When I got up in the middle of the night, as I often do, I read on my phone that the New York Times employees union was calling a strike. They asked readers in support of their efforts not to do the daily crossword puzzle or WORDLE puzzle online. This is one of the greatest sacrifices I have ever been called on to make but my convictions are firm and I know which side of the barricade I stand on so, gritting my teeth, I have complied.
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1 – 200 of 380 Newer› Newest»Prof. Wolff,
I have asked this question of s. wallerstein several times, who agrees with you and bases his political and moral decisions by deciding on which side of the barricade he is on: How does one decide on which side one is on? Does one intuit it? Or deduce it? Or decide by some other mechanism? And, by whatever methodology one decides on what side one is on, is it a methodology that one can use to claim the validity of one’s position against critics of that position?
I appreciate that this is a complicated philosophical/epistemological question, which you may not be in the mood to address right now, but if and when you do feel in the mood, your explanation would be appreciated (by me, at least, and perhaps others).
I know someone who legitimately guessed one of the Wordle puzzles in one try. She just happened to have been using a good opening word for several previous puzzles - I mean, maybe not the best strategically, but it just miraculously happened to work one day: 'THERE.' (If you're curious, the compliment the player receives for a correct first-try guess is 'Genius.')
In my case at least because I've made a commitment to one side and that commitment is part of me.
Marc, if you're at a party with your wife and you see a woman prettier than your wife, do you try to seduce her or does your commitment to your wife over-rule any superficial attraction you might feel?
The reasons and motives for my originial political commitment are as complex and as varied as the reasons and motives for my commitment to my partner.
There are psychological reasons, sociological reasons, biographical reasons, an emotional identification with certain causes (which is pre-rational), etc.
As social psychologists point out, rationality plays a very small role in our decisions, which are the result of many conscious and unconscious factors.
Professor Wolff of course may have another explanation of his commitment to one side. I merely adopt his metaphor and his feeling identified by the Pete Seeger song, "Which side are you on?"
I'm still working (very slowly and sporadically) on Kant's ethics - I have a recently purchased copy of Prof. Wolff's Autonomy of Reason - but for me, one of the most powerful thoughts Kant has (regardless of whether it's true) is in Section Two of the Groundwork:
In fact, it is absolutely impossible to make out by experience with complete certainty a single case in which the maxim of an action, however right in itself, rested simply on moral grounds and on the conception of duty. Sometimes it happens that with the sharpest self-examination we can find nothing beside the moral principle of duty which could have been powerful enough to move us to this or that action and to so great a sacrifice; yet we cannot from this infer with certainty that it was not really some secret impulse of self-love, under the false appearance of duty, that was the actual determining cause of the will.
Applying this somewhat loosely to s.w.'s hypothetical about Marc's decision (presumably) not to be unfaithful to his wife, I see two ways of reading the scenario, and at the end of the day, I do not know which one is correct.
WAY 1: Susselmanian Moral Realism - Marc remains faithful to his wife. On reflection, he believes he has intuited that fidelity is a non-overridable duty in this case; that (furthermore) this intuition is either objectively correct in such a way that proof is neither possible nor necessary, or logically derived from more basic intuition(s) which themselves have that status; and (furthermore) that if he had (in a parallel universe, say) been most strongly inclined to act unfaithfully to his wife, and chosen accordingly, then he would not be able to correctly appeal to intuitive ethical truths in justifying his decision (because there wouldn't be such; his appeals would simply be false, regardless of his erroneous views to the contrary). Marc simply knows all this, by unprovable intuition.
WAY 2: Moral Anti-Realism - Marc remains faithful to his wife for idiosyncratic psychological reasons (better: "causes") of the sort s.w. describes. His subsequent reflection as to his justification from basic, intuitive, unprovable ethical truths is false - there are no such truths.
Again, I think one of these (or something approximating it) is correct, but I have no idea how to rationally determine which one.
One question for Marc: Do you ever have moments when the Way 1 account strikes you as somehow..."weird," perhaps silly? (Not to suggest that the sense of silliness would constitute a serious argument - I'm simply curious.)
Michael,
Neither of your proposed explanations applies to s. wallerstein’s question. I have never seen a woman more attractive than my wife, and, moreover, if I so much as looked at another woman in her presence, she would beat the crap out of me.
s. wallerstein,
Regarding your sociological/psychological/biological/emotional reasons for deciding to be on one side of a political/moral issue, are these reasons sufficient to justify your decision as more valid than the decision of someone who has decided to stand on the opposite side of your decision? And if not, then why the hell do you continue to insist that your position on that political/moral issue is correct? And don’t tell me that you don’t insist that you are correct, because you do, you do it all the time.
RPW, I wish I'd read your remarks this morning before I went ahead and did my usual first-thing mental gymnastics. Now I feel guilty. Why feel guilty? Because like you--and s.w.--I know where I stand on certain issues. As to why/how I know (a question that seems to lead to a whole lot of clever words), I guess it's because I bring to such matters a whole lot of experience and a whole lot of exposure to a whole lot of arguments. Somehow, I think, that's what we all bring to bear in deciding where we stand on this and that. That certainly doesn't allow one to arrive at a neat concise argument about where we--and everyone else--ought to stand. I guess it's also a stance of sort, the need to pursue a neat, concise argument and the insistence that everyone ought to be trying to do likewise.
Post-script:
Giving a more analytical, non-satirical answer to Michael’s question, No, I never have moments when I think that Way 1 is weird, or perhaps silly. And, frankly, I believe that most of the people who comment on this blog take their positions based on Way 1, they are just unwilling to admit it, because they believe that Way 1 seems somehow undemocratic, narrow-minded, and rather fascistic. But if we analyze any of the positions that commenters on this blog take regarding a political/moral issue, their position ultimately boils down to convictions which they maintain are necessarily true, without proof, and that anyone who takes a position antithetical that/those conviction is ipso facto mistaken/irrational and/or bigoted. Take, for example, my dispute with Anonymous and GJ on the previous threads regarding Ms. Smith and same-sex marriage. Anonymous and GJ insist that opposition to same-sex marriage is immoral, irrational, unjustifiable. I submit that they believe this because they believe in the moral precept that one should treat others the way one would wish to be treated, i.e., the Golden Rule, the corollary to which is that treating someone differently than you would wish to be treated based on that individual’s gender identification violates the rule, and is therefore immoral. They cannot prove that the Golden Rule is valid via a logical deduction, but I submit that they believe it nonetheless, without proof – and I agree with them. If there are not such moral precepts which it is valid to accept without proof, then a lot of the individuals who comment on this blog, and take adamant stances that their position is correct, and that those who take an antithetical position are incorrect – that the side of the barricade they choose to stand on is the correct side - are wasting a lot of time arguing positions that, ultimately, are indefensible.
Post-post-script:
Given my statement above that based on the Golden Rule, opposition to same-sex marriage is indefensible, then on what basis can I rationally defend Ms. Smith’s position in her argument with the State of Colorado? Because her position in that dispute invokes another moral principle, related to free speech and the First Amendment, that one has the right to express one’s views – even views which are stupid, irrational, unjustifiable – as well as the right to refuse to be compelled by government not to express those views, which are stupid, irrational, unjustifiable, which I believe Ms. Smith’s opposition to same-sex marriage is. But I believe just as strongly that government does not have the right to compel her to engage in speech which is antithetical to her stupid, irrational, unjustified belief. Now, if Ms. Smith decided to picket in front of a gay bar every Saturday night for 16 years, holding a sign which patrons of that bar could not avoid seeing, stating, “Gay people, and those who engage in homosexual sex, and who also get married, are agents of Satan and all are going to hell,” – like the protesters in Ann Arbor who have been picketing a synagogue every Saturday morning for now 18 years, using anti-Semitic signs which the members of the congregation, and their children, cannot avoid seeing - then I would say that her conduct is not protected by the 1st Amendment, constitutes a hate crime, and she should be prosecuted. S. wallerstein claims that by refusing to create wedding announcements for gay couples, Ms. Smith is “picking on” gay couples. Picketing a gay bar in the example above would constitute picking on gays and gay couples. What Ms. Smith is doing is not “picking on” gay couples – she is just refusing to endorse their decision to get married, and the 1st Amendment protects her right to refuse.
Post-post-post script:
When we were in high school, many of us learned/were taught Voltaire’s celebrated statement, “I may disagree with what you say, but I will defend to the death your right to say it.” We all, mostly, I think, accepted this sentiment as correct and fair.
A corollary of Voltaire’s statement is, “I may disagree with your refusal to speak, but I will defend to the death your right to refuse.”
I have no evidence that Voltaire in fact expressed the corollary, but I believe it follows from the statement he did make, and, were he alive, would agree with.
So why do some people who have no problem with the statement Voltaire did express, have difficulty accepting the corollary as it applies to Ms. Smith?
Well, I've decided I'm going to take a long break from commenting. I'm glad of course to have found this blog, but I've become basically addicted to it - lots of sharp, interesting, entertaining characters here; and it serves to fill a bit of a void I've had in my life since completing school, for creative/critical self-expression in a friendly, like-minded community. But for various reasons (no one's fault) online socializing is often bad for my mental health; and besides, I can't shake the feeling that we're taking advantage of Prof. Wolff's willingness to tolerate drawn-out, contentious, self-indulgent conversations of limited interest to him and of limited relevance to his work.
Apologies (hopefully unnecessary), gratitude, and well-wishes - Michael
They robbed my cellphone in the subway and I can't sign in to google. So I'll not be commenting for a while.
"It is absolutely impossible to make out by experience with complete certainty a single case in which the maxim of an action, however right in itself, rested simply on moral grounds and on the conception of duty."
Many Christians believe in a Day of Judgment. They also believe that on that day that The Father will hand over all of the Judgment of humanity over to The Son, meaning Jesus, so they will respect The Son too. These things are written in the Gospels, especially in Matthew 25:31-46. But in that chapter of Matthew's, the causes for good deeds are not considered but only
the actions are considered. Did you do the action, or not? And not even the effects are considered either. So it doesn't matter if you've felt like handing food over to some stranger who is starving, or that you've actually seen them eat your food. The idea is that if you have given food to some stranger starving (or hungry) & you hand it to them, you did it for Jesus & therefore you get to enter the New Universe & skip the second hell.
So to Christ as a judge, he mostly only cares if you did the action or deed itself. Plus, he doesn't care about Causes either. So if you say: "Jesus, I would have handed a destitute person a sandwich, but something came up that day when I had that one time opportunity in my life." Jesus doesn't care. You either did the action or you didn't do it. But remember it's not just kind offices in the form of food or drink to the poor, but also in clothing the naked, sheltering the shelterless, visiting the sick, or visiting prisoners. Do one of those things and you are saved. Matthew 25:31-46 is one of the few times when Jesus states out plainly in the Gospels the requirements of salvation.
And it makes sense that God or Jesus don't care about the Causes of salvation either. If people would be tried by Causes then it wouldn't be a Day of Judgment but a Millennium of Judgment. In fact, it would probably take forever because every person would then be allowed to have their say of why they didn't take the opportunity to help some stranger according to Matthew 25:31-46.
So if you want to reach perfection, according to Immanuel Kant, then give food or drink to the destitute (or homeless) because it is your duty. Use aid to the homeless as an end and not as a means. But not even this latter ethic of perfection is a requirement in God & Christ's eyes for a person entering the Kingdom of the New Universe on the Day of Judgment.
Politics will always be practical no matter in what Kingdom you are currently living in.
This is the second or third time I made a post without my google.
sw
I'm sorry you lost your cell phone, s. wallerstein. Besides RPW you are the most original voice on this blog.
sw
I think we need to find those who robbed you & guillotine them all.
In the WORDLE case one wishes not to be a thug for A.G. Sulzberger.
In the Smith case one understands that she is a stalking horse for the ADF and the Christianist Right as well as assorted fellow travelers. One also understands that these folks are consciously on a long march to some variety of authoritarianaim (besides, it's a shorter hop from LGBTQ folk and POC to the Jews then one might realize, LDS seem to sort of understand this as it applies to them). The Smith case, like Hobby Lobby, Shelby County, Citizens United, Rucho, Dobbs, etc., is suicide-pact constitutionalism.
Michael Llenos,
Thank you very much for the words of praise.
aaall,
From your statement I can conclude only that one or more of three propositions is/are true:
1. You do not agree with the corollary I have posited above of Voltaire’s celebrated statement, that an American citizen does not have a right to refuse to speak and can legitimately be compelled by the government to speak and espouse a position against his/her convictions.
2. You do believe that the corollary, generally speaking, is correct, but in Ms. Smith’s case, it should selectively not be followed because you believe it is part of a conspiracy by supporters of an ideology that has objectives you do not agree with.
3. You believe that the corollary is correct, and that it should not be applied selectively, but that in Ms. Smith’s case, the facts for some reason do not support the conclusion that the corollary actually applies.
I assume (1) is not your position. I am somewhat concerned that (2) is your position, in which case your views are as much of a danger to our democracy/republic as those of the ideology whose views you disagree with.
If (3) is your position, I infer it is based on you assertion on a prior thread that Ms. Smith is not doing anything actually creative which deserves the protection of the 1st Amendment, because she is just providing templates she has already created, from which her customers choose. But she has denied this, and has stated that she customizes each wedding announcement for each heterosexual couple, and would be doing the same for a gay couple. The State of Colorado has not questioned this representation by her. On what basis do you question it, and on what evidence, other than your general distrust of the ideology which you claim is behind Ms. Smith’s lawsuit?
By the way, your reference to a “suicide pact” is drawn from Justice Jackson’s dissent in Terminello v. Chicago, a dissent that I am pretty sure you would not agree with, and further, in all likelihood Justice Jackson, were he alive, would side with Ms. Smith.
s. wallerstein
You are welcome, sir. This blog is not the same unless you are fully in the saddle.
Wait? Michael and s. wallerstein are leaving?
You are going to leave me here alone with THE LAWYERS??
"Besides, I can't shake the feeling that we're taking advantage of Prof. Wolff's willingness to tolerate drawn-out, contentious, self-indulgent conversations of limited interest to him and of limited relevance to his work."
But even if Dr. Wolff is doing his duty, according to him & Kant, there is selfishness on his part.
Here is Rep Vicky Hartzler (R-Missouri) crying during the debate over final passage in the House of Representatives of an act (HR 8404) that repeals the Defense of Marriage Act*, requires government officials to recognize same-sex marriages and interracial marriages, and would allow anyone harmed in violation of the act to sue in federal court. The legislation is intended to provide protection for same-sex marriages in the event the Supreme Court tries to allow individual states to refuse to recognize these marriages by overturning Obergefell and/or Loving.
@ 11:26
https://www.c-span.org/video/?524708-2/house-debate-marriage-equality-legislation
* Recall that Bill Clinton signed the Defense of Marriage Act and Hillary Clinton supported it, although she later tried to rewrite history on that (she claimed Bill just had to sign it because Congress would have overridden his veto if he'd vetoed it).
https://www.wnyc.org/story/tale-tape-hillary-clintons-gay-evolution/
https://www.govtrack.us/congress/bills/117/hr8404/text
Michael Llenos,
It's good to learn that I've made a friend here.
Eric said:
You are going to leave me here alone with THE LAWYERS??
Eric,
Not everyone who went to law school (at some pt in their lives) is a practicing lawyer. I happen to fall into the former category but not the latter. Marc S. obviously is in the latter category.
