge or participation in order to be held liable for the illegal activity of a private group to which it delegated authority to manage city-owned property.
Caso, on behalf of the Pasadena Republican Club, filed a petition for writ of certiorari — a request for judicial review of a lower court’s decision — with the Supreme Court on June 16.
“The Ninth Circuit’s decision allows governmental agencies to wash their hands of viewpoint discrimination on public properties by delegating away their authority,” Caso wrote in the petition to the Supreme Court. “This may be a welcome development for those entities concerned about liability in the current climate of ‘cancel culture.’ It is not, however, consistent with the Constitution. There is no ‘delegation exception’ to the First Amendment.”
The Supreme Court considered Caso’s petition at its conference on Oct. 8 and declined to review the case.
“We’re pleased,” said Lisa Derderian, Pasadena’s public information officer, when asked for comment on the Supreme Court’s decision.
FULL VERSION:
Supreme Court Declines to Review Pasadena Republican Club’s Civil Rights Case Against Western Justice Center and City of Pasadena
By Justin Chapman
On Friday, the U.S. Supreme Court declined to review a case filed in 2018 by the Pasadena Republican Club against the Western Justice Center, then-Western Justice Center Executive Director Judith Chirlin and the city of Pasadena for alleged political and religious discrimination.
“The Court declined our request for review,” Anthony Caso, the attorney who filed the case on behalf of the Pasadena Republican Club, told Pasadena Now. “The case is now at an end.”
‘Allowing your event in our facility would hurt our reputation in the community’
In early 2017, the Pasadena Republican Club rented space in the Western Justice Center’s Maxwell House in west Pasadena for $190 for their April 20, 2017, meeting, which was to feature as a speaker Dr. John Eastman, a conservative lawyer and former dean of Chapman University’s Fowler School of Law. Eastman had also previously chaired the National Organization for Marriage, an organization that spearheaded Prop 8 in 2008 to ban same-sex marriage in California.
Upon finding out about Eastman’s views, the Western Justice Center’s executive committee, which included federal judges, decided to cancel the Pasadena Republican Club’s meeting less than three hours before it was set to begin. That, according to Eastman and Caso, a clinical professor of law at Chapman and director of the Claremont Institute’s Center for Constitutional Jurisprudence, which is based at Fowler, was a civil rights violation.
“While I knew that Prof Eastman was a professor and author, we learned just today that he is the President [sic] of the National Organization for Marriage [NOM],” Chirlin, a retired LA Superior Court judge, wrote in an email to the Pasadena Republican Club the day of the event. “NOM’s positions on same-sex marriage, gay adoption and transgender rights are antithetical to the values of the Western Justice Center. The Western Justice Center works to improve campus climates with a special focus on LGBT bias and bullying. We work to make sure that people recognize and stop LGBT bullying. Through these efforts we have built a valuable reputation in the community, and allowing your event in our facility would hurt our reputation in the community.”
The Western Justice Center also adopted a policy banning political organizations from future rentals of the Maxwell House, including the Pasadena Republican Club. The Maxwell House is owned by the city of Pasadena, which leases the space to the Western Justice Center for $1 a month. The Pasadena Republican Club had held meetings with other speakers there before.
Caso filed a complaint on Nov. 28, 2018, in federal district court on behalf of the Pasadena Republican Club alleging viewpoint discrimination, religious belief discrimination and violation of the free exercise of religion in violation of the First Amendment, as well as an additional charge of conspiracy to deny civil rights against Chirlin. It sought declaratory and injunctive relief and unspecified monetary damages.
“The essence of the complaint is that they’ve taken public property and they’ve decided who can use it based upon political or religious viewpoint,” Caso told this reporter at the time. “Take your pick; both are unconstitutional.”
‘Cancel culture’
On KPCC’s “AirTalk with Larry Mantle” in November 2018, Eastman said that if the city were to rent the Maxwell House out as a public forum, “there’s no question constitutionally it would be required to lease it out without discriminating on the basis of viewpoint. The real question is, by signing a dollar-a-month lease, can it avoid those constitutional duties and pass the buck to a nonprofit organization to do the discriminating for it? I don’t believe it can do so.
“The Western Justice Center has some decisions it’s going to have to make,” he continued. “If they want to continue to discriminate on the basis of viewpoint, they can’t do that with sweetheart deals using publicly owned facilities. If they want to continue serving as an agent of the city, renting out this spectacular facility for community organizations’ meetings, then they have to comply with the Constitution just like the city does.”
Two courts, however, did not agree. According to Caso, both the trial court and the Ninth Circuit Appeals Court ruled that the Western Justice Center was not a state actor and that the city of Pasadena could not be held responsible for its actions in discriminating against the Pasadena Republican Club because “there was no allegation that the City participated in or had knowledge of the Western Justice Center’s viewpoint and religious discrimination.”
Caso argued that these rulings contradicted previous court rulings that established that a government entity isn’t required to have direct knowledge or participation in order to be held liable for the illegal activity of a private group to which it delegated authority to manage city-owned property.
