The other recent Supreme Court case that I'm on the fence about is 303 Creative. In that one, Lorie Smith didn't want to create a website celebrating a same-sex marriage and the Court upheld her refusal.
In my initial post about it, I said the Court relied on a "thin distinction indeed": namely that while Smith was required to serve LGBT couples in her (virtual) shop she wasn't required to sell them whatever they wanted. But it is of such thin distinctions that case law is made.
Consider an ordinary shop that sells merchandise, not customized websites. It is full of Christian t-shirts and mugs and whatnot that celebrate marriage but none of the goods celebrate same-sex marriage. If a gay couple comes into the store, the owner is required to sell them anything they want whether he approves or not. That's public accommodation. But if the gay couple isn't happy with his selection of stock for sale? That's too bad. Nobody thinks the owner is obligated to carry any merchandise he doesn't want to.
Or try on for size another, more incendiary analogy. After the Civil Rights Act passed, the Supreme Court ruled in Heart of Atlanta that motels (and similar establishments) were required to serve customers of all races. This presumably extended to prohibiting certain kinds of speech too: a motel, for example, couldn't display a sign saying "No Negroes Allowed" as a way of discouraging Black customers even if, in the end, they'd cough up a room if they had to. At the same time, the owner of the motel also couldn't be compelled to say affirmatively nice things about Black customers if he didn't want to. Nor could he be forced to display a sign saying "Negroes Gladly Welcomed Here."
The parallel with 303 Creative is obvious, and it's one that Sonia Sotomayor persistently avoids addressing in her dissent. There's no question that Smith is required to serve on an equal basis any LGBT couple who shows up at the door. That's uncontested, and Sotomayor is eloquent and outspoken in insisting on this. But can Smith also be forced to affirmatively say things she doesn't want to just because a customer wants her to?
This is a far more subtle question. It goes without saying that I, personally, find it abhorrent that Smith is so narrowminded and cruel in her views. But my personal opinion has nothing to do with the law in this case. In the end, I think the Court probably got it right: This really is a fairly cut-and-dried First Amendment case, and Smith has the right to say—or not say—what she wishes. I don't like it, but the First Amendment is meaningless if I support it only for speech I like.
One gray area would be a t-shirt shop that will print letters on a shirt. You give them a message, they print it or stick on the letters or whatever. Can they prohibit ANY message they don't like? Just offensive ones (in their opinion)?
Any what about those "We reserve the right to refuse service to anyone" signs. Are they meaningless?
I think that any time there is specific, customizable messaging via words or images involved, the shop owner's free speech rights take precedence over the customer.
That will cover publishers, printers, web designers, some instances of cake decorators, etc. A landscaper can't turn down the white power church if they want the lawn mowed, but they can turn down a request to mow a swastika into the grass.
A landscaper can't turn down the white power church if they want the lawn mowed,
In reality they probably could, of course, extricate themselves from an ongoing relationship with said church. Don't do a good job. Send your least experienced crew. Show up late. Be extra aggressive on your pricing. The Church of Saint David Duke will probably find other options. And sadly, there are probably plenty of landscaping firms only too happy to take the money (it's a highly competitive business). Indeed, I suspect the kind of ethical concerns you mention are the exception, not the rule.
"In reality they probably could, of course, extricate themselves from an ongoing relationship with said church"
Which is entirely irrelevant to the discussion.
Workarounds are perfectly relevant.
They're really not -- "hey, here's a way to avoid the cops beating you up -- it's a workaround, but it'll be fine!"
Attitude about racism isn't a protected class. It'd be interesting to see if the church could get the court to agree it was religious discrimination.
Can they prohibit ANY message they don't like? Just offensive ones (in their opinion)?
Why would they prohibit messages they don't find offensive?
Anyway, I would certainly hope they can "prohibit any message they don't like." Surely the shop owner is the best judge of what they find offensive. There are countless vendors who sell customizable T Shirts. A google search will give you thousands of options if the guy down the street is a MAGA who won't print your Ridin With Biden design.
I would also expect T Shirt shops that operate along the lines you suggest probably aren't the country's most profitable.
"Why would they prohibit messages they don't find offensive?"
Because they're worried that other people might?
"what about those "We reserve the right to refuse service to anyone" signs. Are they meaningless?"
Shops have the right to refuse to serve people who abuse the staff, write bad checks, smell bad, have slept with the manager's wife, or in any other way seem detrimental to the business. Many bars and restaurants couldn't function without this right, and courts have generally upheld it.
But shops do not have the right to consistently refuse service to blacks, gays, veterans, the disabled, or any other protected class. That's what the Civil Rights Act changed.
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The problem with the "303" case is that there wasn't an actual case. If one compares the actual wedding website/planing market it becomes clear that she likely doesn't have a viable business model. Had she been required to actually actuate her plan the most likely outcome would have been it outright fails or she backs up into a series of cut and paste templates that require a minimum of wholly anodyne developer inputs (dates, places, names). Does anyone want to add to the expenses of a wedding by paying for creative writing on a web site that expires soon after the event?
