Some quick comments on this term's four most highly-anticipated Supreme Court decisions, in ascending order of liberal controversy:
- In Allen v Milligan, The Court ruled that the GOP-controlled Alabama state legislature violated Section 2 of the Voting Rights Act by gerrymandering the Congressional districts in such a fashion that Blacks, who constitute about 27% of the state's population, have a majority in only one of the state's seven districts, with Blacks dispersed throughout other White-majority districts. The 5-4 majority included the three liberal justices (Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson) plus Chief Justice John Roberts and Justice Brett Kavanaugh. Alabama will have to redraw its districts to give Blacks more power.
My hot take: Many liberal observers were genuinely surprised that the conservative-dominated Court passed up this chance to further weaken the Voting Rights Act. While liberals are right to be concerned about Republican politicians scheming to gerrymander congressional districts to disempower historically disadvantaged races, the Court can't be tarred with the same brush. - In Biden v. Nebraska, the Court ruled that Secretary of Education Miguel Cardona exceeded his authority under the HEROES act to extend student loan forgiveness of up to $10,000 to most students who had taken out loans. The decision was 6-3, with all six conservative justices in the majority. As a result of the decision, those in debt with student loans (a group that includes all of my children) will need to resume paying them this year.
My hot take: To state the obvious: student loan forgiveness is very popular with college-educated young adults, whom Democrats view as a key constituency. The legality of the Biden Administration's student loan forgiveness program was shaky at best, and virtually everyone has known it all along. Biden himself is on record in 2021 saying that he lacks the authority to unilaterally forgive student loans. This decision does not state that student loans can't be forgiven; but it finds the Biden Administration's particular program to forgive loans is illegal. If Biden and Democrats want to forgive student loans, they can propose legislation for Congress to approve. - In Students for Fair Admissions, Inc. v President and Fellows of Harvard College, the Court ruled that Harvard and University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment by admitting students based on their race. Harvard has an admissions goal of ensuring that each incoming class's racial composition doesn't represent a "dramatic drop-off" from the previous incoming class's composition. With this ruling, colleges and universities can no longer use race as an admission criterion.
My hot take: For highly selective colleges, university admissions is a zero-sum game: there are many more applicants than the finite number of available seats, so each decision to admit one student means that another student will not be admitted. Using race as a criterion to admit Student A necessarily means that race has been used as a criterion to eliminate Student B from consideration. Asian students in particular have complained that, by objective metrics such as grade point average and standardized test score, some of them who are not admitted are more highly qualified than some Black and Hispanic students who are granted admission. Thus, Affirmative Action has become an instrument of discrimination against students whose race, for all practical purposes, has been deemed less desirable than other races by admissions committees. Colleges and universities which view student body diversity as a legitimate goal (a goal I sympathize with) will need to find other ways than Affirmative Action to achieve student diversity. - In 303 Creative LLC et al vs Elenis et al, the Court ruled that a commercial creator of wedding websites can't be compelled against her conscience by the State of Colorado to create wedding websites for same sex couples. The ruling broadens a previous ruling against Colorado (Masterpiece Cakeshop Ltd. vs. Colorado Civil Rights Commission) and clarifies that the government can't abridge creative persons' Constitutionally-protected free speech rights, even in seeking to protect the interests of protected classes such as LGBTQ persons.
My hot take: This decision has been widely reported as a blow to LGBTQ rights, and a victory for religious rights. In fact, it is neither. The Constitutionally protected right of gay persons to marry one another isn't affected by this ruling. If a baker, web designer, photographer or florist has a conscientious objection to providing creative services for an event that violates his/her conscience, the gay couple is free to find another service provider which is willing to do the work. Nor is this decision a ruling in favor of religious rights. The court has was asked by the plaintiff, but declined, to consider this case under the Free Exercise clause of the First Amendment (the right of Americans to exercise their religious beliefs, free of government interference). Instead, the Court rooted its decision in the First Amendment's Free Speech clause (the right of Americans to engage in speech free of government interference).
Interesting decisions, but you missed the biggest one of all, I think it was Moore vs Harper, which basically ruled that state legislatures do not have the authority to overturn election results. I don't know if I stated that exactly right, but that decision seems to be tremendously important in preserving democracy. It was decided 6 to 3, with Alito and Thomas dissenting. I don't know if Gorsuch dissented or abstained. That result was surprising in a good way, the liberals and conservatives actually can work together on something important.
