In the recent case 303 Creative v. Elenis, Lorie Smith asks the Supreme Court not to allow Colorado to force her to create websites for gay marriages. A day before the ruling was handed down, it was discovered that a customer request for just such a website, which was part of the judicial record, was fake.
This has prompted an outpouring of fury from liberals who believe the Court has been lied to—and since there's no longer evidence of specific harm the case should be summarily tossed out for lack of standing.
This needs to stop. This case never depended even slightly on the existence of an actual request for a website. All sides stipulated that standing to sue was based merely on a prospective "credible threat" that Colorado might force Smith to create a website that violated her deeply held convictions. That's it. This was accepted almost without discussion, and Sonia Sotomayor didn't breathe a single word of objection in her dissent.
Standing, for better or worse, is simply not an issue in this case. It was decided solely on the merits. The majority says it's a cut-and-dried First Amendment case: the state has no right to compel unwanted speech, even if its expression is related to the actions of a protected class (gay and lesbian customers). The dissent says that public accommodation laws do indeed force public businesses to provide "goods and services" to all customers equally, even if speech is incidentally involved:
Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class....The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong....The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.
....For as long as public accommodations laws have been around, businesses have sought exemptions from them....This Court was unwavering in its rejection of those claims, as invidious discrimination “has never been accorded affirmative constitutional protections.” In particular, the refusal to deal with or to serve a class of people is not an expressive interest protected by the First Amendment.
The majority bases its decision on a very thin distinction indeed: Smith, they say, is innocent of illegal discrimination because she has said she will happily serve LGBT customers; she just won't sell them what they want. Soyomayor is unimpressed with this sophistry:
LGBT people do not seek any special treatment. All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else....The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms.
This is what the case is about. Can a state compel a business open to the public to treat the entire public equally, even if speech is incidentally involved? Or is the speech in this case far beyond "incidental" and therefore outside the state's legitimate interest? That's it. Standing never even comes into it.
Most people who practice law or have legal expertise know that standing requires an actual conflict, not a possible conflict or a hypothetical conflict. No fictitious lawsuits or test cases. That may not be how lay people understand things, but for lawyers it’s drilled into us.
One of the problems with SCOTUS is that many of the justices have no real-world litigation experience. (There are exceptions.) They are academicians or bureaucrats more than they are lawyers.
Some folks here are using a web designer's refusal to produce a KKK gathering website as an analogues situation. The right example would be a wedding web designer refusing to work for a couple who belong to the KKK, and who are only looking to have a website to promote their wedding. Such a refusal being based solely on who they are, and not the type of work being asked to do. In this situation, the designer would be in the right if they refused to include racist, or violent content on the website, or if the wedding was to be followed by a cross burning or similar activity.
More likely than not, the only difference between a wedding website for a straight couple and gay couple would be the names of the folks getting married. So the whole 303 Creative issue is just utter bullshit.
The first thing wrong here is that there is no actual wedding website designer. The bigot who brought the lawsuit doesn't actually work making wedding websites, she only claimed she might at some point do it in the future (to this day she still doesn't do wedding websites for anyone) and felt "oppressed" about a potentially gay couple asking her to do a website in her pretend business, and she having to provide the service that goes against her firmly held bigotry.
When I looked at her site back around the time this case came on the national radar it appeared that she made her stock in trade websites for GQP candidates and organizations.
I’m not a lawyer and won’t pretend to know finer details of the laws affecting this case. But it seems there’s a big difference between refusing to serve a customer because they are gay and refusing to provide a service for a gay wedding. A wedding is an event that has no protection against discrimination. (Indeed, a non-insignificant number of people disagree with the same sex marriage.) it seems ludicrous that a Catholic would be forced to provide a service for a gay wedding or a Jew would be forced to provide a service for a neo-Nazi event.
The difference between a gay couple and neo-Nazis is that political affiliation is not a protected class. Under CO law, sexual orientation is.
A wedding is not a sexual orientation. If sexual orientation is a protected status in a given state the proprietor should not be able to deny service from gays. But that doesn’t mean they have to provide services for a gay wedding.
This is obviously wrong. This would be like a racist deli owner saying that while he must serve black people, he doesnt have to cater their birthday party because
parties arent protected. Or a burger chain admits that they must serve asians, but they dont have to offer their regular menu because specific foods are not protected.
If the deli owner caters to the public, he cannot deny the service to black people. If the burger chain offers certain food to the public, they must also serve it to asians.
