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.
"That's it. Standing never even comes into it."
Yeeeeaaaaaahhh, but the courts only have authority to decide actual cases or controversies. Standing is jurisdictional, meaning absent standing, the court does not have jurisdiction and cannot decide the case. Which means that standing is *always* part of the case.
Oh ye, gods, I see the internet lawyers are on the case.
lawyer in real life, too. What's your point?
We grant the courts great powers, but we (used to) limit that power to deciding actual cases, not hypotheticals, not advisory recommendations. This case had no actual damage or injury to anyone. It's legislating from the bench instead of calling balls and strikes on individual batters.
Beyond that, when did the MAGA people slip on of their pod plants into Kevin's room?
Yes I fail to see how deciding a case on the basis of hypothetical future circumstances doesn't amount to issuing an advisory opinion, which federal courts have long been prohibited from doing.
I think Kevin’s referring to the overbreath doctrine (which, ironically, this court hates) as essentially a way to relax the standing/actual injury requirements. For example, in City of Huston v. Hill, 482 U.S. 451, 459 n.7 (1987) it was held that a gay rights activist had standing to bring a First Amendment overbreadth challenge a local ordinance making it an offense to verbally interrupt a policeman because he had shown a genuine threat of enforcement of the ordinance against him in the future.
What I find deeply disturbing, however, is that plaintiff’s case is based on lie. Something that doesn’t seem to bother the Republicans on the court.
Does a business have free speech as if it were a person?
If your 'deeply held beliefs' prevent you from doing your job, don't you need to find another job?
If you work for one of those companies that insists you're 'an independent contractor' can they fire you because they don't like what you're wearing?
If your 'deeply held beliefs' prevent you from doing your job, don't you need to find another job?
Seems to me bigoted cake decorators are perfectly capable of doing their jobs. But if that's not the case we should worry too much either way, as they'll soon go out out business.
Companies have always been able to fire people for what they're wearing. Tube top wearer is not a constitutionally protected class.
People seem to forget that companies in right-to-work states are totally allowed to fire you for all sorts of random things: being a Packers fan, having a MAGA yard sign, going to the Taylor Swift concert during your day off, wearing shoes in the office (that last one is from a friend's former employer). They just can't fire you for being black or gay or male or Jewish, etc.
But if they call you an independent contractor doesn't that mean being employed there is your 'business' and now the Supreme Court tells us they can't do anything about how you might be dressed because it's interfering with your freedom of speech?
Kevin, you are intentionally ignoring all the games they've been playing with standing. I know it is intentional because you have written about it before.
Pretending that "the liberals" didn't object so you shouldn't either ignores all the reasons why a participant in the decision might not call something out that the rest of us have every reason to.
What's the deal, dude? You can totally agree with the merits, or disagree with me about standing in this instance, and still not thumb the scale this hard. I don't think this is just begging for attention, I think you're actually expressing something you think here, and maybe not noticing your bias. So again, what's the deal?
Nobody asked, much less demanded, that 303 Smith make them a "homosexual wedding website." 303 Smith apparently doesn't even do wedding websites. A man's name was picked out at random as the Demanding Gay Dude who "harmed" 303 Smith's mental equilibrium and challenged her deeply held Xtian belief structure. This, even though the Rando Dude had never contacted 303 Smith, was not gay, and was happily married to a woman of the opposite sex. And he lived in a different state.
There's no there there. Courts don't do hypotheticals ... or at least, they shouldn't. There needs to be an actual case, with facts and alleged harms and real people involved.
The "hypotheticals" are questions for legislatures and Congress, and should be a factor in how laws are made.
303 Smith's case is a 404 Not Found. (okay, I could not resist.)
Of course standing matters. If I post a sign at my bar saying "No Mormons Allowed" do you think the SCOTUS would decline to take the case on the basis of no Mormon having standing?
Why not just let businesses decide for themselves who will be their customers and who won't?
Why not let states decide who can use the bathroom and who can't?
That sounds great until a popular restaurant refuses to serve Ted Cruz. Then it will become a week-long bawl-fest on Fox News about hateful libs.
Sounds like fun.
