Here's the opinion.
It's a 6-3, conservative/liberal split. Gorsuch writes. No concurring opinions. One dissenting opinion, by Sotomayor.
From the Gorsuch opinion for the majority:
The business in question is a website design firm (owned by Lorie Smith) that offers customized "text, graphic arts, and videos to 'celebrate' and 'conve[y]' the 'details' of [a wedding couple's] 'unique love story.'"Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.
Ms. Smith... has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism.... Ms. Smith does not wish to do otherwise now, but she worries... that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman....
Eighty years ago in Barnette, this Court affirmed that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 319 U. S., at 642. The Court did so despite the fact that the speech rights it defended were deeply unpopular; at the time, the world was at war and many thought respect for the flag and the pledge “essential for the welfare of the state.” Id., at 662–663 (Frankfurter, J., dissenting); see also id., at 636, 640 (majority opinion). Fifty years ago, this Court protected the right of Nazis to march through a town home to many Holocaust survivors and along the way espouse ideas antithetical to those for which this Nation stands. See Skokie, 432 U. S., at 43–44; supra, at 17–18. Five years ago, in a case the dissenters highlight at the outset of their opinion, the Court stressed that “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 16). And just days ago, Members of today’s dissent joined in holding that the First Amendment restricts how States may prosecute stalkers despite the “harm[ful],” “low-value,” and “upsetting” nature of their speech. Counterman v. Colorado, 600 U. S. ___, ___ (2023) (slip op., at 6); id., at ___ (SOTOMAYOR, J., concurring in part and concurring in judgment) (slip op., at 5).
Today, however, the dissent abandons what this Court’s cases have recognized time and time again: A commitment to speech for only some messages and some persons is no commitment at all. By approving a government’s effort to “[e]liminat[e]” disfavored “ideas,” 6 F. 4th, at 1178, today’s dissent is emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic. But “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.” 6 F. 4th, at 1190 (Tymkovich, C. J., dissenting) (quoting G. Orwell).
In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” post, at 38 (opinion of SOTOMAYOR, J.), “misguided, or even hurtful,” Hurley, 515 U. S., at 574. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.
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71 comments:
Live and let live is the message. The left hate that.
The left demand coerced acceptance of their demands.
From the Sotomayor dissent: "Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class."
Do tell Sonia, how many protected classes are there?
Gorsuch flips it and says 330 million. Good for him.
Gosh, it turns out that Christians are full citizens with all the same rights as everyone else!
The fact that this had to go through to the Supreme Court exemplifies why our legal system is a mess. When all is said and done, this is simply about someone refusing to do a work for hire. A customized website is no different than a customized cake or any other thing that is specially customized. The same way one can buy a wedding cake the baker offers to the public as is, a website can be purchased from a software provider that allows the purchaser to customize on their, no need to get someone to create something for you and for you to have the right to impose your desires on them. Or one can always learn to code.
I used to live in Colorado. I used to love Colorado. I still do, but I have to get it in small doses now. The Californiyuppification was already well entrenched when I left Boulder in 2007...don't get me started with Denver.
I tell people all the time that if you want to see the end result of the blueprint leftists and marxists have to turn states blue, look no further than CO. People compare the constantly migrating liberal trustafarian diaspora to locusts, and it's a great analogy.
They have zero taste, zero accountability, zero sense, zero respect, but they have tons and tons of mommy and daddy's money they will use to extricate anyone or anything that made the community they've moved to successful enough that it became ripe for pillage.
Things in Denver are already going sideways. Somewhen it gets really bad the trustafarian locusts will pull up stakes and head somewhere else, coming to a formerly functional community near you.
It's a 6-3, conservative/liberal split.
The point is no longer to win cases based on the law, but to ensure a 6-3 outcome so the media and others can call the ruling "politicized" and further undermine the authority of the Court.
it was hard (for gilbar) to see HOW the 1st Amendment could REQUIRE speech you didn't believe in
Someone else commented that this was pretty clearly a "did we fucking stutter?" ruling from SCOTUS to Colorado.
The attacks on religious businesses by trannies and gays has pretty much poisoned that well. The previous opinion did not work as crazies dominate some state authorities, like in Colorado.