There are a quite a few wedding websites out there to choose from. all of them are basic templates. They are designed to handle the nuts and bolts of a wedding - announcements, invitations, dates, places. gift registry, etc. They are mostly free or low cost and are designed to expire after the actual wedding. The bucks are in things like paper (snail-mail announcements and invitations,gift registry, etc.).
Is there a market for the sort of developer intensive site that she envisions? If not - no case. Does a developer having to make anodyne, content neutral tweaks to a template constitute compelled speech? It would seem necessary to have an actual case.
"f one compares the actual wedding website/planing market it becomes clear that she likely doesn't have a viable business model"
You're aware that in the seven years since the case started, the plaintiff has in fact run a wedding site business? They seem to still be solvent.
You're aware that in the seven years since the case started, the plaintiff has in fact not run a wedding site business, and has not ever made a single wedding site design?
That's why this whole case is such a travesty. This bigot claimed that the Colorado law would infringe on her rights if at some point in the future she decided to branch into the wedding site design (which she hasn't done yet), and why she needed to falsify a "gay wedding" request when filing her case.
It doesn't seem clear to me what she would be forced to say. I assume that on most wedding websites most of the content comes from the wedding couple since it is their wedding. What the designer does is to present their message with the proper coding. The message seems to be in the fact that she is working with a gay couple on their wedding. But then it isn't clear why this message is different than the restaurant owner who doesn't want to say he is OK with black customers or interracial couples.
This is why courts usually wait until there is actually someone who has been harmed by a law and so has standing to sue. In this case the courts have decided to rule in favor of an imaginary business who could be forced to do something unclear by a fictitious gay couple. One might imagine that she is being aksed to provide her usual service to this imaginary couple. But there is no usual service since she isn't actually in the business, and there is no reason to think she actually wants to get into the business.
And as I understand it, the courts did nothing to explain where the line is between protected speech and non-protected speech. The idea that they were trying to protect a distinction between speech and action is undercut by the fact that they didn't actually draw the line. The one thing that seems certain from this ruling is that every bigot who wants to discriminate is going to make the case that their discrimination could fall on the side of this decision. And they might be right. After all this is a court that ruled a speech by a football coach on the 50 yard line before a game that was attended by both teams, including members of his team that claim they felt coerced by a desire for playing time, was a private prayer.
The thing is that the job of a wedding web designer is indeed to scribble words that others give to them. It is the essence of the occupation. In this modern world of online services (and getting more so), we are going to grant an exception to public accommodations to copy writers? Their job, like so many jobs, is producing widgets, only here, it involves a different kind of automation, but I wouldn’t necessarily consider it creative. Often people invent pretexts to argue arcane points, but let’s be real, the designer simply does not want to serve gay couples, are we ok with that? If a male and a female, both named Bob want Bob & Bob in their wedding website, the designer would be presumably okay with that, but if it was a same sex couple then designer will not be okay with that. What’s the difference? The status of the customers and not the words the designer writes down.
the designer simply does not want to serve gay couples, are we ok with that?
No reasonable person is "ok" with it. That's a different question from whether it should be legal.
The thing is that the job of a wedding web designer is indeed to scribble words that others give to them.
Not always. Many couples want ideas. And not all wedding cakes display words (a google image search suggests the majority do not). But even in those cases where no creative input or suggestions are needed, the words still need to be presented. Which color? Which font? Big or small? What decoration elements?
I agree if it's a cake shop that has standard wedding cakes for sale, the shop should sell to anyone. But bespoke cake decoration really is an exercise in first amendment rights, just like any other kind of design or creative endeavor.
Lawn care? Can I refuse to tend lawns for non-White couples in a predominantly White neighborhood because, as a professional landscaper, beautifying a lawn is a creative and expressive exercise for me, and I do not wish to "express" that I approve of their being there?
Jeez, picking a font and color, which would certainly be done by the customer, is not speech.
I agree with Kevin at least based on what I've read, which for this decision includes the outcome and quite a bit of analysis (especially on stanading), but not the majority opinion.
My own take is it would be good to have a legal test to use in the future when navigating these issues. I'd suggest something like:
A) Is the business small (it's a sole proprietorship, doesn't operate across state lines)?
B) Is it genuinely performing creative content services?
If the answer is "yes" on both counts, they get a carve out protection from compelled speech based on First Amendment grounds. Otherwise not. So, no matter how small you are, if you're in the business of retail sales, rental accomodations, loding, meals, etc, you must serve everyone. And you also must serve everyone if you're in the design business but you're big (eg Vistaprint).
But no, some bigoted cake decorator in a small town shouldn't be forced to do a gay wedding. Are there really gay people who'd *want* to hire such a vendor?