That's the way it used to be in the south, before the civil rights act. A lot of people liked it that way. Funny, they were all white.
But which I think you mean to say, 'being white was all they had going for them.' You know, Bob Ewell types.
You'll note that it is no longer 1965.
I'll note that if you go on NextDoor you'll find that there are a ton of folks living as if it's 1965.
You'll note that the Republican presidential candidates are running on a platform of making it 1965 again.
As J Frank Parnell wrote, we already tried letting businesses decide for themselves who will be their customers and who won't. For about 100 years in fact, from about 1865-1965. And as it turned out, tens of thousands of businesses were perfectly happy not serving black people, creating entire counties in which black people couldn't rent a hotel room or buy a meal or fill up their gas tank. It was so pervasive that black people had to create their own phone book of sorts (https://en.wikipedia.org/wiki/The_Negro_Motorist_Green_Book) in order to get service at all in much of the country. Eventually this was deemed untenable. But thanks Brian for telling us you're white without telling us you're white.
You'll note that it is no longer 1965.
You want to return to the days of Jim Crow?
Are you to young to recall that era?
sorry, ", too"
That's obviously not how it would work. Let's live in the real world.
In the real world racism never died it simply went underground for a bit and has resurfaced.
Why not just let businesses decide for themselves who will be their customers and who won't?
Because the infrastructure provided by society that makes being in business possible is paid for by all of us, and so society has a right to require that businesses not engage in harmful discrimination.
"Why not just let businesses decide for themselves who will be their customers and who won't?"
Sorry, but that is the stupidest thing I've seen in a long time. Why not do that? Because we would be right back to Jim Crow, that's why. Raising a generation of goddamned idiots, SMH.
Does the ruling mean that she doesn't have to make cakes for a Hindu wedding that depicts one of their gods on it?
This lady's battle with the devil is clearly on shaky ground at the moment, so I hope the court has granted her maximum protection from non-Jesus things in her workplace.
Apparently, yes. Apparently, citing Jesus is now grounds for discriminating against anyone you feel whose marriage is blasphemous in whatever way. Interracial couples, people marrying after divorce, people marrying after living together in sin, people marrying who cannot or will not bear children, people wearing white who aren't virgins, transgender couples, Mormons, Hindus, Jews, all are now free game as long as you say the magic words "this goes against my religious beliefs."
You've always been able to discriminate against virgins wearing white, as long as you do it for all genders and orientations. Sexual experience (or lack thereof) is not a protected class.
Taking this seriously, the ruling appears to mean that expressive customization of goods must meet the providers' sensibilities.
So for instance, I can't refuse to sell packaged goods to Xians, but I can refuse to write them software or paint their house in a way that expresses Xian beliefs.
First, any SCOTUS case whereby you have an evangelical Christian allegedly being asked to provide any service or product to any LGTGQ person is an automatic 6 vote majority rule in behalf of the Christians, thanks to the Republic of Gilead members of the court. As far as I know, 303 creative has not created any wedding web sites, the person asking about it is a complete fabrication, and Colorado had no legal action against 303. Its all bullshit.
My experience with IRS private letter ruling requests is that any ruling from the IRS is subject to the accuracy of the fact pattern described in the request, and any material error could void the ruling. Not so much for SCOTUS of course.
It will be interesting when and if website creators try to bar service to evangelicals, Jews, Muslims, MAGA GOP, Satanic worshipers, etc. on the First Amendment grounds.
So is Kevin saying that Lori Smith couldn't be found guilty of perjury should she be charged with the same? That sounds ... problematic
Would any argument about standing have happened before the case was argued? Like, if the liberals objected to taking the case at all, would those objections have been beside the point by the time the decision was written, so they wouldn't be brought up again?
Usually, you're not allowed to file paperwork with courts that is falsified, even if it ultimately has no bearing on the outcome of the case. Usually, judges frown upon lying to them... at least for plaintiffs or defendants who don't have a Jesus Lets Me Get Out Of Perjury card on them.
You're also usually not allowed to file court cases on theoretical actions that you fear government will exact upon you. Almost everybody else but the Christian Faithful has to wait until actual damages are realized before they gain standing to sue. Must be nice to be of the "persecuted faith" that this bitch and others like her belong.