I’m not a lawyer so I probably have this wrong, but did this decision, as written by Gorsuch, just interpret the First Amendment to protect freedom of thought? What a remarkable concept in the face of 21st century Progressivism!
The same three skunks at the picnic. Their oaths of office, Article VI, means shiitte
So Coloradans don't have to create a website for a gay marriage, but they do have to bake a cake for it.
"It's a 6-3, conservative/liberal split."
It's a 6-3, conservative/progressive split. The left is not liberal. Words have meanings.
An open-and-shut case of the anti-Constitutional tendencies of the Colorado State Legislature deftly thwarted. Why it was dragged all the way to high court, is the question, but the devil never sleeps, as they say.
The only regrettable aspect is the Constitutional conservative, Lorie Smith, had to bring the case. If the right were more bold and proactive, the day after CADA was signed into law, someone purporting to be a Palestinian should have tried to commission a soi-disant progressive to illustrate an anti-Semitic website, complete with bestial caricatures highlighting the subhuman filthiness of the Jews, and then sue her under the CADA provisions, thus forcing the left to strike down its own law! 'Merica! Fuck yeah...
On second thought, that plan probably wouldn't work. A progressive would be only too happy to hook-nose and slope-forehead a Jewish physiognomy to the heart's delight of any neo-Nazi.
Forced labor = slavery.
Sotomayor, "Who will not claim . . . that they don't have an expressive service?"
Answer is everyone has a business that is part expressive.
No State may order a hotel to fly a "Gay Pride" flag doing "Prime Month", because that is expressive conduct, and none of the State's business.
A State may order a hotel to sell room nights to gay customers the same way they do to straight customers. THAT is "public accommodation"
Colorado may have the right to demand that Smith accept commissions from a gay wedding coordinator for a heterosexual wedding.
What Colorado can not do, and what no reasonable person would ever try to defend it doing, is force Smith to create a wedding celebration website for a "wedding" of a non-heterosexual or non-cis couple.
That teh three fascists on the Left were so eager to force that just goes to show what disgusting people they are
Today's court ruling weakening discrimination protections for LGBTQ people stands out as extraordinarily strange to me for the simple fact that there was no case. The web designer in question never received a request to create a website for a gay wedding, but instead argued that a hypothetical situation in which she did would violate her rights. I've never really heard of anything like this before— how does she even have standing to sue? Can someone with more knowledge of legalese than me elaborate on this?
It’s also very unclear to me how exactly courts will be able to distinguish between discrimination on the basis of identity and discrimination on the basis of message. Hypothetical: someone organizing a black music festival asks a designer to make a website for them and the designer refuses. If the designer refuses because the customer is black, that’s illegal. But under the precedent of this ruling, couldn’t they refuse on the grounds that they disagree with the message of black people organizing together? Maybe I’m misunderstanding the ruling but drawing that line in court would require having very precise proof of intent, something that’s hard to do unless the discriminator is dumb enough to leave evidence.
Progressives confuse the service with the customer. The web designer doesn't create same-sex wedding websites for anyone, regardless of sexual orientation. Nada, zip, nothing. Doesn't matter if a straight man or woman ordered the same-sex website for good friends.
It'd be like asking a wood-deck contractor to pour a concrete patio. Both projects are level surfaces for entertaining. A same-sex couple asking for a concrete patio would get the same answer as a hetero-couple. "We don't do concrete patios." No discrimination.
These sorts of decisions should be 9-0. If the web-designer had been a leftist who refused to do a design for Republican on anything at all, all three liberal justices would have been on the other side of this decision.
So I don't have to bake the cake, provide flowers, style your car etc if somebody else down the street can do it? And if I run a restaurant I can still put up a sign that says "No Shirt No Shoes No Service"? Well that one's a little tougher since any person who is a member of any of the 57 different genders can opt to not wear shoes or a shirt on any given day.
serious Question (about the law, of which gilbar knows NOTHING)
If you are a lawyer.. And i decide to hire you? Do you have ANY say? Or, are you REQUIRED, By LAW to represent me?
I Honestly DON'T Know the answer. But, if you aren't; WHY NOT? how do YOU, REFUSE service?
What about songwriters? Can i hire ANYONE, to write for me? If not, WHY NOT? how do YOU REFUSE service?
