"... who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish. Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie 'It’s a Wonderful Life' might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child.... Colorado Solicitor General Eric R. Olson said Smith was conflating speech with commerce. A store would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said 'No Jews allowed.'"
From "Supreme Court seems to side with web designer opposed to same-sex marriage/Colorado’s Lorie Smith says being forced to create websites for gay couples would violate her right to free speech" by Robert Barnes , reports on the oral argument in 303 Creative v. Elenis in The Washington Post.
For more background on the case, see the post I wrote this morning, before the argument, based on the NYT article by Adam Liptak.
And here's Liptak after the argument: "Supreme Court Seems Ready to Back Web Designer Opposed to Same-Sex Marriage/The justices are expected to settle a question left open in 2018: how to reconcile claims of religious liberty with laws barring discrimination based on sexual orientation."
ADDED: Here's the transcript of the argument. Here's the part where Justice Jackson talks about "It's a Wonderful Life":
[T]his expression in my example is classic scenes with Santa, "It's a Wonderful Life," 1940s, and we want -- the -- the artist, the photographer, wants Santa with the kinds of depictions that are in that movie, and he wants to sell that to everybody, but what that means is only some people can be depicted in that picture. Is that -- that's -- I'm just trying to make it -- because we've heard a lot of questions about, well, isn't she customizing it? I mean, he's customizing each photo, but what he's saying is, I won't do the customization for these folks who want depictions with Santa because that is inconsistent with my beliefs about how that scene should be depicted, and I'm an artist, and you'd be forcing me to put out into the world pictures of Santa with children that I think are inconsistent with my view of how Santa should be depicted.
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52 comments:
"When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race..."
Wait, wait wait. Santa gets to enforce Kagan's religious views?
Why aren't the liberal Justices all pro-choice?
"...wondering whether a photographer who wanted to create the ambiance of the movie 'It’s a Wonderful Life' might be able to exclude black children."
Slow your roll Mx. Watsawoman, including black children in the 'It's a Wonderful Life' remake will be mandatory. Government is just another word for the compromises we make together!
Alito has already been smeared in the headlines. He's a racist and bigot, doncha know?
NBC News,
"By Summer Concepcion
Justice Samuel Alito joked about Black Santa, children in Klan robes and dating websites as the Supreme Court heard arguments Monday in a case weighing a web designer's bid to avoid working on same-sex weddings because she is a conservative evangelical Christian."
Liptak says the case is about religious liberty? It’s a free speech case.
So...Westboro Baptist Church may enter a float design for the Pride Parade in San Francisco?
When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race,
Who says you have to be gay to marry someone of the same sex?
Do you have to be hetero to marry someone of the opposite sex? I daresay it's happened before. . . . .
The Supreme Court decided the earlier cakes case on a technicality with the obvious expectation that Colorado would get the message. Colorado instead doubled down on its scorched earth harassment of Christians. The only surprise is that anyone is surprised by what Colorado did.
Homos Uber Alles,
Would Colorado force a gay person to design a website for a Fundamentalist Christian?
When do the challenges to Muslim and Jewish bakeries begin?
David Begley sure has his panties in a bunch. Talk about a sensitive snowflake!
Political congruence ("=")?
Immigration reform?
Diversity [dogma]?
Wicked solution?
Democrats' Protect Pedophilia Act?
That said, civil unions for all consenting adults. Lose your ethical religion. #HateLovesAbortion
Not all analogies work.
Any mall Santa that would refuse any child is an asshole. And that wouldn't happen.
This is different.
Remember the transgender dude that sued a women's salon because they wouldn't wax his balls?
I wouldn't either.
But...maybe he can auction them for a few hundred grand like Mick Fleetwood.
Caroline, look up the USSC case on Boston St Paddy's parade for your answer.
Unlikely hypotheticals seems a bad way to decide this (or any other) case. Isn't there a saying that hard cases make bad laws?
Colorado instead doubled down on its scorched earth harassment of Christians.
It's not just Christians; although, they are the favored target. It's a secular issue. There is no compelling cause to either celebrate or reject transgender/homosexual unions and other sexual dysfunction. Tolerance for the individuals, tolerance through civil unions for all consenting adults. They need to lose their Pro-Choice ethical religion, their politically congruent ("=") constructs, in order to mitigate social progress (i.e. [unqualified] monotonic change): one step forward, two steps backward, or worse, social liberalism (i.e. divergence).
Hypotheticals are the world's weakest form of legal argument — saying the terrible things that might happen if you go ahead with this.
When reading comments by "Jupiter", it is always worth remembering that he is a Holocaust denier. Casts a real pall, doesn't it?
Alito's counter analogy about the white kid in a KKK costume is just dumb.
He lost that exchange to Justice Jackson.
You don't mix KKK rights with African-American rights. She baited him. Alito bit.
