Compelled Speech and Public Accommodation
The Supreme Court sided with an anti-gay website designer.
Nina Totenberg, NPR (“Supreme Court says 1st Amendment entitles web designer to refuse same-sex wedding work“):
In a major decision affecting LGBTQ rights, the U.S. Supreme Court on Friday carved out a significant exception to public accommodations laws–laws that in most states bar discrimination based on sexual orientation.
By a 6-to-3 vote, the court sided with Lorie Smith, a Colorado web designer who is opposed to same sex marriage. She challenged the state’s public accommodations law, claiming that by requiring her to serve everyone equally, the state was unconstitutionally enlisting her in creating a message she opposes.
On Friday, the Supreme Court agreed with her. Writing for the conservative majority, Justice Neil Gorsuch drew a distinction between discrimination based on a person’s status–her gender, race, and other classifications–and discrimination based on her message.
“If there is any fixed star in our constitutional constellation,” he said, “it is that the government may not interfere with an ‘uninhibited marketplace of ideas.'” When a state law collides with the Constitution, he added, the Constitution must prevail.
The decision was limited because much of what might have been contested about the facts of the case was stipulated–namely that Smith intends to work with couples to produce a customized story for their websites, using her words and original artwork. Given those facts, Gorsuch said, Smith qualifies for constitutional protection.
He acknowledged that Friday’s decision may result in “misguided, even hurtful” messages. But, he said, “the Nation’s answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”
In a blistering dissent, Justice Sonia Sotomayor said that Lorie Smith’s objection amounts to discrimination against the status of same-sex couples, discrimination because of who they are. Speaking for the court’s three liberal justices, she said, “Time and again businesses and other commercial entities have claimed a constitutional right to discriminate and time and again this court has courageously stood up to those claims. Until today. Today, this court shrinks.
“The lesson of the history of public accommodations laws is … that in a free and democratic society, there can be no social castes. … For the ‘promise of freedom’ is an empty one if the Government is ‘powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].'”
I simultaneously think that the majority got the result right but that, because of the facts of the case, it provides little in the way of useful guidance going forward. The experts seem to agree, at least on the latter.
Jenny Pizer, chief legal officer for Lambda Legal, called the decision limited.
“This decision says that the laws apply effectively to everyone but doesn’t apply to this type of business, and I think there’s an enormous question moving forward,” she said. “How is this going to be applied to the range of goods and services.” that involve “some customizing, and arguably some artistry, depending on the eye of the beholder.”
So, what about a cemetery that refuses to engrave a headstone with the words “beloved partner,” or a web designer asked to simply announce the time and place for a same-sex wedding, or a tailor who refuses to make a suit for a same sex groom? Or what about the dressmaker who refused to make a gown for Melania Trump to wear at her husband’s inauguration in 2017?
Michael McConnell, director of the Stanford Center for Constitutional Law, wrote about that question in academic book chapter, and the Washington post wrote about it.
“Virtually everyone interviewed for a Washington Post story thought it was extremely important that this dress designer was able to refuse to create a gown for the Trump inauguration,” McConnell said in an interview with NPR. “And I don’t think a tailor is different from a dressmaker,” he added.
“Justice Gorsuch in his majority opinion characterizes these as a sea of hypotheticals,” observes Brigham Young University law professor Brett Scharffs. “What he had to say is that these cases are not this case.”
University of Virginia law professor Douglas Laycock says there likely will be many follow-up cases, probing the outer boundaries of Friday’s court decision. But, he says, “the core of this is you can’t be compelled to use your creative talents in service of speech that you fundamentally disagree with. That’s a pretty clear category.”
“My prediction is that we will not see a lot of these cases” says Yale law professor William Eskridge, who has written extensively about gay rights. “Most religious people, including fundamentalist people, do not want to discriminate against LBGTQ persons, particularly in their commercial businesses,” he says. And most LGBTQ don’t want to sue.
Indeed, Lorie Smith is hardly the only website designer in the country. There’s no shortage of highly talented people who would have been happy to design this website. Why go through the trouble and expense of suing rather than just moving on to someone else?
While this case has been cast as yet another case of religion being allowed as an excuse for bigotry, it actually involves the Freedom of Speech clause of the First Amendment, not the Free Exercise Clause. The Supreme Court, regardless of its ideological composition, has been adamant since West Virginia State Board of Education v. Barnette (1943) that government can’t compel citizens to engage in speech with which they disagree. That case involved the state requiring school children to salute the flag each morning. Subsequent cases have, for example, upheld the right to cover up the state’s “Live Free or Die” motto on a license plate.
Now, this particular case is different in that it was reasonably argued that Smith was operating a public accommodation. But the distinction at work is the same as it was in the Masterpiece Cakeshop case: this was judged to be a creative work that could be seen as the creator’s expression.
A baker can no more refuse to sell cakes to gays than he can to Blacks. But he can refuse to write custom messages that he disagrees with. Ditto a website designer.