More Importantly; WHAT ABOUT HOOKERS? Can gilbar hire ANYONE, ANYWHEN? If not, WHY NOT? how do YOU REFUSE service?
Kay Asked.. (okay, Kay did NOT ask THIS)...
Hypothetical: someone organizing a black music festival asks a performer to play for them and the player refuses. If the player refuses because he doesn't play black music, that’s illegal. But under the precedent of this ruling, couldn’t they refuse on the grounds that they disagree with the idea of playing outside in that area?
Seriously, IF i'm an artist; am i REQUIRED to perform for you? AM I?
The Court needs to address public accommodation law. Our constitution provides protection for a multitude of individual rights, including the rights of speech, worship, and assembly. It was once thought that these rights needed to give way in the face of the material and immediate harms members of the public would face if businesses were permitted to discriminate on whom they would hire or whom they would serve. Say a black family was traveling through the Jim Crow era south and, due to car trouble, was forced to stay overnight in a town with no businesses willing to serve blacks. The family would have no place to stay the night, no place to eat (or even to buy food they could prepare for themselves), and nowhere to get their car repaired.
To prevent these harms, it was thought such racial discrimination should be outlawed. However, to keep such a law from making the constitutional protections of freedom of speech and assembly from being a dead letter, it was thought that any prohibitions against discrimination should be limited to businesses that were 'public accommodations.' That way, only a very small subset of businesses would be affected. It was argued that those going into such a business would know that they were giving up a portion of their individual rights for the privilege of engaging in such a business. There were plenty of other types of business to pursue if the individual found these new restrictions too oppressive.
It was a good thought. The problem is governments have steadily expanded what a public accommodation is to the point that virtually all businesses are covered by these laws. Now, we're told that the privilege of engaging in commerce of virtually any kind requires the surrender of fundamental, constitutionally protected rights. If The Constitution once permitted the crafting of a narrowly tailored exception to the rights of speech, worship, and assembly, it should never have allowed a wholesale surrender of such rights simply because someone engages in business.
I don't know where the line should be drawn. But, frankly, we crossed that line several miles back, and the Court should address this issue. Otherwise, government will continue to infringe on the rights of citizens until, on a case-by-case basis, each individual infraction is litigated. That's no way to protect constitutional guarantees.
I see ABC is threatening to cancel Rasmussen Reports as their polling results don't align with Disney Inc.'s agenda. I'd rather see Rasmussen severe ties to ABC/Disney as they ignore facts/truth in their reportage.
forcing people to do things they do NOT want to do.
WHAT IF we amended The Constitution, with something like this?
. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
forcing people to bake cakes INVOLUNTARILY, forcing people to write web pages INVOLUNTARILY
How is that NOT involuntary servitude? hmmm? explain it to gilbar, he's kinda slow; what with his traumatic brain injury
"It'd be like asking a wood-deck contractor to pour a concrete patio."
No, it isn't, those are fundamentally different products. A wedding website for a gay couple is materially the same as a straight couple's website.
If you are going to make straw men to knock down, make them at least plausible.
The opinion held that the state cannot compel speech. That's good. The dissenters pretend that's not what the case is about at all. They view their jobs as that of a politician with a constituency. They represent the rainbow people and rainbow people need special treatment and must be celebrated at all costs because if not, the rainbow people will be criticized and we can't allow that because criticism of rainbow people = genocide or something.
That the dissenters have to lie about what the opinion holds is just another example that these are deeply dishonest people with no legitimate legal arguments to support their positions. Everything is outcome based. They're hacks.
'When people get used to preferential treatment, equal treatment seems like discrimination.'-Thomas Sowell
"It's a 6-3, conservative/progressive split. The left is not liberal. Words have meanings."
What the left advocates isn't progress, either. It's regression to the sort of totalitarian despotism we thought we banished when Hitler's brains spattered the walls of his bunker. Since words do have meanings, it's a 6-3 conservative/fascist split.
Hypothetical: someone organizing a black music festival asks a designer to make a website for them and the designer refuses. If the designer refuses because the customer is black, that’s illegal. But under the precedent of this ruling, couldn’t they refuse on the grounds that they disagree with the message of black people organizing together?
