I should like to make a few speculative comments about the case argued before the Supreme Court yesterday or the day before. Since I have no knowledge of the law whatsoever save what my son, Tobias, has explained to me on occasion, my comments have no particular weight. Perhaps Marc Susselman or someone else can comment.
Suppose I am a devout Catholic who wants to start a
bookstore. I decide that I will not carry in the bookstore any books listed on
the index librorum prohibitorum. A customer
enters my shop and asks for a copy of Samuel Richardson’s famous novel Pamela. I reply that I do not carry
that book because it is prohibited by the Catholic Church. Does he have a
complaint against me? Of course not. Suppose I am a portrait painter and I open
a shop that offers to paint portraits of customers dressed as saints, with
halos and crosses hanging around their necks. An atheist enters the shop and
asks to have his portrait painted, but says that he does not want the halo and
the cross. I reply that I do not do
portraits of that sort. Does he have a complaint against me? Of course not.
Suppose he responds, “Very well, I like your portraits so much that I am
willing to have you paint me with the halo and the cross.” Do I have a right to
refuse to paint him on the grounds that he is not a believing Catholic? No. I
have a right to specify the way in which I will paint him but I do not have a
right to refuse to paint him even though he is willing to have me follow my
announced and customary fashion, simply because I disapprove of him on
religious grounds.
Suppose that I want to open a business in which I design
websites for weddings. I specify that although these websites can vary in a
variety of fashions according to the desires of the customers, all websites
will on every page of the site carry the statement “the designer of this
website believes that same-sex marriages are against the will of God and
therefore are sinful.” Do I have a right to do this? Of course I do, just as I
have a right to open a bookstore that only sells books that are not on the
Catholic index. Suppose a gay couple comes to my shop and says “we want you to
design our website for our wedding, and even though we are a gay couple, we
like your website so much we are willing to have each page of the website say 'the
designer of this website believes that same-sex marriages are against the will
of God and therefore are sinful'.” Do I
have a right to refuse to create a website for them even though they accept the
fact that I will put on each page the statement that I consider their wedding to
be sinful and against the will of God? No, I do not.
13 comments:
Just a small factual point: the Index no longer exists as a "live" thing.
Since there has already been on a previous comment thread a lengthy back and forth on these matters, I don't know how many will be inclined to comment on the substance here.
From what you (Professor Wolff) say in your first paragraph, I assume that you are talking about constitutional rights in the United States, not about moral rights (whatever they are).
In the previous discussion about this subject, the two forms of rights got confused, some people arguing about U.S. constitutional rights and some of us arguing about moral rights, which is admittedly a much more confused topic.
What is a right under the U.S. constitution may not be right morally. In fact, what is right under the U.S. constitution may just be plain ugly, in bad taste, and uncivilized.
Another data point on the state of "democracy" in the US.
"Researchers at Duke University and Loyola University Chicago gathered detailed information about the gender, ethnicity, educational background, and career trajectories for every single state lawmaker in the country, both in state houses and senates—more than 7,000 elected officials in total.
Their database, the first of its kind, shows a wide gap between who sits in state legislatures and who they represent. For example, of the 7,239 lawmakers in the 50 state legislatures, only 81, or 1.1% held working-class jobs, according to the data. That’s compared to 30% of US adults who identified as working class in a 2018 poll....
In Texas, only about 1% of the working population holds a job as lawyer or judge, but over 30% of the state’s legislators were in a legal profession prior to taking office. While the state is an extreme case, the pattern holds true across the country....
This phenomenon is unique to the US. 'In the vast majority of democracies, if you look at their national legislatures, it’s not overwhelmingly attorneys,' says [Nicholas Carnes, one of the investigators]."
https://qz.com/a-third-of-americans-have-working-class-jobs-only-1-o-1849709001
I am no legal scholar. But isn't this rather simple? I can imagine that the argument against this would go along these lines:
In the second case, the activity of designing the wedding website directly contributes to the successful planning and execution of that to which the web designer is stipulated to object. This is not true in the first case. Painting an atheist's portrait does not directly contribute to anything the Catholic painter could object to, qua Catholic. There is no Catholic injunction against painting portraits of subjects who are not Catholic.