Plus, not all lawyers are bad. (Thurgood Marshall was one. So was Clarence Darrow. So was Ruth Bader Ginsburg. A very partial list.) ;)
Michael Llenos,
I have a pretty thick skin – I would have to in order to express my views on this blog – and lawyer jokes don’t generally offend me, but frankly your joke about lawyers being empathetic only if they are paid, I do find offensive. There are a lot of hard-working, honest, conscientious lawyers who represent their clients fervently, selflessly and for moderate to little compensation, facing formidable odds posed by the legal system. At least you didn’t say Jewish lawyers. I used to have a fairly favorable opinion of you and the sentiment you have expressed on this blog, but no longer. And please, don’t write that you did not intend to give offense – if you didn’t, you would not have written your “joke.”
s. wallerstein
I am both friend & fan.
M.S.
I feel Lawyers are hard workers, and are some of the best of society, especially, since they lift up & support the majority of society, if not all of society. Without lawyers we would just have chaos & dictatorship. I am personally looking forward to that book (or possible successful brief) that the January 6th Committee will be coming out with soon. I am sure without legal counsel great books and testimonies against politicians that abuse their office holding powers, like that one mentioned & well known, would be nullified in their aim to produce accountability. And if lawyers & judges represent the living law, then the law itself would be dead without them. So I do deeply respect you & all lawyers. I do apologize to you. And I hope you find it in your heart to forgive me because all humans slip up and err at one time or another & realize they mistakenly crossed the line.
But as far as being antisemitic, I am not. When I was a youth, I thought being Catholic meant that only those of the Catholic persuasion knew the truth. However, nowadays I don't think that at all. Nowadays I have an existential crisis all of the time.
Michael Lleonos,
Apology accepted. And I have not accused you of being anti-Semitic.
Michael Llenos,
I don't see you as a fan, but as a conversation partner.
MS
Thank you for accepting my apology. That was very generous of you.
SW
What a compliment! Thank you again!
Marc,
With regard to your comment yesterday at 11:39AM.
I have never claimed that my position is "correct". "Correct" in that sense is just not a word I use. I may have claimed that my position to "more sensitive to the needs of an oppressed group", in this case, of gay people or that my position is the "decent" one, a vague term, I realize.
I'm much more of a politician than a philosopher (I've learned that after years in philosophy blogs) and as all politicians, I try to convince others, not so much by philosophical arguments, but by moving them and getting them to identify with my position or rather my side. Still less, am I a lawyer nor try to be.
I'm not trying to convince you in the least but rather others who read the blog.
Since I don't have gmail and can't sign in to blogger (a long story due to the robbed cell phone), I have to keep checking back in this blog and thus, will not answer your comments and those of others with any degree of immediacy.
LFC,
I obviously realize not everyone who trained as a lawyer practices law.
But when they get into discussions of matters even remotely involving law, it shows.
I'll take Clarence Darrow. And William Kunstler.
Thurgood Marshall ratted out communists to the FBI.
Ruth Bader Ginsburg hired only one black law clerk in her nearly 40 years as a judge.
I debated whether to respond to Eric’s comment about the inadequacies of Thurgood Marshall and Ruth Bader Ginsburg and hoped someone else, e.g., LFC, would do it. I suspect LFC decided it was not worth wasting his time responding to a pontificating idiot, so I will waste my time doing so.
Eric stalks around this blog passing judgment on those he claims do not measure up to his self-righteous vision of a moral and compassionate human being. He scoffs at lawyers as being unprincipled, self-indulgent capitalists. He mocks me as a homophobic bigot because I believe even a person who does not support same-sex marriage has a First Amendment right to refuse to be compelled to endorse same-sex marriage in her creative wedding announcements. He condemns Thurgood Marshall, despite his prodigious accomplishment of invalidating the doctrine of separate but equal public education and helping to launch the Civil Rights movement because he, allegedly, ratted on Communists. He condemns Ruth Bader Ginsburg as being a less than admirable attorney and jurist because she only hired one Black law clerk during her tenure on the Court, despite her trailblazing legal work on behalf of women and gender equality. He knows little to nothing about the law, yet believes he has the moral credentials to indict them as generally repulsive human beings not deserving of his respect. Eric, what the f…k have you accomplished in your life that stacks up to what Justices Marshall and Ginsburg accomplished in their lives? By virtue of what achievements do you qualify to make your sanctimonious, often stupid pronouncements on the moral merits of others? You are nothing more than a narrow-minded, self-righteous asshole. There, I’ve said it, and to hell with you!
I think everyone, or almost everyone, who comments here -- including myself -- needs to take a deep breath and step back for a moment.
There's no moderation in the comments here, which means we all have a responsibility to, in effect, police ourselves. In the heat of discussion, it's easy to say things that, on reflection, one might not.
I certainly have done that more than once, i.e., said something that on more reflection I would not have. In the long thread on the SCOTUS case, I responded very impolitely late in the thread to an anonymous commenter. I also made some comments to Marc that were more insulting than they ought to have been. I notice that Warren Goldfarb has removed his comments from that thread. I'm not sure exactly why, but the overall tone might have been part of the reason.
I think we should have vigorous debate and discussion here while trying to avoid insults and invective as much as possible. Again, I have been guilty of that myself, definitely. But I do think it's time to dial back on this sort of thing, or make a good-faith effort to do so.
I didn't respond to Eric's comments on Ginsburg and Marshall because I didn't think it would be productive for me to do so.
I don't know much of anything about Eric, but I infer or guess from his comments here over the months that he is probably younger than I am, and he obviously has strongly held political views. We're not exactly on the same space on the political spectrum, though I'm sure we agree on some things, and we're not the same age (or even, probably, the same generation). There's an old cliché about mellowing in some ways with age. Not everyone does. But some people, even committed anti-capitalists, may find that living in a capitalist society may require compromises that over time will diminish the fervor with which one holds certain views. Or it may not. I don't know how or if this will apply to Eric, but I just thought I'd mention it. (I'm not holding his presumed youth against him, nor should youth be an excuse -- but sometimes it can be a reason to cut someone some slack. And if he's not as young as I'm assuming he is, then these remarks can just be ignored.)
Anyway, there comes a point where I don't want to try to persuade Eric of something that he's not going to accept. He's not going to change his view of Ginsburg and Marshall, no matter what I say. So I decided not to respond directly to him on that.
In closing, I think we all, including me, need to, as I said at the start, take a deep breath and try to have slightly more civil discussions here. Again, I've been guilty of not doing that, so the first person I'm pointing a finger here at is myself.
p.s. I think it might have been just one comment that Prof. Goldfarb made on that thread. But in any case he has removed it.
LFC,
I raise my glass towards more civil discussions here.
By the way, there's a difference between saying something nasty about Thurgood Marshall and about someone who is commenting here and can be expected to read your comments.
s. wallerstein,
Precisely. Thurgood Marshall is not alive to defend himself. Not is Ruth Ginsburg alive to defend herself. And when someone makes ignorant, disparaging remarks of those who are not alive to defend themselves, then it is appropriate, if not obligatory, to call them out on it, and the fact that they are still alive and able to see their being called out is precisely the purpose of calling them out. And what, by the way, is “civil” of a person who makes such ignorant, disparaging remarks of the dead?
I amused myself for a few minutes this morning thinking up answers to the question 'How many lawyers does it take to screw in a lightbulb?' I've decided to keep my comic gems to myself, and instead would really recommend a cooling down period reading the magisterial narratives of four lives--Vasily Grossman, Sandra Day O'Connor, C. L. R. James, Denis Faul (an Irish priest prominent at the time of the Troubles--that Alasdair MacIntyre gives in his last book, Ethics in the Conflicts of Modernity. It offers, I think, a great deal for reflection on the issue of relationships among flaws, blindnesses, and achievements in life. MacIntyre notes (p. 309) that in every life there are occasions when desires are "in fact misdirected and practical reasoning flawed." I was also reminded that the art historian Meyer Schapiro used to begin his lectures on Leonardo by noting all the things that Leonardo couldn't do and/or wasn't interested in.
Let me just say that I'm sure Marshall had his flaws -- everyone does. Ditto Ginsburg.
But they are both towering figures (I know that's a cliché, but can't think of a better phrase) in American law and society in the second half of the twentieth century.
Marshall will be remembered more for what he did before he was appointed to the SCOTUS than after (though there was nothing shabby about his tenure as a Justice). He was not really an intellectual (is my impression) but he was a superb legal strategist and when he needed to be eloquent he was, in his direct, un-flowery way. Take his oral argument in the first Brown v Bd case. At one point (I'm paraphrasing very loosely) he says to the Court: Black and white children can play together, can ride bikes together, they can do all sorts of things together, but [under the dual school systems of de jure segregation] they can't go to school together. It's as if there's some magic in it [he says to the Justices]. This reference to "magic" was Marshall's way of pointing to the deep irrationality and unfairness of separate-but-equal. My view is that it's one of the most effective oral arguments ever made before the SCOTUS, certainly one of the most famous.
Marc,
You just didn't defend Marshall and Ginsburg, which is entirely acceptable in my opinion, but also insulted Eric in a vulgar form.
Eric, rather then nit-picking, I suggest you review Marshall's remarkable tenure at the NAACP Legal Defense Fund. That his health gave out when it did was a disaster for the U.S. Folks aren't perfect - Earl Warren was a flawed attorney General but a good governor and Chief Justice. Roger Traynor was a great lawyer and Justice (e.g. Perez v. Sharp). Ginsberg not retiring in 2013 was a massive fail.
"But she has denied this, and has stated that she customizes each wedding announcement for each heterosexual couple, and would be doing the same for a gay couple."
Marc, #3 (when one side does a Schmittian heel turn #2 will at least be in the calculus because matters are not always honestly presented) and it's obvious, to me at least, that her hands are far from clean. She doesn't "customize" as she has yet produce a product. After immersing myself in the world of wedding and general website developers I doubt she has a viable business model so allowing a stalking horse with no actual case and probably no actual business to set public policy seems problematic (also see Prof. Wolff's brief). It's a (for now) free country so she could try doing bespoke sites as a sideline but I doubt she'd have any takers. There are a host of well developed sites available on line that are free or nominal cost.
https://demos.oursite.minted.com/MIN-MUF-DWW/3019720/l1/
I don't see how this can be adjudicated without her having been asked to actually create something that she found objectionable. All of the free sites have personal picture and "story" options but they also have Terms of Service that allow the vendor to refuse to add actually objectionable items.
Marc, could you give me some examples of personalized content on a wedding website that you believe would rise to compelled speech?
"She plans to expand her business to design wedding websites that promote her understanding of marriage as between one man and one woman, and she would like to post an online statement explaining she can only speak messages that are consistent with her religious convictions." (Introduction 303 cert. petition)
Curious statement. Wedding websites are organizing tools that come into being after the "will you"..."yes!" and cease to be relevant (exist) soon after the "I do." There are sites that promote various approaches to faith based dating and maintaining healthy marriages but they have nothing to do with the nuts and bolts as well as the expense and stress around the ceremony.
This seems apt:
"There is no reason to doubt that the owner of 303 Creative has a sincere desire to refuse business from same-sex couples in the wedding-related services she plans to offer. Sincerity has never been lacking in disputes involving discrimination in the public marketplace. Business owners during the era of Jim Crow sincerely believed their devotion to faith and the fabric of society itself depended on racial apartheid in public spaces...The law cannot conjure away conflict among sincere beliefs, nor may it punish people whose beliefs fall out of favor...What the law can do, and what Colorado has done, is to establish rules of conduct that all participants in the commercial marketplace must satisfy...The First Amendment protects that speech. But the First Amendment has never
granted dissenters the right to defy neutral regulations on
commercial conduct. The Speech Clause protects belief and expression. It affords no sanctuary for discriminatory conduct in the public marketplace."
https://www.supremecourt.gov/DocketPDF/21/21-476/234014/20220819124717134_303%20Creative%20v.%20Elenis%20Wolff%20Amicus%20Brief.pdf
s. wallerstein,
Abraham. Do you bite your thumb at us, sir?
Sampson. I do bite my thumb, sir.
Abraham. Do you bite your thumb at us, sir?
Sampson. [Aside to GREGORY] Is the law of our side, if I say60
ay?
Gregory. No.
Sampson. No, sir, I do not bite my thumb at you, sir, but I
bite my thumb, sir.
How crude and vulgar of Shakespeare to make reference to digitus impudicus in the presence of an Elizabethan audience.
Marc,
As I recall, we once conversed about things we learned in kindergarden. We were in agreement about the list.
I don't recall the details, but I imagine that not insulting a class-mate because he or she has said something you dislike or disagree with would be on the list.
s. wallerstein,
No, the generalization you offer was not on the list. Saying something insulting to a classmate who has him/herself said something insulting to anther classmate is not wrong. Standing up for one’s classmates is a good thing. And Eric made disparaging remarks about Thurgood Marshall and Ruther Bader Ginsburg to the effect that they are not entitled to be regarded with respect because they had committed some act which, from Eric’s perspective, was not commendable. And, regarding giving Eric a pass because of his age, I suspect he is over the age of 21 and regards himself as an adult. There is nothing wrong with calling out an adult for something disparaging he has said about others, even if the calling out is conducted using rather, as you put it, vulgar language.
aaall,
You imply that Ms. Smith has never used her creativity to create a website, stating, “After immersing myself in the world of wedding and general website developers I doubt she has a viable business model so allowing a stalking horse with no actual case and probably no actual business to set public policy seems problematic.” But the petition for certiorari states: “Lorrie Smith is an artist and website designer who creates original content consistent with her faith. She plans to expand her business to design wedding websites that promote her understanding of marriage as between one man and one woman … .” So, according to her attorneys, she has created websites in the past for customers regarding subjects other than weddings. Therefore, it is not the case that she does not have a business model and has never created a unique website for a customer. She wants to expand the subject matter she creates websites for to include wedding announcements. I assume that her attorneys are telling the truth – and the State of Colorado has not contested their representation – because if they are not telling the truth, they would be subject to severe sanctions, including possible disbarment. But Ms. Smith does not want to expand her business if doing so would subject her to penalties and fines for allegedly violating the CADA. So, she has filed suit in advance, challenging the constitutionality of the CADA as it might be applied to her, in order to avoid being penalized and fined, which is her right under Ex parte Young, which I cited above.
Si jeunesse savait, si vieillesse pouvait.
(Since we seem to be circling around the topic of age.)
Tout a’ fait!
I just found this, for all you lawyer haters out there – Jerry Seinfeld’s monologue, “What are lawyers, anyway?”
https://www.google.com/search?q=youtube%2C+Jerry+Seinfeld+monologue+about+lawyers&rlz=1C1GCEA_enUS927US927&oq=youtube%2C+Jerry+Seinfeld+monologue+about+lawyers&aqs=chrome..69i57j33i160.25722j0j15&sourceid=chrome&ie=UTF-8#fpstate=ive&vld=cid:eff89358,vid:ihH87Y5UUgo
I've been watching this excellent debate between Marxist economist Richard Wolff and black conservative economist Glenn Loury.
They both score points.
As a lesson for all of us, they are both courteous and respectful of the other, but it helps that there is a moderator, Glenn's wife, who is very fair.
Since RPW does not moderate here and will not (I assume), maybe we (the regular commentators) could name a moderator among us. I'd nominate LFC for his sense of fair play and general courtesy.
https://www.youtube.com/watch?v=aWtIDwcME3I
Marc,
By the way, I don't know who you're accusing of hating lawyers.
My maternal grandfather was a lawyer, my father's brother was one, my mother's first cousin and closest friend was married to one and they lived two blocks from us. My cousins, the children from my mother's cousin's first marriage, both became lawyers: being a few years older than I am, they served as role models for me as a child.
I learned the pros and cons of lawyers very young in life.
Thank you, s.w., but I don't want the responsibility of being moderator.
I think the best answer is probably self-policing, for lack of a better phrase.
LFC,
I was fairly sure that you'd say that.
