Personally I would prefer a constitutional amendment that lists civil rights - I don’t think the Court was legally correct to uphold Title II back with Heart of Atlanta Motel, or the whole line of commerce cases it rests on going back to the Shreveport Railroad Case.
It’s frankly insane that the foundation of so many civil rights is that civil rights legislation is a “necessary and proper” exercise of the power to regulate interstate commerce.
[/Off topic]
~Max
I tend to think of thinly-veiled bigotry as I think of a “hostile workplace:” no end of various subtleties can clear that threshold, legally. I don’t see the subtlety in the discrimination you describe as ameliorating its … discrimination.
It’s my impression that you view the points you’re raising as mitigating factors. I see them as aggravating factors. The subtlety involved doesn’t charm me in the least.
Putting “Gays Not Welcome” into every national news outlet is not analogous to putting up a sign?
We’re not talking about some vague (and probably nonexistent) “atmosphere”. Having a lot of Christian symbols in a store does not mean “No Jews Welcome”. We’re talking about someone going to court to say explicitly that no gays are welcome.
As for the the Civil Rights Act, of course it’s Constitutional, because the reconstruction amendments explicitly empowered Congress to make laws enforcing them. A new amendment wouldn’t help: A court that ignores the existing amendments would ignore the new one, too.
Back to the case at hand: Granted that the court was going to decide that she had standing anyway, can she at least be charged with perjury or some related crime for her claim (in official Court papers) that a client had approached her to hire her when he hadn’t?
There is zero chance that the State can prohibit wedding materials from expressing the idea that marriage is only between and and woman. There’s room for argument if a business won’t service same sex couples, but (excepting extreme cases such as immediate violence) you can’t outlaw expressions of hostile ideas.
~Max
I think you’re mistaken on this. The case is Atlanta Motel v. U.S., 379 U.S. 241 (1964). It rests on the commerce and necessary & proper clauses, NOT the reconstruction amendments. [/Off topic]
~Max
I’ve read cases where bigots tried to use the takings clause and the free exercise clause. Can you cite a case where they pitted the Civil Rights Act against First Amendment freedom of speech?
~Max
I wouldn’t expect a court to find any other way, but zero chance overstates the case. “Whites only” is an expression of a hostile idea. At some point you’re performing an act of discrimination via that expression.
‘Whites only’ doesn’t express an idea, (ETA: it’s not expressive speech like “marriage is only between a man and a woman”) it is purely functional. Like saying we close at 7pm.
And there are, I think, cases on advertisements as a form of commercial speech that has less protection.
~Max
Apologies for a minor hijack, but
Perpetuates a misconception.
When i lived in NYC, i observed that Jews and Muslims shopped in all the same places, having similar requirements.
An Orthodox Jewish friend used to work at a kosher chicken slaughterhouse. They had a brisk business of Muslims who paid to use the facility to slaughter their own chickens (that is, the Muslim customer held the knife) because at the time there wasn’t much halal meat on the market, but if the Muslim slaughtered a bird at the Jewish facility, the meat was halal.
Jews and Muslims often disagree about the middle east. But they are largely aligned within the US. The mosque closest to me does a lot of charitable with jointly with a nearby synagogue, and they lend parking to each other, as their holy days are mostly different.
Has anyone been following the news about the ‘defendants’ in the case? A reporter contacted the ‘gay person’ identified in the filings that supposedly reached out to Ms. Smith about creating a web page for he and his prospective groom and found that not only had the gentleman not contacted Smith about designing a web page, but stated he was a web designer himself, wouldn’t need anyone else’s help in designing a web page, and also happens to already be married…to a woman. So it appears the case is fake and there are now grounds to have the case reheard and stricken from the books.
Forgive the clumsy analogy, @puzzlegal
I’m simply trying to create a handful of other scenarios where bigotry – whether representative of real life or not – could be implicit rather than explicit.
And still be bigotry.
But it’s a bit shocking to have to explain to anybody (NB: not you), in 2023, the concept of a “dog whistle.”