You are making the wrong distinction. If you have an off-the-shelf product, you have to sell it to whoever wants to buy it. If you are instead creating something, you don't have to agree to create content with which you do not agree, even if your disagreement is odious. The whole "I hate what you are saying but I will defend your right to say it" thing that used to be a liberal value.
In your hypothetical, you cannot refuse simply because the person is black, it would depend on the message they are asking you to create. But no one, protected class or not, can force you to speak their message.
When I was in law school, way back in the day, I had a female professor who found “gender issues” everywhere. Whenever O’Connor wrote a dissent and the majority opinion criticized that dissent (which they often do), she chalked it up to gender. Anti women those old guys were. Every time.
She’d be having a stroke over todays and yesterdays decisions/opinions.
From the Sotomayor dissent: "Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class."
And right off the bat, the dissent knowingly distorts and lies about the case. Smith didn't refuse to serve LGBs or TQs or anyone. They can hire her and she will design any number of websites. That she will decline to create websites of a certain sort for anyone does not mean she says "no LBGs or TQs allowed."
From the majority opinion: Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it.
Kay -- Allow me to address your concern that the website developer had no case because she had suffered no harm. The state had not tried to enforce the law against her. The harm that she suffered is that the law would force her to create speech she disagreed with once she started creating websites celebrating heterosexual marriages. Sure, the state might never choose to enforce the law against her, but she would always be subject to the threat that it would. Say she'd invested a lot of time and money in developing her new line of business, that investment would be at constant risk. Someday, she'd never know when she might be forced to abandon the business or provide a service she fundamentally disagrees with.
Or, to change the facts, suppose a law was passed that made it illegal for parents to teach X to their children in the privacy of their homes. (I'll let you choose what X might be.) Should the courts refuse to hear a challenge to such a law merely because no parent has, of yet, been charged with teaching X? No, the law would have a chilling effect on protected speech, and it would be proper for a court to hear a challenge to the law. Similarly, here, the website designer's speech (creating websites celebrating heterosexual marriages) is being chilled by a law that would impose on her an obligation she finds objectionable if she engages in such speech.
The web designer in question never received a request to create a website for a gay wedding, but instead argued that a hypothetical situation in which she did would violate her rights. I've never really heard of anything like this before— how does she even have standing to sue?
The opinion addresses this at page 3 - to have standing, 303 Creative had to show a credible threat that Colorado would, in fact, seek to compel her to speak, which she established by pointing to the wording of the statute, the penalties it provided, Colorado's history of bringing such suits, that the Colorado statute allowed anyone in the state to bring a complaint (i.e., didn't have to come just from the State itself), and that Colorado declined to disavow future enforcement proceedings against her. In fact, Colorado stipulated that it would seek to compel her to produce websites for gay marriages.
All the best creative comes at the barrel of a gun.
It's past time to revisit the 'public accommodation' foundation upon which the laws prohibiting anti-discrimination laws rest.
A wedding website for a gay couple is materially the same as a straight couple's website.
And if a straight couple had asked for a gay wedding website, she said that she would have rejected that too. And the state stipulated that.
So the rejection had NOTHING to do with the status of people, but with the content of the expression.
Try reading the opinion next time.
instead argued that a hypothetical situation in which she did would violate her rights. I've never really heard of anything like this before— how does she even have standing to sue?
You've never heard of facial challenges to laws/regulations?
I'm curious. What affect if any will this have on Michigan's new pronoun law? It seems like the government is forcing people to say things they may not believe in by threatening them with fines and jail time.
No, it isn't, those are fundamentally different products. A wedding website for a gay couple is materially the same as a straight couple's website.
Not in content, content that has to be created by someone. The question is, can the government force someone to create that content against their will?
The Founders would have said no, and I agree.
Here is a HUGE SURPRISE!
https://www.foxnews.com/politics/sotomayor-dissent-christian-designer-case-makes-false-claim-pulse-nightclub-shooting
"A social system of discrimination created an environment in which LGBT people were unsafe," wrote Sotomayor. "Who could forget the… the Pulse nightclub massacre, the second-deadliest mass shooting in U.S. history?"