The related discussion that LFC & s. wallerstein refer to is under RPW's Dec 5 post on "Mr. Toad Rides Again."
Correction: That should have been the Dec 2 post on "Just Sitting and Watching."
Let's say I'm against others practicing homosexuality because the Catholic Church says it's wrong. And I also refuse to do a portrait for a homosexual couple even though they're millionaires and offer me ten thousand for one portrait. Does that really say that I'm a man of strong convictions? I'm pretty sure if a gay wealthy billionaire who had hundreds of billions in the bank genuinely offered me one billion for one simple portrait that I'd do it for the billion dollars. I would think up excuses like: I could give many millions to charitable causes, my parents, to family members, etc. Meaning, the good on one side would outweigh the evil on the other side for myself. I think very few ethical people would stick to their strict principles if the stakes are that high.
Prof. Wolff,
There are three levels of legal analysis which apply to your two examples: (1) application of the U.S. Constitution; (2) application of federal law; (3) application of State law, which, in light of your reference to the S. Ct. argument yesterday, would be the Colorado anti-discrimination law.
Regarding the first example with respect to the bookstore, because none of them would require you to sell books you do not wish to sell.
With regard to the portrait painter who refuses to paint the portrait of the atheist without the halo and cross, you are correct that this would not violate the law at an any of the three levels, because you cannot be required to provide a service which you do not provide to anyone. This is akin to not selling a book you do not carry.
With regard to the refusal to paint the portrait because the individual is an atheist, it would not violate the U.S. Constitution, since the Constitution only applies to the government and state actors, and the portrait artist is not an agent of the government. With respect to federal legislation, Title II would not apply because it only applies to discrimination involving places of public accommodation and the portrait studio does not qualify as a place of public accommodation under the terms of Title II. The Colorado law would apply, however, because its definition of public accommodation is broader than that of the federal statute and includes any business which sells goods or services. The portrait artist’s refusal to paint the atheist would violate the Colorado law’s prohibition of discrimination based on religion.
With regard to the second example, a business which designs websites for weddings whose proprietor believes that same-sex marriages are against God’s will, a gay couple want to retain the business to design their website, and they ae so enamored of the proprietor’s skills, they are willing to have each page of the website say, “the designer of this website believes that same-sex marriages are against the will of God and therefore are sinful.” Can the proprietor refuse to provide the service to the gay couple. Neither the federal constitution nor Title II have any bearing on this question. Under the Colorado statute can he refuse to provide the service to the gay couple? Prof. Wolff is correct, No it may not. But this is because the proprietor is not being compelled to express a message with which he disagrees. It is a message he endorses. The doctrine of compelled speech generally involves forcing an individual to express a view the individual opposes, as in the Pledge of Allegiance challenge by the Jehovah Witnesses, and the New Hampshire “Live Free Or Die” license plate which was challenged by a New Hampshire citizen who disagreed with the message. There is not compelled speech here, and therefore no legitimate reason to reject the gay couple’s business. If the proprietor did reject the business, it would be clear that he was doing so not on a 1st Amendment rationale, but based on discrimination against gays.
But this last example is not the question which he S. Ct. was facing at the oral arguments this week. In the case in question, 300 Creative LLV/Lorie Smith v. Ellis (Director of the Colorado Civil Rights Div.), the Court was confronted with a case of alleged compelled speech. The petitioner, Lorie Smith, claimed that the Colorado statute compelled her to engage in speech relating to gay marriage which was contrary to her religious views, a case which represents a stark conflict between a citizen’s 1st Amendment freedom of speech and freedom of religion, and the enforcement of an anti-discrimination statute which prohibits discrimination against individuals based on their gender identification, along with the standard classes of discrimination based on race, religion, ethnicity, gender, and age.