Colorado should force anybody who claims religious exemption from laws to post a sign stating this. "We don't create websites for gay marriages" should be in prominent display above this bitch's door, hung with pride since she believes so fervently in this. Of course, I assume that any such law will also be challenged in court, because strangely enough, the Christian faithful both want the right to discriminate and the right to have nobody but the targets of their discrimination to know that they discriminate.
Such a sign might well increase business in many locales.
Regardelss, what this amounts to us a religious exemption to discriminate against whoever they please. They will use it. This court continues to increase religious privilege, this won't end well for any of us that aren't WASPS.
The Cstholics bbn on this court have either no recollection of previous discrimination against members of their faith - or are exacting revenge of sorts against a society that is generally more liberal than they are.
Who are they discriminating against? A gay marriage is not a person.
Just like a black lunch is not a person? A hispanic home purchase is not a person!?!
Atticus cannot be as stupid as he pretends to be.
Yep. Got it on one. Fits the definition of a classic troll to a tee. Also, a particularly nasty variety of troll.
Well, you're right that even if 303 Creative and her legal team forged the request, which it certainly appears that they did, the SCOTUS isn't going to change their ruling. In fact, it's pretty clear from this decision and the student loan decision that this court won't let standing get in the way of legislating from the bench.
(It should be investigated and possibly tried for perjury, and her lawyers, if they knew, should probably be disbarred.)
But standing does matter. There are reasons why the court isn't supposed to deal in hypotheticals. And, more importantly, if they can't find someone who is actually being injured by this law, it's probably not very important, anyway.
There are definitely times when I think the courts dodge issues using standing, and times when it's genuinely hard to find specifically who has been hurt by a policy. But our system of law depends on an adversarial argument over real stakes, and it doesn't help any of us when the Court decides any crank can challenge anything they don't like.
I should also add: they made a decision about free speech when no speech was at issue. Can a web designer refuse to design a website for my gay wedding even if the website never mentions that it's a gay wedding? Is it the content itself that a web (or cake) designer gets to object to, or is it to its eventual use? (Note: in the cake case, the baker refused to serve the couple before any discussion of cake design had happened.) That seems like a pretty important point. Where is the line between compelled speech (service) and discrimination? If there had been an actual website at issue with an actual request, they could have pointed to which elements would have violated the designer's free speech rights. But they didn't have that.
The website designer was very clear in that she was discriminating based on status. This had nothing to do with the content of the design.
The state said clearly that it cannot force a message or content to be created.
The designer said clearly that she wanted to discriminate based on the status of the customer, it didn't matter what type of content they wanted.
This case had nothing to do with speech.
I don't understand why anyone would assume that a website for a wedding, commissioned and paid for by the marrying parties, would be construed as having anything to do with the opinions of the website creator. Sure, it's speech, not the website creator's speech but the marrying parties' speech.
So a Jewish website creator should be compelled to create a website for a neo-Nazi group?
Once again, political affiliation is not a protected class. People can, and should, discriminate against neo-Nazis all they want. In CO, sexual orientation is a protected class.
Who decides what groups should be discriminated against? And, this was the US Supreme Court. Not the CO Supreme Court. In many states gays are not a protected class.
It was based on CO law.
No, that would be hate speech and implicitly terroristic.
Hate speech is protected under the first amendment. And it’s not “implicitly terroristic”. It would only be so if it implied violence. Not if it was a BBQ for a neo-nazi group.
No, it's terroristic because it promotes Naziism and racist ideology, which are implied, and actual, violence against anyone not themselves, but primarily targeting the most easily victimized.
A thing needn't be illegal to be wrong and condemnable and worthy of general contempt and scorn.
Racist speech is protected under the first amendment. So is Naziism.
“ A thing needn't be illegal to be wrong and condemnable and worthy of general contempt and scorn.”
True. But this thread is about the law, not your feelings.
Terrorism is not protected by law and people who promote it and work to inspire it are not protected, either.
It's like that school shooter in Michigan whose parents are on trial for allowing him to be nuts. Sure, they could plead the First Amendment, but it won't help.