ReplyDeleteI had mixed feelings about number 3 on the list, the one about affirmative action. It is true that in trying to prevent discrimination, it also caused it. I think they will find ways to ensure student diversity. One suggestion is to figure poverty and income into the equation.
About student loan forgiveness, I think that was correctly decided as far as legality is concerned. What I would like to see going forward is for some guard rails to be built into the student loan system. Such as some of the same considerations that are used for mortgage loans. No lending institution is going to lend someone $200K to buy a house which is only appraised at $100K. They don't have any business lending a student into the six figures for a major which has no hope of the earning power to pay it back. Also it is very difficult for a student loan to be discharged for an illness or disability; if the person can't work they can't pay it back. I also feel it isn't fair to exempt a student loan from consideration in bankruptcy.
But having said that about student loans, I think we need to do more as a society toward making college or vocational education more affordable without so much reliance on student loans. The idea was floated about making community college free or low cost, haven't heard much about that lately.
DeleteKatherine, the decision on the NC case was a big relief. One small glimmer of light. I suspect the colleges will find workarounds for the affirmative action case. One positive might be that it’s shining a light on legacy admissions.
DeleteI could write pages on the college loan issue. I will leave it at this - a highly disproportionate percentage of those loans were made to students who applied to for- profit colleges, many of which are only online. The. Eight year completion rate is pathetic. They accept almost all applicants, have high tuitions, and help those would be students fill out loan applications, while knowing that, though the majority will never get a degree, they will end up with a lot of debt because their job prospects were not actually improved. They are a scandal - for profit schools all the way through were promoted by DeVos and trump ( who had his own for- profit scam real estate investment school), so the scams could start in elementary school. They are another example of capitalist greed run amok. Nobody in the Biden administration even seems aware of this problem.
According to an article at America, some Catholic colleges and universities are claiming that the affirmative action decision violates their religious freedom. Lol! The plot thickens.
DeleteAbout people who want to take online courses, most public in-person colleges and a lot of private ones offer them. Probably for less money than the diploma mills and for credits that actually apply toward a degree.
DeleteKatherine, that’s what is so upsetting. Most state college systems have extensive online degree options these days, from AA degrees through PhD. legitimate ones that don’t cost nearly as much money. But naive people get lured in to these online, for-profit schools by advertising that misleads them.
DeleteSo, Jim, if it violates the conscience of someone who provides a commercial service who believes that interracial marriages are forbidden by God and they refuse to provide the service on those grounds - is it ok? Can anyone claim that anything that violates their individual conscience should be exempt from civil rights laws?
ReplyDeleteBTW, apparently the whole case was fabricated. She didn’t even have a wedding website design business. Apparently the case got twisted a bit to turn it into a free speech case. Which is probably a little bit better than it being a religious freedom case. The SC opened the door last year to help those trying to impose Christianity on the country. If this case had been decided on religious freedom grounds the wall between church and state would have come completely down. And anyone could then violate the civil rights of anyone else pretty much by saying it would go against their religious beliefs.
Commentary from Heather Cox Richardson
“In 303 Creative LLC v. Elenis the court said that the First Amendment protects website designer Lorie Smith from having to use words she doesn’t believe in support of gay marriage. To get there, the court focused on the marriage website designer’s contention that while she is willing to work with LGBTQ customers, she doesn’t want to use her own words on a personalized website to celebrate gay marriages. Because of that unwillingness, she said, she wants to post on her website that she will not make websites for same-sex weddings. She says she is afraid that in doing so, she will run afoul of Colorado’s anti-discrimination laws, which prevent public businesses from discriminating against certain groups of people.
This whole scenario of being is prospective, by the way: her online business did not exist and no one had complained about it. Smith claims she wants to start the business because “God is calling her ‘to explain His true story about marriage.’” She alleges that in 2016, a gay man approached her to make a website for his upcoming wedding, but yesterday, Melissa Gira Grant of The New Republic reported that, while the man allegedly behind the email does exist, he is an established designer himself (so why would he hire someone who was not?), is not gay, and married his wife 15 years ago. He says he never wrote to Smith, and the stamp on court filings shows she received it the day after she filed the suit.
Despite this history, by a 6–3 vote, the court said that Smith was being hurt by the state law and thus had standing to sue. It decided that requiring the designer to use her own words to support gay marriage violated the First Amendment’s guarantee of free speech. »
https://heathercoxrichardson.substack.com/p/june-30-2023
So all the smoke and noise was about a business which did not exist? The Supreme Court should have vetted that case better and refused to hear it, that's ridiculous.