(Continued)
In a prior post, Eric has essentially challenged my position on this matter, in which I maintain that Ms. Smith has a valid constitutional basis to object to the enforcement of the Colorado statute against her, by noting that Prof. Wolff’s son, Tobias Wolff, a professor of law at the University of Pennsylvania and a recognized expert in the area of compelled speech and gay rights, has filed an amicus brief in support of enforcement of the Colorado statute against Ms. Smith. Eric is tweaking my nose, saying, essentially, what do I know, a reputable law professor disagrees with me and has filed an amicus brief, to boot. Well, Eric, I will not shy away from the challenge, notwithstanding that Anonymous and GJ have demanded that I STFU. I am reading Prof. Wolff’s amicus brief and will start preparing a response later tonight and will post it tomorrow on the prior thread, “Just Sitting And Watching” – after, of course I have watched the election results from Georgia. I anticipate that my response will be rather long and rather technical, legalese wise. (I should note that Prof. Wolff’s amicus brief was one of 94 amici briefs which were filed with the S. Ct. in this case.)
In s. wallerstein’s comment he, as usual, denigrates American law and the U.S. Constitution as being “just plain ugly, in bad taste and uncivilized.” He prefers to dwell in the realm of morality, about which he claims to know a lot. In prior threads I have asked s. wallerstein where he has obtained his superior knowledge of morality, and I have never gotten an answer. He demurs. I have asked him if he intuits it? He denies this as folderol and attributes my belief in unprovable moral precepts as coming from God. I do not believe they come from God. S. wallerstein agrees, I believe, that they are not provable by inductive logic. He says that he, like Prof. Wolff, just knows on what side he is on. But how does he determine what that side is, if he does not intuit, it is not God given, and he cannot induce it? Whence , s. wallerstein, is the source of your superior moral knowledge, such that you are in the position to describe the U.S. Constitution, and the values expressed in it, as “just plain ugly, in bad taste and uncivilized.” Pray tell, s. wallerstien, I would love to drink from your fount of superior moral knowledge.
Marc,
As I've told you 144 times, I have no fount of superior moral knowledge.
I have convictions, commitments, which are the product of my psychological makeup, my upbringing, the books I've read, the people I've hung out with, the general zeitgeist, etc. As a result of those convictions and commitments, I generally find myself on one or another side of political conflicts.
I stand up for my convictions and commitments as you do yours. I'm a bit more courteous than you are. Otherwise, we have a lot in common besides both coming from New Jersey:
we both enjoy debating ideas and we are both contrarians.
Perhaps it would be good to take a step back and remind ourselves that the U.S. Constitution was written by mortal, flawed people, and that the SCOTUS has always been made up of such people.
For ex (and not going back *too* far): In the late 1890s, the Sup Ct held that an income tax wd be a "communistic assault" on property. It also upheld separate but equal (Plessy v Ferguson). In 1905 or thereabouts it struck down maximum-hours-of-work laws (Lochner). Also in early 20th cent, upheld forced sterilization of the mentally "unfit" (Buck v. Bell). Etc. etc.
Occasionally the law has been an instrument of social change, but probably more often the reverse.
As far as this web designer case is concerned, the immediate practical impact will likely be small if they rule for the web designer, esp. if, as I'm now inclined to think, the majority opinion is written narrowly. It will leave open the case of photographers, say, which will probably eventually be the subject of another round of litigation.
Marc
I'm not at all sure you're right in your analysis here. Wouldn't Ms. Smith likely refuse the gay couple's business even if she could put a disclaimer on the website of the sort Prof. Wolff's hypothetical here assumes? I think she would still claim it's compelled speech -- I don't think it would be, but I think that's what she'd claim.
LFC,
I just saw this comment, which I believe I have answered on the previous thread. No, she could not refuse the gay couple’s business, given their willingness to include an explicit repudiation of gay marriage in the marriage announcement itself. The explicit repudiation would negate the compelled speech implicit statement in favor of gay marriage. If she refused the business, she could not claim a 1st Amendment defense, which would raise the implication that her refusal is not based on the free speech issue at all, but based on her discriminating against the gay couple for being gay, which would definitely violate the CARA, and citing her for that violation would be constitutionally defensible.
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