Would a real estate agent be able to refuse to represent a gay couple wishing to buy a house? And could their employer fire them for cause if they did? There are service people who are going to get all uppity over this. Surely if marriage is immoral then the homosexual behavior is too. Why stop with marriage?
I hate christian whackos. They are mostly all nuts. And pervs.
https://nypost.com/2023/06/30/texas-pastor-david-lloyd-walther-pleads-guilty-to-downloading-child-porn/
I don’t know of any religions that have ingrained dogma against gays buying houses.
Ah, but here is where it gets interesting. For their more lucrative properties realtors will put in an amazing amount of money promoting the house, which involves quite a bit of creative input in how it is staged and photographed, who it is promoted to, etc. etc.
Just where is the line drawn?
Are you saying there should be laws dictating how houses should be staged?
Anything that enables the gay thing is sinful. The moral objection would seem to extend to dropping perverts in a house next to a Good Christian family with small children.
Hoping that the REAL website designer whose name was misappropriated, according to him, sues everyone involved, especially the "Christisn" bigot. These people apparently ignore the fact that their hatred was not part of Yeshua's teaching, but is more aligned with what is found in some "Old Testament" books. Only John of Patmos comes close to their rantings, & his screed does not belong in the canon.
Christisnt -- FIFY
Looks like the Westboro Baptist Church, Proud boys, and the Oath Keepers just found their webmaster. Perhaps I should ask 303 Creative if they object to doing a website for Christ killing Jews like me.
This has nothing to do with speech.
The appellant who brought the case admitted as much during the hearing. She admitted that her ability to legally put text on her website declaring that she would deny service to gay couples relied entirely on being able to legally deny service to those same people.
This was never about speech. The web designer knows it and the majority justices know it. You dont have to accept their framing that this is a speech issue. They have already admitted that it isnt.
The case in question, 303 Creatve vs Elenis, is complex. It brings up legitimate questions of competing freedoms in a diverse and open society. It is not, in my opinion, an open and shut case whereby the Supreme Court is allowing discrimination.
But I’m not a lawyer (I’m an English major!). So I’ll defer to some experts I trust: the Foundation for Individual Rights and Expression (FIRE). According to its wiki page, some of FIRE’s founders migrated over from the ACLU to focus on free speech issues, and the new organization “was founded to be non-ideological and nonpartisan.”
On their website, “FIRE statement on the Supreme Court decision in 303 Creative v. Elenis” says as follows:
“Today’s decision in 303 Creative v. Elenis is a resounding victory for freedom of expression and freedom of conscience. The Court’s opinion reaffirms decades of precedent protecting our First Amendment rights to speak and think free of government compulsion …
“To cast the decision as a ‘loss’ for LGBTQ rights is a mistake that both misreads the facts and ignores the vital importance of freedom of conscience for all Americans. As the Court makes clear, nothing in today’s decision allows businesses like restaurants or movie theaters to refuse service to customers on the basis of protected class status. While the First Amendment ‘does not protect status-based discrimination unrelated to expression,’ wrote Justice Gorsuch for the majority, ‘generally it does protect a speaker’s right to control her own message — even when we may disapprove of the speaker’s motive or the message itself’ …
“We are pleased by the Court’s recognition of the necessity of an evenhanded, unfailing commitment to free expression, without regard to the speaker’s viewpoint. As Justice Gorsuch wrote: ‘A commitment to speech for only some messages and some persons is no commitment at all.’ FIRE could not agree more.”
I’m going to do something unusual and find and read a conservative judge’s (Gorsuch) opinion. Because at present my inclination is to believe that they (the conservatives) have the better argument in this admittedly difficult question.
The obvious key word in the above material is “expression.” As best as a non-lawyer like me can tell, that’s what turns this case into an important free speech issue. This Supreme Court decision does not appear to be, as some of the other comments here suggest, an open door for businesses to just go ahead and decide to start discriminating again. Rather, it appears to me to be a decision that protects each of us from coerced expression (whether that expression is in speech or web design).
And I would add that the gay rights movement should, ideally, be careful about any attempts to actually compel expression/speech.
