I find the decisions handed down by the Supreme Court to be injurious to my mental health and I have decided that the only thing I can do is to explain at length my reactions to them. What I say will obviously have no effect on the world but maybe I will feel better when I am finished.
Let me begin with the simpler of the two decisions, that concerning the website designer. Forget about the fact that she has not yet actually designed any websites – that is irrelevant.
Consider the following
series of cases, designed to approach the issue slowly. Suppose that a devout
Catholic decides to open a bookstore called The St. Thomas Aquinas Bookstore in
which he proposes to stock and sell only books by Catholic authors on Catholic
topics. Can anyone attempt to take him to court on the grounds that he does not
carry books on fishing or baseball or books on Islam? Of course not. He has a
perfect right to open a bookstore that sells books only by Catholic authors on
Catholic topics. Does he have a right to refuse to sell a book to a customer who is
not Catholic? Of course not. If it offends him to sell books to people who are
not Catholic, then he does not have to open a bookstore, but if he does, then
he is required by well-established laws to sell books to any customers who wish
to buy them, regardless of whether those customers believe that the religious
doctrine set forth in those books are true.
By the same token, he can if he wishes open a shop that only sells
Yankees memorabilia (like the “bookstore” in downtown Chapel Hill that only
sells Tar Heels memorabilia.) But he does not have the right to refuse to sell
his wares to a Red Sox fan.
Suppose a painter decides to open a business that offers to
paint portraits of customers in Orthodox Jewish garb. When a customer enters
the shop and asks to have his portrait painted, the salesman shows him a
variety of possible Orthodox Jewish outfits and asks which of them he wishes the
portrait artist to use in painting his portrait. Does the customer have the
right to demand that his portrait be painted in the garb of a Catholic saint?
Obviously not. That is not what the owner of the shop is offering. Does the
painter have a right to refuse to paint a portrait of a customer who is not Jewish?
Clearly not. He has a right to insist that any portrait he paint portray the
subject of the portrait in Orthodox Jewish garb because that is the nature of
the business he has decided to run. But if a customer is content to have his
portrait painted in Orthodox Jewish garb even though he is not himself Jewish,
then so long as the painter is offering his services to the public, he does not
have a right to choose which customers he will accept. If the painter holds that it is inconsistent
with his religious faith to paint the non-Jew in Orthodox Jewish garb, then the
he should not open a shop that offers to paint customers in that garb. No one
can compel him to paint portraits of non-Jews in Orthodox religious outfits –
indeed, no one can compel him to paint portraits at all. But if he starts a
business that is open to the public, then he has no right refuse to serve
certain customers on the grounds that doing so violates his religious freedom.
Suppose a web designer decides to open a business offering
to design websites for people who are getting married. Can she specify that she
will only design websites that are appropriate for the weddings of a man and a
woman? Certainly. If a gay couple asked her to design a website for them,
adjusting the design so that it is appropriate for the wedding of a man and a
man, does she have a right to refuse? Of course, she has as much right to
refuse to do that as the bookshop owner of the St. Thomas Aquinas Bookshop has
to refuse to carry books that are not about Catholicism by Catholics. But
suppose that the gay couple agree to have the web designer design for their
wedding a website appropriate for the wedding of a man and a woman. Never mind why they want that, suppose they
agree. Does the web designer have the
right to refuse on the grounds that it violates religious freedom? No. She has
a right not to open a business but if she chooses to open a business and offer a
certain service, she has an obligation to offer to any customer who is willing
to pay her price.
15 comments:
It's not clear in what sense you mean that the shop owners in your various cases have an obligation to sell their wares to any customer or that the customers in these cases have a right to purchase them. Are you making a moral claim as in it would be morally wrong for the owner of the Yankees shop to refuse to sell a ball cap to a Red Sox fan? I don't see why that would be the case and you don't offer an argument for that conclusion here.
Do you mean they have a legal right in the sense that a Red Sox fan who was refused a baseball cap at the Yankees store could sue? If so, then that's false as a matter of US law. No one is obligated to do business with any particular customer. This could be as a matter of policy as in "No Shirt, No Shoes, No Service" or as the judgment of an individual merchant on a particular occasion. If I just don't like the cut of your jib, there's no law compelling me to do business with you.
The exception to this general rule of getting to choose who you do business with is if you make the decision not to do business with someone on the basis of a characteristic which makes them a member of a protected class. That's what the Civil Rights Act gave us. Places of public accommodation can't discriminate on the basis of race, color, religion, or national origin.