It’s noteworthy, as David French points out, that “the majority opinion was written by the same justice, Neil Gorsuch, who wrote the majority opinion in Bostock v. Clayton County, which extended the reach of Title VII to protect gay and lesbian Americans from employment discrimination.”
This case is emotionally charged because the creator in question is seen by many as a bigot because the “victim,” as it were, is part of a group that faces significant discrimination and is fighting to end that.
So, let’s take both religion and protected class out of it.
Should the hypothetical dressmaker above be allowed to refuse to make an inauguration gown for Melania Trump? I would hope so.
Should a baker be allowed to refuse to make a MAGA cake? I would hope so.
Should a website designer be allowed to refuse to create a website for the local chapter of the Ku Klux Klan? I would hope so.
“As long as we deliberately decide to ignore the central issue, this ruling is not problematical.”
Well, OK then.
Protected classes are protected precisely because this is deemed necessary to create and maintain a just society. Them actually being protected is the point!
A couple thoughts here:
1. The suggested harm was entirely theoretical. Entirely. This is the person who lied about having somebody contact her about doing some work, and presented it as an actual fact to the supreme Court. I would not be surprised if her lawyers get sanctioned. This is a very strange situation for the court to decide a case like this based on entirely theoretical grounds where no harm has been shown, and no injury has been shown.
2. You elide the scenarios that she might engage in discrimination over. What about miscegenation? What about just generally black people buying a house? She actually lists on her website that she will discriminate against atheism. That’s a protected religious class. She will not discriminate against Muslims and Jews, apparently, but she will discriminate against atheists? So she just gets to decide who she discriminates against? I recognize this is the “creative class”, but drawing a boundary around that class and saying that they can both hold themselves out as a business and not adhere to any other laws is frankly mind-boggling.
3. These kinds of discrimination decisions ultimately lead to de facto segregation and widespread social animus towards specific classes of people. That is exactly why the law is so distinct about how you may or may not conduct yourself as a business. If the grocery store decides not to serve black people, black people might not have a choice in a community. You say there are millions of web designers, but what about creative services that are only available locally? You bring up the gravestone – a great example – but burial itself can imbue meaning. Spouses buried next one another is quite common. Can the cemetery now decide not to accept my burial because I’m gay? Is that a creative act? What is the line on this creative act?
4. “Supporter of a political candidate” is not a protected class. It has never been a protected class. This is a clear line that nobody would suggest a creative must engage in.
5. At the same time, what does this website designer think a same-sex couple will ask her to put in a website? Happy photos? Messages of love? It’s clear that they aren’t going to give the person photos of them having sex. She can make design choices to avoid showing them engaging in most physical contact. In fact, she could perform her duty poorly and not include photos at all! There is no duty to perform to the best of her ability in any task, but there is a duty to engage with any patron who asks.
6. All potential harm here is self-induced. Messages on her websites must conform to some weird code of hers? The law is not the thing that would cause her harm, her own stupidity would.
@ptfe:
Well, any old port in a storm, as they say. The conservatives wanted businesses to be allowed to discriminate against gay people, and this was their opportunity. The actual facts are irrelevant.
What website? For which see @ptfe: Roberts and his bunch were so eager to reach this result they participated in a fraud. One would hope, but doubt, the state bar associations of the plaintiff’s attorneys have taken note.
But not to worry. This is only an issue as long as gay marriage is legal, which may not be much longer.
Living like a Christian is hard. Ignoring 90% of what Christ actually said and glomming onto any weak excuse to treat a fellow human being like shit, why, that’s easy.
I think it boils down to the amount of “creative” that’s actually involved and how direct the message is. For the cake maker, “Write me a poem in icing celebrating my marriage” definitely compels creative speech. Writing a stock phrase such as “best wishes Carl and Joe” does not and, in contrast to James, I feel it clearly falls into public accommodations. The dressmaker is a little harder. If it’s a case of a dress design she has sold a number of times, “off the rack” if you will, but altering it to better fit and that’s a service she regularly provides to all her customers, I feel that goes under public accommodation. But if the request is to create something new specifically for the person or event, then I think it falls under artistic expression.
Oh, you can go further. Should a transgender baker be allowed to refuse to make a “gender reveal” cake that assigns the infant a gender at birth?
@MarkedMan:
This is a red herring, IMO.
Let’s look at the examples used in the OP:
Going to school and using license plates are things that the state imposes upon its citizens. A citizen cannot simply say: “I won’t go to school,” or “I won’t use license plates.”
However, nobody forced the website designer to either take commissions or to do any work related to weddings. That was their choice. But once that decision gets made, discrimination against protected classes becomes illegal (well, no longer, but you get my drift).
Similarly, it’s completely legal to believe that women are inferior to men. But once you start a business, you cannot put out job ads that discriminate against women. Can a gender-neutral job ad be construed as compelled speech? No, because starting a business is a choice.
Not discriminating against protected classes is simply the cost of doing business, like adhering to minimum wage and job safety regulations.