It'd be easier to come up with a legal test if SCOTUS had waited until a website creator actually had turned down a real life potential client because the client wanted the website creator to make a gay wedding website.
Since SCOTUS didn't wait for the 303 Bitch to actually suffer injuries to her religious beliefs, SCOTUS didn't have any facts to work with, and so it didn't occur to them to create a legal test.
SCOTUS is the D+ student handing in assignments that are half-assed and guaranteed to require revisiting/rewriting in the immediate future to clarify them.
Pointless bitchy whining. Waaaah.
Shameless bigotry assholiness.
"Are there really gay people who'd *want* to hire such a vendor?"
This also is not the point. Just like there are approximately 0 Black people that knowingly want to eat in a restaurant that doesn't want to serve them - just imagine what they're going to do to the food before they bring it out of the kitchen! - there are approximately 0 gay couples that knowingly want to buy a website from an anti-gay bigot. That's completely not the point though: it's that anti-Black and anti-gay bigots shouldn't be enabled to treat anybody as second-class citizens in the first place.
If we're going to go down this path of businesses treating others like second-class citizens anyway, those businesses should be required to self-identify their bigotries on their front door. It shouldn't be incumbent on gays (or Blacks or anybody else) to walk in, inquire about services possibly in front of other customers, be embarrassed when the business owner or employees laugh in their face, and have to walk back out again with perhaps other customers joining in on the "fun" of ragging on them for being gay/Black/whatever. If bigots have the right to be bigoted, everyone else should have the right to know what those bigotries are before they walk in the door.
" If bigots have the right to be bigoted, everyone else should have the right to know what those bigotries are before they walk in the door."
These days you pretty much just have to ask, are you a conservative/Republican? Yes, you're a bigot.
I agree though, that I'd love to see all bigoted business owners be labeled as such. Give them a taste of the foul medicine they have so much fun handing out to others.
"But no, some bigoted cake decorator in a small town shouldn't be forced to do a gay wedding."
If they request a specific decoration that the cake decorator objects to, sure. But he shouldn't have the right to refuse to sell a standard cake to a gay couple because he doesn't like gay people or gay weddings. That's discrimination. (And in the Masterpiece Cake case, the baker refused to make a wedding cake for the couple before any designs were discussed.)
How can you possibly agree with Kevin. First he complains that people were bitching about the issue of standing and then he turns around and complains that the Court hasn't clarified the exact spot on this slippery slope that needs to be defended. That is the point of requiring that there be a real case with real parties to the case. Then you can analyze the dispute and take a position on what should be allowed. Here we have no idea what principles the Court is defending because there are no actual facts. Probably she shouldn't be forced to say anything that she doesn't want to say, but she wasn't. For all we know if a real same sex couple had tried to hire her services they might have been perfectly happy with her. If not, they might have said sorry we will go elsewhere and there still wouldn't have been a case. Such negotiations occur all the time. The problem is that the zealots on the Court wanted to rush to judgment to make a cultural war point. How anyone can defend this is beyond me.
The comparison with a hotel owner breaks down because the service provided by the hotel does not involve speech. A defense attorney cannot refuse to defend a black client in court on the grounds that he will not serve black clients; that is so, as I understand it, even when that attorney has a personal belief that all black people are criminals, despite the fact that the expressive writing and speech involved with the case might contradict that belief. (Whether a black defendant is best served by the state forcing a racist attorney to defend them is another question.)
In this instance, the proposed service involves creative and expressive work on Smith's part, not merely a website design. I agree that the state cannot require her to produce creative and expressive work in contradiction with her own beliefs. Smith's free speech would indeed be infringed if Colorado has the right to compel her to produce her work celebrating a same-sex marriage.
It does not follow, however, that she therefore has the right to start a business which excludes same-sex couples on the basis of that personal belief. I am aware of no constitutional right to perform any job you like exempt from the law on the basis of your own expressive beliefs or preferences. Jehovah's Witnesses believe they cannot accept blood transfusions. If a Jehovah's Witness became a nurse, they could be accommodated in such a fashion that they were not required to take part in blood transfusions for other people. But if a Jehovah's Witness accepted a specific post performing blood transfusions and then refused to perform them, they have no right to that job, merely a right to reasonable accommodations (where possible) to preserve their religious beliefs.
Suppose Smith were a member of a tiny cult, and fervently believed that only people married in that cult were genuinely married. Could she start a business selling wedding websites and restrict her customers only to members of her cult, discriminating against everyone else on the basis of religion? How is that different from providing wedding services and adding "CATHOLICS ONLY" to your storefront? She would be free to exercise her rights to speech and expression by designing wedding sites for members of her cult, but incorporating as an LLC and selling the service is not, to my knowledge, a protected right. She could, I suppose, contract with her cult to provide a specific service to members of that cult and receive compensation in return, but if she is conducting a general business, she is bound to offer her services generally.
Sotomayor's dissent spells most of this out pretty clearly.