In grade school the half pints of milk at lunch were stamped in purple ink, on the edge of the top, Homo Milk. The other joke was straw wrappers that we read as Hyena Slippers.
You could repeat these observations every day and they were always as good as new.
Today the milk would be categorized by how much fat, because everything is homo. No pouring off the cream at the top of the bottles for special treatment, a religious tradition, say you decided to attempt to layer cream along the top surface of a cup of coffee, an interesting temperature experience to drink.
The mall Santa invites all children to sit on his lap and ask for presents. Sure, if kids in Klan robes at the mall weren't already being harassed out of the joint and made it that far, the Santa could refuse them because they're wardrobes (and what they stand for) are offensive. If they didn't wear them, the mall Santa wouldn't have a problem even if they held the same nasty views. That's not a great hypo b/c the mall Santa isn't hired to create an expression. He's just hired to sit there and pretend to be Santa.
The issue here is the website, like the wedding cake, is a work for hire. The gay couple wants a gay wedding website and the Christian designer says she doesn't do gay wedding websites because those offend her religious views. Jack Phillips was more than happy to sell an off the shelf cake to the gay couple. He just wouldn't use his creative talents to celebrate something he finds offensive. She isn't a restaurant refuse to serve a meal b/c the customer is gay. She is more like the lawyer who won't take on a client b/c she wouldn't be able to zealously advocate due to the client's views or legal position. Here, though, she doesn't want to lend her talents to something she doesn't believe in. It's the event, not the people, she dislikes. She doesn't want to make a website celebrating something she finds abhorrent. The government cannot force people to do that.
I'm sure the most holy council of cardinals will make the pope-u-lar decision
The St Patrick's Day Parade case was Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995). The NYT reported the result as follows:
"The Supreme Court ruled unanimously today that the private sponsors of Boston's St. Patrick's Day parade had a constitutional right to exclude marchers whose message they reject, including those who seek to identify themselves as gay, lesbian, and bisexual Irish-Americans.
Justice David H. Souter said in his opinion for the Court that a parade was a form of expression with which the government may not interfere, even for the "enlightened" purpose of preventing discrimination. "One important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say," he said."
Am I the only one more disturbed by the fact that couples getting married need a fucking website? My god the process just gets more and more laborious and complex every time I see an article about marriage.
When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child....
The correct answer is not that it is unlikely to be a black child, it is that the Santa character could (or could not) refuse someone based on their (the Santa's) free speech rights. You either have the right or you don't.
Colorado Solicitor General Eric R. Olson said Smith was conflating speech with commerce. A store would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said 'No Jews allowed.'"
Wrong analogy. By Olson's analogy, the web designer is free to offer heterosexual only marriage designs ("Christmas items"), which (as near as I can tell) the designer would have sold to gay people - the gay people just wouldn't actually want them, any more than a Muslim (or Jew, Buddhist or athiest) wouldn't want a Christmas item. By Olson's own reasoning, Colorado should lose this case.
Free speech exists whether you are writing poetry, baking cakes, designing websites, or whatever. If the relevant activity involves speech or expression, First Amendment trumps all else.
ALP said...
Am I the only one more disturbed by the fact that couples getting married need a fucking website?
It has become an extravaganza. Lots of couples now do a professionally choreographed dance routine for their first dance. Something that is like a 10 to 15 minute song and dance medley reminiscent of musicals. This isn't sarcasm.
Hopefully Phil Weiser, Eric R. Olson, and Governor Polis can get a reeducation courtesy of this court.
When I worked retail I didn't offer to help nayone wearing Che T-shirts or other Communist regalia, nor did I help anyone with Nazi regalia. In fact, a few times quite simply ignored them when they asked for help One Che t-shirt wearer actually went and found an assistant manager to complain to. The manager looked at what he wearing, looked at me, and said "Oh, well." and walked away from him.
I'm sure the two dozen or so gay couples who actually get married each year are following this case closely.
The appropriate analogy I see is stenographer/author. You could compel an employee to transcribe Jeffrey Dahmer’s confession. You couldn’t compel someone to ghost write his autobiography.
If one of the couple is literally sitting next to the web designer, dictating every word, determining the placement and order of photos, etc., then the web designer functions as a stenographer. If she is expected to write copy, organize photos, etc. then she is an author and cannot be compelled.
Checking r/LyftDrivers has confirmed some of my suspicions. I say some because there isn’t a support system right now that would allow speculation of the kind I have in mind. It involves the word the memorable word from a short time ago: collusion.
#SayNoMore . Here’s what misinformation the internet is allowing so far.
link to a TikTok
Real American @ 7:23: Exactly. Thanks.
So, when did mall Santas and wedding websites become essentials? These things are not on par with housing or voter rights, and yet everyone seems to hold them to that same status.