Despite Sotomayor's assertion, however, the FBI and other law enforcement were unable to verify any claims that Mateen was gay, frequented gay bars or even knew the Pulse nightclub was a gay bar.
Mateen's final selection of Pulse as his target appears to have been made based on the lack of security, not because it was a gay club, and made at the last minute..
Mateen reportedly Googled "Orlando nightclubs" after finding that security at his original target, a major shopping and entertainment complex, was too high.
that's Right!
a) the gunman didn't pick it because it was gay
b) the gunman picked it, because: It Was a GUN-FREE Zone
c) "Justice" Sotomayor has NO f*cking clue what the hell is Actually happening
Surprise!! Surprise!!!
tommyesq said...
In fact, Colorado stipulated that it would seek to compel her to produce websites for gay marriages.
That's :Kinda Weird.. Because YOU Just told me:
. But no one, protected class or not, can force you to speak their message.
Or, are you saying that:
As of TODAY.. no one, protected class or not, can force you to speak their message.
because it Sure SEEMS like Colorado was trying to force you to speak their message.
The stipulated facts made for an easy decision, and Gorsuch used it to advantage. As his opinion notes towards the end, where he replies to Sotomayor's dissent, the factual premises for her arguments are all contradicted by the stipulated facts. Hard not to admire a ringing endorsement of the First Amendment and its promise of free thought and expression, all relying on the Court's greatest hits from decades past -- rulings in favor of Jehovah's Witnesses (the flag salute/pledge of allegiance case from 1943, when circumstances made their point of view very unpopular), the American Nazies (the Skokie parade), Snyder v. Phelps (as repulsive a group as you can get, but no matter), and the too-green-for-their-own-good Irish guys behind the Boston St Pat's parade (no official gay float, thank you just the same).
You get the feeling that there was a bit of a class element in play as well -- who are these hick bigots clinging to their religion who think they can be choosy in refusing to bake special wedding cakes or design a website for a gay marriage? For Sotomayor, true 'expressive' conduct is different from and not at all like what this hick lady was peddling.
The stipulated facts made for an easy decision, and Gorsuch used it to advantage. As his opinion notes towards the end, where he replies to Sotomayor's dissent, the factual premises for her arguments are all contradicted by the stipulated facts. Hard not to admire a ringing endorsement of the First Amendment and its promise of free thought and expression, all relying on the Court's greatest hits from decades past -- rulings in favor of Jehovah's Witnesses (the flag salute/pledge of allegiance case from 1943, when circumstances made their point of view very unpopular), the American Nazies (the Skokie parade), Snyder v. Phelps (as repulsive a group as you can get, but no matter), and the too-green-for-their-own-good Irish guys behind the Boston St Pat's parade (no official gay float, thank you just the same).
You get the feeling that there was a bit of a class element in play as well -- who are these hick bigots clinging to their religion who think they can be choosy in refusing to bake special wedding cakes or design a website for a gay marriage? For Sotomayor, true 'expressive' conduct is different from and not at all like what this hick lady was peddling.
DKWalser scores two threadwinners.
Yes, a wood deck is fundamentally different from a concrete patio. This example is meant to be absurd. Every contractor has the right to say "No bid.", regardless of who the customer is. If a contractor doesn't want to do the job, for whatever reason, he doesn't have to give a quote.
A gay wedding site expresses a message that the website creator doesn't agree with and doesn't want to be associated with. "No bid." End of story. It's the service, not the customer.
(Probably Dumb Lefty)Mark said...
"It'd be like asking a wood-deck contractor to pour a concrete patio."
No, it isn't, those are fundamentally different products. A wedding website for a gay couple is materially the same as a straight couple's website.
What a perfect illustration of Mike of Snoqualmie's point.
Democrats have never lost their hard-on for involuntary servitude.
You cannot force anyone to deny their religion.... and that is what the Homosexuals want them to do... deny their own God.
The three leftwing female justices all vote as a bloc on almost every important case. And they always come out on the "left" side of the issue. Its not only that, their opinions seem to be "untethered" to either the constitution or whatever law they're ruling on. Judgement now, reasons later.