If only Harvard and UNC had implemented their affirmative action admissions, not by having rankings with extra points for underrepresented groups, but instead by hiring admissions staff who believe in diversity and then asking them to produce short poems about every student dossier! Those would have been expressive works and thus protected by the First Amendment from legal intervention on the grounds that someone is being discriminated against.
"It does not follow, however, that she therefore has the right to start a business which excludes same-sex couples on the basis of that personal belief. I am aware of no constitutional right to perform any job you like exempt from the law on the basis of your own expressive beliefs or preferences."
So they have the right to free speech, just not doing it on wedding cakes?
They can do anything they want with cakes until they open a business that serves the public.
At that point they can still do anything they want with the cake, but they must serve all customers who want the cake.
If you cannot serve all people and feel that you must discriminate against people whom you look down on, you can still bake cakes for friends and family, the govt cannot force you to open a public business and serve all customers.
But this prompts the question, exactly what is "speech," and does the definition extend to "creative and expressive work" that does not involve letter shapes, or does the mere working with letter shapes define a class of service providers who are exempt from public accommodation laws? And whose opinion of what constitutes "creative and expressive work" governs? Suppose I (profess to) believe that my landscaping is expressive, both to the customer and to the general public who see it; am I therefore free to refuse to work for anyone who somehow offends my (professed) religious beliefs, because to make their property more beautiful would be a "message" that I approve of some aspect of their behavior? Can I refuse to tend lawns for gay and lesbian couples? How about unmarried couples? How about mixed-race couples? How about non-White couples who are living in a White neighborhood which offends my beliefs about God's separation of the races?
"If a Jehovah's Witness became a nurse, they could be accommodated in such a fashion that they were not required to take part in blood transfusions for other people. But if a Jehovah's Witness accepted a specific post performing blood transfusions and then refused to perform them, they have no right to that job, merely a right to reasonable accommodations (where possible) to preserve their religious beliefs."
Change "Jehovah's Witness" to "Catholic or evangelical."
Change "nurse" to "pharmacist."
Change "performing blood transfusions" to "dispensing birth control or abortion pills."
And you'll find that AKSHUALLY apparently some medical professionals ARE allowed to take a job that requires doing something their religion allegedly prohibits, refuse to do that part of the job, and still get to hold onto the job even if the customer can find nobody else in that pharmacy or town to sell them birth control or abortion pills. There are plenty of stories from the Ungovernable Red States of Pharmacists of Faith denying medications to individuals and Walgreens/CVS/etc not firing them instantly and instead denying service to customers.
I think this is just more right-wing sophistry. "Wull, it has words, so it's speech!" Nonsense; it's decorative printing. There may be truly creative aspects to it that might qualify as "speech," eg the shapes of the letters or the colors of the icing (although what those "say" would be beyond me), but to say that placing or drawing letter in icing on a cake is "speech" is to stretch the concept almost beyond meaning.
And if this indeed is "speech," what's to stop a bakery from refusing to serve, say, a Latino customer who wants Spanish words? "The gummint can't force me to say words in a language that doesn't belong in 'Murica!" Or to bake a cake for a Muslim customer who wants Islamic symbols on it? "My religion forbids speaking any words except the messages of Our Lord and Savior." And how long before providing any service at all -- not the vending of goods but the actual performance, by a person, of particular acts at the direction of a customer -- becomes "speech"? "I feel that, when I show and sell a house, I am speaking through my work, and I cannot be compelled to say I approve of a non-fundamentalist family having a house in this neighborhood."
This is the thin part of a wedge that will end in the legalization of bigotry every bit as bad as the Jim Crow South, now camouflaged as a First Amendment right.
Most wedding cakes I've seen don't have any words. They usually have (premade) figurines placed on top. But that's about it. The rest of the design is just "pretty cake".
Besides the fact there wasn't actually a case, the thing that bothers me most about this is:
Who is going to associate the "speech" on the website with the website designer? No one. They are going to ascribe it to the wedding couple. So where is there even speech to be "freed"?
Unless web designers are somehow forced - on the page- to endorse what is being "said", then I really don't see where their "free expression" is involved.
If a client said they wanted the color scheme to be blue and yellow, but the designer thought it would look better in orange and black, the designer can say what she wants, but it's still going to be blue and yellow, or the designer will be out of business.
I guess there could be a claim that the website implies her endorsement - being forced to agree that The Customer Is Always Right. But that's as thin an argument as the one the Court handed down.
but it's still going to be blue and yellow, or the designer will be out of business.
Precisely. Which is a pretty major protection against bigoted cake decorators run amok. The vast majority of small businesses in America are only marginally profitable, and are not in a strong position to turn down business on ideological grounds.
A couple of thoughts. First, consider a wedding website designer who has religious objections to interracial marriage (e.g. "Curse of Ham," "God made the races separate for a reason," and all that crap). Does the Court's decision entail that this racist wedding website designer has a First Amendment right to refuse service to an interracial couple? If not, what is the difference between that situation and the 303 Creative case? Why grant an exemption to religious objections to same-sex marriage but not to religious objections to interracial marriage?