This is (or should be) about protected classes and public accommodation. The rest is a distraction to justify the unjustifiable.
Hmmm… wonder how many other services offered in society are ‘creative’? Landlords make an effort to beautify & landscape their rentals. Sounds creative. Plenty of creative work by lawyers.
If the goal had been stated as ‘make gay people unwelcome’ it would have been a shot straight through the 10 ring.
If you look at what people DO not what they SAY it is simple to understand.
@JKB:
While this was obviously meant as a “gotcha,” the answer is pretty simple actually.
The answer is yes if the baker doesn’t make any cakes related to infants and gender.
The answer is no if the baker does make cakes celebrating, let’s say, the non-binariness of infants (whatever that means).
The answer is also yes if the baker doesn’t take commissions and only sells pre-made cakes.
@drj:
I’m curious if we really fundamentally disagree or just differ on where the line is drawn. Two cases that I feel are pretty clear.
1) I came across a “street poet for hire” in Denver and asked him to write a poem for my wife. In your opinion if I had asked him to write a poem in favor of or opposed to abortion would he be obligated to do so?
2) Suppose there is a professional freelance writer who frequently takes assignments from editors. Under what circumstances can they refuse an assignment?
From my first read through I saw nothing in this case that was limiting at all. I woke up this morning with less rights than I did when I woke up yesterday. Dr. Joyner, through this website you know people that will be harmed by this decision and its progeny.
This case, on its own, it’s fairly meaningless. It’s a bullshit case that will go down in history as a joke. In the meantime, this, the baker case and the hobby lobby case WILL be used to build de facto discrimination. All commerce requires some sort of speech. Can a Christian landlord refuse to rent to a queer person? They have to communicate things like the rent? How is that not compelled speech? For the clerk at Hobby Lobby to sell me some crap they have to talk. How is that not compelled speech. I’m not the worlds greatest litigator. I could take these cases and have an easy romp to SCOTUS with a case that would validate these things. Are you comfortable with that?
You point out that Gorsuch authored Bostock. I’ll take that seriously if when the inevitable case case where a Christian claims to have an unfettered first amendment right to discriminate comes in front of him. You and I both know that’s coming. I’ll take Gorsuch seriously if he rules against the Christian.
@JKB:
You’re a moron. Trans people aren’t that thin skinned. We’ll take the money.
It didn’t come up in either the appellate decision or the SCOTUS decision. None of the three courts that looked at this case found that relevant.
“Indeed, Lorie Smith is hardly the only website designer in the country. There’s no shortage of highly talented people who would have been happy to design this website. Why go through the trouble and expense of suing rather than just moving on to someone else?”
You realize there was no gay couple trying to acquire her services? The entire case was faked. How it got there… who knows?
https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court
If money is speech, I want to make absolutely certain I’m never financially supporting these people. They should be required to post something on their doors/websites clearly stating that they discriminate, so that I can shop elsewhere. I don’t want to unwittingly give these people a cent.
Not a good look for the Supreme Court to use fake cases with imaginary, hypothetical injuries to self-righteously rewrite and invent law, needlessly putting itself at the center of divisive controversies. This leads to inevitably dishonest, error-riddled opinions that further erode the court’s reputation as its “conservative” (extremist) bloc eviscerates precedent and embraces partisan judicial activism. They should not so shocked at increasing public emnity and backlash — but maybe some really are as obtuse and naïve as anyone who falls for ‘originalism’ must be.
Here’s Gorsuch: harping on Colorado abrogating free speech rights — factually untrue as there was no creative services website, no gay couple, and no speech request. The dispute was made up by a prejudiced plaintiff with dishonest antigay backers. A truly conservative court would have dismissed the case and told them to come back upon actual injury.
There’s Roberts: insisting Missouri was injured by the government giving some borrowers a loan writeoff, because the state-created student loan corporation (MOHELA) would suffer financial loss. This is egregiously false. Missouri statute created MOHELA, yes, but as an independent corp. MOHELA itself refused to help the state with this lawsuit, because MOHELA’s own audit showed Biden’s student debt plan would increase MOHELA’s revenues by nearly $100 million yearly, the opposite of injury.
None of which mattered to the lying Missouri Attorney General and our hapless Chief Justice, who threw the SCOTUS-equivalent of a hissy fit in his lawless decision over Kagan’s dissent calling out these lies (in the genteel SCOTUS-equivalent way of doing so lol). This case could have easily been dismissed on simple grounds: MOHELA suffered no injury, Missouri lacked standing to sue.
SCOTUS deception is becoming a pattern. Alito’s dishonesty about the long history of legalized pre-viability abortion in his Dobbs opinion are already notorious. And Gorsuch last year claimed the football coach who sued to pray at games merely sought silent and solitary prayer, implying his religious expression would not be coercive to students. Photo and video showed said coach praying with a group at the 50-yard line; testimony had him inviting students to participate.
