SCOTUS will hear religious-freedom/speech-freedom case tomorrow (Monday)

[Scott Lloyd]

According to this story, the Church of Jesus Christ has joined in a brief filed in support of the appellant, who I hope prevails. 
 

 

https://www.deseret.com/faith/2022/12/3/23489689/supreme-court-case-lgbtq-rights-religion

 

Edited December 4, 2022 by Scott Lloyd

[Scott Lloyd]

The brief in which the Church has joined is linked to in the story, but for convenience, here’s a direct link: 

https://www.supremecourt.gov/DocketPDF/21/21-476/226892/20220602111907210_21-476tsacTheChurchOfJesusChristOfLatterDaySaints.pdf

[OGHoosier]

Fairly thunderous few weeks for religious liberty debates, I see.

[bsjkki]

8 am mst. You can listen live to oral arguments on cspan or find a live link in the morning. 

[JustAnAustralian]

2 hours ago, OGHoosier said:

Fairly thunderous few weeks for religious liberty debates, I see.

Keep in mind, that although a lot of the discussion is based around her religion, and the questions posed contained references to religion, the question that SCOTUS is addressing doesn't.

https://www.supremecourt.gov/qp/21-00476qp.pdf

Quote

GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER APPLYING A PUBLIC-ACCOMMODATION LAW TO COMPEL AN ARTIST TO SPEAK OR STAY SILENT VIOLATES THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT.

So it's a pre-emptive pure free speech issue. No kicking the can down the road by claiming mistreatment at a lower level this time.

Edited December 4, 2022 by JustAnAustralian

[OGHoosier]

58 minutes ago, JustAnAustralian said:

Keep in mind, that although a lot of the discussion is based around her religion, and the questions posed contained references to religion, the question that SCOTUS is addressing doesn't.

https://www.supremecourt.gov/qp/21-00476qp.pdf

So it's a pre-emptive pure free speech issue. No kicking the can down the road by claiming mistreatment at a lower level this time.

Furthermore there's no potential to water down the impact of the ruling by invoking current judicial restraints on the free exercise clause, because it sidesteps the free exercise clause entirely. 

Clever lawfare. 

[california boy]

There is an interesting article in the Huffington Post on the issues that this case brings up.  

Quote

“A bakery whose owner opposed mixed-race relationships could refuse to bake wedding cakes for interracial couples,” the states said. A “real estate agency whose owner opposed racial integration could refuse to represent Black couples seeking to purchase a home in a predominantly white neighborhood; or a portrait studio whose proprietor opposes interracial adoption could refuse to take pictures of white parents with their Black adopted children.”

Quote

Those race-based examples could get particular attention on a court with two Black justices, Clarence Thomas and Ketanji Brown Jackson, who are married to white spouses and another justice, Amy Coney Barrett, who has two adopted children who are Black. But the states gave an example involving a person's national origin too. “A tattoo studio could ink American flag tattoos on customers born in the United States while refusing to sell identical tattoos to immigrants,” they said.

Quote

“A web designer could refuse to create a web page celebrating a female CEO’s retirement — violating Colorado’s prohibition on sex discrimination — if he believed all women have a duty to stay home and raise children. Similarly, a furniture-maker — who considers his furniture pieces to be artistically expressive — could refuse to serve an interracial couple if he believed that interracial couples should not share a home together. Or an architect could refuse to design a home for an interfaith couple," she told the court.

 

On the flip side

Quote

The Jewish Coalition for Religious Liberty put it differently, telling the court thata Jewish baker could have to fulfill the request of a Neo-Nazi who wants a cake saying “Happy November 9th!” — a reference to Kristallnacht, the night in 1938 when Nazis burned synagogues and vandalized Jewish businesses throughout Germany and Austria.

 

 

 

[OGHoosier]

16 minutes ago, california boy said:

There is an interesting article in the Huffington Post on the issues that this case brings up.  

 

On the flip side

 

 

 

This as well: 

Quote

A lawyer for the CatholicVote.org education fund told the court that if the lower court ruling stands and Smith loses, “a Jewish choreographer will have to stage a dramatic Easter performance, a Catholic singer will be required to perform at a marriage of two divorcees, and a Muslim who operates an advertising agency will be unable to refuse to create a campaign for a liquor company.”