Second, in general, commercial speech has historically been afforded less constitutional protection than other sorts of speech such as political, scientific, and artistic speech. That's why the ban on TV cigarette ads is constitutional, for instance. So as a matter of constitutional law, 303 Creative as a commercial enterprise doesn't have exactly the same free speech right as a private individual does. So is the free speech argument in this case as strong as Kevin thinks? I have my doubts.
Now, one might reply: "It's OK for a government entity to BAN some forms of commercial speech (e.g. cigarette ads on broadcast TV), but it's not OK to COERCIVELY REQUIRE some forms of speech, as the liberal justices wished to do in this case." That distinction has some force, but I don't see it as dispositive. I'm inclined to say in reply, "Look, if you feel so strongly against same-sex marriage, there are plenty of other lines of work besides wedding-service businesses." (Compare: If you're a vegetarian, don't work in McDonald's.)
A follow-up to my previous post. Assuming that Kevin's description of the Court's decision is accurate, I note that the Court's decision is a freedom of *speech* case, not a freedom of religion case. So, *religious* objections to interracial marriage aren't required to create a legal permission for a website designer to refuse service to interracial couples.
For instance, imagine a secular owner of a wedding website company who's a straight up white supremacist; she objects to interracial marriage as contributing to the disappearance of the white race. "I can legally refuse to serve an interracial couple," she says, "since I have a free speech right not to be compelled to craft a pro-interracial message."
It looks like the logic of the Court's case in 303 Creative would have to agree. Or am I missing something?
You're not missing anything. That's pretty much exactly what 303 Creative is going to lead to, except you're not thinking big enough. This ruling is going to be used to justify every bigot's bigoted actions at the workplace for years to come. For example, the sandwich artist at Subway might decide his First Amendment rights are being violated if he has to make sandwiches for an interracial couple. And making a sandwich can be an art... I definitely have my personal favorites on staff at my local Subway who somehow make better sandwiches than others there.
Thanks SCOTUS for opening the door to more incivility in American life.
Protecting constitutional rights is worth risking incivility.
It's not a flaw, it's a feature. White supremacy means just that. White Christianist people with all the rights, FU to everyone else.
I would think that the decision does mean that the web designer would not be required to make a website for an interracial marriage if it was against their sincerely held religious beliefs. Why would that be any different? OI course, that scenario is much less likely to occur that with same sex marriages. There's about 100 million Catholics in this country. The Catholic Church is against gay marriage. (Not to mention some protestant religions, apparently.) There may be some small religious sects that are against interracial marriages but the numbers must be pretty small.
WHITES ONLY businesses are back baby!
But Atticus assures us not to worry. He isnt bothered by it, why worry?
When did I say not to worry about it? I just said I don’t think it’s going to be a common situation. Maybe I’m wrong.
"The Catholic Church is against gay marriage. "
It is also against divorce and remarriage, yet I haven't seen a single one of these bigots complain that they don't want to provide services for those who are getting remarried.
It is 100% bigotry that these bigots want to excuse as "deeply held religious beliefs" because they know that most of society frowns on such hate and bigotry.
Good to know. And you wonder why there’s a backlash against liberalism when you call the Catholic Church (of which about a quarter of our country belongs to) a bunch of bigots.
And you wonder why so many think conservatives are illiterate idiots. You may want to go back to elementary school to brush up on your reading comprehension if you think I was referring to the Catholic Church itself in my comment.
Funny thing is the institution itself is more accepting than what the bigots like these woman are (that's a hint for you).
They (the bigots like her and you) pretend to be so religious, until the head of the church tells them to be accepting of others, and then it turns out that what the church says the religious belief should be doesn't matter so much anymore.
Silly goose the backlash is against the Catholic Church for being shown to be the corrupt perverted institution it is. Church attendance is down, contributions to the church by Americans are way, way down.
So, can the shop owner refuse to design a web page for a mixed race couple because the web designer has a religious belief about mixed race marriages? Or refuse to design a web page for a marriage between a Jew and a Catholic?
Besides, commercial speech has less protection than non-commercial speech.
Well hold on there. This question will make supporters of the ruling uncomfortable..... because while they are okay with taking rights away from gay Americans, they dont like taking these rights away from other groups that they accept.
Similar to the civil rights era discussions where taking rights away from black men was totally different than taking rights away from women, Irish or Italians.....
Today, just like in the past, some will argue that your analogy doesn't work because while they dont like gays, they don't have a similar dislike for the other groups.
The goal of conservatives is to find an edge case they can win, then expand it to remove all the public accommodation / non-discrimination laws.