I tend to be a bit Hobbesian about the efficacy of self-policing, but we'll keep trying.
"You imply that Ms. Smith has never used her creativity to create a website..."
No, I know she has developed websites because I went to her 303 site and reviewed her gallery. A closer reading of my posts makes that clear. My point is and has been that you don't seem to understand the function and formatting of a wedding website as well as what "custom" means in the context of such a site. Her developing a sample template would help us out and would seem to me to be what someone serious about actually offering that service would have done by now. The production of a generic sample would be a trivial matter for an experience developer. As Kennedy wrote in Masterpiece:
"It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals,in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment."
A claim of "expression" would seem to require actual examples.
"Therefore, it is not the case that she does not have a business model and has never created a unique website for a customer."
Again, I never asserted that. I don't know if she has a general business plan and that's irrelevant to my point but wedding websites are a niche product and would require a separate plan. Given the number of free and low cost wedding planning and wedding website offerings on a simple google search (most customizable), I don't see how a very small developer with no plan breaks into that (if one had a plan, one would have a sample template or so). Once again, please check out the field. Once having checked out what a wedding website actually is share what you believe would constitute compelled speech. As I see it a wedding website is way closer to a cake then a tee shirt or parade.
BTW, her graphics and layouts are so-so to suck.
aaall,
The fact that you do not believe her website creations are particularly creative is irrelevant. Regardless how attractive or unattractive they may be to you, or others, Ms. Smith would necessarily have to state something in the wedding announcement which constitutes a celebration of marriage between two individuals of the same gender. As I pointed out in the previous thread, this is the case even if the announcement does not state, “Leslie and Dallas wish to celebrate their gay marriage.” Even without a request by the gay couple that such a message be included in the wedding announcement, Ms. Smith will know that Leslie is a man, and Dallas is a man; or that Leslie is a woman and Dallas is a woman, and by preparing a wedding announcement for them, she will know she is preparing a wedding announcement for two individuals of the same gender just by identifying them in the wedding announcement, which is in violation of her religious convictions.
In Obergefell, even the liberals acknowledged that a minister, priest or rabbi opposed to gay marriage could not be compelled to officiate at a gay marriage. At some point in a gay marriage, a minister, priest, or rabbi opposed to gay marriage on religious grounds would have to say, “I hereby declare you husband and wife.” This would constitute compelled speech. How is Ms. Smith’s situation different? You may say that officiating at marriages is part of the minister/priest/rabbi’s job, and therefore more central to their function. But they do other things beside officiate at marriages – some conduct baptisms; some conduct bar mitzvahs. Officiating at marriages is only part of their job. The same would be true of Ms. Smith – she creates websites for all sorts of people, about all sorts of subjects. Creating wedding announcements would only be a part of what she does, just as officiating at marriages is only a part of what ministers, priests and rabbis do. If they cannot be compelled to make a statement which is contrary to their religious convictions, the same is true of Ms. Smith.
Moreover, Ms. Smith could not make the same objection to preparing wedding announcements for inter-racial marriages, which some have offered as a rebuttal. Inter-racial marriages are not condemned in either the Old Testament, the New Testament, or in the Koran, nor in any religious scripture that I am aware of. For example, Moses’s wife, Zipporah, was Ethiopian, of the tribe of Midia. According to the Old Testament, Moses’s sister, Miriam, who criticized Moses for having married Zipporah, was stricken with leprosy. Ms. Smith could not refuse to prepare wedding announcements based on her religious convictions.
A more complicated case would be preparing wedding announcements for inter-faith couples, which is frowned upon by both Christians and Orthodox Jews. But it is not based on religious scripture; it is based on religious conventions. Refusal to prepare wedding announcements for inter-faith couples could not be justified based on scripture, and would violate the CADA. But Ms. Smith has not indicated she would refuse to prepare inter-faith wedding announcements.
Correction:
Ms. Smith could not refuse to create wedding announcements for inter-racial couples based on religious convictions.
s. wallersein,
I was not accusing you of being among those who hate lawyers. Nor to Michael Llenos I was referring to others who, from time to time, have made critical remarks of lawyers, like, "Please don't leave me here alone with the lawyers!"
Upon further reflection regarding my statement above that no religious scripture I I know of prohibits inter-racial marriage, I thought, what about the Book of Mormon. So I checked. And Yes, prior to 2013, the Church Of Jesus Christ Of Latter Day Saints prohibited marriage between Blacks and Caucasians. But in 2013, the Church disavowed that prohibition. Therefore a Mormon who wished today to prepare a website which created wedding announcements could not refuse to prepare wedding announcements for inter-racial couples.
https://en.wikipedia.org/wiki/Interracial_marriage_and_the_Church_of_Jesus_Christ_of_Latter-day_Saints#:~:text=In%20the%20past%2C%20leaders%20of,no%20longer%20considered%20a%20sin.
Now, many who read this blog may argue that this is all superstitious nonsense, and that Ms. Smith should not be allowed to base her refusal to create wedding announcements which celebrate gay marriage based on superstitious nonsense. But this is not a legal position. Whether you like it or not, the First Amendment of the Constitution protects freedom of religion, which, from your point of view protects freedom to engage in superstitious nonsense and to refuse to engage in speech or conduct which is antithetical to that superstitious nonsense. So be it, and you are entitled to your opinion. It just so happens to be an opinion that is contrary to the freedom of religion provision of the First Amendment, which all judges in the United States are required to enforce.
Marc,
So, what can you get away with calling a religion in the United States?
Let's say I claim that Adolf Hitler was the son of God, born to an Aryan virgin and that Mein Kampf and the Protocols of the Elders of Zion are Holy Writ? Can I legally call that a religion?
Marc Susselman: The fact that you do not believe her website creations are particularly creative is irrelevant. Regardless how attractive or unattractive they may be to you, or others, Ms. Smith would necessarily have to state something in the wedding announcement which constitutes a celebration of marriage between two individuals of the same gender.
No, she wouldn't. It's not her speech that the customers would be paying for. It's their speech. That's the heart of Prof Tobias Wolff's (and many others') objections.
And nobody is forcing this petitioner to go into the business of making internet wedding announcements. If she has such a strongly held objection to certain kinds of marriage, she should do some other sort of business (eg, stick to creating websites that do not deal with weddings). She is free in her personal life to say whatever she wants about marriage. She can spend all day and all night creating websites for her and her friends' personal amusement praising male-female marriages and railing against all other kinds of family partnerships. But once she begins offering website creation to the public as a service for remuneration, she cannot discriminate against same-sex (or interracial) marriages.
s. wallerstein,
Somehow I had a premonition that someone would ask me a question like yours, and that that person would be you, my inveterate New Jersey/Chilean critic.
Answer: No, not likely, in fact very highly unlikely.
The Supreme Court confronted the question of what constitutes a religious belief most prominently in a series of cases involving the assertion of being a conscientious objector as a basis for refusing to submit to the military draft during the Vietnam War. The most prominent of these cases was United States v. Pete Seeger, 380 U.S. 163 (1965) (yes, the folksinger), in which Justice Ramsey Clark, writing for a unanimous Court, sustained the right of Pete Seeger to refuse to submit to the draft based on his religious opposition to war. In a decision invoking the views of various theologians and philosophers, including Paul Tillich, Justice Clark wrote:
The test of what qualifies as a sincere religious belief “is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?
“Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight. Recognition of this was implicit in this language, cited by the Berman court from State v. Amana Society, 132 Iowa 304, 109 N.W. 894 (1906):
‘Surely a scheme of life designed to obviate [man's inhumanity to man], and by removing temptations, and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotees regard it as an essential tenet of their religious faith.’ 132 Iowa, at 315, 109 N.W., at 898, cited in Berman v. United States, 156 F.2d 377, 381. (Emphasis by the Court of Appeals.)
“The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's ‘Supreme Being’ or the truth of his concepts. But these are inquiries foreclosed to Government. AS MR. JUSTICE DOUGLAS stated in United States v. Ballard, U.S. 78, 86 (1944): ‘Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.’ Local boards and courts in this sense are not free to reject beliefs because they consider them ‘incomprehensible.’ Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.”
So, no, your hypothetical of a person claiming Mein Kampf and The Protocols Of the Elders Of Zion as his/her religious scriptures would not qualify. And if you were to move to the United States and establish a place of worship with these texts as your religious scriptures, and sought tax exempt status, you would be thrown out of court on your ear.
Eric,
No, she is not just robotically recording the customer’s speech, like the stenographer in Prof. Goldfarb’s example. Stenographers do not embellish the transcripts of what they automatically record with their own artistic contributions. Once Ms. Smith embellishes the wedding announcement with her artistic creativity – regardless of whether you or aaall regard her artistic contribution as attractive – the wedding announcement, and the names of the gay couple whose wedding it announces and celebrates – become her property as well as that of the gay couple, who have hired her to design the wedding announcement precisely because of what she brings to the table in terms of her artistry. Without her artistic contribution, the wedding announcement would be no more than the template which aaall claims it is. She converts the template into her own artistic creation, and in so doing she becomes more than just a stenographer. And the State of Colorado cannot prohibit her from going into business to offer these artistic wedding announcements to the public by compelling her to include in the wedding announcement a statement – even if it is only the names of the gay couple – which is contrary to her religious convictions. This is a form of governmental bullying, and the fact that so many people who read and contribute to this blog – people who claim to espouse individual autonomy and the right to resist governmental authority in all sorts of other spheres of life – don’t get this is very disappointing to me, and frankly constitutes the height of hypocrisy.
Marc Susselman: At some point in a gay marriage, a minister, priest, or rabbi opposed to gay marriage on religious grounds would have to say, “I hereby declare you husband and wife.” This would constitute compelled speech. How is Ms. Smith’s situation different?
Smith is not offering a religious service to the public. She is not recognized as a religious officiant by members of the public, nor does she hold herself out to be one.
Marc Susselman: Inter-racial marriages are not condemned in either the Old Testament, the New Testament, or in the Koran, nor in any religious scripture that I am aware of.... Ms. Smith could not refuse to prepare wedding announcements based on her religious convictions.
A more complicated case would be preparing wedding announcements for inter-faith couples, which is frowned upon by both Christians and Orthodox Jews. But it is not based on religious scripture; it is based on religious conventions.
Your argument is highly biased in favor of one type of religion over others. There are many faith groups in the world whose beliefs are based on oral tradition, not based on, or codified in, "religious scripture." If you would object to Catholic justices ruling with prejudice for Christian beliefs and against Jewish beliefs, how can you justify an argument favoring religious faith that incorporates scripture over religious faith that is just as deeply held, or even more deeply held, but is based solely on faith community traditions ("convention")?
While you may not personally be aware of them, there are people whose religious faith opposes interracial marriage. You cited the Mormons as group who did not accept interracial marriage in the past but does today. That is true for most Mormons, but as in Christianity, Judaism, and Islam, there are schisms in the Mormon faith, and not all Mormons accept the decisions of leadership in Salt Lake City. Some Mormons still oppose interracial marriage. Similarly, there are Christians who still object to interracial marriage, citing their faith.
Marc,
Wait a second. Pete Seeger (the folksinger) was too old to be drafted in 1965 and Ramsey Clark was LBJ's Attorney General and later a progressive lawyer, but never a Supreme Court justice. Even I know that.
Eric,
You are peppering me with one irrelevant example after another. The minister, the priest, the rabbi, are not the only ones who have the right to assert their religious faith as a basis for refusing to be compelled to use speech which is antithetical to their religious beliefs. Anyone who sincerely holds the same religious beliefs has the same right as the minister, priest, rabbi, imam, etc., to refuse to be compelled to use speech which is antithetical to their religious beliefs.
Are there still Christians, Jews, Mormons, ….who hold the belief that inter-racial marriage is wrong and/or sinful, of course. I assume. But in so doing they are not expressing the official doctrine of the religion which they claim to be participants in – and their so-called religious beliefs would not pass muster under the test I outlined above from United States v. Seeger. Moreover, Supreme Court protocol requires that the Court only address the issues presented by the facts before them, and not go off on tangents addressing legal issues that are not before them. The only issue currently before the Court is whether Lorie Smith has a constitutional right under the First Amendment to create wedding announcements and refuse to create such announcements for gay couples, in violation of Colorado law. I believe she does. What the rights of a bigoted Jew, Christian, Muslim, Mormon, etc. would be is not before the Court, and, with respect to Lorie Smith’s rights, is irrelevant
And Eric, how about addressing the hypothetical I raised with GJ. Suppose you wanted to start your own wedding announcement business and a heterosexual couple requested to pay for your services to create a wedding announcement which stated, “Jack Smith and Jill Jones, a heterosexual couple, are proud to announce their upcoming nuptials. We are religious Christians who reject same-sex marriage and believe that those who engage in such a ceremony are the spawn of Satan and condemned to hell.” Do you believe that, if you were living in Colorado, you would have the right to refuse to accept their business? If you did, you would clearly be violating the Colorado anti-discrimination statute based on gender, and Jack and Jill could sue you and demand that the State of Colorado put you out of business. How’s them oats?
s. wallerstein,
You are correct on both counts. I assumed that the Seeger in U.S. v. Seeger was the folksinger. I looked through the decision and could not find the first name of the defendant, so I jumped to the conclusion that it was Pete Seeger. Actually, it was David Andrew Seeger, and I do not know if they were related. Regarding Ramsey Clark, correct again. It was his father, Tom Clark, who was the S. Ct. justice who wrote the decision in U.S. v. Seeger.
See, I can admit when I am wrong, as infrequently as that occurs.
Marc Susselman,
Your quotes from the Seeger opinion undermine your own argument.
The test of what qualifies as a sincere religious belief “is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption? ...
The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's ‘Supreme Being’ or the truth of his concepts. But these are inquiries foreclosed to Government.... [The] task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.
Again, you are privileging one kind of religion over others. You are comfortable with the kind of religion that involves written codes of faith. The problem with your argument is that that's not the only kind of religion there is.
Eric,
Another irrelevant comment. First, the issue at hand is whether Lorie Smith’s religious beliefs qualify as sincere religious beliefs under the definition in U.S. v. Seeger. They clearly do.
Second, the prerequisite of a sincere religious belief under the definition is whether “the claimed belief occup[ies] the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption.” Therefore, in order to qualify, the religious belief must be based on a religion comparable to the established religions, i.e., Judaism, Christianity, Islam, Moromoism. Although it need not include reverence for a Supreme Being, it must encompass the values of “life designed to obviate [man's inhumanity to man], and by removing temptations, and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service.” This allows for such religions as Hinduism, Buddhism, Taoism, and the conscientious objector beliefs of an atheist. At any rate, the views of an adherent of these religions and spiritual philosophies regarding opposition to gay marriage are not at issue in Lorie Smith’s case. The only issue is whether her religious convictions preclude her from expressing acceptance of gay marriage. There is not question that her views qualify as religious beliefs protected under the First Amendment.
Marc Susselman,
Please reread my post. I was replying to your claim that a petitioner could not use their religious faith and right to freedom of creative expression in refusing service for an interracial couple because, in your words, objection to interracial religion is not part of the "official doctrine," based on scripture, of any religion you are aware of. My point, again, is that there are many people who are fervent believers in religions that are not part of the large religious communities you are familiar with. The fact that their beliefs are not recorded in written form, or that their faith community numbers in hundreds or dozens rather than millions, does not mean that for them personally their religious beliefs are not as deeply held as are the beliefs of people whose religions you are familiar with.
Marc Susselman: And Eric, how about addressing the hypothetical I raised with GJ. Suppose you wanted to start your own wedding announcement business and a heterosexual couple requested to pay for your services
As RPW suggested in his post commenting on the case the other day, a customer can't demand that the business owner perform a general service she or he does not ordinarily perform. As I understand it, the guiding principle of Colorado's antidiscrimination statute is that a business cannot on the basis of religion or sexual orientation deny to a customer a service that it would ordinarily provide to others.