I'm astounded at how badly reasoned and written many of the opinions are, especially the ones by Roberts and the Leftwing judges. Perhaps someone can point me to a WELL WRITTEN one by them. Of course, does it really matter? Was Roe well-written or Well reasoned? At bottom 5 judges can do anything and write crap to justify it.
"What the left advocates isn't progress, either."
No, it's not.
"Since words do have meanings, it's a 6-3 conservative/fascist split."
No disagreement here. Today's progressives have thrown in their lot with fascists to the point they're nearly indistinguishable.
Well this sucks. I was just getting ready to call my local Black owned bakery -- they make wonderful cakes -- to get them to make a "We must secure the existence of our people and a future for white children." cake for our local KKK chapter's annual get together. Now what are we supposed to do?
"it was hard (for gilbar) to see HOW the 1st Amendment could REQUIRE speech you didn't believe in"
Works great in North Korea.
"A wedding website for a gay couple is materially the same as a straight couple's website."
[citation needed]
"The three leftwing female justices all vote as a bloc on almost every important case. And they always come out on the "left" side of the issue. Its not only that, their opinions seem to be "untethered" to either the constitution or whatever law they're ruling on. Judgement now, reasons later."
They're the SCOTUS equivellent of "The Squad". The similarities are striking.
Free Manure said, Now what are we supposed to do?
Call your local Muslim bakery - they're going to have a slow down after all the pride month cakes they had to bake.
Mr Wibble said...
Someone else commented that this was pretty clearly a "did we fucking stutter?" ruling from SCOTUS to Colorado.
I disagree.
I think it was more a DIFS directed at teh idiots on the 10th Circuit who ruled that the fact that she had a "unique" voice meant CO had a "compelling gov't interest" to force her to let everyone use it
Kay said...
Today's court ruling weakening discrimination protections for LGBTQ people stands out as extraordinarily strange to me for the simple fact that there was no case. The web designer in question never received a request to create a website for a gay wedding
I wonder who the idiot lefty is who created this talking point for all the other idiot lefties?
1: What happened is that Lori Smith wants to go into the Wedding website business, but only if shoe won't be harmed by the State of CO for refusing to do sex sex "weddings".
2: So she went to District Court to get an injunction against the State of CO preventing them from harassing her for doing that. And the State of CO jumped in to say "of course we're going to do that!"
So much for "hypothetical"
From the Gorsuch opinion:
To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat” existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce.
Which she easily did, given the way they harass Masterpiece Cakeshop
It’s also very unclear to me how exactly courts will be able to distinguish between discrimination on the basis of identity and discrimination on the basis of message.
Are you really that stupid? Also from the decision:
To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts:
Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual ori- entation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sex- ual orientation. App. to Pet. for Cert. 184a.
She will not produce content that “contradicts biblical truth” regardless of who orders it.
So, if she will work with a gay wedding coordinator for a heterosexual marriage, then it's about message.
And she will
Hypothetical: someone organizing a black music festival asks a designer to make a website for them and the designer refuses.
Then go find a different website designer.
What kind of total moron wants the website for their event created by someone who hates the event?
What kind of total moron wants the food for their event catered by someone who hopes their event fails?
The ONLY reason to try to force that person to participate in your event is because you wish to force them to adopt your message
Stop being a nasty, evil thug
@greg I don’t give a shit what you think.
What kind of total moron wants the website for their event created by someone who hates the event?
What kind of total moron wants the food for their event catered by someone who hopes their event fails?
I am reminded of the cake scene in The Help (the book; I haven't seen the movie). Tell you what, if I were a guest at a wedding in which the newly married couple was boasting about how they bent the cake maker to their will, I wouldn't be eating any of that cake.
Which is separate from the "public accommodation" and discrimination questions. I mean, back in the 1950s and 1960s, for black people to sit at the counter of a "we don't serve your kind" diner certainly invited someone to spit on their food (or worse), but does anyone think, today, that their being there didn't advance a worthwhile cause? Aren't we a better society now than the one in which there were separate water fountains for black and white people?
But the black activists were asking for exactly the same food as the white patrons, not for the cook to prepare something uniquely suited to them, off-menu. Like any analogy, this one is surely flawed, but ISTM that the principle behind black activists' attempting to force "whites only" restaurants to serve them in the Jim Crow era is the one that gay activists have been trying to apply in these recent cases, and their analogizing seems flawed to me.