We can certainty insist that all businesses open their doors to all customers; we cannot insist that anyone change their views. And any attempt to compel anyone to express views they disagree with will likely backfire terribly. The backlash to gay rights in that case could almost certainly do more harm than good.
So this is indeed a complex and important decision, one that I’ll be investigating more than just about any other Supreme Court case in recent memory.
"I’m an English major!"
This comes to no surprise to anybody reading the sh!t you write. Only an English major (or possibly a Philosophy major) could be so verbose while simultaneously having his head up his own ass. You should've minored in Religion while you were at it, given your propensity for telling us all exactly how many angels are dancing on top of each pin.
Not a constructive reply, not a good look for the Left, and definitely not enough appreciation for English majors (!)
Personally, I like my legal commentary to come from those who have some, you know, actual legal expertise (and who are not trolls with a screen name that suspiciously sounds like a shout out to Leonard Leo). I guess it's just the retired lawyer in me. But since this is at least the third risible legal commentary in the last couple of weeks from Kevin, a man with no real legal expertise of which I am aware, I think I might have a solid rule here.
Criticizing those who applaud the stripping of civil rights is NOT A GOOD LOOK FOR THE LEFT!
lol. The comedy writes itself.
The culture warriors are a sad bunch.
Hey, I was an English major once upon a time! Oh wait, I also head my head up my ass when I was an English major. Never mind.
So…you make a personal attack and shy away from the content of his comment.
LOL! Your whole schtick is abuse in the extreme. Sea lioning is particularly contemptible: "I'm trolling, but I want to fly under the radar as long as I can." Not a good look for anybody, but seems to be a tactic exclusive to libertarians, right-wingers, evolution denialists, etc.
No speech is being compelled in this case.
1) Literally noone is forced or compelled to open a business and sell to the public.
2) If you choose to open a business and sell to the public, the government can force you to serve all customers but they cannot force you to produce any content or any service. They can only require that any product or service that you choose to create is sold to all parties.
There is no freedom of speech to deny service to a black man, or a gay man because you do not see them as equals. The government cannot force you to create websites, or art, or songs, or any product that says anything...but if you sell a product or service, they can require you to sell it to the black man that you might see as a lesser being. That you truly disapprove of his skin color doesnt create a freedom for you to deny him service.
Oddly you admit that "We can certainty insist that all businesses open their doors to all customers", but yet you make an opposing conclusion saying that the website designer can close her doors to people she disapproves of because she has a freedom of speech to close her doors.
The website designer admitted that she would refuse all service for gay marriages, no matter what the message was. She would refuse all service to those people, no matter what kind of message or service they asked for. This is not about speech at all.
@ jDubs: This part of your response seems to support the majority Gorsuch opinion in the case under discussion:
“The government cannot force you to create websites, or art, or songs, or any product that says anything...but if you sell a product or service, they can require you to sell it to the black man that you might see as a lesser being.”
In my original post above, I quote from the FIRE press release, and that quote already references the fact that the state can compel businesses to provide services to all people equally. It also points out that Gorsuch has addressed the relevant distinctions:
“As the Court makes clear, nothing in today’s decision allows businesses like restaurants or movie theaters to refuse service to customers on the basis of protected class status. While the First Amendment ‘does not protect status-based discrimination unrelated to expression,’ wrote Justice Gorsuch for the majority, ‘generally it does protect a speaker’s right to control her own message — even when we may disapprove of the speaker’s motive or the message itself’ … We are pleased by the Court’s recognition of the necessity of an evenhanded, unfailing commitment to free expression.”
Gorsuch is essentially saying the same thing that you are saying in the sentence I extracted from your response.
The whole question, therefore, comes down to whether or not the web designer’s activity is “unrelated to expression.”
I believe her activity IS related to self expression. I do NOT see the creation of expressive works (online or off) as similar to opening a door, letting customers in, and selling them cans of soup.
And my recognition of the web designer’s work as expressive leads me to believe not just that Gorsuch got it right but also that he may have helped protect me from Conservative/Republican efforts to compel speech out of me in the future.
Gorusch is a fucking moron and an ideologue that happily supports any sort of right wing nuttery that comes his way, especially if it is to oppress or restrict thr rights of those who are not white or Christian, so his opinion and a National Enquirer article have about the same level of intellectual weight. Unfortunately his carrries far more serious consequences. That is precisely why he was put on the court.