Can we accept as part of the social contract that other people are not going to like us, and we're not going to like all the people, and so long as people are not being denied things needed to preserve life or diminish their rights as a citizen/resident . . . who cares?
My God, when Supreme Court justices bring up hypotheticals dealing with mall Santas - Ann, how about you start a #whimsicalf*ckery hashtag?
At Peace Pavilion West, Zoe Satchel-Jumanji finally went Carbon-Zero last night. She is with Gaia now.
We celebrate the time she was with us, not her death.
We live through her sacrifice, not through her pain.
She consumes no calories so we might consume more.
Eat of her body of bug-paste.
Namaste
[T]his expression in my example is classic scenes with Santa, "It's a Wonderful Life," 1940s, and we want -- the -- the artist, the photographer, wants Santa with the kinds of depictions that are in that movie, and he wants to sell that to everybody, but what that means is only some people can be depicted in that picture. Is that -- that's -- I'm just trying to make it -- because we've heard a lot of questions about, well, isn't she customizing it? I mean, he's customizing each photo, but what he's saying is, I won't do the customization for these folks who want depictions with Santa because that is inconsistent with my beliefs about how that scene should be depicted, and I'm an artist, and you'd be forcing me to put out into the world pictures of Santa with children that I think are inconsistent with my view of how Santa should be depicted.
I don't get this analogy. Say someone wants to remake "It's a Wonderful Life" in exactly the same time and place setting as the 1940s movie. That means recreating the probably nearly all-white Bedford Falls of the 1940s. Why couldn't the producer use all white kids with Santa? Isn't it like remaking "Ivanhoe"--recreating a society that was in fact all white? What am I missing? Is Brown instead hypothesizing a mall Santa who has "It's a Wonderful Life" running in his head, so he turns down the black kids who want to sit on his lap? In other words, a mall Santa who's kind of insane? Furthermore, mall Santas work for (or have contractual relations with) malls. They don't have any say, artistic or otherwise, in deciding what races can sit on their laps, which is not, in any event, an artistic decision. As for the kid in the Ku Klux outfit, the mall Santa, as an employee, might have grounds to object to having a photo taken that would make him, Ed Jones playing Santa, look like a racist himself. This has nothing to do with artistic creation. It's about the scope of his job, which doesn't include having a compromising photo taken of him.
I think about the black students sitting at the Woolworth's counter--does Woolworth's have a right to refuse them service? Most people would say no. But store owners ban people from stores all the time--trouble-makers, people who pass bad checks. They have their reasons, but they're their reasons, which might not be our reasons.
How picky can we get about which reasons are acceptable and which reasons are not? When I think about balancing rights, I go to antitrust laws, which are basically about choice. If the consumer has reasonable options to go to this business or that business, then we let the market sort it out. But if a business is so dominant that it has no effective competition and the consumer's only option is to bend to their rules or do without, then it's time for the government to step in and set some rules.
That's where I land on these cases--if the wedding cake baker were the only one in town, then it's reasonable to make him bake cakes for anyone willing to pay. If the web designer were the only web designer on the internet, then it would be reasonable to require her to make web sites for every one who can pay. They don't get to be the gatekeepers deciding who gets cakes and who gets web sites.
But that's not the case here. There are plenty of bakers, there are plenty of web designers. Everyone has options. These aren't discrimination cases, they are harassment cases. A small group of activists are trying to drive Christians from public spaces.
Charlotte Allen said...I don't get this analogy. Say someone wants to remake "It's a Wonderful Life" in exactly the same time and place setting as the 1940s movie
I think what they're saying is people want pictures of themselves in Bedford Falls. He specializes in just that service, but he will only do it for white people because there were no black people in Bedford Falls. But why shouldn't that be up to the black customer? It'll be their picture when it's all done, hanging their home or in their scrap book. If they are fine with having a black person in their picture of the white town, what business is that of the photographer?
But this is just fine, isn't it?? Hypocrites. https://redstate.com/terichristoph/2022/12/05/in-stunning-display-of-bigotry-and-intolerance-woke-virginia-restaurant-refuses-to-serve-pro-lifers-n669226
How about a nudist wedding? Can a photographer refuse to do photos? Can a web designer refuse to do a website on cannibalism? A website calling for murder of whites? Mall santa is a red herring. Can a song writer refuse to write a sexually explicit song? THESE are free speech issues.
Tim McGuire says:
I think what they're saying is people want pictures of themselves in Bedford Falls. He specializes in just that service, but he will only do it for white people because there were no black people in Bedford Falls.
Are you postulating a hypothetical business called "A Very Merry Bedford Falls Christmas" in which kids pose on Santa's lap wearing 1940s children's clothes in front of an "It's a Wonderful Life" movie still, and the parents buy the photos?