With a conservative enough court, quite a lot of business is 'expressive'. The waiters at Dick's Dock & Hooters put on a performance, so they can discriminate. A caterer's work is creative, so they can discriminate. Internet hosting or backup, that requires contact with, copying (a form of writing)--and thus acceptance--of the user's data, so they can discriminate. What about selling an artsy handmade chalkboard, the seller's expressive work is next to the objectionable content, so they can discriminate. So can any printer or copy shop, or cloud service.
The word processor companies--Microsoft and Apple--sell a product with templates (expressive), and hand tuned (expressive, like making a web site) writing analysis tools--grammar, phrasing, writing complexity, even translation. Can they discriminate?
Construction is always a hand-crafted product--skilled workers doing expressive work on layout, composition, and the 'look' of the building. Surely, they are allowed to discriminate in both hiring (picking workers who share their expression views) and in picking customers.
Design is subjective, and using design terminology, creating a graphic design is expressing an idea visually. In this case, any creator can decline to do creative work for any number of reasons. How this ended up with the supreme court is bewildering. Suppose you want to have a designer create an art deco-looking website and you ask a designer whose entire portfolio shows nothing but baseball websites. In that case, it is likely a reasonable idea that it is not a good fit. The precedent for this case should have been Justice Brandeis' and "he knows it when he sees it" take on pornography.
It would be useful if folks would actually check out wedding websites before commenting. They are anodyne templates with the only changes being names, dates, etc. No one is going to hire a developer for a de novo build when there are hundreds of off the shelf products. These sites are organizing tools that cease to exist after the event.
Actually no. Just like you can buy “art” from a Target or Walmart, there are people who choose to use web designers who craft in a variety of ways.
A creator can decline to do work for many reasons. It's against the law to decline for reasons that discriminate against protected classes.
The 303 case is not comparable to the free speech examples you give. Even if the designer of a wedding website were required to create copy, the words she produced would not be presented as her speech. She would be providing a service--editing or ghostwriting--to a couple that would present the underlying message as their own. A better analogy would be to an attorney. An attorney may, in some cases, decline to represent a client if the attorney's strong feelings would impair the services she would otherwise provide. In other words, the attorney's feelings are a legitimate consideration insofar as is necessary to protect the client. But an attorney may not refuse to provide services merely because the proposed client is a member of a protected class. The "free speech" aspect of the 303 case is pure fiction.
Somehow, and it would take a bit of digging to get to the lower court opinions, Colorado stipulated that the work was in fact an "expression" and 303 stipulated that she would serve "all clients."
The needle was pre-threaded. The Court only took the case to make this point, so future cases will now be all about "whether whatever the biz wants to do" is speech or action.
As many have pointed out, its not speech, and even if it is, its not 303's speech.
As a lawyer who is ethically bound to make arguments whether I agree with them or not, I am not by nature inclined to play the world's smallest violin for 303. A refusal on the grounds of anti gay marriage from a licensed public business is completely bogus.
I have a hard time coming up with an analogy, frankly. The reasoning is that poor.
Colorado should have made 303 prove it was speech from the get go.
Yep. Colorado served up a tater, and the Roberts “balls and strikes” Court hit it out of the park. You’re supposed to be behind the plate, Justices, not swinging a bat.
If Colorado stipulated that this is an expression of speech, they blew the case right there (well, probably not, Roberts would have found a way around it), but that's borderline malpractice to stipulate that.
It's not 303's speech, it's the client's, both in fact (the website is going to say what the client wants it to say) and law (the client paid for it, and is by law, the author).
Kevins analysis is way off base. He is rewriting the facts of the case as well as the decisions.
The bigoted web designer literally said that she would not provide any service for a gay wedding. She admitted that this was not about the particular message on the website and the state of Colorado also said very clearly that there was no requirement as to what her websites had to say.
Kevins analogy about the shop owner gets the facts completely wrong.
The court actually ruled that an ordinary shop that simply sells Christian t-shirts and mugs and whatnot that celebrate marriage but none of the goods celebrate same-sex marriage can refuse to sell products to people who use them at gay birthdays, weddings or meals involving gay people. Gay people may still buy cups and shirts for straight friends, but they can be denied if the products will be used by gay people for gay events.
This was literally the ruling. The actual service provided was never an issue. Denying the same service was what the court battle was about.
Accusing Kagan of ignoring the issue when you have made up the facts of the case is really dishonest. Kagan went to great lengths to make it clear that nobody was forcing the web designer to change her products and services and that the actual request of the designer was to deny selling the same exact services to people she disproved of.
The court actually ruled that an ordinary shop that simply sells Christian t-shirts and mugs and whatnot that celebrate marriage but none of the goods celebrate same-sex marriage can refuse to sell products to people who use them at gay birthdays, weddings or meals involving gay people. Gay people may still buy cups and shirts for straight friends, but they can be denied if the products will be used by gay people for gay events.
This.