As for FIRE, despite their "nonpartisan" claim, they are basically a libertarian organization that has made their main mission in life is to end political correctness in schools, and who get nearly all of their funding from right wing donors. Of course a group like this applauded such an atrocious decision.
You have only pointed out how dishonest Gorsuch was in his decision as well as the bigots who brought the case were in their celebration.
Saying that while it is okay to deny service to gay couples if you call it expression, this doesnt mean its okay to deny service if you forget to call it expression....well, that doesnt make any sense at all.
The designer was very clear in that she would refuse to provide any and all services to these people that she looked down on. The state was very clear in saying that she only had to offer the same services to gay couples that she would offer to anyone else.
The court and the designer said very directly that this was about denying service. There was never a dispute about what messages could be created, the designer was alwsys free to make any type of creative work she wanted. The court majority ruled that you cannot deny a black man a birthday party package if you call it a service, but you can deny him that package if you call it an expression instead. The govt cannot mandate expression, so remember to call your products and services expressions and then you can deny service to any person you disapprove of.
This is a con that everyone can see through unless you are really excited about denying service to that man.
This same argument was made in the past during civil rights cases. It was always expression behind those 'WHITES ONLY' signs and the requirements that those people be served different products in different locations.
You're cute trying to claim the FIRE is non-partisan. You have a lot of words but you still have a losing hand.
I think troll, that everyone has got you pegged. I really do.
I find I'm ignorant about how this lawsuit even got started. Traditionally, a lawsuit is filed in state court, and can appeal up the chain to the state Supreme Court, and maybe even to the Supreme Court. Or it can be filed initially in federal court, and then work its way up through the appellate courts to the supremes.
Did this lawsuit follow the pattern? And if so, how was it that not one of the lower courts (and DAs and Attorneys General) looked into the "evidence" provided and found the whole thing was bogus from beginning to end? How could this happen?
Because Christians now have Batman-like searchlights that they shine up into the night sky until one of the Supreme Six sees it and calls them on down to DC, skipping all the queues at state and lower federal courts?
does this business have the right to discriminate against a gun owner expressing his/her expression of self defense? even when there is no actual threat?
Yes, because gun ownership is not a protected class for the purposes of civil rights law.
Sadly I agree with the ruling even though I think the plaintiff is a delusional bigot who should be ostracized from polite society. As someone who has created websites I would hate to be forced to create a website for a Klu Klux Klan gathering. Such a gathering is morally offensive to me and I should not be forced to promote it. On the flipside nor should the KKK be forbidden from having that gathering.
Yes there will be some small group people who will take advantage of this ruling to be assholes but that's the price we have to pay. People should be allowed to say what they want even if they say terrible things because the alternative is worse. The only reason this court battle was waged is because the bigots already lost the larger culture war.
That's all well and good, but the state should then force these bigots to own their bigotry. You don't want to create marriage websites for gays? You don't want to create websites for the KKK? Fine... put that on a sign no smaller than 6x6" square on your front door. (I guarantee you, very few customers are going to have a problem with the latter being posted on pretty much every businesses' door.)
This whole "I don't have to serve people in marriages I disagree with" thing isn't the same as not wanting to serve an organization that is on terrorist watchlists... and it's not going to end well. (There are lots of people in marriages that others disagree with... and there are lots of random retail employees like the guy who makes your burrito at Chipotle who are going to decide "what I do is artistic" and refuse to serve whomever they hate.)
This is an excellent point; in fact, I think this may be the issue at the heart of the whole question:
“As someone who has created websites I would hate to be forced to create a website for a Klu Klux Klan gathering. Such a gathering is morally offensive to me and I should not be forced to promote it.”
That seems to be the perspective that Gorsuch is promoting in his majority opinion, and I find it difficult to argue with.
As best I can tell, the Left does not seem to have imagined “shoe on the other foot” scenarios here. But what if the roles in this Supreme Court case were reversed? What if a gay web designer said they wouldn’t build a website for Christian fundamentalists who wanted to use the internet to promote their religious idea that homosexuals are sinners?