DeleteI wonder if the man can sue her for spreading lies about him. Perhaps for attacking his heterosexual marriage. It would be great if that were possible and in the works.
Delete"if it violates the conscience of someone who provides a commercial service who believes that interracial marriages are forbidden by God and they refuse to provide the service on those grounds - is it ok? "
DeleteYou missed a key adjective: "creative". The decision protects the free speech rights of those who engage in creative work (such as web design).
In the majority opinion, Justice Gorsuch notes that this right cuts in both ideological directions. If you own an ad agency and happen to think Donald Trump is a danger to the country, you can't be compelled to create campaign ads that promote his candidacy.
On the other hand, if you own a hardware store, you can't refuse to sell cans of paint to a married gay couple, even if you think gay marriage is immoral. There is nothing creative about selling cans of paint.
Jim, you, like several SC judges, are a master at finding a very tenuous justification - a way to rationalize a wrong action or decision - for very questionable decisions. In your original comment, you were happy because you look at it as a religious freedom issue. The anti-civil rights “conservatives” basically found a willing participant to invent a (phony) case in order to find a way to justify discrimination against the gay community. That same woman who now poses as an “artist” could set up a wedding website that not only discriminates against gays, but against bi-racial couples. And probably others. Just as the cake baker can. But that case was also decided on a technicality.
DeleteAfter all, there is precedent at the state level for banning inter- racial marriages by the Virginia judge who upheld the ban in the 1960s (NOT the 1860s) - based on the judge’s “christian” religious beliefs. This SC is going to set back true religious freedom and civil rights a hundred years at the rate they are going.
The hardware store could refuse to sell the paint if it was to be used on painting a structure used for the wedding - such as the one that was built for one of my son’s weddings - a wooden swing - painted white- that the bride and groom, family members, wedding party members and guests could sit in for photos. Some wedding chuppahs are also custom built (and painted) for Jewish weddings.
It will be interesting to see what they do with the Oklahoma and Texas laws that are destroying the principle of separation of church and state once they make their way to the SC. Are you in favor of those too? Or only in favor or using tax money to fund Catholic schools ?
Maybe this woman, and the bakers and florists and photographers who have been found by the right- wingers to press these phony religious freedom cases against gay rights will decide not to bake cakes or provide flowers or take photos for Catholic weddings someday too, because many not only believe that Catholics aren’t christian, they believe that that the Catholic Church is the tool of the devil. Be careful what you wish for, Jim. Right now the SC has a bunch of extreme right wing Catholics, but there could be a backlash down the road in a decade or two. Cheering on those who want to destroy American freedoms via the judiciary - as we’re seeing at the state level and the national level - may result in long- run, permanent harm to Americans that will not be easy to undo. Think twice - think a lot more than twice - before continuing to support the white, christian nationalism movement behind these moves.
Delete"In your original comment, you were happy because you look at it as a religious freedom issue."
DeleteOn the contrary: in my original post, I made it clear that this is *not* a religious freedom case. Please go back and read my "hot take" on this case in the original post.
"BTW, apparently the whole case was fabricated. She didn’t even have a wedding website design business. "
DeleteAs described in the majority opinion, Smith originally filed suit to seek a legal clarification: to clarify whether or not the State of Colorado would permit her to operate her business as she wished. Apparently, that is enough for the courts to grant her standing.
In my view, the affirmative action decision piles onto the class war making being born into money the determinant for future success. I look upon blacks not so much as a racial group so much as a socioeconomic group. This decision twins with the reduction in inheritance tax promoting the establishment of powerful dynasties like the Kochs. Affirmative action was at least a chink in the armor of this growing dragon.
ReplyDeleteThe hyperinflationary rise of college tuition is another contributor to the stratification of American society perhaps to the point of caste formation.
"n my view, the affirmative action decision piles onto the class war making being born into money the determinant for future success. I look upon blacks not so much as a racial group so much as a socioeconomic group. This decision twins with the reduction in inheritance tax promoting the establishment of powerful dynasties like the Kochs. Affirmative action was at least a chink in the armor of this growing dragon."
DeleteThe Ivies and other elite college have been admitting the children of rich people - in particular, the children of rich people who attended the same school and donate to it - for many, many years: long before Affirmative Action came along.
If Harvard was to end legacy admissions, it would be opening up other spots for the hoi polloi.