Are clerks not supposed to fact-check their assigned judge? Is that passé?
I expect Democrats to capitalize politically on the Court’s self-inflected integrity stumbles.
@MarkedMan:
1) Pro-/anti-abortion are not protected classes. Thus, the poet could have refused.
2) Under any condition that doesn’t involve discriminating against protected classes.
However, what makes things more complicated with your second example is that there can be genuine issues of knowledge, skill and expertise (in much the same way that a men’s tailor is not necessarily obligated take on an assignment making women’s clothes).
Also, freelance writing as you describe it is very likely to fall outside the scope of what we consider public accommodation.
(I would assume but am not certain that street vending – as in your first example – would fall within the scope of public accommodation.)
Just to reiterate: no one went through the trouble and expense of suing her. She and the antigay groups backing her made it all up.
@drj: Interesting. Let’s set aside whether something is illegal. What is the morality of the cases I propose? What moral obligations do the vendors hold?
@jpe77:
Maybe. I wouldn’t assume that none of the dissenters found the factless nature of the case irrelevant.
@DK:
Suing wouldn’t have been misplaced, though.
“We don’t serve blacks.”
“Why go through the trouble and expense of suing rather than just moving on to another establishment?”
Answer: Because a democratically elected legislature has decided that this isn’t how things should be allowed to work.
@MarkedMan:
Obviously, you don’t want to legislate everything with a moral dimension.
However, considering the actual history of the treatment of certain groups of people in the past, a democratically elected Congress has decided that it would be proportionate to offer these groups additional legal protections (and put commensurate limits on the liberty of others.).
Looking at the actual historical past, I think that is defensible.
Which means that I don’t really see the point of setting aside what should and shouldn’t be legal. Legislation is an appropriate tool to correct otherwise ongoing historical injustices.
@MarkedMan:
I am trying to think all of this through, so let me ask: what if the street poet for hire in question states that he writes romantic poems for a fee, but expclitedly states that his service does not include politics, sports, religion, or anything other than romance (the same way a baker might only make cakes but not bagels).
Should they be a able to state: only heterosexual romance?
@MarkedMan: You’re actually trying to engage “the line”, which is really what this case should have tried to address. But it didn’t.
My feelings on this line: If you hold yourself out as a registered business, you cannot simultaneously assert that you will discriminate while doing so. An atheist who does party cakes with sayings gets a Christian client who wants a party cake that says “God is in all things!”? Write it down. You don’t get to deny the Christian and their beliefs just because you don’t agree with them.
“Holding yourself out” has very specific legal implications, but the line between offering your services and holding yourself out can be quite tenuous.* In this case, the person is demanding the rights and privileges of a business owner holding themselves out without the responsibilities. They want to span legal contexts, and SCOTUS was like “sure, cuz…GAYS.”
I’m actually more appalled in this case by the court taking up a complete hypothetical as though it has some merit. SCOTUS dismisses cases all the time on standing for lack of harm. Here, they took a case that 1000% should not have appeared in front of them, and came to a decision that strikes down a protective state law (and will have rippling consequences elsewhere!) as a result. The feeblest reasoning was needed to get before this court, presumably because the case addresses a Right-wing bugbear.
What will these goons take aim at next? I am perhaps hypothetically injured by Obamacare because with more people in the insurance market, my care is diluted and therefore I might not get services! Wait, I can’t prove it? Someone (who knows who? who really cares? nobody is checking this anyway!) just sent me an email: “From Dr Nick – We cant do sir Jerry because there r 2 meny poors at are hospitle hear.” This SCOTUS has just announced they’ll buy it.
* This is, like, 50% of what’s discussed during the commercial pilot oral exam, because it’s not trivial, it’s not always clear, and the legal implications for pilots are vastly different.
@drj: I agree with you that laws protect certain classes, but I’m curious what you think the morality is here. Feel free to ignore if you feel it’s private.
@Steven L. Taylor:
Exactly! Where is the line? Two issues here: legal and moral. I don’t think it is moral to reject someone for who they are, as long as it does no harm to the non-consenting, and as long as my creative process renders it possible. For instance, if I made my living writing poems for hire and someone asked me write a poem celebrating S&M I would give it a go. But if my creative process required me to assume the perspective and live the moment, I’d have to refuse because, being perfectly frank, I find the whole bondage thing ridiculous. It would make feel a fool to envision myself in that situation and I don’t think there is any moral obligation to do so.
What about being asked to celebrate a belief I find abhorrent? I don’t see any moral obligation to do so. In this crowd I can take the moral high ground by talking about refusing to write the “Yay Nazis!” poem, but I can pick a tougher one. I find many Evangelical beliefs to be repugnant. Or even tougher, Falun Gong, who have been immorally persecuted by the Chinese government for their beliefs, but I consider those beliefs harmful. In the end though, I think it is morally OK to refuse based on beliefs.
