"The anti [Obergefell] forces will get Thomas and probably Alito. Roberts was strongly against at the time but..."

"...has been careful to treat it as legitimate precedent since. Gorsuch usually sides with religious litigants but also wrote Bostock, the most important gay rights decision in years, and Roberts raised eyebrows by joining him. Most people who know Barrett and Kavanaugh believe them to have zero appetite for reopening this issue. Trump isn't pushing for it. Granting cert takes four votes, overturning a case five. I don't see [Kim] Davis getting up even to three on the question of whether to overturn Obergefell. Each time I write a version of this prediction I get called rude names, as if I were consciously misleading people for some fell purpose. But as someone with real rights of my own at stake, I'm just trying to give you my honest reading. We'll probably know within three months whether the Court will hear Davis's case and if so on what question presented. Save your anger till then."

Walter Olson, quoted by Ilya Somin, in "Why the Supreme Court is Highly Unlikely to Overturn Obergefell in the Kim Davis Case/My Cato Institute colleague Walter Olson explains" (Reason).

Should we "save [our] anger" if we don't want Obergefell overruled? Even if that's unlikely, now might be a good time to demonstrate how much it would hurt, before things escalate.

Meanwhile, I'm interested in Olson's dipping into the archaic to write "I get called rude names, as if I were consciously misleading people for some fell purpose." Fell! Why not "evil" or "nefarious"?

One answer is that he was influenced by the last syllable of "Obergefell." I don't think one would do that consciously. 

I'd guess Olson felt motivated to sound deeply literary. Some historical examples of the adjectival "fell" from the OED):

1747 I will risque all consequences, said the fell wretch. S. Richardson, Clarissa

1812 And earth from fellest foemen purge. Lord Byron, Childe Harold

1813 His fell design. W. Scott, Rokeby

1847 Even the fell Furies are appeased. R. W. Emerson, Poems

"The Vatican had long said it could not bless same-sex couples because it would undermine church doctrine that marriage is only between a man and a woman."

"The new rule was issued in a declaration by the church’s office on doctrine and introduced by its prefect, Cardinal Víctor Manuel Fernández, who said that the declaration did not amend 'the traditional doctrine of the church about marriage,' because it allowed no liturgical rite that could be confused with the sacrament of marriage."

From "Pope Francis Allows Priests to Bless Same-Sex Relationships/A church official said the blessings amounted to 'a real development' that nevertheless did not amend 'the traditional doctrine of the Church about marriage'" (NYT).

MEANWHILE: "With a Deadline Looming, the United Methodist Church Breaks Up/A quarter of the denomination’s churches have left, as the faith divides over L.G.B.T.Q. policies" (NYT)("America’s second-largest Protestant denomination is in the final stages of a slow-motion rupture that has so far seen the departure of a quarter of the nation’s roughly 30,000 United Methodist churches...").

"Though same-sex marriage has been legal in all 50 states since a 2015 U.S. Supreme Court ruling, it remains prohibited on the largest Indian reservation in the country..."

"... which, as a sovereign tribal nation, is not subject to the decision of America’s highest court.... [S]ame-sex couples are at the center of a contentious debate on the Navajo Nation, where the tribal council is weighing legislation to repeal a ban enacted in 2005. The change would grant them equal rights in situations involving property and hospital visitation. Indigenous scholars say it also would honor Navajo tradition, which recognized multiple genders and sexualities that were suppressed and stigmatized after Europeans arrived.... In recent decades, many Native Americans have adopted 'two-spirit' as an umbrella term for 'an individual that has both male and female spirits within them,' signaling a rejection of more rigid, western labels, said professor Gregory D. Smithers.... Two-spirit leaders and activists have made gains, Smithers said...."

From "Same-sex marriage remains banned — for now — in the Navajo Nation" (WaPo).

I was surprised to see that "two-spirit" is not a traditional term. Here's the Wikipedia article on the subject. A short excerpt from what is a long article:

"Pope Francis has suggested there could be ways to bless same-sex unions...."