Caso, on behalf of the Pasadena Republican Club, filed a petition for writ of certiorari—a request for judicial review of a lower court’s decision—with the Supreme Court on June 16.
“The Ninth Circuit’s decision allows governmental agencies to wash their hands of viewpoint discrimination on public properties by delegating away their authority,” Caso wrote in the petition to the Supreme Court. “This may be a welcome development for those entities concerned about liability in the current climate of ‘cancel culture.’ It is not, however, consistent with the Constitution. There is no ‘delegation exception’ to the First Amendment.”
The Supreme Court considered Caso’s petition at its conference on October 8 and declined to review the case.
“We’re pleased,” said Lisa Derderian, Pasadena’s public information officer, when asked for comment on the Supreme Court’s decision.
‘A deliberate warping of the Constitution’
Eastman has been in the national news recently because he wrote a memo advising then-Vice President Mike Pence to refuse to certify Joe Biden’s Electoral College votes on Jan. 6 and he spoke at Trump’s rally that morning before the crowd of thousands descended on and broke into the Capitol Building. According to Michael Wolff’s book Landslide: The Final Days of the Trump Presidency, Rudy Giuliani connected Trump with Eastman because he had recently written an article “claiming that Kamala Harris wasn’t a natural born citizen and therefore couldn’t be vice president.”
Matthew Sheffield, a conservative activist, wrote on Twitter that Eastman has a “long record of extremist activity. Eastman is anything but a ‘little-known but respected conservative lawyer,’” as he was described in a recent New York Times article, but rather “has a decades-long history leading hate groups, especially those against LGBT people. Eastman has called homosexuality ‘barbarism’ and said on video that he supported a Ugandan law that made homosexual acts a life-sentence offense. Eastman’s NOM group is intimately affiliated with the ‘World Congress of Families,’ a radical anti-LGBT group funded by Russian oligarchs close to Vladimir Putin.”
Caso wrote in the Supreme Court petition that the National Organization of Marriage “works to defend marriage and the faith communities that sustain it at the local, state and national levels. It does not advocate bias of any type.”
Eastman’s memo, revealed in Bob Woodward and Robert Costa’s new book, Peril, laid out a scenario in which seven swing states would submit dual slates of electors to Congress giving Pence cover to say there was a dispute and send the matter back to Congress to resolve.
Under Eastman’s plan, Pence would first discard the electors from seven disputed states, meaning only 43 states’ votes would be counted in the election. “Pence then gavels President Trump as re-elected,” Eastman wrote. “Howls from the Democrats, of course.”
He added that if that didn’t work, Pence should then send the matter to the House, where each state delegation, with Republicans in the majority, got one vote.
“President Trump is re-elected there as well,” Eastman wrote. “Pence should do this without asking for permission. The fact is that the Constitution assigns the power to the Vice President as the ultimate arbiter.”
This, of course, is incorrect. The 12th Amendment simply states that the vice president opens “all the certificates and the votes shall then be counted.”
“If thrown to the House, there was a twist,” Woodward and Costa wrote. “And Trump was fixated on the twist,” Pence told former Republican Vice President Dan Quayle when asking him for advice on what he should do on Jan. 6 because Quayle was in the same situation on Jan. 6, 1993, when he had to certify Bill Clinton’s win over President George H. W. Bush.
The twist was a “provision that could keep Trump in power. While the Democrats held the current House majority, the 12th Amendment of the Constitution stated the voting on a contested election would not be done by a simple majority vote. Instead, the amendment states that the election vote would be counted in blocs of state delegations, with one vote per state. Republicans now controlled more delegations in the House of Representatives [by one, 26-24], meaning Trump would likely win if the chamber ended up deciding the victor.”
Senator Mike Lee (R-UT), a staunch Trump supporter, “was shocked” when he read Eastman’s memo, according to Peril. He “knew any attempt to make the vice president the critical player in the certification would be a deliberate warping of the Constitution. Eastman’s two-page memo turned the standard counting process on its head. Lee was surprised it came from Eastman, a law school professor who had clerked for Supreme Court Justice Clarence Thomas.
“A procedural action by the vice president to throw out tens of millions of legally cast votes and declare a new winner? Lee’s head was spinning,” Woodward and Costa wrote. “No such procedure existed in the Constitution. Eastman apparently had drawn it out of thin air.”
Another problem with this plan: not one state legislature in Georgia, Pennsylvania, Michigan, Wisconsin or Arizona planned to submit alternate slates of electors. Eastman’s plan hinged on these states doing so. Wolff wrote that Eastman himself told White House Counsel Pat Cipollone that he thought the strategy was “theoretical” and “not likely” to succeed, but that it was “worth a shot” and thus recommended it to the president anyway. Despite relentless pressure from Trump, Pence ultimately decided he did not have the power to reject the Electoral College votes and send the matter to the House to decide on Jan. 6.
When Pence certified Biden’s election, Trump encouraged his supporters to march to the Capitol Building, where they overran police, broke into the building, and chanted, “Hang Mike Pence! Bring out Mike Pence! Where is Pence? Find him!” Outside, insurrectionists erected gallows. Pence was whisked away to safety, avoiding running into the rioters by mere seconds.