A Queer Case

[Boydstun]

303 Creative LLC et al. v. Elenis et al. https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf

I certainly agree that everyone, under our Constitution, should have the legal right to use their business to express their ideology. Such, for a particular sort of ideology, is affirmed in this case. What is so queer to me about this case is that courts have allowed standing when the business is not actual, but hypothetical, and no one has been actually affected by a mere planning of the business. If one can have standing in such a case, and therewith effectively have statutes amended, then I have a long, long, list of suits to file.

On the ground, concerning the proper noun Queer in this case, the decision is of no significance. There has been a cultural revolution concerning right behavior concerning diversity of human sexual relationships, and as consumers, we minorities in romantic love will find commercial services of all types on offer from entrepreneurs not militant bigots. Justice is alive on the street with respect to gay commerce, regardless of statutes aiming for social equality, and overall, money talks. 

And winning the Court podium for pronouncements of the ravings of fake Christians will only bolster the feelings of those evangelicals. It will do nothing to diminish the justice of the sane majority of Americans in conviction or practice.

Edited July 1, 2023 by Boydstun

[DavidOdden]

The underlying principle is, I would say, correct. There is an actual business here, not a frivolous business, and the plaintiff sincerely hopes to expand that business. However, the law clearly states that in order for her do so while acting according to her judgment, she will be punished for having violated the law. It is a fundamental principle of law that a person must not be required to violate the law and receive punishment in order to challenge the law in court, for which reason plaintiff has standing. As the court stated, “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. Susan B. Anthony List v. Driehaus, 573 U. S. 149”.

I don’t understand your point about Queer, which does not figure into the ruling. The ruling is an entirely good thing, in my opinion, because it makes clear that the First Amendment prohibits compelled speech. Perhaps it is not good enough because it doesn’t also declare that the government cannot compel action either, however there is no constitutional basis for that conclusion. Clearly, we need a constitutional amendment that also protects one’s right to not do, but that will not be happening any time soon.

Typically, people believe that the government can do anything that it wants to. That seems to be true, but theoretically there are some limits, as articulated in the US Constitution. But still, the courts have been highly variable in how they interpret those limits. The current SCOTUS is slowly dialing back one set of principles of deference to the government, limiting what the government can so. Their main problem is an unresolvable one arising from the structure of the US: a collection of states, organized into a nation. The states-rights religious crowd is pleased with Dobbs because it recognizes the right of states to choose its laws. The rest of us are displeased because it allows violation of individual rights. The states-rights religious crowd is also pleased with 303 Creative because it recognizes the supremacy of individual rights over the right of states to set its laws. The role of the current court is to enforce a particular view of “rights”. It is not the Objectivist view, it is the view that rights are those things created by the Constitution (or is “historically fundamental”, a major vague loophole).

In other words, our view of the concept “rights” has not taken hold, and until it does, we can’t expect others to act in accordance with that view. The tougher question is discerning a specific principle saying “how we should respond”. Should we defend the rights of Nazi and religious bigots to express their viewpoint because of rights, or should we oppose the actions of Nazis and religious bigots because they advocate potentially dangerous viewpoints? As Rand identified, we should, when the opportunity arises, oppose both religion and violation of rights. I don't deny that the religious zealots will see this as a victory for their god, but it is in fact a victory for individual rights.

[Boydstun]

1 hour ago, DavidOdden said:

. . .

I don’t understand your point about Queer, which does not figure into the ruling. . . .

. . .

The purported intention of the woman was to add a feature to her business in which she wanted to serve only straight couples, expressly so, and the law in Colorado had been used previously to prohibit such commercial discriminations against gay couples. The majority opinion of the Court stresses that religious reasons purported by the woman for her plan to exclude gay couples was a requirement for them to rule in favor of the woman against the possible action against her based on the statute. (Frankly, when I was a child, millions of white folks believed they had a religious reason for racial segregation and white supremacy, because they believed that a son of Noah who had been cursed was the progenitor of the Negro peoples. I'm not kidding; I remember that religious belief invoked repeatedly in our home clear as a bell.) Additionally, the opinion of the Court notes the circumstance that gay couples are able to get service at competitors.

(Then too, the subject of gayness does not need to be mentioned in a text, in Court document or any print whatever, for it to be a topic of what was written and pertinent subject of a response. In history of Objectivism, there was the text from N. Branden in which romantic love was defined and included a clause that romantic love was between a man and a woman (having given a psychological causal factor for inclusion of the clause). Romantic love between members of the same sex was ruled out without having to mention explicitly such an implied non-existent. When any Objectivist type today goes to the trouble of typing in the clause "between a man and a woman" in presenting their definition of romantic love, you can bet a Coke that's a bigot. I saw such a case of writing many years ago in an article published in a newsletter of David Kelley's organization. Sure enough, after the Webb came about, the author, and more, his dollars-contributing brother, showed on FB their bigotry in this regard.)

