Yes, of course. She had zero fears for her own comfort or safety. She just wanted to hurt gay people. That’s why the ruling makes me livid, even though I’m basically on board with bigots being allowed freedom of expression.
The theory here is that the law credibly threatens plaintiffs liberty to speak freely without due process. Credible threats are a form of harm (assault being the crime to threaten bodily injury), so that’s the theory here.
(I don’t agree the threat was credible, but if she had simply started her business first, it would be)
~Max
When we talk about restaurants, for example, ISTM that most restaurants rely on a widely disparate measure of creativity, but “customization” is probably relatively rare.
The chef creates a menu. The cooks execute that menu. You order from the menu. That’s probably the most common schema.
But the case of a sushi bar comes to mind.
For many, the best and only way to really eat at a sushi bar is to eat at the bar (ie, not a table), and just ask the sushi chef to serve you.
At that point, nearly everything is custom – even if only for this hypothetical (good enough to get me to SCOTUS, apparently), no?
Could the sushi chef then refuse to serve me and my same sex partner, who kissed, and toasted with our sake cups, before the food was started?
We all have to remain mindful of the incredibly obvious: many/most of us thought we knew the answer to questions like this a week ago.
We do not, at this point.
The sushi arrangement may or may not be expressive, but it certainly does not express the idea that the chef is promoting or celebrating your marriage. He didn’t even know you were partners, how could it express that fact?
~Max
I would think the relevant part of the restaurant is the words that a waiter says to the customer. It’s hard to get more “speech” than “speaking”; and if I have freedom of speech, can the state compel me to speak to a customer? If they can’t, I can effectively refuse to serve anyone I want, by virtue of refusing to speak to them, or to speak about their order to other workers.
I’d answer, of course the state can’t compel me to speak; but they can compel me not to be in a public business. But the SC is setting some scary precedent otherwise.
But the argument in any of these cases may be that it forces [the sushi chef, in this case] to participate in “sin.”
That is NOT a far stretch of this decision.
Same-sex marriage isn’t the only thing these people have a problem with.
No. It’s about compelled speech. It’s not about sinful behavior. That’s a wholly different clause in the First Amendment, the free exercise clause. And the Warren court has already ruled on that, by upholding the Civil Rights Act.
~Max
I’m not sure I understand what you think that means.
Whatever it meant a week ago, it probably no longer means that today.
I also don’t think you can separate “compelled speech” from “sinful behavior.” Neither do I think the Plaintiff or the ADF did. I just think that’s a fig leaf.
Be that as it may, there are different rights involved and different court cases. The reasoning of one doesn’t necessarily carry over to the other.
~Max
The case was an injunction.
To clarify her rights, Ms. Smith filed a lawsuit seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions be- tween one man and one woman.
One of the purposes of injunctions is to prevent harm. Some government gives some firm a permit to build a factory beside a river. An environmental group seeks an injunction to prevent the factory due to the harm to the river’s ecosystem the factory’s pollution would cause. There’s no need for actual pollution for the environmental group to seek the injunction.
But to me, this seems like a factory seeking an injunction ruling that’s its permit doesn’t violate a zoning law prior to the factory submitting its permit. I’m quite surprised the Supreme Court chose to make a pre-emptive decision about a speculative case.
I’m staying respectful to the OP and the title of the thread – both of which speak to the possible implications of this decision.
What we all think we could rely on a week ago is up for grabs.
We heard, ad nauseum, in the past about “Forcing a Jewish restaurant owner to sell pork.” We all know the fallacy of that argument.
But nothing I’ve seen in the last couple of days here strains credulity with regard to the 303 decision and the possible consequences – consequences that the SCOTUS does not generally get to ignore as “Slippery Slope Arguments.”
The creativity of a sushi chef.
The willingness to create for interracial couples.
Why would any of us be more surprised if the “religious freedom” position held sway with the SC in those kinds of cases than we were with 303 Creative?
I don’t actually even think the above are more regressive. I see them more as lateral moves at this point – natural extensions of the 303 decision.
I also think it’s disingenuous to decouple “marriage” from the “sin” of homosexuality in the eyes of … um … that demographic.
“Creative = Endorsement”
Also not a stretch.
We should also be mindful of how many “trigger laws” awaited the Dobbs decision – a bit OT, but a reasonable reminder … of who/what lies in wait, and how.
Sure it expresses an idea. It expresses the idea that only whites should drink out of the water fountain. It just expresses it in a concrete & directive way.
The example you were talking about is expressing the idea “only men and women can have weddings,” except in a more abstract way. But like I said, at some point you cross over. It’s not like you’re just making things up if you interpret “Marriage is for a man and a woman” as “I won’t make your website if you’re gay.” Certainly “marriage is for a man and a woman,” as a sign posted above the window, just below “credit cards not accepted,” at the marriage license office, is a message that at least one person in the world would interpret as effectively the same thing as “whites only.”
There really aren’t very many hundred percent/zero percent kinds of conclusions you can come to about this stuff.
‘How could anyone possibly see my sign “Work makes one free” as anti-Semitic???’
This is a good and quick read, and – while not particularly scholarly – is both a good reminder and a jumping off point for further exploration into From Whence We Came (and why turning back in that direction is an abysmally poor idea):
Nothing with an extensive historical precedent – in the relatively recent past – should ever be assumed to be “far-fetched.”
About once every generation, it’s easy to screw the masses. We have agonizingly short memories in this country.
Haven’t read the rest of this thread, but within the past hour, I heard Pete Buttigieg say on CNN that it appears to him, and possibly a lot of other people, that this woman set up a wedding business specifically so she could be a troublemaker with same-sex couples. Great, just what we need, trolls who are able to take it all the way to the Supreme Court.
Not even that. She doesn’t have a wedding website business. She filed suit on the claim that she might want to someday.
The thing is, none of this stuff has ever been real. There’s no reason the Supreme Court can’t just say they don’t care about that, and decide the case anyway. It’s made clear in the opinion that they know this is all speculative and anticipatory. She wanted them to “clarify” is how they put it in the opinion.
In fact, I’m sure if you looked hard enough one might even find that someone associated with supreme court justice encouraged the suit with a strong wink wink about how it would be decided.
But just for Christians that hate gay marriage clearly not for Christians that hate interracial marriage!
The state does have the power to regulate speech. It can forbid perjury or slander as two examples. It’s ability to prevent hostile or discriminatory speech and expressions fall under the same concept. A business requiring, or even allowing, its employees to not speak to black people wouldn’t be a free-speech constitutional violation, but would be a constitutional violation under later amendments and rulings. In such circumstances, the state would have legal basis for taking action against the discriminatory business. However, the state can’t compel an individual or (generally) a business to express an opinion on an issue, especially a political opinion. So while a restaurant would be unable to refuse service to a gay couple for a regular meal, they could refuse to host a gay pride party, even if they hosted other parties, regardless of the theme.
(unless & until someone makes, and the Supreme Court accepts, the not-that-much-of-a-stretch argument that serving someone is expressive conduct, because when you’re here, you’re family, etc)