Btw, Harvard's endowment is > $50 billion. Harvard could pay a full ride - tuition, room, board, fees, etc. - to its entire freshman class of ~2,000 students and not make a dent, or even a ping, in its endowment.
I get a free newsletter from Bloomberg. The following excerpts are from the Bloomberg newsletter. The full,articles that are linked to require a subscription though.
ReplyDeleteThis Supreme Court's conservative mutation is complete
Corporate America shied away from mentioning “Pride” throughout June, following protests against companies and brands like Target and Bud Light, which experienced intense backlash after advocating for the LGBTQ community. In the final week of the US Supreme Court’s term, the justices demonstrated the court’s complete transformation into a haven for conservative causes in a series of decisions. So we probably should have seen it coming when the Supreme Court — on the last day of 2023’s Pride Month — handed down its decision in 303 Creative v. Elenis.
In 303 Creative, the justices voted 6-3 along ideological lines that a Christian website designer who wants to create wedding pages for only opposite-sex couples has the right of free speech to do so. As Noah Feldman warns in his response, “The Supreme Court has led the First Amendment further down the path to a disastrous conflict with civil rights. That’s bad for civil rights. And in the end, it will be bad for free speech, too.”….
Here’s what else Bloomberg Opinion’s writers had to say about the court’s major decisions last week:
Supreme Court Ruling Requires New Diversity Efforts: “The Supreme Court’s decision on affirmative action will make it harder for colleges and universities to be what our country urgently needs them to be: engines of opportunity that propel us toward a more equal society.” — Michael R. Bloomberg
Supreme Court’s Affirmative Action Ruling Follows Half-Baked Logic:“I’m not insensitive to the concerns of those who don’t like racially conscious programs, and I don’t think opposing them marks one as a tool of White supremacy. Every selection rule disfavors somebody, and no matter how justified a program might seem in the abstract, it’s different when it’s your kids. So I get it. And I quite agree that some colleges have taken matters too far. But unlike the court majority, I don’t think we’ve reached that fabled moment when we really can put all consideration of race behind us.” — Stephen L. Carter…..
The Supreme Court Made It Harder — Again — For Women to Get Justice: “To tell someone that they should die — especially when you seem to have been stalking them — is, in the strongest and scariest possible terms, telling them to be silent. Since it is disproportionally women who are the targets of online stalking and threats, the place we draw the true-threats line implicates the chilling of women’s speech, not only the speech of people who want to make violent threats.” — Noah Feldman
The Supreme Court Just Stood Up for Electoral Democracy: “When the Supreme Court wants to, it will still overrule state supreme courts’ interpretations of state law when it comes to federal elections. That’s the enduring legacy of Bush v. Gore. But at least for now we know that six justices don’t want runaway state legislatures to break electoral democracy. That’s one less thing to worry about.” — Noah Feldman
Alliance Defending Freedom (ADF) is the organization that successfully argued the case involving the Colorado web designer who now has permission to refuse to create web sites for the weddings of same-sex couples despite what seems to be the case that no same-sex couple ever requested her services. (See The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court.)
ReplyDeleteWhatever one feels about the Supreme Court's decision, it is interesting to check out the Wikipedia entry for ADF for a summary of the organization's agenda. Some excerpts follow.
While the ADF states that it works to promote freedom of religion, it is explicitly fundamentalist Christian, and employees must profess "adherence to the inspired, infallible, inerrant, and authoritative Word of God in Scripture." Its stated mission is to "keep the door open for the gospel" by bringing United States law in line with Christian beliefs. ADF nevertheless maintains the position that it is "not a political organization."
One of ADF's goals is for Christianity to be incorporated into the US legal system, based on the organization leaders' interpretation of the U.S. Constitution. According to materials for its donors, ADF seeks to spread a belief in "the framers' original intent for the US Constitution and the Bill of Rights as it reflects God's natural law and God's higher law."
In 2003, ADF unsuccessfully called for the recriminalization of homosexual acts, in the U.S., filing a Supreme Court brief supporting Texas' sodomy law in the landmark Lawrence v. Texas case which declared sodomy laws unconstitutional; it opposed laws that would protect people from discrimination based on sexual orientation and gender identity; and it falsely linked homosexuality to pedophilia. ADF also opposes same-sex marriage and civil unions, as well as adoption by same-sex couples, based on its leaders' "belief that God created men, women, and families such that children thrive best in homes with a married mother and father."