To be honest, I don't think the real estate example is at all likely to be considered as a speech act in the first place. Provision of material goods is not considered speech under the First Amendment, at least according to current jurisprudence. The bakery case seems similar - even Jack Phillips sells cakes to gay weddings, he just won't customize them. Same thing with the furniture and architecture. The photography case might be more nuanced, that one is plausible, as well as the web design and tattoo examples. 

 

[Amulek]

Dale Carpenter penned an amici along with 1st Amendment Ninja Eugene Volokh (and others). The full amici is available here.

For a shorter (more accessible) rendition of their basic argument, you can check out his post over on Reason, here.

A couple of excerpts:

Quote

The case comes down to two main questions.  First, is the creation of custom wedding websites for sale in the public marketplace the designer's "speech"?  Second, if it is speech, does the designer have a First Amendment right to refuse such expressive services for same-sex weddings despite a state law compelling her to do so?

The answer to the first question is surprisingly straightforward. [...]

[...]

Smith's case is not on the borderline of speech. She proposes actively to create each individual website. Even the Colorado Civil Rights Commission conceded that Smith's graphic and website designs are expressive in nature, as they contain images, words, symbols, and other modes of expression that are used to communicate a particular message of celebration. The appeals court, though it ultimately rejected Smith's constitutional claim, agreed that her bespoke wedding website designs are "pure speech."

Compelling Smith to promote the message that, in essence, same-sex marriages are authentic marriages and are as worthy of celebration and support as opposite-sex marriages is as much a speech compulsion as requiring her by law to proclaim "White Lives Matter" or "Jesus Saves."

II.

If Smith's designs are expressive, the question remains whether the state may nevertheless justify compelling her speech for customers wishing to promote same-sex weddings. [...]

Colorado has [...] not demonstrated it is promoting equality in the least speech-intrusive way, as it might be able to do when a vendor has a monopoly on a product or service. The appeals court concluded that the speech compulsion was justified because Smith had a practical monopoly on her unique expressive services: the website designs could not be offered in exactly the same quality by one of the other numerous talented graphic and wedding website designers available easily online to same-sex couples. If the Supreme Court says nothing else about the case, it should squarely repudiate the bizarre conclusion that an artist's expressive skills must be provided because the artist has a monopoly on her own expression.  Neither Colorado nor any of its supporting amici have defended that misbegotten theory.

III.

But the Supreme Court should do more.  It should clarify that the First Amendment applies to expressive goods and services sold in the public square, offer guidance as to what does and does not count as "expressive," and send the case back to the lower courts with instructions that Colorado cannot enforce its public-accommodations law against Smith's proposed expression unless the state meets the burden of satisfying genuinely strict judicial scrutiny — not the watered-down version of the appeals court.

[...]

Free speech allowed gay America to flourish. Long before the right to marry was recognized, in a time when even their private sexual acts were criminalized, gay men and lesbians used the space provided by the First Amendment to organize politically and to persuade Americans to support their liberty and equality. If tolerance means anything, it means that marriage traditionalists like Smith may espouse their views (and refuse to espouse contrary views) in the public marketplace.

Sounds about right to me.

 

[bsjkki]

Live on cspan. Very interesting.

’The message isn’t who, it’s what.’

Narrow question. Is a website designer an artist or a storefront?

Colorado’s laws seem to protect some people from compelled speech but not others. Could be the crux of this case. Could come down to Colorado’s specific law that is picking and choosing what messages can be compelled.

Arguing whether a website is ‘art.’ Context changes meaning. Barrett asking tough questions.

 

Edited December 5, 2022 by bsjkki

[Amulek]

9 minutes ago, bsjkki said:

Narrow question. Is a website designer an artist or a storefront?

An artist. At least in this case, as previously conceded by both the State and the lower courts.

Now, that doesn't mean that every web designer is an artist. Or, perhaps more accurately, not all website design services are expressive. As Dale pointed out in the article I linked to earlier, "If Lorie Smith were just hosting customer-generated content on her online platform, or simply allowing customers to select off-the-rack design templates involving certain colors and fonts, her offerings in the wedding-website marketplace would be mainly her customers' expression — not her own. Similarly, if Smith were only offering an online platform to regurgitate prosaic details, like the time and place of the ceremony, such "speech" would not earn First Amendment protection. The Supreme Court has held that merely sending scheduling emails or announcing meeting locations is not constitutionally shielded expression. The details matter."