"In his new letter, Francis reiterated that matrimony is a union between a man and a woman. But responding to the cardinals’ question about homosexual unions and blessings, he said... priests could not become judges 'who only deny, reject and exclude.'... '[W]hen a benediction is requested, it is expressing a request for help from God, a plea to be able to live better, a trust in a father who can help us to live better.' He said there were situations objectively 'not morally acceptable' but the same 'pastoral charity' required that people be treated as sinners who might not be fully at fault for their situations. [He said]... the issue could be dealt with on a case-by-case basis 'because the life of the church runs on channels beyond norms.'"

From "Pope Francis suggests gay couples could be blessed in Vatican reversal/Conservative cardinals had challenged the pope to confirm teachings on LGBTQ+ issues" (The Guardian).

"Kim Davis is ordered to pay $100,000 to same-sex couple she denied marriage license."

NPR reports.

I'm blogging this because I blogged so much about Kim Davis back in 2015. Click on the Kim Davis tag to see what I said back then. I'll flag this one as the most helpful.

"The Court holds that the First Amendment bars Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees."

SCOTUSblog announces.

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:

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.

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.'"

"We are fighting for the gay community, and we are fighting and fighting hard" — said Donald Trump.

Quoted in "Scenes from a celebration of the same-sex marriage law — at Mar-a-Lago/'We are fighting for the gay community, and we are fighting and fighting hard,' Donald Trump told a Log Cabin Republicans gala" (Politico).

Hundreds of guests in tuxedos of all styles — sequined, quilted, velvet — and colorful gowns sipped on Trump-branded champagne and martinis [and]... danced to “YMCA” and “Macho Man”....

Thursday night’s Log Cabin Republicans’ “Spirit of Lincoln” gala in the main ballroom of Donald Trump’s Mar-a-Lago beachfront club was a joyous celebration of gay rights....

Throughout the evening, speakers praised Trump for his embrace of the gay community....

I'm reading that because Chuck linked to it in the previous post and said: "I always contended that Althouse was right when she declared (during the 2016 Presidential campaign) that she thought that 'Trump is pro-gay but he’s being cagey about it.'"

Yeah, I did say that, back in July 2016, in the comments section to my post "Donald Trump may think Pence is a safe choice." 

"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 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.

"[Lorie] Smith... sat near a plaque that echoed a Bible verse: 'I am God’s masterpiece.' She said she was happy to create graphics and websites..."

"... for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages. 'When I chose to start my own business as an artist to create custom expression,' she said, 'I did not surrender my First Amendment rights.' Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. 'Once you open up your doors to the public, you have to serve everybody,' he said. 'You can’t turn people away based on who they are.'"

Writes Adam Liptak in "A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court A Colorado graphic designer says she has a First Amendment right to refuse to create websites for same-sex weddings despite a state anti-discrimination law." (NYT).

The oral argument is today.

If you're trying to remember why this is still a live issue after the wedding-cake case:

"But to convince at least 10 Republicans to back the measure, [Tammy] Baldwin knew she had to overcome skepticism from many Republicans that Democrats just wanted to put them on the spot..."

"... on an issue that public opinion had recently deserted them on, as well as fierce opposition from social conservative groups and some religious institutions.... 'I think there was a short period of time where there was a belief that this was being pushed for political reasons,' Baldwin said. 'My Republican colleagues would say to me: "Nobody thinks you’re pushing this for political reasons. They think others are, like the Democratic Party. But nobody is questioning your motives." I think that’s helpful. I mean, I really am earnest about this.'..."

From "How a bipartisan group of senators got same-sex marriage protections passed/A group of Democrats and Republicans, led by Sen. Tammy Baldwin, spent months working to get 12 Republicans onboard with the legislation" (WaPo).

"The Senate held a key test vote on Wednesday on legislation to allow federal protections for same-sex marriage, with 12 Republicans joining all Democrats..."