ADF opposes transgender rights based on an idea that "God creates each person with an immutable biological sex — male or female..."[69] The organization has litigated against transgender employment protections, access to bathrooms, and participation in sports for transgender people. Members of ADF also authored model legislation for bathroom bills in the United States, aimed at restricting transgender people's use of public bathrooms. In 2020, the ADF lost a Supreme Court case in which they argued that employers should be allowed to discriminate against transgender people.
ADF has opposed government measures aimed to stop the spread of COVID-19 in the United States and in other countries. In the US, ADF partnered with The Daily Wire in a legal challenge against the Biden administration's OSHA vaccine mandate. In Uganda, ADF joined a Texas libertarian organization in backing a campaign to end restrictions on large gatherings that the government had implemented to reduce COVID-19 spread.
Apparently someone didn't do due diligence in researching this case. Don't Supreme Court justices have clerks to do that stuff if they're too busy to do it themselves?
DeleteKatherine, they have an army of clerks. Of course they knew it was a set- up. Apparently they wanted a case like this so that they could twist their reasoning to fit the constitution (by turning it into a free speech case).
DeleteIt is not unusual for cases of social importance to be sought out, filed and advocated before courts by by legal advocacy groups. Roe v Wade came about in such a way: advocates for legalized abortion looked for a suitable person who could be the "vehicle" for their desired policy change. Ultimately, they located a down-on-her-heels young woman named Norma McCorvey, who is now known to history as "Jane Roe". Reportedly, she barely understood what the advocates were asking her to take part in; she was no social advocate in her own right.
DeleteThis ADF outfit operates in a similar fashion. There are some things they wish to change, and they look for legal opportunities to pursue those changes through the courts.
The Supreme Court, and lower courts, have no problem rejecting an application because the applicant lacks standing (i.e., has no standing to sue because they are not harmed by whatever is the issue at hand). I thought the original Obamacare contraceptive mandate was terrible insofar as it lacked a meaningful religious exception, but I could not have sued the government because I would have lacked standing: I was not personally harmed by the (gratuitously malicious) regulation.
Standing was an important issue in the student loan case discussed in the original post: did the plaintiff, an agency of the State of Missouri, have standing to sue the federal government over the latter's forgiveness of student loans? The plaintiffs apparently were successful in arguing they were harmed by the federal government's loan forgiveness plan. (I would explain how the state agency is harmed by the program, but I don't completely understand it myself. Somehow, its funding to provide its own student aid was reduced by the federal government's loan-forgiveness plan.)
I may be mistaken, but I don't think any of the courts in the series of cases which led to the Supreme Court rejected the Smith case because the applicant lacks standing. I think the idea is: Smith was prevented from pursuing a new business idea by the Colorado civil rights commision's illegal regulation, and that was deemed to have harmed Smith.
Jim, you are right that cases are put together to deliberately test the laws. It does happen regularly. I seriously doubt that this woman was hurt in any way. However, she agreed to be the test case. But, I don’t know how often they fabricate another party as they did this time - claiming that a gay man approached her to build a wedding website ( when she wasn’t even in the website development business yet). Apparently this man, married to a woman for 15 years, did not know that he was being used this way. Apparently he did not write the letter, and it was not even mailed until after the relevant date. It seems a bit sloppy, doesn’t it? And rather undermines her claims?
DeleteSo - you really do believe that someone’s “religious” beliefs give them the right to discriminate against minorities?
I think conscience rights have to be protected from government compulsion. In this case, a person who believes that marriage is between a man and a woman would have been compelled by the State of Colorado to say something which is directly contrary to her beliefs. Does that amount to "discrimination", even as an indirect consequence of that right not to be compelled? I have been informed that both parties - she and the State of Colorado - stipulated that she is willing to serve gay clients for any number of creative services, with the single exception of same sex weddings. So it seems she doesn't discriminate against gay people in general. (By the way, I believe the same is true of the guy who owns the Masterpiece Cake business.)
DeleteThis thought experiment might help: if, for some difficult-to-fathom reason, two heterosexual men decided to marry one another, an action which presumably is legal across America, Smith would object, and couldn't be compelled by the government to provide her services for that wedding, either. There is no element of gay identity in that scenario.
I keep bringing up another thought experiment that you refuse to address. Some people believe that inter-racial marriage is immoral - against God’s laws. In fact, some “chrstians” believe that blacks carry “ the mark of Cain” ( or Ham) and are his cursed descendants. So - if this woman or a cake baker or anyone in a public service business refused her services because this is what she believes or because the couple is -biracial, (as did the judge in Virginia who ruled to keep the law banning inter-racial marriages) would you still support the decision? Is it ok for these “ religious” to discriminate against the alleged descendants of Cain - or Ham?