That doesn't strike me as a persuasive hypothetical. Even in the 1940s Bedford Falls (not to mention its real-life model, Seneca Falls), there were probably a few black families, and even in the 1940s most Northerners wouldn't have minded black children sitting on Santa's lap to have their pictures taken. Furthermore, although you could argue that this hypothetical Santa's-lap photo business is "customizable" because each child is different, it actually seems quite generic: same Santa, same lap, same pose, same backdrop, same (or similar) 1940s kids' clothes. This is quite different from building a wedding website featuring two distinct personalities and their distinctive aspirations, tastes, and religious beliefs that might be completely alien or even hostile to the web designer's?
But let's imagine that there wasn't a single black living anywhere near Bedford Falls in 1946, and the "Very Merry" company has such a passion for historical accuracy that putting black kids into its faux-period photos would strike it as a crime against historical truth. No Latino, Italian, Jewish, Balkan, Hindu, or Armenian kids, either--because there weren't any up there back then. How different is this from a movie company deciding to remake "It's a Wonderful Life" itself and casting only Anglo types because that's what the original "It's Wonderful Life" did? Why would it not be discriminatory to bar black children from the cast of an "It's a Wonderful Life" remake but discriminatory to bar them from a series of still photos designed to look like scenes from the original "It's a Wonderful Life"?
This is the problem with KBJ's hypothetical. Not only is it unrealistic, but it wanders into casting decisions, which surely are a matter of an individual director's artistic aims. What if a director decides to audition only Danish-looking actors for a "Hamlet" production? Should that be banned by anti-racial-discrimination laws? If a painter chooses to use only white models because he likes blondes or has trouble recreating the pigments in black skin, should his artistic choices be banned?
Tim McGuire says:
That's where I land on these cases--if the wedding cake baker were the only one in town, then it's reasonable to make him bake cakes for anyone willing to pay. If the web designer were the only web designer on the internet, then it would be reasonable to require her to make web sites for every one who can pay. They don't get to be the gatekeepers deciding who gets cakes and who gets web sites.
So you're saying that if Jack Phillips were the only baker in town, he could be forced by the government to violate his religious beliefs about marriage and bake a custom cake to celebrate a union that his faith deems sinful and unnatural? What if there were two bakers and the other baker happened to be overloaded with custom-cake orders and couldn't handle another one? Should Jack then be forced by the government to violate his religious beliefs? What if there were ten or twenty or thirty bakers to choose from but none of them so talented as Jack (and if you go to his website, you'll see that the cakes he bakes for birthdays and other special occasions are spectacularly beautiful and imaginative, way above the ordinary)? Jack has already suffered grave financial injury by being forced to get out of the lucrative wedding-cake business altogether in order to comply with Colorado law. If, say, all the other bakers in Lakewood, Colo., shut down or moved elsewhere, could Jack be forced by the government back into the wedding-cake business in order to service a same-sex wedding? This is a serious issue. Does religious freedom actually depend on other people's convenience? What if Jack's church empowered him, as a layman, to officiate over wedding ceremonies? Should he be forced by the government to officiate over same-sex weddings?
Apparently Justice Jackson forgets that there were black people In Bedford Falls.
"The court came to Monday’s argument equipped with hypotheticals — mall Santas who might refuse to take photographs with minority children, political speechwriters... who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish. Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie 'It’s a Wonderful Life' might be able to exclude Black children. Alito countered blah blah blah....”
So goes the discourse at the pinnacle of American jurisprudence, now probably the most intelligent and responsible of the three branches of American government. Xi Jinping has nothing to worry about.
They should just do terrible work for the weddings they're forced to do. They'll stop bothering them soon enough.
Anyone know how the gay couple decided to choose that particular web designer?
I actually got through (briefly anyway) to a Wokester when the Colorado wedding cake baker case was first in the news.
She was a woke hippie who made money on the side silk-screening T-shirts. She was also Wiccan. I explained that under her interpretation of the baker's legal duty, if a customer asked her to design shirts that featured a Biblical quote about not suffering a witch to live---she would have to make them. Ditto if she were a wedding photographer and a patriarchal sect follower wanted her to photograph his wedding, including a ceremony where the bride lays on the floor and the groom puts his boot on her neck to demonstrate that she is totally subordinate unto him and must atone for Eve's bringing sin into the world. And that photographer had better make those pictures as gorgeous and positive as the rest of her work or her ass will be sued and her business ruined.
"Apparently Justice Jackson forgets that there were black people In Bedford Falls."
There were Italians, too. FWIW...
"They should just do terrible work for the weddings they're forced to do. They'll stop bothering them soon enough."
Forcing the people who prepare your food to do something they are bitterly opposed to wouldn't seem to be a good idea, if you ask me.
Forcing the people who prepare your food to do something they are bitterly opposed to wouldn't seem to be a good idea
You'd think so, right?
But like every religion, the woke, leftis religion has its martyrs.
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