Note that this doesn't protect against discrimination on the basis of sex or sexual orientation. There is no federal law which protects against such discrimination. This is what the proposed but not yet ratified Equal Rights Amendment is supposed to remedy. Some states have passed laws that add sex and sexual orientation to the list of protected characteristics. One example of such a state is Colorado which is why it has seen legal challenges to its anti-discrimination regime.
So, so far as the law is concerned, you're free to refuse service to Red Sox fans or anyone else you don't like provided you're not discriminating on the basis of (as a matter of federal law) race, color, religion, or national origin or (in some states as a matter of state law) sex or sexual orientation.
Well, it looks as though I should have kept my thoughts to myself! I do not know who TJ is but he she or it seems to know the law as I do not so… Sigh.
I have little knowledge, and no understanding, of what goes on in elite institutions or of constitutional law. But since the professor's post seems to indicate that he'll be writing on the other big Supreme Court decision, I wanted to recommend the recent posts and comments on Brian Leiter's blog. Recently Leiter has occasionally linked to the writings of a gentleman named Freddie Deboer, 'a man of the actual left' according to Leiter; like Leiter, I find Deboer's most recent post an admirably sensible bit of leftist thinking on the relevant context to the Court's other decision: https://freddiedeboer.substack.com/p/affirmative-action-thoughts-in-an
John Rapko
I have commented critically on one aspect of the deBoer piece at my blog.
Here.
I thought Bostock extended sexual orientation and gender identity to "sex" under Title VII.
"Forget about the fact that she has not yet actually designed any websites – that is irrelevant."
Or not. Does selling a web service always implicate speech issues or do some (most?) such services involve an off the shelf product that requires little or no creative input after the initial design?
If one researches actual wedding web services one finds some (most?) are free or low cost and only require basic, anodyne modifications. The bucks are in ancillary services like printed announcements and invitations which are also templates which require only date and place modifications.
If we had an actual case it would mean that the 303 owner had put her business model into practice and it had succeeded in attracting clients. On the other hand she might have found that there is no market for heavily customized wedding sites which cost way more than the free/low cost, already established ones. If the latter - no case.
BTW, wedding websites are used to handle the nuts and bolts of getting married = announcements, electronic invitations, gift registries, RSVPs, etc. The costs involve those of maintaining a site for a given period of time then after the ceremony it's kaput.
I see no difference between a viable wedding website service and any other web service based on templates.
So, a non-disingenuous question about who can legally discriminate against whom: Can a (say, woman-run) business discriminate against men—in the sense of refusing to do business with men? Men qua men. And how about refusing to do business with women (qua women)? I thought that we were past all that (in this country), but TJ (who’s more up on the law than I am) seems to be saying there are states where this sort of thing can legally go on.
LFC, I don't get Prof. Leiter's takes on Freddie.
This is an interesting take on West:
https://newrepublic.com/article/121550/cornel-wests-rise-fall-our-most-exciting-black-scholar-ghost
LFC--
Thanks for the link to your comment on Deboer. What you say there is surely right. Like Leiter (and perhaps you?) I can learn from and agree with much of what Deboer says without following him on every point.--I already have WAY too much to read, but I'll try to check in on your blog as well Deboer's Substack pieces.
Fritz,
Yes, there are a few states where a business could refuse service to men qua men or women qua women.
Most states have anti-discrimination statutes and all of them that do include sex or gender. Laws vary by state, but they can also protect sexual orientation, disability, immigration status, age, marital status, etc.
J.Rapko - thanks.
aaall - thank you for link.
T.J., since the case rested on free speech shouldn't the SC have waited to find out if there was a case?
Suppose the website designer were given the information that Mr. & Mrs. Smith are announcing the marriage of their child to the child of Mr. & Mrs. Jones, without indicating the sexual identity of the couple. And the website designer knows the couple are gay. Can she refuse, even thought the design does not mention their identity? I think not.
another take
I thought your examples were clear and sensible. Regardless, SCOTUS is clearly legislating from the bench, especially given that these cases were not brought by injured parties. They're concoctions that enable six unelected justices, in effect representing the a sector of the "opulent few" to to govern by fiat.
I'm with Jerry.
The SCOTUS website states the court does not make advisory rulings. If there are are not two parties disputing a matter there is nothing to adjudicate, i.e., no ruling to be made. The intellectual dishonesty here is as epic as the corruption.
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