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual's patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. (my emphasis)
So if my business created wedding announcements for other customers that had such a statement as you propose, then the law would prohibit me from denying that same service to the couple of your hypothetical. But the law does not mandate that I offer to put the kind of statement you propose on the wedding announcements I create if I want to operate a wedding announcements business. In the case at hand, Smith is trying to deny same-sex couples the same service she says she wants to provide to the general public.
Eric,
Once again, an irrelevant comment. In Prof. Wolff’s example, he wants to open a bookstore which specialized in books about Catholicism and which does not carry any books which are banned by the Papacy. He could not be charged with violating the CADA based on religious discrimination for refusing to carry books banned by the Papacy, because by specializing in books not banned by the Papacy, he is offering to the general public “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” which is limited to the books about Catholicism not banned by the Papacy.
In the case of your business selling wedding announcements, you are offering to the general public to provide wedding announcements for all wedding couples, both heterosexual, bisexual, gay, transgender, etc. You cannot advertise, “This business provides wedding announcements to all, regardless of the genders of the prospective bride and groom, unless the proposed wedding announcement includes a statement which condemns marriage by those who are not the same gender as the couple announcing their marriage.” In so doing, you would not be providing “the full and equal enjoyment of the goods, services …” which your business provides, regardless of the genders of the customers.
Eric, if you want to practice law online, you should really first go to law school. I will not be responding to any more of your irrelevant hypotheticals.
It seems to me that basically the law decrees that anything that resembles Christianity, Judaism or any other religion which has a historical tradition, such as Islam or Hinduism is a religion and anything new or "weird" is not.
In my example above, there is no more or less reason to believe that Hitler is the son of god born to a virgin than there is to believe that Jesus is the son of god born to a virgin. Nor is there any more or less reason to believe that the Bible is holy writ than to believe that Mein Kampf is holy writ except tradition.
s. wallerstien,
What you are proposing is contrary to Supreme Court precedent, which, after all, constitutes the final word on what constitutes a religion under the First Amendment. The fact that you you philosophically disagree with the Supreme Court, for purposes of this discussion, is irrelevant. And if you want to make your philosophical point, I suggest that you move to the United States and open a house of worship using Mein Kampf and the Protocols of The Elders Of Zion as your scriptures, apply for tax exempt status, and when it is denied, file a lawsuit in federal court (filed pro se, because I doubt you would be able to find an attorney dumb enough to take your case) and then make your philosophical point in court. You will not get very far, and, in fact, you may be sanctioned for filing a frivolous lawsuit.
Marc,
Why do get to decide what is relevant or not?
You insist on leading this conversation, as you do all conversations, towards legal issues under the U.S. legal code.
Others of us make points about the general political ramifications of this issue.
By the way, let me change my example. How about if I claim that Henry Miller was the son of god born to a virgin and that his writing advocating complete sexual freedom are holy writ?
I know the U.S. Supreme Court would not consider that to be a religion, but my example shows how conventional the criteria of the U.S. Supreme Court are.
I find Henry Miller to be as wise as Jesus and a better writer.
s. wallerstein,
The reason I discuss this issue in legal terms is because the question whether Ms. Smith has the constitutional right to refuse to create wedding announcements for gay couples, and whether by so doing she is violating the CADA, and whether the State of Colorado may thereby charge her with violating the CADA are all legal questions which only the courts, and ultimately the U.S. Supreme Court can answer, not avant garde, fair minded thinkers who are wannabe lawyers. And how Ms. Smith’s case is going to turn out will be decided by how a majority of the Justices on the S. Ct. view what her constitutional rights are, not by a bunch of free-thinkers and wannabe philosophical lawyers who want to define what constitutes a religion in terms different from what the S. Ct. has defined what constitutes a religion under the First Amendment. And because this issue is a legal issue, and involves Ms. Smith’s constitutional rights, I am adamant about offering my opinion about what her constitutional rights are as against a guy who lives in Chile and thinks he knows better what U.S. law should be.
Marc,
Sure, but the law is political. It was created by human beings, called politicians, under certain determined historical circumstances, with certain interests, certain prejudices and certain conscious and unconscious biases. That is what interests me and it seems to interest others here too.
Marc Susselman,
My hypotheticals? My comments here have all been responding to your hypotheticals.
Moreover, Ms. Smith could not make the same objection to preparing wedding announcements for inter-racial marriages, which some have offered as a rebuttal. Inter-racial marriages are not condemned in either the Old Testament, the New Testament, or in the Koran, nor in any religious scripture that I am aware of.
And Eric, how about addressing the hypothetical I raised with GJ
I wonder why you don't just start your own blog. If you prefer having discussions with other lawyers, or other lawyers interested in philosophy & politics, you could make that the focus of the blog. And you could screen comments before they go live, as well as disinvite commenters whose contributions aren't constructive.
Confucius says, “He who knows, and knows that he knows is wise, follow him. He who knows not, and knows not that he knows not is a fool, ignore him.”
P.S. s. wallerstein,
The Gospels were not written by Jesus. And they were written long after he was dead.
Of course I know that, but they supposedly contain his words.
As Nietzsche says, "it's a curious thing that God learned Greek when he wanted to become an author and that he did not learn it better".
s. wallerstein,
But then you have no basis to state that Henry Miller is a better writer than Jesus, since Jesus was not the author of the Gospels, do you?
Marc,
You are a lawyer, aren't you?
The Gospels supposedly register the words of Jesus (the Sermon on the Mount, etc.). Miller's works register his words.
Then we would have to say that Henry Miller is more skillful in his use of words than Jesus is.
However, no one but a lawyer would have bothered to point that out, since my casual comparison is clear. And that is what irritates the rest of us about lawyers or about some lawyers because many lawyers realize what I say above and avoid irritating others.
Do you enjoy irritating others? Do you get a kick out of it?
s. wallerstein,
No, I do not enjoy irritating others. But I do enjoy pointing out the sophistry, stupidity, and stubbornness of others, like you. Several comments above you pointed out my errors regarding who the defendant was in U.S. v. Seeger (not Pete Seeger) and that Ramsey Clark was never a Supreme Court Justice, and therefore could not have written U.S. v. Seeger. In less than one hour, and only a few minutes after reading your correcting comment, a acknowledged both of my errors. You, on the other hand, refuse to acknowledge that your statement that Henry Miller is a better writer than Jesus is categorically false. Instead, you flail around trying to rewrite what you wrote, claiming that, instead, Miller was a better writer than Jesus was an orator. This, by the way, does not get you off the hook, since your cannot prove – nor can anyone else – that the words attributed to Jesus by Mark, Luke, Matthew and James were actually spoken by Jesus, a fact that even some Christian theologians acknowledge.
So here’s the point. You, unlike me, never admit when you are wrong. You always try to rephrase what you said in order to salvage your ego and insist that, ultimately, you were right, and this applies to your ridiculous, self-indulgent, ignorant statement about U.S. constitutional law, and what it should be according to the Book of s.w. wallerstein. If I have irritated you, so be it. I don’t give a damn. Maybe you can try again to have LFC moderate our dispute and tell me to lower my tone.
As I recall Jesus is only once in the canonical Gospels depicted as writing (in the dirt), and we are not told what he was writing--very likely he was jotting down some witticisms about lawyers. The non-canonical Gospel of Thomas contains some sayings that are not otherwise recorded but sound like something the historical figure would have I said. One in particular seems to me to surpass anything from Henry Miller: "Split a piece of wood, and I am there. Lift up the stone, and you will find me there." And of course that predates by some 1800 years Whitman's "If you want me again, look for me under your boot-soles."
Here's an idea:
Why don't we wait until this spring or summer, when the Sup Ct will presumably issue its decision in the Lorrie Smith case, and then we can have this discussion with the opinion(s) in front of us.
Right now it's mostly an exercise in wheel-spinning, IMHO, and the positions seem entrenched to the point that no one is going to budge an inch.
I do think politics btw is very woven into constitutional jurisprudence (and to some extent philosophy is too), but that's a whole other discussion.
John R.
That's a great line from Whitman, which I must confess I don't think I knew.
(And since I went to a high school named for him, shame on me.)
John Rapko
Several threads back I recommended that people watch the movie "Nine Days." At the end of the movie, if you have the patience to watch till the end, you will see a recitation of an excerpt from Whitman's "Song Of Myself" that will knock your socks off.
I judged her skills because I like to judge. Of course, those opinions have nothing to do with the 303 litigation which should fail on its merits.
“This business provides wedding announcements to all, regardless of the genders of the prospective bride and groom, unless the proposed wedding announcement includes a statement which condemns marriage by those who are not the same gender as the couple announcing their marriage.”
Why is that problematic?? If that was in the terms of service and it was universally applied as opposed to singling out a protected class it would seem to me to follow the Colorado law. You disagree and now we have a concrete case to adjudicate as opposed to the current situation.
Sample TOU:
"(ii) is obscene, sexually-explicit, defamatory, threatening, harassing, abusive, hateful, or embarrassing to another user or any other person or entity; (iii) is confidential, proprietary, invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful, racially, ethnically or otherwise objectionable, including, but not limited to any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable U.S. or foreign laws;"
Marc, you seem to have radical views of religious liberty that elide the belief (absolute)/conduct (contingent) distinction that is essential to the preservation of a civil society in a pluralistic and secular republic.
The Nation of Islam is considered a religion under our laws as is Rastafarianism, the Unification Church and Scientology (e.g. U.S. v Jefferson). All four assign some level of divinity or at least supra-human status to members of our species who are/were our contemporaries (Fard and Elijah Muhammad, Sun Myung Moon, Haile Selassie, and L. Ron Hubbard). As distasteful as it might be to most of us, a "Hitler Church" would likely fly. We already have a nascent example:
https://www.snopes.com/news/2022/08/02/painting-of-trump-crucified/
https://jonmcnaughton.com/legacy-of-hope-24x36-inch-limited-edition-giclee-canvas-print-signed-and-numbered-200/
https://d16kd6gzalkogb.cloudfront.net/news_feed_images/McNaughton_NFT_Collection_Donald_Trump.jpg
aaall,
I will get to your comment later. Right now I wish to make a proposal to s. wallerstein: If the S. Ct. rules in favor of Ms. Smith, regardless any dissents(s), then he will acknowledge that he was mistaken; if the Court rules in favor of the State of Colorado, regardless any dissent(s), I will acknowledge that I was mistaken. Ten to one s. wallesteing will not agree.
Marc,
Since you seem to want me to admit that I was mistaken, ok., but I never argued with you about the legal details. I concede that you know much more about U.S. law than I do.
" Right now I wish to make a proposal to s. wallerstein: If the S. Ct. rules in favor of Ms. Smith, regardless any dissents(s), then he will acknowledge that he was mistaken; if the Court rules in favor of the State of Colorado, regardless any dissent(s), I will acknowledge that I was mistaken. Ten to one s. wallesteing will not agree."
Or perhaps better, s.w., myself, and many others will either judge the Supremes as right or wrong. A five/four or six/three in favor of the ADF/Federalist's authoritarian agenda, as with Dobbs, Shelby Co., Citizens United, Rucho, etc., won't change my priors.
LFC, you might consider this:
"“Look it over some time. 'T is fine spoort if ye don't care f r checkers. Some say it laves th' flag up in th' air an' some say that's where it laves th' constitution. Annyhow, something'» in th' air. But there's wan thing I 'm sure about."
" What's that ?" asked Mr. Hennessy.
" That is," said Mr. Dooley, " no matther whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns.”
It simply isn't fitting to accord all that much deference and respect to this Court, three or four of whose members seem dead set on ending democracy in this nation (and two who sorta do). The courts unfavorables are way up and any contribution to that trajectory, no matter how small, is a good thing.
I must admit I am stunned to read above that a certain person, unlike the others he's endlessly feuding with, admits it when he's wrong. Dare we reference, e.g., the ridiculous point of view expressed concerning the sun of York?
aaall,
For sure, whatever the Supreme Court's decision, it's not going to dissuade me that the decent and civilized thing to do is to make sure that gay people have the same right to have their marriages celebrated by websites as non-gay people do.
And if the U.S. Supreme Court rules that gay people do not have the right to have their marriages celebrated by websites, regardless of the religious beliefs of the website designer, then my opinion of the U.S. Supreme Court will be even more negative than it now is.
However, I recognize that Marc's command of U.S. Constitutional Law is vastly superior to mine and in fact, I never disputed that above.
aaall
Perhaps my comment was not sufficiently clear.
I was not suggesting that the Court's decision, when it comes down, will be correct or admirable or persuasive or any of those things.
I was simply suggesting that it might be more interesting and/or useful to have the discussion after the opinions are released.
You may well disagree with that, and that's fine, but please do not attribute to me a view about this Court that I didn't express.
A lot of silly things have been said in this thread concerning the Supreme Court's definition of what constitutes a religious belief. We should all remind ourselves that just because someone says something over-and-over again and just because they insist on their expertise, that doesn't do anything to guarantee they actually have such expertise or, in fact, have any idea what they're talking about.
Note a distinction between a putative religious belief occupying the same place in one's life as an orthodox belief in God and its otherwise resembling an orthodox belief in God. It is simply not true that, in order to be protected, the law requires one's religious belief to resemble an orthodox belief in God. What it requires is that it be sincerely held and that it occupy in the life of the possessor the same place as might an orthodox belief in God.
The problem you'd likely run into trying to defend a belief in the divinity of Hitler (or whatever) is not that it isn't supported by any acknowledged scripture or isn't a part of any orthodox religious tradition. Those things, despite the protestations of some in this thread, are irrelevant. Rather, it's that you'd have to make a case for their being sincerely held and for their occupying the same place in your life as would an orthodox belief in God in the life of an orthodox believer. That might be difficult to do, but it is not, in principle, impossible. So yes, the law in the US would protect members of the hypothetical Hitler church if it could be demonstrated that their beliefs were sincerely held and occupied a place in their lives similar to the place of an orthodox religious belief.
One small, final point: the question decided by US v Seeger had to do with what's protected by the First Amendment. That's a very different question than what counts as a church for tax purposes and so whether or not a church based on such beliefs would be tax exempt is likewise irrelevant to deciding the First Amendment question.
aaall
I would remind you of the last sentence of my comment @4:36 p.m.:
"I do think politics btw is very woven into constitutional jurisprudence (and to some extent philosophy is too), but that's a whole other discussion."
p.s.
Perhaps I should have said "Constitutional adjudication," but the point is much the same.
aalll,
I'm glad to see that you are keeping an open mind regarding whether the Supreme Court decision, whatever it is, will receive your imprimatur.
TJ,
You state:
“The problem you'd likely run into trying to defend a belief in the divinity of Hitler (or whatever) is not that it isn't supported by any acknowledged scripture or isn't a part of any orthodox religious tradition. Those things, despite the protestations of some in this thread, are irrelevant. Rather, it's that you'd have to make a case for their being sincerely held and for their occupying the same place in your life as would an orthodox belief in God in the life of an orthodox believer. That might be difficult to do, but it is not, in principle, impossible.”
Well, No, I think it would be well nigh impossible. Sincerity of belief is necessary, but clearly not sufficient. You are ignoring the endorsement in U.S. v. Seeger that a religion protected under the First Amendment must be “a scheme of life designed to obviate man's inhumanity to man, and by removing temptations, and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service.” I hardly think that a religion which embraces Mein Kampf as one of its scriptural foundations would qualify.
s. wallerstein,
“And if the U.S. Supreme Court rules that gay people do not have the right to have their marriages celebrated by websites, regardless of the religious beliefs of the website designer, then my opinion of the U.S. Supreme Court will be even more negative than it now is.”