Delete"I keep bringing up another thought experiment that you refuse to address. Some people believe that inter-racial marriage is immoral - against God’s laws...Is it ok for these “ religious” to discriminate against the alleged descendants of Cain - or Ham?"
DeleteAs I understand the decision, it has nothing to do with discrimination. It has to do with speech that is compelled by the government.
If you can come up with a scenario that involves the government compelling a creative type to deliver creative content in favor of something that s/he opposes, I would consider it and tell you what I think.
As long as you keep framing it as "discrimination", I think you're fundamentally misunderstanding what this case decided (and what it didn't decide).
I agree with the SC that creative people should not be compelled to work for a member of a protected class simply because they belong to a protected class. That would mean they would have to give preference to everyone but us white males.
ReplyDeleteHowever, the way of making the decision was stupid and revealed the SC real purpose of supporting certain people in their religious beliefs which I think should be irrelevant to the issue. The SC tried to rationalize this by referring to free speech.
I think creative people should not be able to say that they refuse to work for members of a protected class, e.g., they should not be able to put signs to that effect, nor answer phone calls in that way, etc. Simply to rule out service to anyone in a protected class for any reason should be against the law.
The purpose of having protected classes is not to silence free speech nor eliminate freedom of religion. It is simply to promote civility in society. It does however restrict speech and behavior in those situations.
So, a creative person can simply decline to do a project because they are not interested in the project, or have too many things to do, or do not think they would do a good job, etc. In other word as long as your reasons are not related to the person’s protected status, they are acceptable.
As long as there are sufficient creative persons out there to take care of the needs of people in protected classes, there is not any reason why a particular creative person needs to serve those needs. Now if everyone in a business or a locality boycotts members of a protective class that is another issue.
David, thank you for the information. It exactly supports my assumptions about the true reasons for inventing this case and pushing it to the SC.
ReplyDeleteHowever, the way of making the decision was stupid and revealed the SC real purpose of supporting certain people in their religious beliefs which I think should be irrelevant to the issue. The SC tried to rationalize this by referring to free speech.
Jack, thank you also. You have explained it in a way that I could not - much, much better - that reflects my thinking too. The SC is (so far) avoiding looking at these cases for what they really represent - allowing “freedom of religion” to subvert our civil rights laws and legalize discrimination with “freedom of religion” as the justification.
The decision has nothing to do with freedom of religion. The court declined to hear it argued as a freedom-of-religion case. It is a freedom of speech case. To be sure, religious speech is a subset of the speech protected from government restrictions by our Constitution, but it is not the only type of speech. It's possible this decision could have ramifications beyond religious conscience. In his opinion, Gorsuch proposed one such hypothetical situation: a gay web designer can't be compelled by the government to provide creative services to - that is, be a mouthpiece for - an organization like the ADF that advocates against same sex marriage.
DeleteJim, you continue to duck the truth of why this case was brought, and why they used freedom of speech instead of freedom of religion- it’s a workaround to further weaken the civil rights of minorities without a direct ruling that says freedom of religion permits discrimination. I know you are a smart man. I know that you aren’t that naive. Perhaps the refusal to look at the truth of this might signal a need for some prayer and honest reflection. The Supremes who claim to be christian should look at themselves too to deal with the why if their own choices of cases to decide.
DeleteIf you truly believe that people who run public service businesses should be able to discriminate because of their religious beliefs (as this woman openly admits is her rationale) then just admit it. Making it a free speech case is simply a device to further weaken civil rights laws.
"...it’s a workaround to further weaken the civil rights of minorities without a direct ruling that says freedom of religion permits discrimination." I'm afraid that is correct. If it walks like a duck, quacks like a duck....
DeleteThis is the definition of the expression "straw man": " an intentionally misrepresented proposition that is set up because it is easier to defeat than an opponent's real argument:."
DeleteThe Supreme Court should not base decisions on a "straw man" case that was cooked up for the occasion. As a bare minimum, it should be an actual case that has come up in an actual court of law.
""...it’s a workaround to further weaken the civil rights of minorities without a direct ruling that says freedom of religion permits discrimination." I'm afraid that is correct."