"... to help move it through the 50-50 chamber. In one of their first major agenda items in the postelection session, Democrats moved fast to enact the bill — which would repeal the Defense of Marriage Act, which denied federal benefits to same-sex couples — while their party still controls both chambers. Should the bill pass the Senate in a vote that is expected after Thanksgiving, it would need to pass the House in its revised form before being sent to President Biden to be signed into law. The push in Congress to pass marriage protections came after Justice Clarence Thomas suggested in an opinion overturning abortion rights that the court 'should reconsider' past rulings that established marriage equality and access to contraception."

From "Live Updates: Senate Takes Crucial Step Toward Protecting Same-Sex Marriage Rights/Democrats are moving quickly to enact federal protections while their party still controls both chambers. Republican senators voted to keep Senator Mitch McConnell as their minority leader; the party is on the brink of capturing a majority in the House" (NYT).

Why are they only just now getting around to repealing the Defense of Marriage Act? Anyway, it's good to see this happening at long last. Maybe they didn't think they needed to do it until the Democrats lost the House, or maybe they chose not to do it so that it wouldn't be an issue in the elections. But, really, what kind of people want there to be a threat to existing marriages? 

And it's nice to see Wisconsin Senator — and former student of mine — Tammy Baldwin featured on the front page of the NYT on this issue, which I strongly support.

And thanks to all the Republicans who voted for this: Susan Collins of Maine, Rob Portman of Ohio, and Thom Tillis of North Carolina — the co-sponsors — and Lisa Murkowski and Dan Sullivan of Alaska, Cynthia Lummis of Wyoming, Mitt Romney of Utah, Richard Burr of Virginia, Roy Blunt of Missouri, Joni Ernst of Iowa, Todd Young of Indiana, and Shelley Moore Capito of West Virginia.

"Parents have hopes and dreams, right, with their kids, from the time that they’re born and they’re creeping and crawling and walking and falling over and walking again..."

"... and all the things that they learn right through their teens and into becoming adults. We have hopes and dreams. First of all, obviously, we hope right from the beginning, it’s all about having a healthy child.... It’s about them being healthy.... We’re hoping that they find their way, find opportunity, they find inspiration. And as they grow and as they get a little older, we also hope and pray they’re going to find that one true love so that they have the opportunity to experience that: Someone to grow old with. So we’re just really thankful that you’re here. It actually goes beyond that, as parents. We love it when they find their one true love, especially when they become a part of our families then. That’s what we’re rooting for. We’ve been fortunate with three sons, and [REDACTED]’s done a great job of adding to the family. Every kid showed up through cesarean section so it wasn’t all pleasant, right! So this has been a really good experience, especially for Penny, to have a new son enter the family! So we’re just blessed, and we just want to say thank you to everyone here as part of the celebration."

Said Congressman Glenn Thompson at the wedding of his son, quoted in "Listen To The Speech A Republican Lawmaker Gave At His Gay Son’s Wedding/Days After Voting Against Marriage Equality/'We’re just blessed, and we just want to say thank you to everyone here as part of the celebration,' said Rep. Glenn Thompson, three days after voting against codifying marriage equality in federal law" (BuzzFeedNews).

Thompson was "one of 157 House Republicans who voted against the Respect for Marriage Act, which acts as a failsafe in case the Supreme Court reverses itself on marriage equality." 

"Roe v. Wade... invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court."

"In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures 'toward liberalization of abortion statutes.' That movement for legislative change ran parallel to another law revision effort then underway — the change from fault to no-fault divorce regimes, a reform that swept through the state legislatures and captured all of them by the mid-1980s. No measured motion, the Roe decision left virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible. Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction."

Said Ruth Bader Ginsburg, in 1992, shortly before Bill Clinton nominated her to the Supreme Court, quoted yesterday, in Aaron Blake's WaPo column, "What Ruth Bader Ginsburg really said about Roe v. Wade."

Blake is quoting that to correct people who might think Ginsburg thought that Roe was wrong about the existence of a right to abortion. 