That is not at all the issue before the S. Ct. The Court is not being asked to decide whether all websites may be prohibited from creating marriage announcements for gay couples, regardless the religious beliefs of he website owner. They are being asked to decide whether all websites which prepare marriage announcements must accept business from same-sex marriage couples, i.e, whether a website may be precluded from doing business unless it agrees to accept business from same-sex couples, even if such a requirement would require the website owner to engage in speech which is antithetical to the owner’s religious beliefs. They are two entirely different things. I know I must be irritating, expecting such precision.
Marc,
It's simply not true that the holding in Seeger is that the belief in question must be part of a "scheme of life designed to obviate man's inhumanity to man..." That's one way in which a belief could occupy a place in one's life similar to the place of orthodox religious belief, but it's hardly the only one. As I'm sure you well know, the law is not constituted by dicta. The Court cited the 9th circuit citing an Iowa case that gave "a scheme of life designed to obviate man's inhumanity to man..." as an example of a case in which a belief which is not an orthodox religious belief is nonetheless "religious" (in the relevant sense) to the person holding the belief.
TJ,
Please, don’t be ridiculous. The Seeger Court cited Berman’s citation of the Iowa decision as an example of what religious beliefs would qualify for protection under the 1st Amendment. It was not dicta. And neither the S. Ct. nor any federal court would accept as a legitimate religion one which espouses Mein Kampf as scripture and its support for anti-Semitism as a legitimate religion deserving 1st Amendment protection.
This is interesting :
https://www.lrb.co.uk/the-paper/v44/n24/laleh-khalili/in-clover?utm_medium=email&utm_source=pocket_hits&utm_campaign=POCKET_HITS-EN-DAILY-RECS-2022_12_12&sponsored=0&position=6&scheduled_corpus_item_id=b2ef5f11-86fe-4f67-92e8-925eeffb27a3?utm_medium=email&utm_source=pocket_hits&utm_campaign=POCKET_HITS-EN-DAILY-RECS-2022_12_12&sponsored=0
The opening graph is apt for this thread but the article is about the "consulting" grift. I was recently reading an aviation/defense journal and there was a short piece about a venture capital firm buying a aircraft painting firm. These firms are also buying up single family housing and turning the units into rentals. Suicide by neo-liberalism.
One is reminded that "wedding" is a term that needs to be disambiguated.
"Vega Gupta’s wedding was a four-day, three-million dollar extravaganza held at a five-star hotel in Sun City, South Africa, in May 2013. Two hundred guests arrived from New Delhi on a chartered Airbus that was allowed to land at a nearby military airbase. Vega’s uncle Atul Gupta met the guests, who were taken to the resort without any passport or visa checks. One hundred and thirty chefs had been flown in from India to cook ‘strictly vegetarian’ Chinese, Greek, Italian, Indian, Mexican, South African and Thai food..."
A "wedding" consists of a legally (and often theologically consequential) ceremony followed by a party which has no significance beyond the receiving of gifts. The belief/conduct implications are obvious.
Marc, has your company given you pause? I know that if I found myself aligned with the list of truly terrible folks (Gomert, Heritage, ADF, Claremont, Thomas, Alito, etc.) and sideways with the usual good guys, I'd carefully mark my analysis to market. While most of the Supremes decisions are in cases of little consequence except to the parties and where case law counts and votes are unanimous or randomly sorted, the big (which side are you on) ones often kick president to the curb.
aalll,
To answer your question, No, it has not given me pause. I believe freedom of speech is as an important a right as the right to engage in same-sex marriage, and neither should be compromised for the sake of the other. Ms. Smith’s refusal to be compelled to engage in speech which is contrary to her convictions does nothing to compromise the right to engage in same-sex marriage. By the same token, the right to engage in same-sex marriage should not be used to force someone to engage in speech in support of conduct with which they disagree. And it is the right to both that is important, not who advocates for either position. And if Justices Alito and Thomas are correct on the law on this issue, the fact that I disagree with their positions on the right to abortion does not mean I must reject every legal position they take. I am sure that there are some advocates of same-sex marriage who have views about some issues which I would find equally unacceptable as those of Alito and Thomas. As Lillian Hellman said, “I cannot and will not cut my conscience to fit this year’s fashions.”
Justice Brandeis, writing in Whitney v. California, 274 U.S. 357 (1927), stated:
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”
Those who demand that Ms. Smith may be compelled to express views contrary to her religious convictions are supporting silence coerced by law – silence regarding her views opposed to same-sex marriage. Ms. Smith must be silenced because they disagree with her views, when her refusal to speak does nothing to threaten the right of those who wish to engage in same-sex marriage. The right to speak and advocate in favor of same-sex marriage, and the right to refuse to speak in favor of same-sex marriage by speaking in opposition to same-sex marriage, are two sides of the same coin, and both are protected by the right of free speech enshrined in the First Amendment. An attack on one is an attack on the other as well, and the refusal of those commenting on this blog to recognize this constitutes a tyranny of thought by advocates of same-sex marriage.
Marc Susselman: silence coerced by law – silence regarding her views opposed to same-sex marriage. Ms. Smith must be silenced because they disagree with her views
Arguing the exact opposite of the position he takes in his own case in which he has insisted that silence of hateful speech outside a house of worship must be coerced by law.
https://www.jpost.com/diaspora/article-695214
Eric, I take your point. But remember, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do."
I only hope a certian person will also keep this in mind as he tirelesssly wages his lonely battle against the inconsistencies of others.
Best wishes
Eric,
Another stupid, ignorant comment by you.
The facts in the synagogue case are totally different, and involve different 1st Amendment principles, than the facts and law which apply to Ms. Smith’s case, in the following, but not limited, respects:
1. The pickets in front of the synagogue have been occurring every Saturday morning for now 18 years, using anti-Semitic signs which the congregants, and their children, cannot avoid seeing. This makes the congregants and their children a “captive audience,” a 1st Amendment doctrine which is not even an issue in Ms. Smith’s case. A speaker who insists on forcing his/her speech on individuals who would prefer not to see/hear the speech has no protection under the 1st Amendment, which the S. Ct. has stated in numerous cases.
2. The speech in question is occurring in proximity to a Jewish house of worship, and thereby implicates the congregants’ right of freedom of worship – the right to enter their house of worship without harassed and insulted by picketers. This in turn implicates the City of Ann Arbor, which has an ordinance which is content and viewpoint neural (I am not even going to waste my time trying to explain this to you because you are too stupid to understand it) and which prohibits what the picketers are doing, but which the City of Ann Arbor has refused to enforce against them, thereby implicating the doctrine of state action (another constitutional principle which I will not waste my time trying to explain to you because you are too stupid to understand it).
There is more I could write about how the synagogue case is totally distinguishable from Ms. Smith’s case, but, again, I do not want to waste my time, because your are too stupid and stubborn to understand it.
Anonymous,
I just read your comment in support of Eric. You are as stupid and ignorant as he is, and even more of a coward, since you consistently comment on this blog taking ignorant pot-shots at me and others, but are too craven to even disclose your first, let alone your last, name.
Post-script:
For those who may have looked at the article which Eric linked to, the decision by the judge who awarded $158,000 in attorney fees against me and my clients on the basis that, in her opinion, the lawsuit to obtain an injunction against the anti-Semitic protesters in front of the synagogue was “frivolous” is currently on appeal to the 6th Circuit Court of Appeals and is likely to be reversed, for, among other reasons, that the judge’s ruling that the lawsuit was frivolous contradicted the 6th Circuit’s prior decision that the lawsuit was not frivolous, and its ruling in this regard, as a ruling by an appellate court, takes precedence over a contradictory ruling by a federal trial court.
Eric,
I see the analogy you are making between the synagogue case and the marriage website case, but I've given up here.
There are conversations where there is a "give and take" and both parties involved learn from one another and there are conversations which are like arm wrestling in junior high.
Conversations with Marc tend to descend into junior high school arm wrestling.
For me, the definitive response to Marc was that of aaall yesterday when he asked Marc if the company he was keeping in his campaign for free speech on marriage websites wasn't uncomfortable.
If you, Eric, want to continue, go ahead, but why?
s. wallerstein,
there is no analogy between the synagogue case and Ms. Smith's case, and the fact that you claim to see an analogy, notwithstanding the distinctions I pointed out above, demonstrates once again that you are close-minded on this issue. As for conversations with me deteriorating into high-school arm wrestling contests, it is more like high-school debating competitions, in which one side knows nothing about the facts or issues which are the subject of the debate, and the other side does, and it is not difficult to determine which side you, Eric, aalll and Anonymous are on.
Here's the best part in that article I linked to in the post at 11:54am
Over the course of the lawsuit, Gerber dropped Susselman as his attorney — “because I lost,” Susselman told JTA. The attorney, who said he had been representing Gerber pro bono, hinted that he may take further action against his former client: “A client can fire an attorney at any time. And I accept that’s true. But if they don’t fire them for good reason, like attorney malpractice or missed deadlines… then there are consequences. Gerber has the right to fire me, but not the way he did it.”
Then there are consequences? Who says that to the press when you are trying to get readers on your side?
Marc, it ill behoves someone who spent years pontificating on this blog under various pseudonyms/pen names until he was outed by our blog master to accuse others of being "craven". As I think has been discussed here before, some of us simply appreciate anonymity. Besides, if I provided a name (which might or might not actually be my name), I might take much more emotionally having such words as "stupid" and "ignorant" being hurled in my direction. I.e., anonymity helps reduce the emotions, something that is always necessary when onefinds oneself in an unpleasant altercation with you.
Have a nice day.
" Ms. Smith must be silenced because they disagree with her views, when her refusal to speak does nothing to threaten the right of those who wish to engage in same-sex marriage."
Which isn't what the 303 case is about. What we are dealing with is a desire by Ms Smith to not engage in anodyne commercial transactions with other parties based on her religious beliefs. Whitney (and the curious notion of "compelled speech") is a red herring. This is more like the situations in Elane Photography, Masterpiece, Heart of Atlanta and Piggy Park. The artistic and creative aspects in commercial activities like web design, photography, baking, and cooking do not generically constitute "speech." A given proposed project might, but absent an actual case that can't be determined.
Sigh! Once again I would urge folks to find out what a wedding website is for and how they are formatted.
One of the drawbacks of being in a profession is that sometimes one is unable to step back an see an agenda. 303 is part of the Right's Long March to a nation in which "there are in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect." There is no way the actors who are down with 303 are concerned with "free speech" for thee.
Then there are the folks who just want to see the world burn.
aalll,
“The artistic and creative aspects in commercial activities like web design, photography, baking, and cooking do not generically constitute "speech." A given proposed project might, but absent an actual case that can't be determined.”
This is where your lack of knowledge regarding law, and particularly Constitutional law, leads you astray. Ms. Smith is challenging the constitutionality of the Colorado anti-discrimination statute, CADA, as it may apply to her – i.e., she is challenging its constitutionality before she engages in any conduct, which she wishes to engage in, in order to obtain a ruling on whether the CADA can be constitutionally applied to her. Because she is challenging a State statute, but is not permitted under the 11th Amendment, to sue her own state in federal court, she is using the procedure which the Supreme Court outlined in Ex parte Young (1908) to allow a state citizen to sue its own state by using a proxy, the officer of the State whose responsibility it is to enforce the statute whose constitutionality the citizen is challenging. There are numerous lawsuit like hers filed in federal courts in which the plaintiff is challenging the constitutionality of a state statute under which the plaintiff would be penalized, fined, or otherwise sanctioned if the citizen proceeds in engaging in certain conduct and is then deemed to have violated the statute. It is a given that in such cases the citizen has not yet taken the action which may subject them to a penalty, a fine, or some sanction – in this case refusing to create a website for a same sex couple which necessarily will require Ms. Smith to engage in speech – even if it is only naming the individuals in the wedding announcement of the same gender who are planning their wedding – which is antithetical to her religious beliefs.
Contrary to your concerns, and those of others who have commented on this blog, her concern, and her rights, are not transferable to other same-sex wedding contexts. A photographer could not lawfully refuse to take wedding photographs at a same-sex wedding, because nothing the photographer does would require any speech that acknowledges that the wedding couple are of the same gender. The same is true of the person who is asked to design and tailor the wedding dress for the member of the same-sex couple who is going to be the bride. It will also generally be true for the baker who prepares the wedding cake, unless the couple insist that the wedding cake include some statement in the icing which acknowledges that the wedding couple are of the same gender. A wedding cake without any such message in the icing does not involve compelled speech, and therefore the bake could not legally, in Colorado, refuse to bake the wedding cake because s/he is opposed to same-sex marriage. Your concerns that Ms. Smith is just a stalking horse for a more expansive challenge to the CADA is without basis.
It would be interesting to find out the views of most law profs who teach con law and spec 1st Am on this case - or maybe they're split. Eric linked to Prof T Wolff's amicus brief, but I don't know whether other con law academics filed amicus briefs and I don't have time to check right now.
LFC,
A total of 94 amici briefs were filed, including several by law professors other than Prof. Tobias Wolff and First Amendment scholars, including: Center for Constitutional Jurisprudence; First Amendment Scholars; Prof. Dale Carpenter; Legal Scholar Adam J. Macleod; Prof. Christopher Green; Prof. Kent Greenfield; N.Y. State Bar Association. I will check some of them out later tonight and tomorrow, after I file an appellate brief in a case I am handling.
I have not finished reading Prof. Talbot Wolff’s brief, but, as I promised, when I am done, since Eric referred to I as ipso facto evidence that I did not know what I am talking about, I will post my analysis of his brief on this thread. You, Eric, Anonymous, s. wallerstein and aalll, et al. can read, disregard, or vomit on it as you wish.
I have checked on the Law School affiliations of the law professors who filed amici briefs in the Smith appeal in addition to Prof. Wolff. They are:
Prof. Dale Carpenter, formerly Prof. of Law at the University of Minnesota Law School;
Prof. Adam J. Macleod, Prof. of Law at Faulkner U.
Prof. Christopher Green, Prof. of Law at U. of Mississippi.
Prof. Kent Greenfield, Prof. of Law at Boston College Law School.
I have looked at, and printed, each of the other four briefs filed by law professors, and they break down as follows:
Prof. Dale Carpenter – for reversal, in favor of Smith.
Prof. Adam Macleod – for dismissal of the petition as improvidently granted.
Prof. Christopher Green – for reversal, in favor of Smith.
Prof. Kent Greenfield – for dismissal of the petition as improvidently granted.
Meaning, I guess(?), that Macleod and Greenfield don't think the case is ripe. Or perhaps they have other reasons.
But, if I understood you, there's also a collective amicus brief filed by a group of First Amendment scholars?
LFC,
Since I intend to write my own analysis of Prof. Tobias Wolff’s amicus brief, and do not wish to be influenced by the analyses of others in doing so, I have not read the briefs of Profs. McLeod or Greenfield. I just looked at their conclusions on the last page of their briefs to see where they stood. If I had to guess, I would guess that they believe there are issues regarding how the State of Colorado would enforce the CADA that still need to be fleshed out.