DeleteAs I've noted already: I don't think this decision has anything to do with discrimination. Both parties to the case (the plaintiff and the State of Colorado) stipulated that Smith does not refuse to serve gay clients. To put it as plainly as possible: Smith does not discriminate against gay clients or prospective clients. In addition, the majority opinion from Gorsuch went to some lengths to note that this decision cannot be construed to enable discrimination against protected classes (such as sexuality, gender or race).
There is some value to reading the decision and understanding what it actually says. There is a lot of flat-out untrue rhetoric flying around from politicians and their allies in the media in the wake of this decision. (The same is true of the Affirmative Action decision.) All of us have a responsibility to try to discern what is true. Not taking partisans at their word is part of that.
Jim, I will take your word for it that the decision is about free speech and that it says nothing about discrimination. I actually did look up the text of the syllabus of LLC vs Elenis. Made it part of the way through, but it is quite long.
DeleteWe all know about the letter of the law and the spirit of the law. The decision satisfies the letter of the law, and I suppose civil law does not really address the spirit of the law. However it is possible to discern the spirit of this law by turning over a few rocks. Such as the one David turned over above about the involvement of ADF. It is pretty plain what the focus of that organization is. The decision does not technically stray over into justification of discrimination. But if we care about marginalization of people it is impossible to feel comfortable with it.
"However it is possible to discern the spirit of this law by turning over a few rocks. Such as the one David turned over above about the involvement of ADF. It is pretty plain what the focus of that organization is. "
DeleteRight - sometimes, parties whom you or I may deplore bring cases before the court, and in this particular case, that party prevailed. In a vast nation of 330 million people, that will happen from time to time.
Nevertheless, it wasn't ADF who wrote this decision - it was the Supreme Court. The Court didn't give ADF everything it wanted; ADF wanted this case heard as a religious-discrimination case, and the Court declined to do so.
At any rate, in this particular case, ADF was on the side of the angels.
"I actually did look up the text of the syllabus of LLC vs Elenis. Made it part of the way through, but it is quite long."
DeleteYes - these decisions are cures for insomnia. They are worse than church documents in that respect.
The only thing worse is reading lengthy debates about these documents in legal blogs. Of course, to attorneys, that stuff is fascinating.
An article at AP says the man whom she claimed requested the website ( which he didn’t) didn’t even know that he was claimed to have done so until he was contacted by the reporter from New Republic. Did the SC not a even notify the man who was alleged to be the other party to the lawsuit? Assuming he is telling the truth ( and now her lawyer says request “might have been” an email from a troll) this is so clearly a set- up designed deliberately to find a way for the SC to permit discrimination based on “ religious” beliefs. It stinks to high heaven. I wonder if there is some way for someone to sue the SC for going along with it.
ReplyDeletehttps://apnews.com/article/supreme-court-gay-rights-lgbtq-website-385ec911ce0ca2f415966078eddb66da?utm_source=RecoReel&utm_medium=articlePage&utm_id=Taboola
Perhaps, if those circumstances had been brought to light before the case reached the Supreme Court, or during oral arguments or in briefs, the Court may have taken them into consideration.
DeleteWhat's good to cook the goose can be used to fry the gander. According to the NYT, activist groups have filed a complaint against Harvard regarding legacy-based admissions for students of alumni and/or rich contributors. George W Bush was just such a Little Lord Fauntleroy student. I suppose there's an advantage for the regular students to rub shoulders with the offspring of the PTB, giving them possible access to the halls of power and money. But, similarly, affirmative action increased the chance of students mixing with all segments of American society. Well, it will be interesting to see if this goes anywhere.
ReplyDeleteJim,
ReplyDeleteYou said: "As I've noted already: I don't think this decision has anything to do with discrimination."
I think that remains to be seen. Certainly the majority decision states that the court's intention is to rule on the issue of free speech, and against government compelled speech. There is an excellent summary and analysis of the case in the following article: How to Read 303 Creative v. Elenis. However, I would point out that the author says the following:
There is a risk that some lower courts will be too aggressive in constitutionally exempting non-expressive commercial products from anti-discrimination rules. That result would not only be harmful to the dignitary and material interests of buyers, but it would ultimately discredit and undermine the genuine First Amendment interests of speech creators.
In and of itself, this case is not particularly important. Who cares about one web designer (Lorie Smith) in Colorado who disapproves of gay marriage? What will be important is what flows from it. I feel confident in saying that ADF is very pleased with itself and views this victory as the next step in their crusade against gay rights. It would be comforting to be certain that they are wrong.