 

[bsjkki]

We get into the war of hypotheticals. Colorado is now up.

Thomas: Historically, how have public accommodations law regulated expressive speech? 
 

It comes down to compelled speech. Whether it’s art. And the technicalities of Colorado’s law. 

Edited December 5, 2022 by bsjkki

[bsjkki]

‘Mr. Phillips had to go through a re-education process.’ Gorsuch.

Kavanaugh ‘Public accommodations still have free speech rights?’

Is this compelled speech? 

Jackson brings up the religious exemptions and differences between this and race. 

Jackson discusses public accommodations for artist for hire vs an artist selling their art. Who is speaking?

 

Edited December 5, 2022 by bsjkki

[bsjkki]

Status and message case. Or only a ‘message’ case. Plaintiff says she will serve everyone and will deny service to everyone. So it’s a what not who.

Edited December 5, 2022 by bsjkki

[Calm]

4 hours ago, Amulek said:

An artist. At least in this case, as previously conceded by both the State and the lower courts.

If there is original work involving graphic art, how could they not be?

Edited December 5, 2022 by Calm

[Calm]

3 hours ago, bsjkki said:

Plaintiff says she will serve everyone and will deny service to everyone.

Meaning?

[Buckeye]

14 minutes ago, Calm said:

Meaning?

She looks at the message not the customer. She makes websites for gay individuals if the message is appropriate - say a pet adoption service. She won’t make a gay marriage website but also won’t make a hetero marriage website where the couple was previously married to others and cheated with each other. 
 

Her argument is pure freedom of speech. You can’t compel speech. The government sees it as a mix of speech and accommodation issues. 
 

FWIW, I think she should win but I also don’t have a clear idea where to draw the line. Listening to oral argument, I saw all of the justices grapple with the line drawing on what appeared to me to be good faith. 

[Amulek]

26 minutes ago, Calm said:

3 hours ago, bsjkki said:

Plaintiff says she will serve everyone and will deny service to everyone.

Meaning?

I haven't listened to the oral argument, but I'm assuming it means she is willing to design websites for everyone - including LGBT customers - in nearly all other circumstances.

Conversely, she will deny service to everyone - regardless of their sexual orientation - who wishes to have her create a website which expresses a message betraying her convictions.

Edit to add: Looks like @Buckeye beat me to it.

 

Edited December 5, 2022 by Amulek

[bsjkki]

16 minutes ago, Buckeye said:

She looks at the message not the customer. She makes websites for gay individuals if the message is appropriate - say a pet adoption service. She won’t make a gay marriage website but also won’t make a hetero marriage website where the couple was previously married to others and cheated with each other. 
 

Her argument is pure freedom of speech. You can’t compel speech. The government sees it as a mix of speech and accommodation issues. 
 

FWIW, I think she should win but I also don’t have a clear idea where to draw the line. Listening to oral argument, I saw all of the justices grapple with the line drawing on what appeared to me to be good faith. 

I agree with this. Hypothetical extremes to try and figure out where the line should be. It's not an easy call. 

[Buckeye]

My view is more of a policy argument than constitutional (but I think she wins on the constitution too). Compelled speech simply creates division, hostility and martyrs. The government shouldn't compel people to say the pledge of allegiance, have language on their license plate they disagree with (e.g. "live free or die"), or issue messages of affirmation for something they find harmful. Lorie's right to not make a website supporting gay marriage also protects another's right not to be forced to write "god hates gays" or "death to kittens." I get the business angle complicates things; that's the balance. But I'm rather dubious we'll see large scale discrimination based on skin color, disabilities, etc. as was thrown around in so many hypotheticals during oral argument.

FWIW, free speech was a key driver in my choosing to support gay marriage. I was at a law school in the early 2000s where gay marriage was strongly supported but so too free speech. The school invited Lynn Wardle from the church (I believe he was a BYU professor) to debate the issue with at Chicago professor. Short story, he got destroyed. That was where the seeds were planted and I started to investigate on my own, including actually getting to know gay students and families. A few years later I'd come to the conclusion that gay marriage is an absolute great thing, just as great as my hetero marriage, and strongly support it even as I maintain an active LDS faith (temple attendance monthly, all kids served missions, all at BYU so far).