Regarding the amici briefs filed by various foundations, institutes, etc., there are actually several, and I have opened and printed each one. In fact there are several briefs filed under the name of First Amendment Scholars, and I cannot tell without reading the briefs if they are different attorneys from the same organization, with different opinions, or if they are different organizations using the same name. They break down as follows:
First Amendment Scholars (All lawyers, no professors)– In Support of Petitioners (Smith)
First Amendment Scholars (All lawyers, no professors)– In Support of Respondents (Colorado)
First Amendment Scholars (All lawyers, no professors)– In Support of Respondents (Colorado) Surprisingly, one of the lawyers indicates he belongs to the Federalist Society
Institute For Free Speech (District Atty. In Oregon) – In Support of Petitioners
Center For Constitutional Jurisprudence (Prof. Anthony Caso) – In Support of Petitioners
The brief submitted by Prof. Carpenter in favor of Smith was jointly filed with Prof. Eugene Volokh, professor of law at UCLA. Prof. Volokh writes a legal blog, titled, “The Volokh Conspiracy.”
What does all this mean, with people purportedly learned in the law on different sides of the same issue? It means several things. First, law is not mathematics. The Constitution is not an axiomatic system. There are a series of principles, canons of interpretation of those principles, and prior interpretations of those principles as applied to past fact situations which are supposed to serve as precedent for other similar and dissimilar fact situations as they arise.
Second – rational reason, and personal convictions, values, and sentiments fill in the interstices. Does that mean that the law in general, and specifically the law in Ms. Smith’s case, is whatever one wants it to be? I don’t believe so. There are a range of answers from the totally unacceptable to the more acceptable, with several possible answers which have different results. A majority on the S. Ct. decides which is the right answer for now and the future, unless and until it is reversed.
If you are interested in actually reading any of the briefs filed in the case, you can go to the Untied States Supreme Court site; click on Docket; enter the numbers 21-476. The full docket of everything which has been filed on the case in the S. Ct. will pop up, and you can open and print whatever you want.
Marc
You are not correct about who is filing the amicus briefs under the label First Amendment Scholars.
I just downloaded one of them from the SCOTUSBlog site. A law firm's name is on the title page, but if you look at the "Statement of Interest of Amici Curiae" you'll see that the brief is filed on behalf of a group of professors (with perhaps some independent scholars or authors as well) whose names, it says, are listed in an appendix (which I haven't looked at yet).
An amicus brief filed under the name First Amendment Scholars would pretty much have to be filed on behalf of academics, and this one is.
LFC,
There are four briefs from various groups of First Amendment scholars, all of whom are law professors. Two of the briefs are for Smith and two for Colorado. Some of the names appear on both of the briefs for their side.
Jamie Raskin, who is a professor of constitutional law, joined in a brief from 137 members of Congress for Colorado.
Thanks Eric.
Actually, I believe Jamie Raskin gave up his professorship when he was elected to Congress. (He may retain some sort of connection to American Univ Washington College of Law, but I don't know.)
Marc,
As for the law not being mathematics, I obviously agree with that, since I was trying to make that very point in the earlier thread.
LFC,
I am not going to quibble with you about this. I am looking at one of the Amicus Briefs which lists on the front page the following as the filers: Elizabeth Wydra; Biranne Goros; Praveen Fernandes; David Gans; Charlotte Schwarz. If you Google each of their names, you will find that they are all practicing lawyers at the present time. The fact that they may have taught law somewhere at sometime does not mean that they qualify as Professors of Law. The same is true of all of the filers named on the covers of the other amici briefs filed in the name of First Amendment Scholars. They are all currently lawyers, not professors.
Here is an example of how confusing and paradoxical Constitutional law can be. The 14th Amendment states that no “person” can be deprived of life, liberty or property without due process of law. So that means if a person has been deprived of life, liberty property without due process (notice and an opportunity to be heard), that person has a right to sue in court to seek redress for the deprivation. You all know that the Supreme Court has held that corporations – inanimate collectives of human beings that have a legal status – qualify as “persons” under the 14th Amendment, and therefore can sue in their own right.
When the 14th Amendment was enacted, it provided to citizens of the individual states many of the same rights they had under the Constitution which prior thereto had only applied to the federal government. Congress then passed the Ku Klux Klan Act of 1871 setting forth the rights of citizens of states vis a’ vis the states. That statute is compiles as 42 U.S.C. § 1983 and states:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”
So, there’s that word “person” again, but this time it does not designate who can sue, but rather who can be sued. It refers to “persons” operating under color of law, i.e., governments and government officials. So then the question arose, does a State qualify as a “person” such that the State can be sued in federal court under 42 U.S.C. § 1983? But what about the 11th Amendment, which says you cannot sue a State in federal court? OK, can you sue a State for damages in state court? No, the S. Ct. held, a State does not qualify as a “person” under 42 U.S.C. § 1983 and cannot be sued for damages in state court, either. You can sue an employee of a State, but you cannot sue the State itself. You can sue the State itself for injunctive relief, but not damages. How about a city or municipality, e.g., New York City, Chicago, Nashville, Podunk, can they be sued for damages under 42 U.S.C. § 1983? Yes, they can, with the following caveat. If you get hit by a truck which runs a red light, then you can sue the employer of the truck driver for the truck driver’s negligence under the doctrine of vicarious liability. Suppose you get struck by a New York City police officer driving a patrol car who runs a red light, and there is no police emergency, can you sue both the police officer and the City of New York? Well, no, because the Supreme Court has held that there is no vicarious liability under 42 U.S.C. § 1983, unless you can prove that there was a pattern and practice of police officers running red lights, or the City of New York failed to train its police officers not to run red lights. If you cannot prove either of these, then your sole source of monetary redress is from the police officer’s own finances.
Marc
You are just wrong on this. The names on the front covers are lawyers, but the amici themselves are current law professors, whose names are in an appendix. The professors in effect have hired some practicing lawyers to file the brief on the professors' behalf (and drawing no doubt on the professors' writings). It's a pretty standard practice.
P.s. That's of course why amicus briefs have that "Statement of Interest of Amici" section -- it tells you who the amici are.
Marc might want to read this
https://www.supremecourt.gov/casehand/AmicusGuide2019.pdf
Anyone can be amicus. But only members of the SCOTUS bar can be counsel of record for an amicus brief, and every amicus filing must have a counsel of record. The counsel of record is listed on the first page.
LFC,
This is petty nonsense, which I am getting used to from you. The filers are the individuals named on the front of the brief who wrote the brief, even if they wrote it on behalf of another entity. Yes, the filers may have consulted with the professors, and the professors probably reviewed the brier before it was filed, but it is the filers who wrote the brief and therefore its their brief. Standard practice? How would you know what standard practice in the filing of amici briefs is?
When I deal with you, and s. wallerstein, and Eric, and Anonymous, I am reminded of the exchange in Jaws between Quint and Hooper:
Quint: [picking up the line] Gamin' fish, eh? Marlin? Stingray? Bit through this piano wire? Don't you tell me my business again! You get back on the bridge...
Hooper: Quint, that doesn't prove a damn thing!
Quint: Well it proves one thing, Mr. Hooper. It proves that you wealthy college boys don't have the education enough to admit when you're wrong.
What's that old saw about the first thing to do when you find yourself in a hole?
;-)
Eric,
Another comment from the peanut gallery.
LFC,
Can you tell me what in any of the amici briefs which were written by the named filers was generated by the professors who you assert hired the lawyers to write the brief? No. you cannot. But each of the filers is taking credit for having written the actual brief, not the professors on whose behalf they wrote it.
Moreover, regardless how many lawyers and law professors can stand on the head of a pin, the question you were originally interested in was on whose side did other legal scholars beside Prof. Talbot Wolff come down on. Even considering the briefs filed on behalf of First Amendment Scholars, the count is 4 in support of Smith; 3 in support of Colorado (including Prof. Wolff); with 2 abstentions. The actual count does not indicate who is “right” or how the S. Ct. will ultimately decide the case.
Marc
After I graduated from law school (and before I made the somewhat unwise decision to go back to school to study something else) I worked for a number of years (mostly in the legal publishing industry).
During that period one of the things I did was write and file an amicus brief (on a pro bono basis) in a case in the U.S. Court of Appeals for the Tenth Circuit.
I still keep my (inactive) membership in the D.C. Bar.
That case I filed the amicus brief in was so long ago that I would have trouble digging it out of my files (and I don't know the F.2d cite offhand). But I'm not lying about it - I have no reason to do that here.
LFC,
Regarding that one amicus brief you wrote for the 10th Circuit , who was the amicus? Who signed the brief, you or the amicus? And then, whose brief was it? And based on that one brief, which you wrote so many years ago, you claim to be an expert on what the standard practice is regarding the filing of amici briefs in the Supreme Court?
The amicus was the ACLU. I signed the brief along with another lawyer (who was in Oklahoma, which is where the case originated, and who was admitted in the Tenth Circuit). A lawyer in D.C. who worked for the ACLU, which was the amicus, read and approved the brief and I consulted w him while preparing it, and his name might have appeared on the cover too. It was the ACLU's amicus brief.
Anyway, at this pt I think we both know what's going on w these SCOTUS amicus briefs.
fwiw:
https://www.bostonreview.net/articles/the-new-faith-based-discrimination/
Postscript:
The amicus brief I wrote was for the ACLU of Oklahoma. From the way the lawyers and parties are listed in F.2d, it appears that the ACLU of the Natl Capital Area filed its own brief, but in fact I think we were all on the same brief (as I said, it was a long time ago).
One of the issues on appeal was sanctions under Fed.R.Civ.P. 11, and that was the issue the amicus brief addressed.
The cite is:
O'Rourke v. City of Norman, 875 F.2d 1465 (10th Cir. 1989).
Since you (Marc) are, according to what you said earlier, dealing w a sanctions issue in the synagogue case, you might find this decision worth a look.
Informative:
https://www.rawstory.com/the-u-s-supreme-court-could-fall-on-this-slippery-slope-of-discrimination/
David,
With all due respect, the ACLU argument, an organization with which I have crossed swords before, is, being blunt (as is my wont), stupid. Lorie Smith is making a dual free speech and religious freedom argument. We have been over this ground several times in this thread – same-sex marriage is anathema to her religious beliefs, and therefore impacts what she is willing to say. As I stated above, nothing in the religious tenets of any religion recognized as such under the First Amendment, including the Mormon religion as currently officially avowed by the Mormon hierarchy, makes doing business, including providing marriage services, with Blacks, Jews, Hindus, Sikhs, inter-racial couples, etc. sinful or contrary to its religious tenets. The “slippery slope” argument is an argument which the ACLU always resorts to, and it is usually rejected as irrelevant.
Post-script:
As an example as how stupid the ACLU can be, they filed an amicus brief in the synagogue case maintaining that the right of the protesters to picket in front of the synagogue every Saturday morning for then 17 years using signs which said such things as “Resist Jewish Power”; “Jewish Power Corrupts”; “No More Holocaust Movies.” Every Saturday morning they also posted the Israeli flag in front of the synagogue with the Star of David, the centuries old symbol of the Jewish people, surrounded by a red circle and a red slash running through the circle, which is the international symbol meaning “Prohibited.” The ACLU’s position was that the members of the congregation was not even entitled to obtain an injunction placing reasonable time, place and manner restrictions on the protesters’ use of the signs, for example, requiring that they be at least 500 ft. away from the synagogue’s property line and that they be prohibited from engaging in their protest from 9:00 A.M to noon, while the Sabbath services were being conducted.
So I called the director of the ACLU Detroit chapter which had authorized the amicus brief, and I asked him; “Suppose David Dukes and 5-6 members of the Ku Klux Klan showed up every Sunday morning at a predominantly African-American church in Detroit, and planted signs which contained such messages as ‘N… mothers give birth to crack babies’; ‘N ….s should not be allowed to vote’; ‘Crime is high in Detroit because of N….s’: His response, “Yes, such signs would be protected by the 1st Amendment and the African-American church members would not be entitled to an injunction to stop it.” Why? Because this would involve a slippery slope that would result in the evisceration of the Free Speech clause in the 1st Amendment.
Does anybody who reads this blog think the ACLU is right about this? Case closed.
Ftr in the case I mentioned above, the ACLU position in question had to do w the chilling effect on civil rts litigation of unwarranted R. 11 sanctions. I'm sure I haven't nec. agreed and wouldn't always agree w them on every free speech case.
Marc, I'm well aware of Ex parte Young as are, I'm sure, the amici who also question the ripeness of the case. As a practical matter Ms Smith is at no material risk (personal funds) for a violation of CADA anymore then she is being billed much, if anything, (again personal funds) for her current representation (they do take care of their own). After Masterpiece turned out to be a dud, ADF, et al needed another case and here we are.
Does a Young claim guarantee the Supremes granting cert? Of course not. The SC receives ~7,000 petitions and approves ~150. Some poor dude had his petition turned down (and languishes behind bars) because the usual suspects really wanted another bite at the LGBTQ apple (I kid, sort of). I read that Smith and religious freedom won't be considered.
BTW, Smith did a prospectus of sorts which is at the end of her petition. There's a reason wedding websites are free(ish).
LFC,
I just saw your comment referring to the 10th Circuit decision on Rule 11 sanctions. Thank you. In my appellate brief I cited several S. Ct. and 6th Circuit decisions which say the same thing – that sanctions for filing a civil rights lawsuit should be awarded only in the most egregious cases in order not to chill legal efforts to protect and advance the civil rights of American citizens. Nonetheless, the District Court judge ruled that the synagogue lawsuit was frivolous, in direct contradiction of the 2-1 majority decision by the 6th Circuit that the lawsuit was not frivolous, stating:
The raw, calculated -to-hurt nature of today’s speech in some ways parallels the speech in Snyder[v. Phelps]. Yet one cannot read Snyder and think the majority thought the state law tort action – premised on protests by members of the Westboro Baptist Church that disrespected the service and memory of a dead soldier and his grieving family – as frivolous under the First Amendment. Or think that Justice Alito’s dissent in support of the family’s action was frivolous. See Ruth Bader Ginsburg, Assoc. Just., U.S. Sup. Ct., A Survey of the 2010 Term or presentation to the Otsego County Bar Association Cooperstown Country Club (July 22, 2011) (praising Justice Alito’s dissent and acknowledging that Justice Stevens would have joined it if he had been on the Court).
Even after Snyder, there is still work to be done in resolving fact-driven claims of this ilk. One could colorably argue that signs that say “Jewish Power Corrupts” and “No More Holocaust Movies” directly outside a synagogue attended by holocaust survivors and timed to coincide with their service are more directed at the private congregants than designed to speak out about matters of public concern. The claims require a context-driven examination of complex constitutional doctrine. That doctrine is not always intuitive, as shown by the reality that the captive audience doctrine applies to civil regulation of protests outside homes and abortion clinics but not court-ordered injunctions outside houses of worship. Plaintiffs’ claims may be wrong and ultimately unsuccessful, but the fourteen pages that the concurrence devotes to analyzing the constitutional issues belie the conclusion that they are frivolous.
I have never had a case where a trial court judge has issued a decision in direct contradiction of an appellate court’s decision. Therefore, I am quite confident that her decision awarding $158,000 in attorney fees against me and an 87-year old Holocaust survivor will be reversed.
aalll,
One of the very purposed of Ex parte Young is to allow a state citizen to file a lawsuit in federal court to seek a declaratory judgment that a state statute as applied to the individual – once it is applied – would be unconstitutional. The statute does not have to be applied yet for the lawsuit to be ripe. It is sufficient if the State threatens to enforce the statute. In Ex parte Young, itself, the laws which were being challenged limited what railroads could charge in the state, and had severe penalties if the railroads charged higher rates. Shareholders of the railroads sued the Attorney General of Minnesota before the laws were even implemented. Here, Ms. Smith points to the fact that the State of Colorado has already enforced the CADA against Jack Phillips, the wedding cake manufacturer. This sufficient evidence that the State of Colorado threatens to enforce the CADA against her should she proceed to expand her website business to wedding announcements, but refuse to provide her services to same-sex marriage couples. The claim that her lawsuit is not “ripe” under Ex parte Young is nonsense. “Does a Young claim guarantee the Supremes granting cert? Of course not.” That’s irrelevant. They have already granted cert.