As for attempting to dismiss all talk of discrimination, you might feel differently if your own ox (whatever it may be) was gored. What the "free speech" decision of the court has tried to establish is a right against government-compelled speech, no doubt a good thing if applied wisely. But the only clear-cut case the ruling lays out is the right to ignore anti-gay discrimination laws and refuse to create a "customized" and "expressive" commercial product involving same-sex marriage. Your argument that this ruling has nothing to do with discrimination reminds me of the Catholic position that only "unjust discrimination" (as defined by the Church) is discrimination. Consequently, denying housing to openly gay people is not discrimination.
In any case, I think a couple about to enter into a same-sex marriage who gets turned down by a web designer—"I don't do homosexual weddings"—will quite understandably feel they have been discriminated against as gay people. And although the Supreme Court decision was clearly about free speech, it remains the case for the moment that the reason the web designer won the right to refuse to create sites for same-sex marriages is a religious reason an it is the only case we have at the moment, and the victorious organization (ADF) is a religious organization with an anti-gay agenda who would be happy to see same-sex marriage abolished and homosexuality legally prohibited.
So you are not altogether wrong to insist the court's decision, in and of itself, was about free speech. But it is impossible to consider the decision in total isolation.
"...you are not altogether wrong to insist the court's decision, in and of itself, was about free speech. But it is impossible to consider the decision in total isolation." Exactly!
Delete"As for attempting to dismiss all talk of discrimination, you might feel differently if your own ox (whatever it may be) was gored. "
DeleteI am sure that is true.
"In any case, I think a couple about to enter into a same-sex marriage who gets turned down by a web designer—"I don't do homosexual weddings"—will quite understandably feel they have been discriminated against as gay people."
Perhaps that is true. I don't know how to avoid that, except for the parties to that hypothetical conversation to be as sensitive and open as possible. In a society such as ours that values free speech, hurt feelings are a risk. FWIW: I suspect the desire to avoid hurting people's feelings may be at the root of the Colorado Civil Rights Commission's record of deprecating free speech. Unfortunately, when the government undertakes something like that, what results is more or less a regime of thoughtcrime.
Jim,
ReplyDeleteYou say above: "This thought experiment might help: if, for some difficult-to-fathom reason, two heterosexual men decided to marry one another, an action which presumably is legal across America, Smith would object, and couldn't be compelled by the government to provide her services for that wedding, either. There is no element of gay identity in that scenario."
First, how do you know the mind of Lorie Smith?
Second, suppose I am a photographer or a portrait painter, and I have a rule that I will not photograph or paint any man who has payos (sidecurls) or is wearing a yarmulke. Would you argue this is not discriminating against Jews, since I would treat a non-Jew with payos or a yarmulke the same?
If my religion or my conscience tells me God is against mixing races, can I legally refuse to design a website for an interracial couple?
I don't know the mind of Lorie Smith, but I believe she is on record as stating she believes that marriage is between a man and a woman.
DeleteAs for your hypotheticals involving yarmulkes and interracial marriages: I don't know how this decision would be applied in those cases. Perhaps the providers of creative services would prevail in those cases, too. As I understand it, Nazis were granted the right to parade through Skokie, IL (a heavily Jewish community) back in the 1970s. For good or ill, the right of free speech means we have to put up with some deplorable speech.
Jim Pauwels: "At any rate, in this particular case, ADF was on the side of the angels."
ReplyDeleteYes, but the fallen ones.
Apparently Jim thinks that civil rights should not be enforced if someone merely claims that exemption from the civil rights laws is ok.The only thing necessary to get an exemption from the law now is to claim that obeying the law violates their religious beliefs - or to cleverly twist this right to discriminate into being » freedom of speech »l
DeleteYes Nazis were given the right to parade in Skokie. They were not given the right to refuse to serve Jews in their businesses.
Allowing business open to the public to discriminate against others on (highly questionable) applications of religious freedom or freedom of speech is opening the door to wholesale discrimination against all kinds of people, including women, LGBTQ+, racial minorities, interracial couples and who knows who else. Neither the ADF nor the SC is on the side of the angels on this decision, except as David notes, the fallen angels. God help our country and especially those who aren’t straight, white “christians “.
David wrote, "So you are not altogether wrong to insist the court's decision, in and of itself, was about free speech. But it is impossible to consider the decision in total isolation."
ReplyDeleteI can understand that. I would note that conservatives on the court apparently don't see it as their role to target specific policy outcomes; it is to decide cases in light of the law and the Constitution. There are other branches of government to make policy, and there many other sectors of society to work out social issues and problems.