"It’s the main reason why I worked so hard to keep Robert Bork off the Court. It reflects his view almost — almost word — anyway."

"Look, the idea that — it concerns me a great deal that we’re going to, after 50 years, decide a woman does not have a right to choose within the limits of the Supreme Court decision in Casey.... But even more equally as profound is the rationale used. And it would mean that every other decision relating to the notion of privacy is thrown into question. I realize this goes back a long way, but one of the debates I had with Robert Bork was whether — whether Griswold vs. Connecticut should stand as law. The state of Connecticut said that the privacy of your bedroom — you — a husband and wife or a couple could not choose to use contraception; the use of contraception was a violation of the law. If the rationale of the decision as released were to be sustained, a whole range of rights are in question.... who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions — whether or not — how you raise your child — What does this do — and does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible, that it’s against the law in Florida?"

 Said President Joe Biden yesterday.

Listen to the oral argument, starting now.

Here. 

UPDATE: I listened to the entire thing. I predict stare decisis will prevail. The lawyer for the state was particularly weak in his effort to assure the Court that Roe and Casey could fall without endangering any other precedent (e.g., Obergefell). There was some effort to discover a compromise position, drawing the line somewhere other than viability, but nothing emerged. Not that I could hear on this first pass. I will probably say more when I get the transcript. 

ADDED: Thinking about Obergefell, I wanted to quote this passage from the Chief Justice's dissenting opinion:

By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Boldface added.  

That was 6 years ago. What "winds of change" are "freshening... backs" today?

In any case, the question then was whether to take something out of the political arena. The question now is whether to throw something back in after it's been out for 50 years! 

AND: On the theme of keeping the government's hands out of our body, Amy Coney Barrett brought up mandatory vaccination. 

"It is not licit to impart a blessing on relationships or partnerships, even stable, that involve sexual activity outside of marriage, as is the case of the unions between persons of the same sex."

Said the Vatican, quoted in "Vatican says it will not bless same-sex unions, calling them a 'sin'" (CNN).

The statement says that gays and lesbians, as individuals, may receive a blessing if they live according to Church teaching. But blessing same-sex unions, the Vatican said, would send a sign that the Catholic Church approves and encourages "a choice and a way of life that cannot be recognized as objectively ordered to the revealed plans of God."...

The Vatican provided the assurance that "the negative judgment on the blessing of unions of persons of the same sex does not imply a judgment on persons."

If I'm reading that correctly, there is no "objectively ordered" way to have sex other than within a marriage between opposite sex partners. 

"The ability of companies such as Facebook, Twitter and Google to control what people see online is so potent, it is the subject of antitrust hearings...."

"But the decision by Amazon to push Parler off its dominant cloud-computing service illustrates just how powerful its content-moderation capabilities are as well.... [T]he companies that provide the technical infrastructure that powers websites and services where people express opinions have vast power as well, though they rarely use it. They include little-known companies that register website domains for customers; so-called content delivery networks, which can boost the speed at which webpages load; and Internet service providers, which connect homes and businesses to the Web.... [Amazon's] Amazon Web Services is the dominant provider of cloud infrastructure services, which let customers rent data storage and processing capabilities over the Web instead of running their own data centers.... [AWS's] Trust & Safety team, which has fewer than 100 workers, acts only on complaints received. In its reply to Parler’s suit, Amazon said it received reports in mid-November that the social network was 'hosting content threatening violence.'... It accused Amazon of conspiring with Twitter to take the smaller competitor offline just as it was significantly gaining users in the wake of Twitter permanently banning Trump.... 'Without AWS, Parler is finished as it has no way to get online.'" 

WaPo reports.

Here's the top-rated comment at WaPo: "If you support a baker choosing to not selling a wedding cake to a same-sex couple, then it follows you must support a company choosing not to do business with a customer that behaves in a manner contrary to the company's known parameters. As the same-sex couple was told, go find someone else to bake your cake. Parler should do the same. If they can't, perhaps it's the 'cake' they are trying to bake."