It seems like the Left, in that case, would suddenly support the web designer’s freedom of expression and honor his right not to express what he doesn’t believe in.
I realize there might be fine distinctions of law at question. But I believe that the religious speech of the fundamentalists in my scenario would be protected speech (as opposed to hate speech).
So the only defense the gay web designer might have is to assert that the state can’t compel him to express speech he doesn’t agree with.
That principle is just as important when it protects those we agree with as it is when it protects those we disagree with.
So. Let me get this straight. Somebody who thinks their opinion matters -- or at least claims it should -- cannot tell the difference between a website and the content being hosted on said website.
Uh-huh.
This is the stupidest argument and I see it over and over on this thread. This is about civil rights laws which are generally designed to protect certain classes of people from being discriminated against because of their status as a member of a protected class (race, religion, nation origin, sex or sexual orientation -- I may be forgetting some). They are protected because of some immutable (well, except for religion, conversions do happen) thing about themselves.
Do you see political belief on this list? No. Political belief is not a protected class. People are free to discriminate against the Klan, the Proud Boys, neo-Nazis, Democrats or Republicans all they want. In fact, Lorie Smith seems to make a nice living creating websites for Republican and Republican aligned interest groups. For some reason I didn't notice any Democratic candidates or Democratic aligned groups in her portfolio. This is all perfectly OK.
So its also ok to deny websites to black familes because you are offended by their skin color?
They are still free to do whatever they want, but its okay to deny them a website and a caterer and a car rental and a home purchase....think of all the easily objectionable things those people might do with those products and services.
We can deny all these services to women too? And hispanics? As long as you truly object to them, you cant be forced to provide them with products and services right?
Think of how offended i might be if a hispanic used a new car from my dealership to do hispanicy things? You cant force to me celebrate those people and you cant force me to say i approve of those people. Right?
Sure people might suffer, bit thats a price i am willing for them to pay so that i can rest at night knowing those hispanics arent riding around flaunting their lifestyle in one of my cars! Right? Think of my freedom to not approve of those type of people, thats what is important.
All you have to know about this is think about how apeshit conservatives would have reacted if civil rights cases before the courts on the basis of hypotheticals
Whose speech is it? I suggest that the designers of most of the sites on the Web are anonymous employees of the owner of the website, or a contractor of the owner. Unless you personally design your own site, I would submit that content is covered by the ‘work done for hire’ principle; the content belongs to the paying party. It isn’t the expression of the hireling.
Whose speech is it? Good question. But, according to the wiki page, “303 Creative LLC v. Elenis”:
“Lorie Smith is a website designer, running a limited liability company as 303 Creative, LLC. registered in Colorado.”
Sounds like she’s running the company, so it’s her speech (and “work for hire” may not apply).
If she accepts payment, she’s working for hire.
These court cases tend to focus on wedding services, because the really aren't many areas where you have the intersection of human activity, protected classes, speech, and religious proscriptions.
A lot of religious proscriptions apply to everyone regardless of gender, race, orientation, etc. (e.g. no divorce, no blood transfusions, no in-vitro fertilization). As long as you apply it to everyone, businesses have long been able to deny creative services. A Shaker web design company could simply not do any wedding websites ever, and no one would have a legal claim against them. It's mostly marriage and adoption where religions allow some people, but not all people, to engage in it, and where those restrictions butt up against constitutional protections and also involve free speech.
Cake decorators and website designers tend to have more creative input and connection to the product than most businesses, so we could see things remain pretty narrowly construed. I hope so, at least.
But why should a home builder be forced to build for or sell to a blacl family?
what is more important than a home? the design and labor involved is much greater than a cake (lol) and we can all agree if you find black familes objectionable, they are going to be doing all kinds of objectionable things in that house.
Creating a firewall around cakes (lol, seriously?) obviously didnt work. Basic web design isnt any more creative than most any other product or service, so there is clearly no firewall here either.
Think of gay people coming in a yoga studio or a water theme park? They are literally bumping into people, maybe sweating or sneezing near other customers. How can you force a yoga teacher to create instruction for the gay people that she dislikes? Gross, right?