Legally is a different matter. I think the Court has the right differentiator. Are you refusing to sell a commodity or are you refusing to create something artistic that requires an investment of your integrity? In the first case, no discrimination. In the second, free to discriminate. But of course, commodity versus art isn’t a binary function. There is a range and as ptfe points out, engaging that line is difficult.
If you hold yourself out as a registered business, you cannot simultaneously assert that you will discriminate while doing so. An atheist who does party cakes with sayings gets a Christian client who wants a party cake that says “God is in all things!”? Write it down. You don’t get to deny the Christian and their beliefs just because you don’t agree with them.
There’s just a common sense difference between creative work and having a business where you sell creative work. Actors can refuse to take roles they’re offered. They can stipulate in contracts they won’t do nude scenes, for example. But they can’t refuse to work with a class of people. Why? Because there’s good discrimination (called taste) and bad discrimination (called bigotry). The law can’t do anything about taste. But it can do something about bigotry.
If an interior designer does not give your house the right vibe, you can find a way to sue them for breach of contract based on deliverables, but you can’t sue them for making an ugly room. And if they refuse to do work for you because you’re black, you can sue them for that. Likewise, you can be a chef and make an avant-garde meatloaf, and your customers can’t sue you because it’s gross. But they can sue you if you won’t serve your creation to two men who are on a date.
The logic of the case has been in the works for a long time. They lied, because Jesus loves it when you lie in court, and it won’t stop until there’s a long list of what Christians can do to others, legally.
@Jen:
Ah and if money is speech (Citizen’s United?), then when will be the first (successful) lawsuit that taxes are unconstitutional compelled speech, especially when spent on something that a person claims to have a supposed “strongly held belief” or “religious conviction” against?
Maybe that’s already happened in the lower courts or by extremists that have not been taken seriously so far, or at least widely reported or remembered?
@ptfe:
What if the requested message was “Non believers are damned”? Or, “A man shall not lieth with a man”? “My god says a woman is a second class citizen”?
As for me, I’d be pissed off, but still feel it’s basically a commodity. But the law typically provides exceptions for obscenity and these approach that territory.
@MarkedMan:
It’s not so much that it’s private as that I would be reluctant to impose my morality on others (as I would expect others to be reluctant to impose their morality on me). But sometimes there are historical injustices that need correcting, in which case I think some of that reluctance should be left behind.
It’s a bit like affirmative action. Do I like it? Not at all. But considering the world we live in, I feel think that it’s the significantly lesser evil compared to not addressing existing historical injustices, and therefore generally proportionate.
@MarkedMan:
For instance, if I made my living writing poems for hire and someone asked me write a poem celebrating S&M I would give it a go.
It’s not even an issue. Actors do creative work which is completely for hire, and nobody can compel an actor to do hard-core porn. Christians want to validate a belief system which gives them the right to treat everything normal as if it were abnormal. The debate is simply about whether or not bigotry can be allowed to operate publicly as a protected belief system.
@Kazzy:
Pre-enforcement challenges are pretty common in all sorts of areas. Pre-Dobbs, for example, no one had to wait for a criminal case to be brought before litigating the constitutionality of an abortion restriction.
@Beth:
Bwa hahahahahahahahahahahahaha 😀 😀 😛 😛
@Kazzy:
That’s the part of this that’s been fascinating me about it. How did a case about a complaint that doesn’t exist get to the point that it becomes able to be appealed? How is it that when the gay couple failed- to appear in court to defend their claim that she had to make a website for them that there was still an issue to decide? Do the courts really have time to decide hypotheticals? Doesn’t the judge in the initial case have real work to do?
@DK:
While I’m here, how is this different from the guy in (??) New York (??) who had his case dismissed when ChatGPT made up citations to cases that didn’t exist? He deserves an apology if the court system is pulling crap like this.
@jpe77: Aha! I should have waited until I read further to ask my question.
(And, given this point, I conclude that judge in question doesn’t have real work to do. Thanks…
I guess.)
No one sued her. She pre-emptively sued Colorado over the law, because she wanted to put a “no gays allowed” tag on her new wedding website company’s own website, and claimed that gay people were contacting her to build a website celebrating their big gay marriage.
There were no gay people in SF contacting her, and there was no actual wedding website business at the time*, but the case is about hanging the “no gays allowed” shingle on her business rather than any creative expression in her business — her business never got to the point of creative expression.
We would expect that a wedding website designer might object to certain straight marriages — for instance if Woody Allen were to marry his daughter, or if the couple wanted a “we will be signing legal documents and moving forward towards 7.5 years of drudgery before a likely divorce” website, or a pro-eugenics “marriage among the master race” website — and that would be well within their rights.
The question is whether the business can hang the “no gays allowed” shingle, and pre-emptively reject a protected class of clients before even getting to the creative work.
The forced speech here isn’t the website, it’s the state saying “you cannot hang a ‘no gays allowed’ shingle on your business” and the bigot saying that this blocks her free speech.