In these late days, the civil rights front lines are apparently all about who hates the gay, how to identify those haterz, and how to highlight their hate for all to see, and you're a hero (to yourself, your friends, and the media) if you do so. But I still wouldn't eat that cake.
If supposed free speech champions were going to make up a case to justify bigoted marriage views, they could at least have invented a web site designer refusing to create for black-white marriages, and dared Justices Thomas and Jackson to deal with that form of discrimination. But of course that case would not have been accepted by the Court.
I'm quickly coming to the conclusion that 303 Creative is the most interesting, discussable case of the term.
There are several good comments on this page, some from readers with whom I routinely disagree (to put it mildly).
The first is tommyesq at 1:03pm. That comment is a very good starting place for discussion. Next, tommyesq's comment at 1:13 is a really sound answer to the growing complaints that 303 Creative lacked standing, or that there was no "case or controversy" because there is a factual question as to whether there had been a real complaint about a denial of service by 303 Creative. Two good comments by tommyesq.
At 4:28, Richard Dolan rightly said, "The stipulated facts made for an easy decision, and Gorsuch used it to advantage. The stipulated facts included the Colorado Civil Rights Commission's acknowledgment that they would have barred 303 Creative's restriction from creating SSM wedding sites. As well as 303 Creative's claim that SSM “contradicts biblical truth” was a sincerely held religious belief. (More on that in a moment.)
Finally, there are the several comments by Greg the Class Traitor. I expect Greg doesn't think too much of me. I didn't think a whole lot of him, but he's made some quality comments on this page. At 11:12, 8:37 and 8:54. Beyond the personal nastiness, he is making some excellent points:
~The difference between a hotel being compelled to make accommodations for people of all sexual orientations, versus a hotel being compelled to fly a rainbow flag;
~Greg alludes to the level of 14th Amendment scrutiny that is applied by a federal court in this Colorado state law case and though the discussion isn't there, and at the level of the 10th Circuit, that court applied "strict scrutiny" insofar as they knew that they were impacting the plaintiff's "pure speech." But the 10th Circuit held that Colorado satisfied its burden of strict scrutiny. It's a question I'd like to see Althouse discuss.
~But Greg goes too far in writing:
"Hypothetical: someone organizing a black music festival asks a designer to make a website for them and the designer refuses."
Then go find a different website designer.
What kind of total moron wants the website for their event created by someone who hates the event?
What kind of total moron wants the food for their event catered by someone who hopes their event fails?"
That's all barroom talk, not courtroom talk. If a web designer refused to make a design for a black music festival because of invidious racial discrimination, I expect that this SCOTUS would support any customary civil rights enforcement. If a web designer refused to make a design for a black music festival that was celebrating black supremacy (a hypothetical that Greg didn't stipulate), then that refusal would be supported by 303 Creative.
I have a closing question for Althouse and her readers. The stipulated facts in 303 Creative included mentioning that the Plaintiff's sincerely held biblical belief was that marriage was only between one man and one woman. Okay. But what religion commands its adherents who happen to be web designers that they must not, in their business lives, create content for a same sex wedding? Would the Catholic Church excommunicate such an open-minded web designer? Just for a web design? Would the Southern Baptist Conference expel a church member who, while maintaining her own faithful Baptist beliefs about marriage, nevertheless created a website for a same sex marriage? Again; a faithful Baptist who opposes the legalization of same-sex marriage, but who simply made a website for a same sex couple who wanted celebratory language? I understand the sincerely held beliefs; I understand some sectarian Christian beliefs. I am not sure that I understand how that works within commercial speech, if the denomination in question doesn't actually forbid certain speech.
Althouse? Anyone?
I don't understand, either, why persons who are denied service by website designers who object to their "message" would not just seek out other website designers who are happy to have their business. However, assuming the unusually rare (if ever) circumstance that no other website designer is available or affordable to a given website owner, could he or she not simply engage the designer without providing the actual content intended to be hosted on the site? That is, can't a site just be designed with filler content, and then populated with the actual content later when the site is functional?
