Fake Gay Marriage Website and SCOTUS Ruling

[Copernicus]

My contention here is that the Colorado web designer did not have standing and even included false information in her filing to make her case. IOW, this case was concocted specifically to go right to the Supreme Court and allow the ideological wing of the Court to strike down the Colorado law and make a radical change to the interpretation of the First Amendment protection--in effect, weaponizing it as a tool to roll back civil rights. Moreover, SCOTUS exceeded its authority in order to make what amounts to an "advisory opinion".

1) The Constitution forbids federal judges from making an advisory opinion in which it merely strikes down a controversial law that it doesn't like.

See Cornell LII Legal Information Institute on "cases and controversies"

In other words, cases brought to a federal court must show actual harm to a party and involve a dispute between actual people, not a hypothetical case.

It turns out that the Colorado "web designer" was starting up a new business and had not yet actually designed any web site for weddings or had any same-sex wedding requests at the time she filed. Literally, the day afterwards, she said she got such a request from a gay couple in San Francisco--a couple named "Stewart and Mike". She gave contact information for Stewart, but nobody bothered to check with Stewart.

2) Now consider how the Supreme Court ended up getting this case before it.
See this very interesting news article from a journalist who called Stewart to get his reaction to the lawsuit before the Court:

SCOTUS PUZZLE The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court

Long before the Supreme Court took up one of the last remaining cases it will decide this session—the 303 Creative v. Elenis case, concerning a Colorado web designer named Lorie Smith who refuses to make websites for same-sex weddings and seeks an exemption from anti-discrimination laws—there was a couple named Stewart and Mike. According to court filings from the plaintiff, Stewart contacted Smith in September 2016 about his wedding to Mike “early next year.” He wrote that they “would love some design work done for our invites, placenames etc. We might also stretch to a website.” Stewart included his phone number, email address, and the URL of his own website—he was a designer too, the site showed.

This week, I decided to call Stewart and ask him about his inquiry.

The Supreme Court is expected to deliver its opinion in a case in which Stewart plays a minor role, a case that could be, as Justice Sonia Sotomayor stated by way of a question at oral argument in December, “the first time in the Court’s history … [that] a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.” (Update: On Friday, the court ruled 6-3 in the web designer’s favor.) It took just a few minutes to reach him. I assumed at least some reporters over the years had contacted him about his website inquiry to 303 Creative—his contact information wasn’t redacted in the filing. But my call, he said, was “the very first time I’ve heard of it.”

For more details, see the article. The gist of it is that Stewart is a happily married heterosexual man married to a woman whose name is not "Mike". In fact, he himself is a web designer who would not need to hire a woman in Colorado to design a web site. The Colorado woman had no standing to bring that lawsuit, but the Supreme Court was in a hurry to make its ruling at the very end of its session on a Friday before a long holiday weekend.

Enjoy your Fourth of July. Have a barbecue and watch some fireworks. And take pride in the fact that nobody can force you to design web sites for gay marriages.

 

[Derec]

Does SCOTUS have a "backsies" policy? The lawsuit in question is indeed sketchy af, but how hard would it be to find another plaintiff with genuine standing and refile?

One also wonders why all this did not come out in all the time this case was winding its way through the court system. It's not like that's a fast process.

 

[Copernicus]

Does SCOTUS have a "backsies" policy? The lawsuit in question is indeed sketchy af, but how hard would it be to find another plaintiff with genuine standing and refile?

One also wonders why all this did not come out in all the time this case was winding its way through the court system. It's not like that's a fast process.

The point is that this took place in Colorado, where the wedding cake decision ran up against the accursed civil rights law. But this was a setup. A scam to get something before the Court so that they could limit the Colorado law in a way that would have wider implications for the future--using the First Amendment as an excuse to weaken a civil rights case. Normally, a federal court can't just make an advisory ruling without there being an actual victim who was harmed and a second party that did the harm. And normally, that second party would have the other side of the story. This ruling was a de facto advisory ruling, because there never was any victim or second party. The alleged victim was never asked to make a web site for a gay couple, but she filed her suit first and then said that she was contacted by "Stewart and Mike" with just such a request for her services. Mike never existed, and Stewart didn't know anything at all about the use of his name and contact details in this lawsuit. So there was never a gay couple making this poor Christian woman do a web site for them because of this law that was suppressing her right to freely express her opinion by telling them she didn't want to promote gay weddings. That nonexistent gay couple was never going to explain why they would be harmed by her refusal to deny them their website. It was a perfect setup for the Court. Nobody got discriminated against, so how could they make a case against the plaintiff?

So this lawsuit was technically not an "advisory opinion" that would be prohibited by the Constitution. There was a real victim and a real gay couple that had caused her harm. Hence, the standing to bring the case before the federal courts. Only there wasn't a real victim and there wasn't a gay couple. The Court needed a real example of a real controversy, not a hypothetical dispute. They didn't have that here.

 

[ZiprHead]

So there goes that not bearing false witness shit.

 

[Toni]

I want to preface this post by saying, unequivocally, that I think that the whole fake customer, fake request was/is/will always be utterly and completely reprehensible and I find it flabbergasting that the falsehood behind this was not revealed initially and that the Supreme Court ever heard the case. Hopefully you all realize that I am also completely supportive of gay marriage. Also I have not read the decision myself.