IN THE COMMENTS: MayBee takes on the cake analogy:

Parler was already on AWS. 

So the baker (aside from scale, monopoly considerations, and anti trust issues) situation would have to be more like: 

The gay couple hired the baker, paid the baker, and then on the day of the wedding the baker refused to deliver the cake. The baker, however, delivered a lot of cakes to your ex-boyfriends wedding on the same day. And then the baker announced you were dangerous.

Harvard lawprof Noah Feldman answers no to the question "Does the Supreme Court really need reform?"

"It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us [sic] gay rights, gay marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose. In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives. That could change, to be sure. But Democrats need to think hard about the dangers of changing a Supreme Court that has, in many instances, advanced the causes of equality and justice even when most of its members were self-described conservatives appointed by Republicans."

That's at Bloomberg.

It's also worth remembering that gay rights and gay marriage — along with trans rights — could have been given through statutory law and that the Supreme Court rules on a far wider array of issues than the conspicuous gay rights and abortion issues that Feldman forefronts in this effort to ward off Court reform. If the Supreme Court had not decided that abortion is a constitutional right, we would have fought over it in legislatures and, in all likelihood, it would be at least as available today as it is, probably less threatened, and it would not be such a huge factor in presidential elections and judicial appointments. 

But these are the issues that vast numbers of Americans want to think about, so it's not surprising that Feldman concentrates on them as he tries to convince liberals not to mess with the structure of the Supreme Court.

I saw this yesterday and didn't know what had happened.

Not true https://t.co/Sej1JDm45V

— David Crosby (@thedavidcrosby) May 14, 2020

This morning I see "Melissa Etheridge reveals son Beckett Cypher died from opioid addiction" (NY Post).

Etheridge met her ex-partner, Beckett’s mother Julie Cypher, in 1986 on the set of the video for her single, “Bring Me Some Water.” Cypher was, at the time, married to actor Lou Diamond Phillips, and after divorcing him in 1990, went on to have daughter Bailey, 23, and Beckett with Grammy winner Etheridge. They eventually revealed that their sperm donor was 1960s icon David Crosby.

More, here, at Variety:

The young family appeared on the cover of Rolling Stone with Crosby and his wife, Jan Dance, [in 2000] (Beckett is the baby pictured in front), and also in a groundbreaking interview with Charlie Rose on “60 Minutes.” In it, they essentially explained to America their family arrangements and how the children might grow up with same-sex parents.

“I do not believe that my children will be wanting in any way because they didn’t have a father in the home every single day,” Etheridge said. “What they have in the home is two loving parents. I think that puts them ahead of the game.”

She and Cypher split up later that year, although they moved into back-to-back houses to facilitate coparenting.

Etheridge revealed in 2016 that she and Cypher had considered their close friend, actor Brad Pitt, to be the biological father of their children, but reconsidered when they saw how much he wanted his own family.... "I don’t want to share this with someone who really, badly wants children because my children don’t need another parent – they have two...."

"Methodism in the United States dates to the early 1700s, with a long history of valuing local congregations over a top-down structure. It has split many times..."

"... most notably over slavery before the Civil War. Membership is varied demographically and politically, counting as adherents everyone from Hillary Clinton to Jeff Sessions.... [C]ongregations overseas are growing rapidly, particularly in Africa; there are nearly 3 million members in Tanzania and the Democratic Republic of Congo. These groups tend to be more conservative than the typical American Methodist, which in part explains the vote in St. Louis, where more than 40 percent of delegates were from outside the United States.... Though the traditionalists won the narrow vote in 2019, it is the progressives who will remain under the banner of the United Methodist Church...."

From "United Methodist Church Announces Plan to Split Over Same-Sex Marriage/Under an agreement to be voted on in May, a new 'traditionalist Methodist' denomination would continue to ban same-sex marriage and gay and lesbian clergy" (NYT).