I don’t believe that is the case.
Neal Katyal - former Solicitor General, seems to think so.
The defendant is Colorado Civil Rights Division Director Aubrey Elonis. The person you read about wasn’t a party to the case, but his name was mentioned in court filings for the plaintiff as evidence.
~Max
Thanks for clarifying. But I heard Mr. Katyal say he believed that to be grounds to vacate the ruling. It’s like a case about an automobile accident and discovering there was no actual car accident.
Oh, i totally get the idea of dog whistles. I just like to remind people that Jews and Muslims have a lot in common.
It’s because of dog whistles that I’m totally unsurprised to learn that this case was fake. Because she didn’t have to say anything actionable on her website, like “i won’t work for gays”. If she’d just played up her traditional Christian “family values” and how that informed her development of wedding websites, no same sex couples would ever have considered hiring her. She was at zero risk of prosecution under CO laws, and also are no risk of, gasp having to interact with gay clients.
I’m not a lawyer but I don’t see it as important enough to vacate the decision. The Japanese internment case is still on the books and there the U.S. Govt straight up lied to the court, about critical evidence, resulting in thousands of innocent people being forced into camps for years.
This guy wasn’t integral to the plaintiff’s case. See also Doreen’s link up thread
~Max
I’m certainly not a lawyer either, but based on what little I do know about the law, I’m pretty sure courts only make rulings on real cases. Can’t try someone for murder when no murder has occurred.
MSNBC’s Katyal: SCOTUS LGBTQ Website Ruling Should Be ‘Stricken from the Books’ (breitbart.com)
Breitbart News was unfortunately the first link to the interview I found
Hopefully, this isn’t too much of a tangent as to be off-topic, but I’ve also wondered about this concept. Suppose a town had ten bars, one of which was a gay bar. (I’m not going to quibble on the definition of a gay bar, but just state for the sake of the hypothetical, the bar promotes itself as such.) A hypothetical bar-drinker who lives in the hypothetical town goes with varying frequency to the nine non-gay bars, but never to the gay bar. Is her choice not to go to the gay bar discriminatory? And if it is, should she therefore be compelled to go drink at the gay bar? The answer to the first question is yes, but it’s none of the government’s business. The answer to the second question is obviously no.
Now, substitute the bar drinker to a beer distributor. Should the beer distributor have the right not to sell beer to the gay bar, all else being equal? My answer is no, at least in Colorado, because that would be a case of discrimination based on sexual orientation. There is an association between the beer distributor and the bar that’s selling its beer, but it would genuinely be no different whether the bar was a gay bar or not. Therefore the beer distributor could be legally compelled to sell beer to the gay bar, and under the same terms as any other bar.
But suppose the supplier wasn’t a physical product provider but a service provider such as a bar security firm, where the owner worked security shifts for all her clients? Would Colorado anti-discriminatory laws, in line with past judicial reviews of such laws, require the bar security firm to provide security services to the gay bar, even if the owner didn’t want to spend time in a gay bar? My guess is that the security firm owner’s right of freedom of association, including the right not to associate, would supersede the gay bar’s right to non-discriminatory service from suppliers. The security firm owner would have the right to turn down the gay bar’s business.
Would this same concept apply to a restaurant where gay clientele desired a meal? I’d expect it to follow the same base principles. A gay (or Jewish as asked in LHOD’s question) couple should be expected to be treated the same as any other couple, to be able to be seated and order from the menu. The right of non-association shouldn’t apply to a venue designed to serve everyone. However, if the venue was asked to throw a Gay Pride party, or an Israel Independence party, I’d expect the venue would be able to assert its right to choose what celebrations happen within its establishment represents their freedom not to associate, which would exceed the party-goers freedom to choose a place for their party.
But that’s not what her goal was. She wasn’t on defense she was on offense. She wanted to push forward the right to discriminate and remove the legs out from the Civil Rights Act and other social progress. There is a much bigger picture in play here beyond just not wanting to serve gay customers.