Kevin's analogy is such bullshit, because even if this 303 Bitch had a generic wedding website that she used for hundreds of straight couples in the past - so it's now a commodity, not a piece of art, same as how all the "paintings" in Target aren't works of art either - the 303 Bitch still wants the right to not sell that generic wedding website to anyone who will use it for a same-sex wedding. It's like as if Hallmark said "you can only buy the wedding cards on the shelf if you promise to not send them to any same-sex couples." It's total bullshit that SCOTUS ruled in favor of the 303 Bitch, and I hope that her business burns to the ground metaphorically as everyone gets wind of how fcked up she is morally.
Actually, I think Sotomayor did a good job of addressing the point Kevin questions on page 19 of her dissent, discussing a case , Runyon vs McCrory concerning a school that didn't believe in racial integration.
Kevin seems really confused about the facts of the case and what was in the dissent that he criticized.
Two Nazis in full uniform walk into an Orthodox Jew's store and respond "Heil Hitler" when the owner says "Hello".
How much does the owner have to put up with before he throws them out of his store?
Well, since a reasonable person could judge this an attempt at hostile intimidation, the owner could show the two yahoos the door.
What's the relevance to the case at hand? A gay couple wishing to purchase a wedding website design is not an attempt at hostile intimidation.
Being a Nazi is a choice, so the Jew you're so troll-concerned with can throw them out at any time. Stores aren't allowed to discriminate against protected classes, but Nazism isn't a protected class anywhere in the world.
Neither are Trump supporters, not that I'm suggesting anything.
Hilariously, website designers and cake bakers can't be forced to express anything that goes against their religious beliefs. But doctors and nurses can be forced to read entire paragraphs of bullshit they don't believe in to their patients if their patients want an abortion.
That seems about right for a country in decline.
Ding ding ding
One can only hope the smart folks(liberal dems), shun Smith's business and maybe tell their friends, red or blue, to find another. Why would someone want to do business with a bigot, racist fool!!! Surely there is more than one business like this around. The more she is shunned, the less business she will potentially do and finally go out of business. This is a good way of getting rid of these horrid folks.
She does not actually run this business. Her "standing" was 100% hypothetical.
This is why they should make these decisions based on real circumstances and not fake hypotheticals. Can the web developer object to writing text? Can the web developer object to laying out text provided by the customer? Can the web developer refuse to let a couple use a default template? Can a web developer refuse to service a customer by building a website that doesn't actually celebrate or say anything about a gay wedding just because they know it will be used for one? If speech is the issue we need actual speech in the case so they can point out where the lines are. As it is, this court sided with someone who wasn't asked to do anything, let alone anything that would violate her rights. If this is such a dire state overreach, they shouldn't have that much trouble finding a plaintiff who was in a real situation where actual content was at issue.
"...[Kevin's] personal opinion has nothing to do with the law in this case...."
Neither, evidently, do standing, precedent, or the facts.
Yet another wrongheaded legal opinion from a man who is not a lawyer but plays one on this blog. Once again, Kevin is not a lawyer. (I am a retired one.) Kevin has no particular legal expertise of which I am aware other than reading a lot of news (if he does, I'd appreciate being enlightened). Nonetheless, in the last couple of weeks he has posted a plethora of legal opinions, almost all of which are wrong, often risibly so. My take is these opinions are grounded less in law (of which he has little to no knowledge) and more in his delight in playing the contrarian and defending the blatantly corrupt Republican SCOTUS majority to his (supposedly) fellow liberals. I wish he'd stop.
Kevin indeed has stuff in there that cannot be labeled as anything other than poor analysis.
But he never said he was a lawyer, so I always figure its just what a reasonably educated non-lawyer thinks.
But there is no question that almost any lawyer is required to have more analytical ability than his "motel" being compelled to say "negroes welcomed here" vs. whatever Kevin speculates 303 would have to "say" comparison.
You (as a retired lawyer) and I know that the whole ballgame was given away when Colorado stipulated that whatever 303's objection was, that it was, in fact "expression." Now I am going to have to spend time I don't have checking out the 10th circuit opinion. Sheesh.
I don't think that means Kevin should stop posting about SC opinions though.
Others have made this point (and closely related ones) but I think it bears repeating: Smith (allegedly) wanted to open a "shop" selling one product: wedding websites. That's what she wanted to sell. (Any other old folks remember the SNL scotch tape store skit?)
There are *lots* of other web site custom design "shops" she could open selling other products, but she wanted to sell this one. There's nothing, that I can see, that's "speech" in what she's selling. It's wedding invitations and gift registries and directions to the event(s) and photographs, etc.
(I'm leaving aside the helplessly inane theological arguments of "Christians" who claim they can't associate with LGBTQ folks because of what scripture says..and are perfectly fine with getting tattoos, eating shellfish, serving meat and dairy at the same meal, etc.)