Given the history of this country, I’m very comfortable saying that businesses that open themselves up to the public may not refuse to provide services to protected classes. (And no “ironic” signs about “no colored people” or whatever)**
If the bigot wants to litigate once it gets to the point of actual creative work, that’s a legally separate matter.
——
*: was this all to get publicity for Bigot Website Designs? Maybe!
**: I think that if there were other businesses nearby providing similar quality services at a similar price that were not excluding a protected class, that you could make an interesting argument that the excluded people were not being harmed, and so the entire thing should be re-evaluated, but we have seen that “separate but equal” was never equal. The bigots ruined that argument for themselves.
Meanwhile, as noted in Digby’s place a business is already posting signs saying “Since the Supreme Court had ruled that businesses can discriminate… NO SALES TO TRUMP SUPPORTERS” and “We only sell to churches that fly a pride flag”.
@jpe77:
“No one” is too. Pre-enforcement challenges are supposed to be (used to be) factually developed: at least some of the existing facts needed to show potential for injury.
If I wanted to launch a pre-enforcement challenge to an abortion restriction that would risk my health in a future pregnancy, but I’m a 70 year-old man, that’s not a factually developed challenge. The courts should reject my dispute.
A case where the plaintiff didn’t yet have a functioning creative business and lied about being contacted by a same-sex couple (the mentioned requestor is considering a lawsuit because he did not contact her and is not gay) is not factually developed in my view. The reinforcement challenge should not be predicated on falsehoods.
The court’s conservative block disagrees, but they seem to be making a lot of bs up as they go along. I just can’t get over Alito claiming pre-viability abortion had no roots in US history, when legal pe-viability abortion has a longer common law history here than laws restricting abortion. He has access to the best research tools imaginable, and yet allowed himself to be fact-checked by Google.
I get that Alito imagines himself a Fox News pundit, but he should put aside the Fox News style fabrications when crafting his decisions.
@Just nutha ignint cracker:
Because you’re entirely wrong about the scope of the case, who filed against who, etc. 😉
It’s preemptive challenge filed the business against the state of Colorado. The fake gay couple* are supporting documentation, not a party to the case.
So the system isn’t so broken that one party fails to show up and wins anyway for a long series of appeals.
Instead we have no fact checking by anyone, anywhere on semi-material** facts in the case. No lawyers contacted the man. No reporters contacted the man. It just went on without anyone questioning his existence or whether it was real, in one of the highest profile court cases of the year.
That should make you feel queasy in an entirely different way.
——
*: the guy named is a straight, married web designer living in SF, and who had no idea he was mentioned until recently.
**: the aggrieved party is the business that is being prohibited from saying “no gays allowed”, so I’m not sure the potential customer is even required.
@Robert in SF: I actually think this has been attempted to litigate, from several angles, including someone who had a religious tradition that opposed war (Quakers, maybe?) and tried to not pay taxes on the grounds it went to the military, and then libertarians trying to oppose all taxes.
I’ll see if I can find the cases, but IANAL, this is just vague recollection.
ETA: well, I seriously messed up the details (Amish employer who didn’t want to pay social security taxes was the first case). US v. Lee (1982)
https://www.mtsu.edu/first-amendment/article/766/united-states-v-lee
@Jen:
As I suspected and why I added that last paragraph! It’s too simple a concept not to have been proposed, if not actually litigated.
But now the Supreme Court had enshrined these 2 synergistic rulings, it’s only a matter of time I imagine before some supposed libertarian funds the case while a Democratic President is in office.
I suspect wedding cakes and websites are the wrong hills to fight for anyway.
When you force people to act in ways they do not wish to with it brings out a special kind of stubborn. Pick the important matters, fight like hell for them and conceding the trivial. Hollow victories can be as demoralizing as defeats.
@dazedandconfused: like admission to an ivy university?
Counter:
I’m gay. I’m an atheist. I think the idea of religion is idiotic and abhorent. I start a business as a wedding planner. I take care of everything (through subcontractors) from the clothes to the cake to the meal to the website to the registries.
My business is 100% targeted at the LGBTQIA+ community.
John and Jane–an absolutely devout evangelical Christian couple come to me an insist that I need to plan their wedding–their very white-only, evangelical, Christian wedding.
Religion, race, and sexual orientation are protected classes.
Should I be required to do what they ask?
Are your rules universal? Or do they only apply when they align with your ideas or advance your agenda?
I disagree with these “I won’t serve gays” people. I believe they’re absolutely wrong in their interpretation of the Bible. And a perverse part of me hopes that St. Peter exists–because I really want to be there when they show up and get sent to Hell.
But… here, now, our laws need to be agnostic. Push for more freedom, push for more protection, push for more expansive interpretation of rights. But you must do it universally. The minute you say “These protections only apply to the people I like”, you create an opposition. And an opposition always has more incentive to fight–harder and longer.
The answer in this case is not to punish the person who won’t make a website for a gay wedding. It’s to step up and highlight all the other people who will.