The Order granting the petition for review stated as the issue on appeal: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” In Ms. Smith’s case, because application of the CADA would compel her to engage in speech which is antithetical to her religious convictions – religious convictions with which I disagree – her right to Freedom of Religion under the 1st Amendment is necessarily implicated by the CADA statute. To say the lawsuit is exclusively a freedom of speech case is erroneous. The question of her right to exercise her freedom of religion is inextricably intertwined with the freedom of speech issue and they cannot be disentangled.
You know, for a person who has remonstrated on this blog about individual freedom and autonomy, your cavalier attitude about Ms. Smith’s rights to refuse to express views about which she is adamantly opposed, regardless of the fact that you do not agree with those views, has the distinct earmarks of hypocrisy. Yes, I understand – hypocrisy on the left is OK, it is only hypocrisy on the right which we must condemn.
Marc, the law that motivated Young provided for serious, ongoing, and unrecoverable financial consequences as well as jail time. I believe the maximum CADA penalty is $500. The consequences of her launching her project, turning down a same sex couple, and then getting sideways with CADA would be trivial (more likely non-existent). With Young there was an already existing business, with 303 she would have to actually go into the wedding website business (no guarantee there), somehow acquire clients willing to pay for something widely available for bupkis, have at least one couple be same sex, have them file a complaint, and then be found in violation. At which point the same folks fronting the current case would go into action. Then as now she skates on the costs.
Given the circumstances, there's no good reason to apply Young (and likely bump another case) instead of waiting for nature to take its course.
aaall,
Sorry you are wrong. All that is required for Ex parte Young to apply is a statute which a State citizen believes is unconstitutional and for the violation of which the State imposes a penalty. The size of the penalty is irrelevant. One penny would suffice.
In the transcript of the oral arguments in this case, I've just been reading some of the argument of Brian Fletcher, Deputy US Solicitor General. There is a back-and-forth between him and Justice Kagan that is a bit technical but very interesting, where Kagan expresses her frustration w the lack of what she calls "concrete facts" in the case, and Fletcher suggests that the way to deal w that is write an opinion that says, in effect, Colorado can constitutionally compel Smith to say certain generic informational things about a same-sex wedding, but can't compel -- or might not be able to compel -- Smith to say things that would more actively and obviously convey her approval of the wedding.
That's clearly what Kagan's position is, and I wouldn't be surprised to see her write a separate opinion along those lines (either concurrence or dissent, depending on what the majority op. says).
aalll,
In fact, there not even need to be a financial penalty. I am suing the State of Michigan pursuant to Ex pare Young, claiming that the Michigan Court of Claims Act is unconstitutional in that it violates due process and equal protection, denying a litigant the right of a fair appeal. The lawsuit has no definite monetary value.
That may be but the original opinion dwelt at length on the effects the penalties in the rate acts would have on the ability of the railroads to effectively challenge those rates without incurring great financial losses as well as criminal penalties. The court also took note of the economic importance of the railroads and their extensive capitalization.
I was merely pointing out that no such situation exists in the 303 case and hence no urgency. As an unsuccessful petitioner to the Supremes, I figured that you would appreciate the downside of their taking up a case on a mere advisory basis when there was no material downside to the petitioner from letting the case develop in real time.
There is a real possibility, for reasons I've mentioned. that no case would come out of her proposed venture. Using precious and scarce SC time on so iffy a matter seems wasteful and unwise.
aalll,
Under the CADA, a violator can be fined up to $500.00 for each violation. For Ms. Smith, whose financial means we do not know, a fine of $500.00 could be as daunting as the fines to the railroad in Ex parte Young. Moreover, every decision rendered in an Ex parte case is an advisory opinion – nothing requires that in the event the petitioner prevails, the petitioner must proceed to take the action which prompted it to file suit to begin with. They can just decide to comply with the statute which they have demonstrated is unconstitutional. If Ms. Smith prevails, and then decides not to expand her business into creating wedding announcements, she will not have violated any law or jurisprudential doctrine. But she will have demonstrated the importance of her 1st Amendment rights, which have inestimable value.
Regarding the synagogue case, both I and Nathan Lewin, who replaced me as my second client’s attorney, were astounded by the S. Ct.’s declination to grant certiorari, leaving several hundred Jews with no relief from being harassed and insulted every Saturday morning as they entered their sanctuary to pray, which is still continuing. Yet they deemed it important to grant certiorari to a Christian high school football who was threatened with termination for insisting on leading group prayer recitations in the middle of the high school football filed after every game. Was this a sign of favoring the rights of Christians over the rights of Jews? I sure would like to know how Justices Breyer and Kagan voted, but the vote is confidential, and I will never know.
Coincidentally, the first night of the 8-night holiday of Hanukkah begins Sunday evening. Hanukkah celebrates the Maccabee revolt against the Syrian Greek tyranny which was desecrating the Temple in Jerusalem and the refusal of the Jews to succumb to Greek demands that they honor their pagan gods. It, like Ms. Smith’s rebellion, was an assertion of religious liberty. Even if one scoffs at the purported miracle of the oil in the Temple burning for 8 nights, just as many scoff at Ms. Smith’s religious belief that marriage is only between a biological man and a biological woman, religious liberty – one of the primary reasons that people emigrated to the New World to escape religious persecution in the Old World – is a right which millions of Americans value – including atheists, who have the right to reject conventional religious doctrine as an expression of their own religious liberty.
Post-script:
I should add to the last sentence of my above comment, “including atheists, who have the right to reject conventional religious doctrine as an expression of their own religious liberty, part and parcel of which is the right to refuse to be compelled to state that marriage is only between a biological man and a biological woman.”
Yesterday, standing in line at the Post Office, there was a young man standing in front of me dressed in work clothes, with a scraggly beard and multiple tattoos adorning his arms. On his left cheek he had the tattoo of a crucifix, in the middle of which was a diamond stud. I was tempted, given my wont to strike up conversations with strangers, to ask him if he was Christian, but I thought better of it, not wanting to come away with a black eye for being a wise aleck. I sure hope I never see a person with a tattoo of the Star of David on his/her cheek, with a diamond stud embedded in the center.
anti-Xian prejudice?
Anonymous,
Anti-Xian prejudice? No, not at all. If anyone is demonstrating anti-Xian prejudice, it is you and your cohorts who insist the Ms. Smith should be compelled to express views which are contrary to her Christian beliefs.
The enduring questions, still unanswered in this endless thread:
1. How is designing a website that advertises the fact that a wedding will take place between gay people = expressing a view that is contrary to the designer's religious beliefs about the immorality of gay marriage?
It is not.
"A gay marriage will take place" (whicvh is what the website would say) does not express ANY ATTITUDE AT ALL TOWARD gay marriage. It is compatible with "I applaud the union of these two men (women)" AND "I abhor the union of these two men (women)."
2. And even if that (strained) interpretation were correct, then why isn't designing a website that advertises the fact that a wedding will take place between a Black person and a White person not also to be construed as expressing a view that is contrary to the web designer's religious beliefs about the immorality of interracial marriage?
THAT is the slippery slope that the ACLU is worried about.
"...whose financial means we do not know..."
Lol, we do know the means available to Leonard Leo, ADF, etc. and that is all we need to know. Do you believe that a marginal web developer in the sticks is funding this case out of her own pocket?
Given how Kagan voted on Kennedy and her comments on 303, we can guess how she voted on accepting. Ditto Breyer given how he voted and his volte-face around the time Dobbs was being decided.
Marc, the dispensation in which we were born is long gone. We are in a Second Gilded Age and the Second Coming of the Waite and Fuller courts. Kennedy, like 303 is, was a set-up and just as bogus. Two lawyers astounded that a court with a Christianist majority kicked a few Jews to the curb? Warren is long gone.
"...who insist the Ms. Smith should be compelled to express views which are contrary to her Christian beliefs."
Or who prefer that we have an actual case, better to define actual issues. That Kennedy and now 303 were even accepted validates at least starting with "which side are you on" as a mode of analysis.
(Agh, it's so hard to stay away!)
Good to see you weighing in, Prof. Zimmerman. Quick thoughts: I think the second of your two points is stronger than your first.
I say this because the act of designing a Website to advertise a wedding is (I think) not devoid of implicit evaluative significance, tending in fact toward the positive. I think the attitude these sites implicitly convey on the part of the designer is along the lines of: "We consider it worth our time and resources to draw attention to this event" - knowing that such attention will most likely be on the part of people interested in supporting the couple's endeavors - so, "We consciously agree, we find it (at minimum) acceptable, to help this couple promote this endeavor (as Website designers)."
But I would not take issue with your second point. I doubt there's a compelling philosophical disanalogy to be found there. There may be some quirky legal justification I'm not at all in a position to assess - but if so, that could just mean that we have very good reason to change the law.
Thanks for the comment, Michael.
I agree that my point one needs more explanation.... I wanted to keep the post brief, but more does need to be said about when publishing the content of a message that one has been commissioned to produce, as in the case of websites, constitutes the publisher's expressing her own attitudes of approval or disapproval of that content.
The difficulty of determining when it does and when it does not makes it all the more necessary to have in hand an actual website to discuss.... which is precisely what we do not seem to have in the Smith case, since, as I understand the pertinent facts, she has not actually designed such a website yet: she wants a judgment against the state before she has even launched her business.
To deal adequately with your point about possible "implicit evaluative significance" of such websites I'll have to think more about the semantics and pragmatics of such expression.
Nothing about websites, but here's a dialogue between Glenn Loury and John McWhorter, two black contrarians, about black anti-semitism and other topics.
https://www.youtube.com/watch?v=UMze1-ucczM
"I say this because the act of designing a Website to advertise a wedding..."
The general pattern seems to be that wedding websites are organizing tools offered as loss leaders by firms that also provide all the paper involved in a wedding as an event (invitations, menus, programs, etc.). Some of the sites also skim off the registry part of the "free" website. Wedding websites are an integrated part of the wedding industry. Breaking in as a stand alone actor just doing web sites seems a dubious proposition (yet another reason to consider this case without a case a stalking horse designed to move the needle in an ominous direction).
Here is a sample website for a gay couple:
https://www.zola.com/wedding-planning/website/design/eastwick?pkey=wed_bingsem_desktop_corephrase_np_&orderkey=wed_bingsem_desktop_corephrase_np_&msclkid=ba7619e06ad01f293eed7a7cb46ffa62&utm_source=bing&utm_medium=cpc&utm_campaign=Wed_Core%20(Phrase)&utm_term=website%20wedding&utm_content=Website
With this actual in hand, I wonder what the defenders of Ms Smith have to say about the claim that if she is required to design such a site she is being forced to publish the statement "I, Ms. Smith, approve of gay marriage."
I just don't see that the semantic content of the actual site contains anything about the web designer's views about gay marriage.
Michael suggests that, semantic content aside, there might be some kind of pragmatic implicature to the effect that the person who designed the site approves of gay marriage. I do not see that at all. A better analogy, I think, is that the designer is being forced, by virtue of having a public business, to associate with gay people (albeit at a considerable remove).... in much the same way that the racist owner of a restaurant is forced to associate with Black people by anti-discrimination legislation.
Ms. Smith is arguing her case on free speech grounds. But absent a more convincing argument for the semantic content or even the pragmatic implicature view of website design, I don't see that she has a legal case on those grounds.
Question for those who have been following the arguments before the SCOTUS: Have the questions about semantic content and pragmatic implicature been raised in the arguments?
I just got back from doing some holiday shopping and saw the slough of messages taking issue with my position. I have to get ready for a holiday potluck tonight, so cannot respond right now. I will respond either later tonight or tomorrow. Right now, all I can say is, David, have you not been reading my comments relating to racial-intermarriage and religion? No religion recognized as such by the S. Ct., including the Church of Latter Day Saints, prohibits inter-racial marriage.
Looks like we will be having a White Christmas in Michigan.
Correction:
Something about my use of the word “slough” above did not look right. The correct word is “slew.”
Just to be clear, Marc, I have no opinions whatsoever on the case you keep referring to. Perhaps I should? But I'm afraid i find so many of the identity/gender issues of this present hyperventilating moment very boring. In other words, I'm neither for you or against you on that particular issue. I am, however, despite my own atheism, perhaps as sensitive to anti-Xian voicings as you are to anti-semitic ones since they seem to me to be directed in a prejudiced fashion against a lot of people whose origins are mine. Please consider that.
David
The short answer to your question is yes, but "implicature" is, so I have gathered, a philosophers' word. As far as I'm aware, it's not used in a legal context. The word "implication" could be, but of course that's just an ordinary English word.
I'd refer you btw to my earlier comment about Kagan's apparent position. There are a number of different issues raised by the case, and the ones you are talking about are among them though they may take a slightly different form in the legal context.
I'm afraid I won't be able to comment further here for the remainder of this evening (or prob tomorrow).
Just to be clearer, Marc, I was referring to your Post Office observations at December 16, 2022 at 9:07 AM, nothing more than that.
Anonymous,
An individual who has been commenting on this blog under the pseudonym “Anonymous” has made critical remarks about my position regarding Lorie Smith’s refusal to prepare wedding announcements for same-sex wedding couples, to the point of accusing me of being a homophobic bigot. I assumed, erroneously, the you were that same person.
Regarding my comment about the young man with the tattoo of a crucifix on his cheek, pierced with a diamond stud, I was not criticizing his assertion of his Christian faith. Rather, I was commenting on the manner in which he chose to display it – rather than, for example, displaying a crucifix on a chain around his neck, he chose to tattoo his face, which I regarded as rather extreme. My judgment would be the same regardless which religion was being affirmed in that manner, whether it be a tattoo of a Star of David on one’s cheek; a tattoo of half-crescent in the case of a Muslim; etc. I have no issue with anyone displaying a symbol of their religious faith, but I thought tattooing one’s face embellished with a face piercing was a bit extreme, regardless the religion. The comment was not intended as a criticism of Christianity. In fact, my position regarding Lorie Smith is that she has a right to refuse to provide a service which would require her to express a position antithetical to here Christian faith.
Marc:
Please take a look at the sample gay marriage website to be found here:
https://www.zola.com/wedding-planning/website/design/eastwick?pkey=wed_bingsem_desktop_corephrase_np_&orderkey=wed_bingsem_desktop_corephrase_np_&msclkid=ba7619e06ad01f293eed7a7cb46ffa62&utm_source=bing&utm_medium=cpc&utm_campaign=Wed_Core%20(Phrase)&utm_term=website%20wedding&utm_content=Website
Now, if Ms Smith were to be required to design such a site for a a same sex couple in what precise respect would that "require her to express a position antithetical to her Christian faith"?
How is that sample website to be construed as containing as part of its actual semantic content, i.e. the content of what it actually asserts, "I, the web designer, approve of gay marriage"?
It clearly does not.
If she were required to design such a web site for a Colorado gay couple, the most that she would be required to do is professionally "associate" with them, much as a White restaurant owner who follows racial anti-discrimination laws would be required to associate in her place of business with her Black patrons.
The freedom of expression argument in this case is a red herring without a convincing demonstration that the mere designing of a website for a gay couple constitutes an explicit assertion of approval of such unions.
As someone who has followed this case in detail you are in a position to address the question of semantic content that I am raising: Have the lawyers on each side of the argument addressed this semantic question in a clear and helpful way? Have those arguing on behalf of Ms Smith made the case that designing such a website in itself constitutes an expression of approval for gay marriage, because the very content of such a website-- look at the sample again-- contains the explicit message "I approve of gay marriage"?
If they cannot make that case, then their First Amendment argument is without merit.