Responding to Chuck:
1: Thank you for your kind words
2: "That's all barroom talk, not courtroom talk. If a web designer refused to make a design for a black music festival because of invidious racial discrimination, I expect that this SCOTUS would support any customary civil rights enforcement."
If a website designer refuses to take any commission from black people, THEN a court might rule that public accommodation laws apply.
but if a website designer says "I hate the music you're celebrating at your festival, so I refuse to make a website for it", that is free expression, and the designer is covered.
But even if the designer were NOT covered, why would you want them in the first place? you thing you're going to get a good website out of someone who doesn't want to make it for you? Why?
3: "But what religion commands its adherents who happen to be web designers that they must not, in their business lives, create content for a same sex wedding?"
Apparently you missed these stipulations:
Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage.
Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] origi- nal artwork.”
Every single website she makes for a wedding will say "Lori Smith and 303 Creative celebrates this wedding."
Lori Smith does NOT "celebrate" same sex "weddings".
So to force her to make a website for such weddings is teh State forcing her to present a message she disagrees with.
Which is why this is a "Free Expression" case.
Because the State has no "compelling interest" in forcing Lori Smith to lie about this
I've been seeing a lot of BS on Twitter about standing. So I'd like to point out here why every single lawyer questioning "standing" for SCOTUS in this case is a pathetic hack who should be disbarred:
Page 5 of the "Opinion of the Court" (page 11 of the PDF):
For its part, the Tenth Circuit held that Ms. Smith had standing to sue. In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website ser- vices, Colorado will invoke CADA to force her to create speech she does not believe or endorse. Id., at 1172–1175. The court pointed to the fact that “Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement” proceedings against her. Id., at 1174. Before us, no party challenges these conclusions.
I note the dissent never even once mentions standing. That's because no honest person who's familiar with the case would ever claim she lacked it
Readering said...
If supposed free speech champions were going to make up a case to justify bigoted marriage views
Here's everything you need to know about Readering: No one who disagrees with him ever has any reason for doing so. He doesn't care that everyone was willing to stipulate that Lori Smith's views were sincere, Readering is God, and he knows that everyone who disagrees with him, about anything, is just evil
Not everyone, Greg. The ones who went to great lengths to make up this case. And you the guy who writes crazy, mean things about everyone he disagrees with on this site.
As for standing, I agree that there was standing. But that's because of the sui generis circumstances, which were not to be foreseen, so the complaint contained a false allegation that created a lot of room for standing to be questioned. Maybe the lawyers involved in drafting that allegation are the ones whose fitness to practice law should be questioned, not commenters picking up on that crazy, false allegation.
Readering said...
Not everyone, Greg. The ones who went to great lengths to make up this case.
"The ones who went to great lengths to make up this case" are the left wing assholes who've been hassling Masterpiece Cakeshop for the last decade.
Lorie wants to make wedding celebrate websites for weddings she actually celebrates. it's not her fault you you leftists are bullying scum whose hatred of Christianity means that you will do your best to destroy her if she went into business.
So she filed a pre-enforcement challenge to protect herself from harassment.
All that would have been necessary to avoid this lawsuit was the CO thugs stating that they wouldn't harass her. But they refused to say that, because they are a bunch of hate filled bigots.
Then they stipulated that she wanted to engage in expressive speech, and that they wouldn't let her do that. And they got a District Court judge, two Circuit Court judges, and three SCOTUS "justices" to all agree that because she has a unique voice, therefore the State of CO has every right to force her to use it to advance the political agenda of the State of CO.
There is evil in this case. But it's is ENTIRELY on your side
And you the guy who writes crazy, mean things about everyone he disagrees with on this site.
Want me to not write mean things about you? Don't
1: Lie
2: Support destroying my actual civil rights (like my freedom of speech)
3: Privilege your feelings over reality, or over my civil rights
4: Support racism
5: Be an enemy to the rule of law, or to the written US Constitution
6: Support, defend, excuse, or justify vote fraud
Sadly, what that translates to is "don't be a leftist".
It's occasionally, very rarely, possible to make an argument for a left wing position that doesn't engage one of those 6. When I run across one of those, I simply respond to the argument.
It's not my fault that you're unwilling to foreswear those evils
Greg, fine to write your potted gibberish about me. Dogs on the internet and all that.
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