This is one case where “the market” really does have power. There are thousands of people–just in the US alone–who will build an amazing website for people getting married–regardless of sex, gender, sexuality, or even number.*
It makes us all look childish and petty when we take this shit this far. “WAH! This one person won’t do what thousands of others will happily do! I’m being oppressed!”
No.
=======
Hell, I’ll do it for the right price (just don’t ask me to do the photography). I’m even ordained, and can officiate.
@MarkedMan: “2) Suppose there is a professional freelance writer who frequently takes assignments from editors. Under what circumstances can they refuse an assignment?”
A freelancer can always refuse an assignment. There are potential consequences — do that enough, and editors will stop calling. But a freelancer is never obligated to take an assignment, that’s one of the advantages to being a freelancer — if an editor wants a writer who will do whatever he’s told, he’s got to put him on staff.
But this doesn’t really have anything to do with the case at hand. A freelance writer isn’t a public accommodation.
@Mu Yixiao: “The answer in this case is not to punish the person who won’t make a website for a gay wedding. It’s to step up and highlight all the other people who will.”
And who cares if the water fountain says whites only? There’s undoubtedly another water fountain around here that Black folk can use! See, no problem!
@Mu Yixiao: “John and Jane–an absolutely devout evangelical Christian couple come to me an insist that I need to plan their wedding–their very white-only, evangelical, Christian wedding.”
Why not? Is there actually anybody anywhere in the world who believes that a party planner, or a website designer, or a baker, has to stand behind the message of the party or the website or the cake?
It’s a non-issue, and only exists because so-called Christians want to hurt people they deem less than themselves.
@Mu Yixiao: You seem to be confused about the details here, which at this point in the thread seems willful.
The complaint was preemptive – there was nobody complaining that the company would not act appropriately. The company sued the state to prevent the state from implementing a law that would crush her when she put out the “NO GAYZ!” sign.
Indeed, an Evangelical Christian hiring an atheist, gay wedding planner would expect…a whole different result than one planned by their Evangelical Christian fellow congregant. This isn’t hard: the wedding planner can’t hang that shingle and then be like “but not the Christians”. You appear to think this is a gotcha situation where progressives would be like “YEAH STICK IT TO THE EVANGELICALS!” when almost literally nobody is in that camp.
The “WAHHH” is coming from the Christian bigot who wants to tell gays to stuff it. She created a suit, she likely invented a potential client, she pushed this to the highest court so she could claim that a law insisting on equality is unconstitutional.
@Mu Yixiao:
If you’re a wedding planner who only does gay weddings and you aren’t in Provincetown or Fire Island you may want to rethink your business model. Regardless, I’m fairly certain most gay people who live in places where they have to deal with evangelicals have figured out ways to get on with their lives, especially those who go into a business which caters to the public. The most honest thing this all-gay planner could say to the trad wedding couple is that maybe they aren’t the best person for the job, which is totally legal.
Your hypothetical is dumb and hysterical.
@dazedandconfused:
From any normal standpoint, businesses can not have the right to discriminate. They just can’t. A gay couple driving at night who needs a hotel has to know they are not going to be discriminated against. Conservative Christians want desperately to have the right to be exempt from treating gay people like citizens, and they are trying to sleaze their way into this position.
@MarkedMan:
I am a professional freelance writer; most of my work is PR and public policy writing. I can turn down assignments for a variety of reasons: not having sufficient time is the biggest one, but given my work, there are some I would turn down on principle if they ever came my way. The question is really whether I provide the reason when I turn down the assignment. Let’s say Client A comes to me with an assignment from…Judicial Watch. I can say either “absolutely not, those clowns are morally bankrupt,” or I can say “given my current book of work, I’m not able to take on another project right now.” Either one could be the case, or even both.
The first answer may or may not burn a bridge, the second one doesn’t. They both get me out of the assignment, but the second leaves the door open for more work.
But, ultimately, @wr: is correct, this doesn’t have anything to do with public accommodation.
@Gustopher: Yes. Thank you. I’m understanding the country I live in less each passing day. It’s a good time to be old–even if DK thinks I shouldn’t be able to sue to get the right to have/block an abortion I’m not a principal to.
I’ve never been this person so far, but I’m starting to root for emphysema (and I know how crappy it will be to die from 🙁 ).
@Mu Yixiao:
While I know this is not what you’re intending, yes, I would t take the job if only for the pleasure I would get fwking with their heads. But I think this goes back parallel to what Beth was saying earlier about trans people being willing to take people’s money because they’re not as thin skinned as
youothers.ETA: For example, I would hire the very best female/male impersonator ever to sing the wedding’s theme song. (And make sure that person got invited to the reception in their actual persona.)
For myself, I’m more interested in the moral questions than the legal ones, but I recognize that’s a minority opinion here. So let me propose a harder question on where the law comes down. Religion is a protected class. The Westboro Baptist Church comes to you for a website design. It seems to me that everyone here is saying that you should be legally required to take the job. Is that right?