I was told by friends who live in Colorado that business at the shop of the plaintiff in the earlier wedding-cake case had fallen by half after the case (that would be drop in demand from straight couples). He's been back in court again (and the statute come under challenge again) here: https://www.reuters.com/legal/government/colorado-baker-loses-appeal-over-refusal-make-gender-transition-cake-2023-01-26/ (Expressiveness too weak for court.) 

David, you remarked also: "Should we defend the rights of Nazi and religious bigots to express their viewpoint because of rights, or should we oppose the actions of Nazis and religious bigots because they advocate potentially dangerous viewpoints?" We do not need to oppose by outlawing. We can both defend their rights as American citizens and oppose them and their viewpoint. Had the Nazis come through with their planned march in Skokie, where a number of Holocaust survivors lived some years ago, the counter-demonstration, a valid manner of opposing, would have been enormous (thank goodness). https://www.aclu.org/documents/aclu-history-taking-stand-free-speech-skokie

 

Edited July 1, 2023 by Boydstun

[DavidOdden]

2 hours ago, Boydstun said:

The majority opinion of the Court stresses that religious reasons purported by the woman for her plan to exclude gay couples was a requirement for them to rule in favor of the woman against the possible action against her based on the statute.

I don’t see this in the opinion, but maybe we’re looking in different places. I am focusing on the legal conclusion, the holding, pp 1-6. That is where they state the principle which is now law, and it is about free speech, “the principle that the government may not interfere with ‘an uninhibited marketplace of ideas’”. In Barnette, the court even declared in the holding “That those who refused compliance did so on religious grounds does not control the decision of this question, and it is unnecessary to inquire into the sincerity of their views”, a principle that remains true to this day. No part of the majority opinion rests on the Establishment or Free Exercise clauses, and a connection to religion is not a requirement for their opinion. If you have a candidate in the majority opinion, I’m all ears (or, eyes).

Anyhow, the point about Nazis is that we must make choices as to what stances we will publically take, and how energetic that stance will be. Should we actively and loudly defend the rights of Nazis to demonstrate with the same fervor as we would apply to a demonstration against the ideology that they express? Or do we deem their ideology to be so much more vile, compared to actual government suppression of speech, that we can scale back our defense of Nazi speech rights? I generally take a stronger stance against improper government, though an quite aware that today’s individual ideology can become tomorrow’s governmental initiation of force. On the third hand, I can’t run myself ragged on every ideological battle. So I find these to be tough choices to make.

[Boydstun]

David, I read these within the opinion:

Quote

 

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; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; . . .

While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. . . . But she 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 Colorado has different plans. Specifically, 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. . . Ms. Smith acknowledges that her views about marriage may not be popular in all quarters. But, she asserts, the First Amendment’s Free Speech Clause protects her from being compelled to speak what she does not believe. The Constitution, she insists, protects her right to differ.

. . .

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 orientation, and gender,” and she “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.

~Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction.

. . .

The parties agree that Ms. Smith “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites” do not violate her beliefs.

 

The First Amendment doubly protects your right to differ in religious belief. That term is minimized by the justices ideologically confederate with Ms Smith’s attorneys from ADF (a bigoted Christian advocacy group: https://en.wikipedia.org/wiki/Alliance_Defending_Freedom) perhaps to veil their eagerness to take such a case and rule on it from their interest in publicizing, since they have the bench, a religious tenet they and a minority of the citizens are fired up about. “Eagerness” – https://www.npr.org/2023/07/01/1185632827/web-designer-supreme-court-gay-couples 

 

[DavidOdden]

The recitation of plaintiff and defendant arguments in the background section is standard practice, and you can’t automatically read endorsement into these words, especially when it comes to a crucial question that both sides agree on, that she is not discriminating against any individual on an illegal basis such as sex or religion, which simplifies the court’s task. It is true that plaintiff in their petition for a writ of certiorari did submit as one of the question to be decided “Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment”, but the court did not answer the religion fork of the question, they focused on the Free Speech issue. That means that I too as an atheist cannot be compelled to worship or compose sermons, or to compose progressive-statist praise poetry when a customer do asks (as was possible until this ruling). But that would be the case if Free Speech only applied to religious matters.

Every petition to the courts uses a huge-bore shotgun in the hope of hitting something, so I am not surprised that they played the religion card.Notice that the Free Exercise Clause is not mentioned even once even in the dissent, a clear indication that religion was not an issue. Plaintiffs also invoke Employment Division v. Smith which was about religious actions (not expressions) which leads to their question 2 of “[w]hether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith”, and again the ruling completely ignores the religious prong, never citing Employment Division (because religion is irrelevant to the question).

I’m not inclined to listen to the entire two and a half hour of the argument, which is here, since the party arguments are not proof of anything about the court's reasoning. I doggedly insist that what matters is the legal principle established here, namely the holdings.