It is kind of amusing how so many liberals have such hatred for anyone that is against gay marriage when just relatively recently virtually every democrat (e.g. Obama, Hillary and Bill Clinton, Biden) said that marriage should only be between a man and a woman. How did you all develop this vitriol so quickly when just a few years ago your own elected officials shared that opinion?
I LAUGH at people who have opinions that are different than what some political leaders said 10 or 20 years ago!!
I LAUGH I SAY!
You miss my point. Of course people can change opinions. What's interesting is how a typical liberal, within a few years, went from believing marriage should only be between a man and a woman (or at least tolerating that opinion as it was shared by almost all democrats) to extreme hatred of anyone that has that opinion. Is your collective memory that poor or can you really flip the switch from acceptance to hatred that quickly?
"Can a shop owner be compelled to celebrate same-sex marriage?"
Why are people like Kevin still pretending that a paid contractor or employee is celebrating anything when doing a job?
Unless they are friends with the hosts:
A caterer is not celebrating the event for which they provide food.
The baker is not part of the wedding guests.
The venue isn't celebrating anything when they rent out a space.
It's pure lunacy to pretend you are celebrating anything when you are getting paid to provide a service.
Would atheistic web designers get the same consideration if they refused to design a website with a religious message? The message belongs to the owner of the website, not the designer.
An important caveat/correction- this case has nothing to do with the message. The dispute was over who was allowed to buy the product, not the look/feel/design of the product. People, including the majority of Justices and Kevin went to great lengths to disguise this important fact of the case.
The analogy you are looking for would be if they sold generic religious themed websites but refused to sell those same products to Jews or Protestants because they are false religions.
Would atheistic web designers get the same consideration if they refused to design a website with a religious message?
I would certainly hope so. Do you really want to live in a country where sincere a non-believer is required to perform intellectual work used to spread religion?
Ah, I see that several people (at least) have figured out the argument below. I'll just add this edit, and you can pretend it's yet another vote for what seems to be the obvious.
Okay, I haven't yet read the 64 previous comments (but will). However, celebrating the theoretical gay marriage is NOT Ms Smith's "speech." If anything, it's the speech of the happy couple.
So Smith is more llike a "common carrier" who doesn't create or stand behind the "content" on her sites. And thus, she really has nothing to gripe about. If she's so senstive about being "associated" with the Evil, No Good, Gay site she created, she could use a pseudonym for that kind of work.
Harlan Ellison was partial to "Cordwainer Bird."
Smith anticipated this argument and voided it by insisting, in the new line of business she was supposedly going to launch, that she would decide on the website content.
It will be interesting to find out in due course whether she goes ahead with the plan, now she's won her case. Presumably she won't, tacitly admitting the whole exercise was staged as another trivial battle in the right's never-ending campaign to force LGBTQ Americans back into the closet.
Didn't see this point yet, so...
In terms of compelling Smith's expressive speech (I'm granting the terminology though not agreeing with it), what exactly are we imagining it would be? (If the standing were not fictitious, we would not need our imagination, but it is, so we do) I imagine the speech would overwhelmingly be pretty identical, gay wedding or straight: "loving couple", "eternal commitment" blah blah.
So in considering Kevin's question from the OP: "can Smith also be forced to affirmatively say things she doesn't want to just because a customer wants her to", what is the statement she is compelled to make but does not believe? Another poster made the case well with Kevin's hypothetical t-shirt shop. The court has just said that this shop CAN refuse to sell their t-shirts about love and marriage to a gay couple.
Perhaps, just perhaps, if the non-existent couple wanted her non-existent business to publish the words "we celebrate our same-sex marriage" there would be something more plausible to argue about. I would +1 above arguments that it is still a losing argument as it is not her expression anyway, it is her client's.
Sadly this iteration of the SCOTUS seems largely unconcerned with plausibility.
The whole exercise was stage-managed. Smith went out of her way to create an artificial situation where she (a) said she intended to start offering wedding websites; (b) insisted that she would be the one to decide what content they contained; (c) would not post anything that celebrated a same sex wedding, and (d) had a reasonable fear that she'd be prosecuted the first time she acted on point (c). The very peculiarity of such a business model guarantees that the decision will have a very limited impact on ordinary LGBTQ Americans; I'm surprised the Supreme Court agreed to waste time on it.
Exactly. And this will be the basis for future rulings. And when people complain how atrocious those rulings are, the court majority will point to this and say smugly, with a smirk, "Hey, we're just following precedent. Weren't you just complaining about _not_ following precedent last session. So what are you complaining about?"
The issue is that this Court will go to any lengths to accept cases it wants to rule on and delay those it wants to delay. Had a liberal maker of "clothes on demand", who had never received any demand to make MAGA caps or indeed any caps at all, sought relief against the mere possibility that maybe perhaps it might happen someday, the case would have been laughed out of court for lack of standing.
That's why you know that more bad cases with equally bizzarre (but always favoring a particular group) rulings are sure to follow. If somebody goes to this much trouble to create a weapon, you know that they are going to use it.