Or the michelin star chef that spends countless hours designing and preparing food experiences for customers. Certainly he cant be forced to approve of a mixed race couple sitting inside his restaurant at the same table.
I strongly recommend looking up the New Mexico Supreme Court opinion in Elane Photography vs. Willock from 2013, especially Justice Bosson's plain language concurrence starting at Paragraph 81. Bosson connects these issues to landmark US Supreme Court decisions in religious freedom (Barnette vs West Virginia) and racial discrimination (Loving) and commerce (Heart of Atlanta Motel). His basic case is , if you choose to participate in commerce, you have responsibilities to society.
This case was appealed to the US Supreme Court, which declined to hear it.
Thanks. Link: https://casetext.com/case/elane-photography-1
Judge Bosson’s concurring opinion is well worth the read.
I believe she's also got a case in the works because of a specific customer - Gozer the Gozerian. Hopefully SCOTUS will remain consistent. But my hopes aren't really that high.
If by "consistent," you mean consistently permitting right wing Christians to run roughshod over the rest of us as if the Republic of Gilead has been established, then yes, yes they will.
I don't regard the case as significant; in fact I'm surprised the Supreme Court even agreed to hear it. But having done so, both the majority decision and the dissents were astonishing.
It's an enormous stretch to assert that creating a website for someone is a form of expressive speech. The website is the infrastructure on which a client will post their expressive speech. Despite her denials, Smith was pretty clearly saying she would refuse to work for clients for no reason other than that they were gay.
But having to make that deductive argument reveals the true weakness in the decisions: the absence of any actual facts that constituted a dispute. Nobody could point to exactly what Smith had been asked to do, because she hadn't been asked to do anything at all. The judges simply made a series of assumptions about what she might be asked to do in future. It was a terrible example of the Supreme Court legislating from the bench, without even the appearance of carrying out a judicial function.
Good points, and I might also add that it seems clear that at least a few handing down this decision don't really know what a website is or howu it works. But then again these same justices seem to take pride in their ignorance and for the same reason there's a certain type who takes pride in their innummarcy.
I rushed over here to read our host's thoughts on this because nobody seems to be addressing the mechanics of what it means to be "a website designer," and I thought, as a guy who (like me) has been wrestling with GD WordPress for twenty years Kevin might have gone there. He has not.
Did this woman describe the specifics of her (aspirational) business? The company I work for sells websites to people who go right ahead and populate it with their OWN words and images.
Q: How do I create a website? A: *Here, I will sell you a monthly package that includes hosting, a domain name and WordPress installed.*
Q: Yikes, there are 10,000 wedding-related WordPress themes! How do I chose the right one? A: *I can help you with that! It comes with the package.*
Q: Criminy, there's so many effing plug-ins! Which ones are essential? A: *Part of the package!*
Q: Jumping Jehosaphat! I thought WordPress was supposed to be easy! How do I use it? A: *I can hook you up with some good training videos; part of the package!*
Q: Great! Can you help me write a heart-warming intro about how my partner and I met cute in the non-existent basement of a pizza parlour in D.C? A: *I'm sorry, the terms of my service are that I do not provide copywriting or photographic services.*
Shorter, unless this woman claims to be specifically selling words and pictures, she's basically like a real estate agent, which means this is NOT a 1A issue. Would this Supreme Court allow a real estate agent to discriminate against a same-sex married couple? We will see, I'm sure.
Customer: “I’d like a website for my friends to read about my big gay wedding. Can you make that for me?”
Web designer: “I don’t think thats something I’d be very good at. Perhaps another designer would be a better fit for you.”
Customer: “Ok, I will find someone else.”
Why is that so hard?
It's not hard. It would not, however, have served the Christianist group Alliance Defending Freedom's purpose, which was to manufacture a case to advance its ideological agenda.
Just like in the cake situation the plaintiff wanted to manufacture a case instead of going to a different baker.
There was no customer.
If I just tell the court I'm a religious psycho I can opt out of whatever law God tells me to?
That would be great! I'll have to draw up a list of things I need to get done.
No, Psychos probably won’t have much influence in the courts.
Hah! omg, you poor, disordered human . . .