In my view, free speech will hasten the progress to near-universal support of SSM. 

 

 

[The Nehor]

90% chance that this business isn’t really interested in designing wedding websites. Also a pretty good chance the business vanishes after the case is over. This situation was carefully designed as a test case to try to avoid minor issues getting in the way of a more conclusive decision.

I am not commenting on the morality of this. Creating test cases can be used for good reasons and for bad reasons.

For those who like Supreme Court nailbiters Moore v. Harper is in two days.

[bluebell]

33 minutes ago, The Nehor said:

90% chance that this business isn’t really interested in designing wedding websites. Also a pretty good chance the business vanishes after the case is over. This situation was carefully designed as a test case to try to avoid minor issues getting in the way of a more conclusive decision.

I am not commenting on the morality of this. Creating test cases can be used for good reasons and for bad reasons.

For those who like Supreme Court nailbiters Moore v. Harper is in two days.

Does she have a web presence that shows her previous designs?  That would be a good way to see if she's been doing this before the lawsuit.

[Buckeye]

15 minutes ago, The Nehor said:

90% chance that this business isn’t really interested in designing wedding websites. Also a pretty good chance the business vanishes after the case is over. This situation was carefully designed as a test case to try to avoid minor issues getting in the way of a more conclusive decision.

I am not commenting on the morality of this. Creating test cases can be used for good reasons and for bad reasons.

For those who like Supreme Court nailbiters Moore v. Harper is in two days.

I agree this case will very likely go Lorie Smith's way. It's not a nailbiter. The real issue will be how the line is drawn.

That said, I do know the business is real and that Lorie really is interested in doing wedding websites. She's been serving customers for years - just not wedding customers (of any sort) due to this litigation. Was she selected and supported in this action by the Alliance Defending Freedom? Yes, of course. Just like my church selected brother Reynolds in 1874 to present a test case. But she didn't invent a story to be a test case. She had a real business and was found by the ADF. And she's a perfect selection IMO. Very personable and very sincere. You should listen to one of her interviews.

I won't go into further detail than this post, but sufficed to say, Lorie has been my next-door neighbor since I moved to Colorado last summer. I work from home as does her husband. We're pretty good friends - watch each other's house and pets, share excess garden produce, complain when the mail comes late ... pretty typical suburbanites. They're very active in their evangelical church where he is a drummer in the band. They accompanied my wife and I to see an LDS production of the "Lamb of God" last Easter in Denver. Didn't convince them to convert but you never know ...🙂

[Calm]

3 minutes ago, Buckeye said:

I agree this case will very likely go Lorie Smith's way. It's not a nailbiter. The real issue will be how the line is drawn.

That said, I do know the business is real and that Lorie really is interested in doing wedding websites. She's been serving customers for years - just not wedding customers (of any sort) due to this litigation. Was she selected and supported in this action by the Alliance Defending Freedom? Yes, of course. Just like my church selected brother Reynolds in 1874 to present a test case. But she didn't invent a story to be a test case. She had a real business and was found by the ADF. And she's a perfect selection IMO. Very personable and very sincere. You should listen to one of her interviews.

I won't go into further detail than this post, but sufficed to say, Lorie has been my next-door neighbor since I moved to Colorado last summer. I work from home as does her husband. We're pretty good friends - watch each other's house and pets, share excess garden produce, complain when the mail comes late ... pretty typical suburbanites. They're very active in their evangelical church where he is a drummer in the band. They accompanied my wife and I to see an LDS production of the "Lamb of God" last Easter in Denver. Didn't convince them to convert but you never know ...🙂

How great to get some background context.  Helps when I can see people in the news as real persons, more than just a vehicle for political or other issue.

Hope she is holding up well under the attention.  I am guessing quite a bit is nasty unfortunately.

Edited December 6, 2022 by Calm

[Buckeye]

12 minutes ago, Calm said:

How great to get some background context.  Helps when I can see people in the news as real persons, more than just a vehicle for political or other issue.

Hope she is holding up well under the attention.  I am guessing quite a bit is nasty unfortunately.

She's doing great. I've frankly been surprised at the lack of attention locally. No protestors or anything. In my experience, people in real life tend to be nothing like what I see in the comment section of DN. 🙃