@Modulo Myself:
True, but from any common sense standpoint you would not want to eat a cake that you have forced a cook who despises you to make.
@MarkedMan:
Nope.
Even if you’re not allowed to say “I don’t serve Christians,” you are allowed to say “I don’t serve people who protest at funerals.”
“People who disturb funerals” is not a protected class.
@MarkedMan:
Well, I’d probably recommend they change the url of their site from godhatesfags to jesusisqueer, and then see if they want to hire me.
@MarkedMan:
Just speaking for me, I think we should focus on real disputes and real injuries, not the kinds of hypothetical made-up ones preferred by the Trump Court.
@Mu Yixiao:
To whom does “we” refer?
Because again: no gay couple asked her to design a wedding website for them. Nobody sued her. She and her gay-hating backers invented this dispute.
Gay people were busy minding their business, not knowing about or caring about her until she decided — out of thin air — to put them on a slippery slope to potential second-class citizenship from her own paranoid prejudice and self-righteousness, with the assist of an evangelical and papist court majority spoiling for a fight.
@drj: Hmm. @drj:
Makes sense. What about a non-Westboro bit still anti-gay church, one that doesn’t protest at funerals?
@Mu Yixiao:
Yes. Assuming it fits into the schedule, etc. As you point out, religion is a protected class.
If you’re a wedding planner, you plan weddings. It’s a party with a boring part. It’s a pretty standard party with a boring part. There is minimal personal expression or creativity involved on the part of the planner, or anyone else involved.
If they want it in the Westboro Baptist Church and with “God Hates Fags” banners, then you can quibble. “I’m sorry, the pastor said he won’t work with a known sodomite” or “you might be more comfortable fucking off.”
But if they treat you with respect (you can always fire a customer who doesn’t treat you with respect) then you treat them like anyone else.
How is this hard?
@MarkedMan:
Have you ever seen their vines, back when vine was a thing. They were amazing.
Cute young woman offers you/the-camera a cupcuke from a tray. Hand comes out takes cupcake, underneath is a small note that you’re going to burn in hell. Truly awesome.
I think they would have a very particular set of requirements for the person building the website that you aren’t going to meet. You’re fine.
@Gustopher: I think I’m pretty much on the same wavelength as you. But I like to play out what consequences of a rule manifest in real life.
@MarkedMan:
Well, at some point it becomes tricky.
If you can’t discriminate based on religion, obviously you can’t discriminate against people who pray (or don’t pray). Because I would say that praying (or not praying) can’t be realistically separated from the protected class.
But can anti-gay expressions be separated from the protected class “religion?”
I think it can because there are plenty of religious people, including Christians, who don’t hold or express such sentiments.
But at some point, that separation disappears. Can you refuse service because people expressed the belief that those outside their specific religion will go to hell? I’d guess not.
But you’re getting terribly theoretical now. In actual reality, there exists very little appetite to discriminate against people outside the usual scapegoat categories (non-whites, women, non-Christians, sexual minorities, etc.).
@drj: It need not get theoretical. Many verses in Christian Bible have long been used to justify the inferiority of blacks and to oppose racial/ethnic mixing. Examples of the latter are especially plentiful.
I’d morbidly enjoy the fallout of photographers, wedding designers, jewelers, cake-makers etc refusing interracial couples on explicitly religious grounds, since this is now legal in all 50 states. But as much as I hope for this to happen to see Republicans squirm, I’m guessing the right doesn’t go that far in numbers enough to elicit outrage, a la the litany of women’s health horror stories that followed Dobbs. Conservatives need plausible deniability about their bigotry, lest they alienate more educated and moderate whites.
@MarkedMan: @drj:
It just is not tricky. Religion might be a protected class, but no freelancer can be forced to do work for religious organizations. Some church can’t sue a random freelance copywriter who does work in fashion and art because they don’t want to write copy for their site. ‘You have to work for me’ is not what being a protected class means.
Can the ISP refuse to provide service to the web designer as a violation of its rules? Or can they be compelled to carry the bigot’s work which I’m guessing includes a lot of bigoted stuff.
I have always been under the impression federal courts in America were prohibited from issuing advisory opinions. Yet isn’t that exactly what they have done in this matter, by issuing a decision based on entirely hypothetical events?
@drj:
Religion is a suspect class. Sexual orientation is not. Just saying…
@HarvardLaw92: It’s a protected class under Colorado law, though, no?
@HarvardLaw92:
Somehow I suspect that rational basis scrutiny would have caught her out…
@James Joyner:
That isn’t material. Colorado laws which propose to impinge on rights have to function within the federal constitutional framework. I don’t agree with the situation, but religion is protected at a level of scrutiny which isn’t afforded to sexual orientation. From the viewpoint of current constitutional precedent they are not the same and are not protected in the same way.
@drj:
Possibly, but it’s a moot point. Restrictions on / regulations affecting speech are subject to strict scrutiny.
You can be sure, however, that this issue will be revisited by this court repeatedly in the coming years.