David,
Suppose a vivisectionist organization requested a web designer to create a website advertising the organization’s meetings, practices, etc. The web designer specializes in customizing his web design depending on the customer. The web designer, however, is vehemently opposed to the practice of vivisection and refuses to accept the business. The President of the organization says, we are not asking you to endorse our practices. We will just give you the text and all you have to do is reproduce it. Now, clearly, no state law could require that the web designer accept the business, since the refusal is not based on the gender, gender preferences, race, religion, ethnicity of the members of the organization, so the web designer’s refusal could not violate any law. But you would not claim that what the vivisectionist organization was asking the web designer to do, were he to accept the business, would not involve using speech, and that by accepting the business and creating the website, notwithstanding the web designer’s opposition to vivisection, he would be using speech to support the vivisectionist organization’s activity. Moreover, if a state did enact a law which required the web designer to create such a website, you would object that government should not have the power to force someone to engage in speech which is antithetical to that individual’s principles.
Well, this is Laurie Smith’s position, and your claim that requiring her to prepare a website creating wedding announcements which would include wedding announcements for same-sex couples does not involve speech which constitutes a statement which is antithetical to her religious beliefs is erroneous. The link which you include to a website which prepares such generic wedding announcements is inapposite. Ms. Smith has stated in interviews that all of the wedding announcement websites which she creates for heterosexuals are embellished with her own creativity; and her lawyers have in fact stated that in their brief in support of her appeal. One cannot create a wedding announcement without identifying the individuals who are planning their nuptials. As I indicated in a comment above, even if only the names of the individuals do not reveal that they are of the same gender, Ms. Smith will know. And by virtue of her knowing, requiring her to create the website, which she embellishes with her own creativity, requires that she use her speech to support the prospect of two people of the same gender getting married – a prospect which violates her religious convictions, convictions with which I disagree, but which I, and several law professors other than Prof. Talbot Wolff, maintain she may not constitutionally be required to express, any more than the website designer who is opposed to vivisection could be forced to create a website for a vivisectionist organization.
(Continued).
But, frankly, all of this is moot, because in the 10th Circuit decision which is on appeal, the majority opinion in fact expressly states that what Ms. Smith does constitutes speech protected by the 1st Amendment. The two-judge majority states, 6 F.4th at 1177: “[H]ere, creating a website (whether through words, pictures, or other media) implicates Appellants’ unique creative talents, and is thus inherently expressive. Appellants’ own speech is implicated even where her services are requested by a third-party.” The majority did not dispute that Ms. Smith’s Frist Amendment right of freedom of speech was implicated. Nor did it dispute that the Colorado statute compelled her to use speech which was antithetical to her religious beliefs. The legal question for the majority was whether the constitutional doctrine of “a compelling state interest” applied which allowed the State of Colorado to override Ms. Smith’s freedom of speech and compel her to engage in speech contrary to her religious beliefs. The majority concluded that the anti-discrimination interests of the State of Colorado did constitute a compelling state interest, even though it implicated Ms. Smith’s freedom of speech. I, several law professors, and the dissent, do not believe that Colorado has a compelling state interest which it allows it to override Ms. Smith’s 1st Amendment rights.
s. wallerstein,
I just finished watching the discussion you linked to between Glenn Loury and John McWhorter about anti-Semitism in the African-American community. It is superb, as are the comments accompanying it. I will be sending the link to several of my Jewish friends.
One of the most disturbing aspects of the lawsuit against the synagogue protesters has been the fact that the District Court judge who dismissed the lawsuit based on her erroneous assertion that the plaintiffs’ emotional distress at seeing the anti-Semitic signs in front of their house of worship was not sufficiently “concrete” to allow them to sue in federal court, and then her awarding attorney fees to the anti-Semitic protesters in the amount of $158,000 to be paid jointly by an 87-year old Holocaust survivor, is African-American. Had anybody told me before I filed the lawsuit that such rulings by an African-American judge could be possible, I would have told them that they were crazy and racist.
Marc,
I'm glad you liked the video.
John and Glenn always cut through the bullshit. Glenn is conservative, but contrarian enough not to always drink the kool-aid and John is a moderate democrat, an Obama democrat, also allergic to kool-aid.
Both are incredibly well-read, lucid, bright, intellectually independent and "have been around".
Marc:
Re your second point about the mootness of these semantic issues, given the various courts' concession that Ms Smith has a free speech issue:
It would not be the first time that courts were confused about conceptual issues.
Re the central semantic issue:
In order for Ms Smith's speech to be compelled by requiring her to produce a website for a gay couple it would have to be the case that her producing a website like the sample one could reasonably be construed as having the semantic content: "I, Laurie Smith, the designer of this website, approve of the union of Mr X and Mr Y and of gay marriage in general."
However, it is much more plausible to construe the semantic content as: "Mr X and Mr Y approve of gay marriage to such an extent that they are getting married... Now, here are the particulars of the where and when."
In designing the website Ms Smith is assisting Mr X and Mr Y in getting out the word on the where and when of their wedding.
Now the question becomes whether it is an infringement of her freedom of speech with respect to the expression of her religious beliefs to compel her to assist Mr X and Mr Y in getting out the word. I do not see how.... your vivisectionist analogy notwithstanding.
Ms Smith says that she likes to be "creative" in designing her wedding websites---- or, rather, intends to be creative when she actually gets around to designing any actual ones. That dimension of "creativity" MIGHT inject some kind of first person [Laurie Smith] approval of gay marriage, depending on what the "creative" elements involved.
I still think that you, and the courts, are missing the main point about precisely what Ms Smith would be compelled to do if she were compelled to serve gay clients in her wedding website business... if she ever gets around to launching it, as opposed to lasunching gay bashing law suits.
David,
I completely disagree with you. Ms. Smith is not creating a “gay bashing” website, and your statement, “your vivisection analogy notwithstanding” does not explain why it is “notwithstanding.” If I refuse, for example, to write a brief in favor of the constitutionality of gay marriage, I am not engaging in gay bashing. I am just refusing to write a brief defending its constitutionality, and no inference that I am opposed to gay marriage follows. And, by the way, you should know this, since the proposition if p then q, does not entail inf not-p, not-q. If I write a brief in support of the constitutionality of gay marriage, it entails that I believe that gay marriage is constitutional. If I refuse to write a brief in support of the constitutionality of fay marriage, it does not entail that I believe that gay marriage is unconstitutional, and my refusal does not equate to gay marriage bashing.
I did not say anything about a "gay bashing website." I said that Ms Smith's lawsuit is an instance of gay bashing.... which is certainly is.
If anything about this case is clear it is that Ms Smith abhors gay marriage.
Anyone who listens to even part of the oral arguments before SCOTUS will see that these issues of "semantic content" are not moot. Kagan, Sotomayor, and to some extent Jackson all asked questions about this.
The fact that Smith's conduct is expressive does *not* moot the question about *what exactly* she is or would be expressing.
The question here is under what circumstances can the state compel speech. To answer that question, you have to look at, among other things, the semantic content of the speech in question. The Supreme Court Justices seem to understand this perfectly well. They just have different views about the right answer in the context of this case. Law professors are split on the matter too, as the filing of the competing amicus briefs indicates.
P.s. Anyone can go on the Sup Ct website and either listen to the oral arguments or read the transcript, or both.
Sotomayor in oral argument went page by page through the website -- photos of which Smith had attached to her brief -- asking, in effect, where the content indicated approval -- pretty much exactly what Professor Zimmerman is asking in his comments.
So, contrary to Professor Zimmerman's impression that there is "conceptual confusion" in the way the issues are being framed, the SCOTUS seems to understand the issues perfectly well. But of course there is a difference between *understanding* a legal question and agreeing on the answer. The reason is that, as Marc has very correctly said, the law is not mathematics.
I am glad to learn that the Justices supporting the State of Colorado in this suit understand the semantic/conceptual issues at stake in the case, and are appropriately sceptical about Ms Smith's claim that designing a wedding website for gay clients in itself constitutes an expression of approval of gay marriage.
Wrt something or other someone or other said above, hasn’t this been referenced before?
https://ericmazur.net/wp-content/uploads/2022/08/Gold-Black-Jews-of-Harlem.pdf
racism, anti-semitism, and togetherness all seem to have figured in their social and personal relationships.
David and LFC,
As with many things in life, one’s perspective on an issue depends on whose ox is being gored. From the perspective of David, Ms. Smith is engaging in gay bashing – I am not sure how one can be accused of bashing anything by simply refusing to engage in speech, rather than engaging in gay bashing speech, but so be it. From her perspective, the State of Colorado and its supporters are engaging in Christian bashing. We will know which perspective is more correct under the law when the final arbiter of the law issues its decision – the majority on the S. Ct. which writes he final decision.
In the very act of bringing her suit Ms Smith is expressing disrespect for gay people. In my book that is gay bashing.
There's gotta be a better word here than "Christian-bashing," quite obviously. Many people, including some people I know well and think the world of, identify both as serious Christians and as active supporters of full equality for LGBT people (e.g. themselves). Is their position wildly incoherent, does their very existence constitute Christian-bashing - or, alternatively, is having homophobic politics perhaps inessential to being a Christian?
Sorry to get worked up here. Not that it was your intention, but that just strikes me as such a bogus and insulting comparison.
I don't know if Ms Smith is engaging in gay bashing.
She is certainly insensitive to the needs of a group which has been excluded, discriminated against, bullied, labeled as sinful and as mentally ill, gay people, to be treated with the same rules and principles as everyone else.
Is that bashing?
I have no idea of how the U.S. Supreme Court will rule nor do I care much, but Ms. Smith's lack of empathy and sensitivity is very ugly.
To SW:
Well put.
David Zimmerman,
Thanks.
This is all such b.s. Yes, B.S.! I offer my example of a website developer who opposes vivisection, and David says, “your example of vivisection opposition notwithstanding,” and leaves it at that. So, the anti-vivisectionist’s refusal to create a website for vivisection supporters constitutes vivisectionist bashing!
And now I’ll be accused of being a homophobic bigot because I am comparing vivisectionism to same-sex marriage! Americans are entitled to have views about marriage based on their religion, regardless what David Zimmerman, LFC, s. wallertstein, aalll, Eric, and Anonymous, and …. believe! The Supreme Court held in the Obergefell decision that no state government may prohibit two members of the same gender from getting married. I agree with that decision. Nothing Ms. Smiht is doing is contrary to that decision! Ms. Smith is not the government. She is a private citizen. She is not prohibiting anyone from getting married; she is not preventing any same-sex couple from loving each other and getting married. Yet the State of Colorado, a government, is telling her that she cannot create wedding announcements unless she is willing to use her speech – yes, her speech, regardless what David Zimmerman says – to assist in the announcements of the marriages of same-sex couples. Her right not to do this is protected by the Frist Amendment - and I don’t care how many books and peer-reviewed papers on philosophy and political science you may have read, or how tolerant and fair-minded you all claim to be, you are no more than intolerant, narrow-minded group of people who are willing to burn someone at the stake of your own Salem sense of fair-mindedness unless she succumbs to your demand that she agree with you!!
The Salem witches were not burned at the stake, but rather hanged.
No one is asking Ms. Smith to agree with us, but rather to not discriminate in her website.
I do lots of things I don't agree with every day because it's the law or the rules in my building.
Just the other day a traffic cop ordered me to stay within the crosswalk as I veered out of the crosswalk (with the light in my favor) to open the door of a cab that I had just hailed, the cab having stopped at the red light which was green for me as a pedestrian crossing the street.
I didn't agree with him, but I didn't argue with him either.
s. wallerstein,
What the hell do the laws in Chile have to do with the Frist Amendment rights of citizens of the Untied States???!!!
Marc,
Did you forget to take your medication today?
Re. the vivisectionist analogy, I think you guys are talking past each other somewhat. To recap...
MS: "[Y]ou [i.e. Prof. Zimmerman] would not claim that what the vivisectionist organization was asking the web designer to do, were he to accept the business, would not involve using speech, and that by accepting the business and creating the website, notwithstanding the web designer’s opposition to vivisection, he would be using speech to support the vivisectionist organization’s activity."
DZ: "In designing the website Ms Smith is assisting Mr X and Mr Y in getting out the word on the where and when of their wedding. Now the question becomes whether it is an infringement of her freedom of speech with respect to the expression of her religious beliefs to compel her to assist Mr X and Mr Y in getting out the word. I do not see how.... your vivisectionist analogy notwithstanding."
MS: "I completely disagree with you. Ms. Smith is not creating a 'gay bashing' website, and your statement, 'your vivisection analogy notwithstanding' does not explain why it is 'notwithstanding.'"
...
Now here's how this exchange looks to me.
I think Marc is interpreting Prof. Z as thinking: "Ms. Smith's Website obliges her against her will to express approval of LGBT equality, and this is okay; whereas the anti-vivisectionist Website designer is entitled to refuse their service to vivisectionists - and [it is baldly asserted] there is no analogy between the two."
But I don't think this interpretation would be accurate. I interpret Prof. Z as thinking: "Ms. Smith's Website does not oblige her to express any such thing [and, consistently with this, the anti-vivisectionist's Website would not coerce the designer to express approval of vivisection]. If there is an analogy between the two cases [which I need not deny], then it has no relevance to the claim I'm concerned to defend: Ms. Smith is unjustified in refusing service to same-sex couples."
Is this closer, perhaps? (I'm kind of assuming that Prof. Zimmerman has no issue with extending the semantic point to the vivisectionist Website, but maybe I'm off on this whole thing!)
Sorry if this is unhelpful. I gotta run in a second, so, this'll be it from me, for now.
I wrote a long comment and Blogger ate it.
Shorter version:
(1) The asserted right to free exercise of religion is, as Marc has pointed out, very tangled up with the asserted free speech claim here, even though the Court is formally considering only the latter. Marc's strong feelings about this have prevented him from taking a dispassionate, analytic view of the case, one that could acknowledge there are considerations of some weight on both sides.
(2) Assuming for the sake of argument that any website (regardless of what it says) will be Smith's speech and not that of her clients, that doesn't settle the matter, because then the question is: Under what circumstances, if any, can the government constitutionally compel speech?
(3) A majority SCOTUS opinion in favor of Smith will simply show that the majority agrees with her position. It won't necessarily be the better interpretation of the law, any more than the majority opinion in Dobbs was necessarily the better interpretation of the law in that case.
I actually think there are some valid considerations of policy and constitutional law on both sides of this case, and if I were on the SCOTUS I would probably be most comfortable with a narrowly focused opinion that avoids sweeping pronouncements and confines itself very self-consciously to the particular circumstances of this case. Whether that's what we're likely to get from the SCOTUS majority is doubtful.
p.s. Marc, please spare me any snark about my not being qualified to be a Sup Ct Justice, b.c I am not suggesting that I am qualified to be a Sup Ct Justice. Am just giving my opinion, which is what we are all doing here, after all.
s. wallerstein,
No, I did not forget to take my medication today, which includes medication to control my blood glucose level and my myasthenia gravis. I have not been prescribed any medication for any mental disorder, e.g., bipolar disorder or schizophrenia, because I do not suffer from any mental disorder. What I suffer from is an intolerance for stupid, insulting comments like yours.
LFC,
No, I will not make a snarky remark about your not being a S. Ct. Justice. But I will point out that many of the commenters on the issue at hand have not just engaged in a civil discussion. Some have accused Ms. Smith, erroneously, of engaging in “gay bashing” and have accused me for supporting her position of being a homophobic bigot. None of this constitutes civil discussion.
Marc,
If anyone has been uncivil in this conversation, if we can call it a "conversation", it's you.
You have a complete incapacity to see yourself.
Just count the number of times above you have insulted or disqualified someone and count the number of times someone has insulted or disqualified you and you'll win.
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