Nobody is forced to create wedding websites, but if you do, you must offer it to all.
The burger, deli and wedding website business do not have to create special products or services for protected groups. But they absolutely do have to offer regular services to all customers.
The wesbite designer said very directly that she would not offer an identical product she was selling to hetero couoles to a gay couple for their wedding.
Yes, a wedding is not a sexual orientation. But neither is a "gay wedding" a thing in any meaningful sense. It is a just wedding. Same as an "interatrial wedding" is not a thing, or an "Asian wedding". See where this leads?
The law allows weddings between same sex couples. If you offer a public service for weddings you should not be allowed to refuse that service to a protect class of people. IMO.
So you cant deny black people, but you can deny service for black parties, black weddings, black surgeries, black funerals, black family reunions, black births, black sports teams, etcc.....?
This is not well thought out, is it?
churches are not public accommodations and are not bound by the laws that apply to public spaces. If you make cakes for your family, your kids t-ball team, members of your poker group and your school, you cannot be required to sell cakes to black families. But if you open up a cake shop that serves the public, you must sell them a cake.
Similarly, if your church decides to stop serving only members and instead sell out their space to the public for wedding events, they must serve black couples.
Bummer i know.
I’m not aware of any religions that are against black weddings, black surgeries, black birthday parties or any of the other things you mentioned. Almost a quarter of this country is Catholic. The Catholic Church does not support same sex marriage. I’m not as familiar with Protestant churches but apparently some of them are against same sex marriage as well.
Throughout US history, many christian organizations offered a theology strongly rooted in white superiority, segregation and even slavery. These practices were often supported from the pulpit and defended in religious terms. Religious groups objected to and argued against integrating businesses (God doesnt want the races to eat together) and interracial marriage (God doesnt approve of the mixing of races).
That it is currently more popular to focus your bigotry on sexuality instead race isnt the strong argument you think it is.
That you run away from religions prior arguments against racial equality while promoting the popularity of religions current arguments against sexual equality is pretty telling.
"When someone shows you who they are, believe them the first time."
AFAIK, there is no such thing as a "gay wedding." It's just a wedding, that happens to have gay people in it. Hell, the theoretical gay couple could have requested the EXACT SAME wedding site as a straight couple, with only the names changed, and the proprietor said she'd still deny it. So it's not a "gay service" she's denying, it's a standard service that she is denying to gay people.
FWIW, the Catholic Church can certainly deny marriages to gay people (and to divorcees, and to non-Catholics), but Catholic people can't deny services to gays (or non-Catholics, or divorcees) simply because they're gay (or non-Catholic, or divorced). And Catholics who would happily serve divorcees but not gay folks obviously aren't basing their denial of service on religion at all.
Sure sounds like a barista who specializes in unique latte foam designs can choose not to serve black customers, or gay, or Mexican, or Democrats, or whatever…
Based on what religion?
In the US, that religion is generally Xtian of some variety. You've been schooled by jdubs above. No need to continue the beatings here.
But that won't prevent him from pretending this conversation happened the next time this or a related topic comes up. I'm through beating him like a pinata; that changed his behavior not one iota. Now I just point out what a terrible person he is. I wish there was an ignore and/or an up/down-vote button. But what are you gonna do?
This contradicts all the experts I usually read on Supreme Court decisions. Standing is a hurdle that needs to be cleared BEFORE the merits are even debated. And standing is defined as suffering some real damage. Smith can not have standing before she a) refuses to sell her stuff to some gay couple and b) they sue her over it.
And of course the decision is idiotic on the merits. It's like trying to force Rosa Parks back into the rear end of the bus. The irony is that a correct call on standing would have allowed them to be silent on the merits. And we would still believe they are smart....
I knew I would have to read this fing thing.
Incredibly, Colorado STIPULATED (at trial) that what Smith was objecting to was “expression!”
So everyone who has noted that making a website is not speech can forget that argument, as Gorsuch was given the gift of being able to assume this was expressive speech without showing that it was, in fact, speech.
Yeah, the stipulations gave away the store. Here's another:
You know, ma'am, you might just do better if you promised potential clients that the wedding websites that you 'plan to create' will celebrate them and the happy occasion of their wedding, joined by friends and family .... You can promote your view of marriage on your own dime.
I really like fish. Does that give me special rights I can invoke in court?
No, because fish aren't imaginary, unlike the religious psychotics' special world.
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