Please consider a different scenario:

Suppose I'm a web designer who despises the whole stupid white nationalism and nazi thing. Suppose someone contacts me and asks me to design a website for their organization. Suppose that organization is actually white nationalism/Nazi or adjacent. Am I legally or morally required to create the website that they wish me to create?

Suppose I am also baker who specializes in special occasion cakes, with words as part of the decoration. Am I required to provide a cake for the above organization if it insists I write words in support of white nationalism or Nazis?

I see both scenarios as legally equivalent.

I contend that I am not required to create any content that I find repugnant or morally offensive or wrong. I believe that I would be required to sell a cake to the cretins asking for one but I am NOT required to write offensive (to me) content on that cake. I contend that I am NOT required to create a website that includes or supports any organization or includes content I find repugnant.

 

[CosmicJellyfish]

I see both scenarios as legally equivalent.

You think being gay and being Nazi are equivalent??

Do you think Nazis are born Nazis?

Do you think restaurant owners should be allowed to refuse service to black people?

 

[Toni]

I see both scenarios as legally equivalent.

You think being gay and being Nazi are equivalent??

Do you think Nazis are born Nazis?

Do you think restaurant owners should be allowed to refuse service to black people?

No, I don’t think that. It is absolutely not about whether or not a creator ( web sites, wedding cakes, etc.) is allowed to refuse to provide service to someone based on inborn characteristics or political philosophy.

It is about whether someone can be compelled by law to write or create content that they find morally repugnant.

I don’t think that bakeries should be allowed to refuse service to anyone based on their race, gender, gender identity, LGBTQIA+ status, etc.

I do think that bakeries or advertisers or website creators, etc. should be allowed to refuse to create content, to write words or symbols or other content that they find repugnant or unacceptable.

Example: if a baker has a portfolio of decorated cakes that include rainbows, for example, I don’t think they should be able to legally refuse to create a cake so decorated with a rainbow for someone who is LGBTQIA+. I DO think they should NOT be compelled to write Happy Gay Pride Month on the cake. I do think they would be assholes and bigots for refusing to do so but no, I don’t think they can be legally compelled to write content they find offensive.

I also don’t think that a bakery should be compelled to create a rainbow cake for anyone if that is not in their repertoire of cakes.

I think that a bakery which creates wedding cakes should be required to create a cake for anyone requesting one. I do NOT think that the bakery should be compelled to write Congratulations Steve and Jeff. I don’t think a bakery ( or any one) should be compelled to create content which violates their sincerely held beliefs. So, no, a Christian baker should not be compelled to write Satan Lives! Nor should a Wiccan baker be compelled to write Christ is Lord on cakes.

And advertising agencies or a website creators should not be compelled to create content for any person or cause or promoting any message they find morally repugnant. For example: No one should be compelled to create content that is pro life, if they support abortion rights. Likewise no one should be compelled to create content that is pro-choice if they disagree with that.

 

[Shadowy Man]

I interpret the ruling thusly:

If they create a product that does not depend on who the consumer is they cannot discriminately sell that product.

However, A custom order by a creator makes the creator an artist and one cannot be compelled to create art they don’t want to.

This should cover the scenario of a website designer refusing a Nazi website or the writing on a cake.

 

[Toni]

I interpret the ruling thusly:

If they create a product that does not depend on who the consumer is they cannot discriminately sell that product.

However, A custom order by a creator makes the creator an artist and one cannot be compelled to create art they don’t want to.

This should cover the scenario of a website designer refusing a Nazi website or the writing on a cake.

Yes, I think that sums it up well and much more clearly than my long post did.

 

[Jimmy Higgins]

I want to preface this post by saying, unequivocally, that I think that the whole fake customer, fake request was/is/will always be utterly and completely reprehensible and I find it flabbergasting that the falsehood behind this was not revealed initially and that the Supreme Court ever heard the case. Hopefully you all realize that I am also completely supportive of gay marriage. Also I have not read the decision myself.

Please consider a different scenario:

Suppose I'm a web designer who despises the whole stupid white nationalism and nazi thing. Suppose someone contacts me and asks me to design a website for their organization. Suppose that organization is actually white nationalism/Nazi or adjacent. Am I legally or morally required to create the website that they wish me to create?

Suppose I am also baker who specializes in special occasion cakes, with words as part of the decoration. Am I required to provide a cake for the above organization if it insists I write words in support of white nationalism or Nazis?

I see both scenarios as legally equivalent.

I contend that I am not required to create any content that I find repugnant or morally offensive or wrong. I believe that I would be required to sell a cake to the cretins asking for one but I am NOT required to write offensive (to me) content on that cake. I contend that I am NOT required to create a website that includes or supports any organization or includes content I find repugnant.

They are not equivalent, as Nazis aren't born Nazis. Gays, blacks, whites are dealt their hands at birth. Allowing the prohibition of sales can create islands of no service to groups of people that are considered legally deprivable of their rights.

This has nothing to do with Nazis and their repugnant existance. This has to do with human beings trying to enjoy the rights and privileges that are promised to them in the Constitution of the United States.

 

[Toni]

I want to preface this post by saying, unequivocally, that I think that the whole fake customer, fake request was/is/will always be utterly and completely reprehensible and I find it flabbergasting that the falsehood behind this was not revealed initially and that the Supreme Court ever heard the case. Hopefully you all realize that I am also completely supportive of gay marriage. Also I have not read the decision myself.

Please consider a different scenario:

Suppose I'm a web designer who despises the whole stupid white nationalism and nazi thing. Suppose someone contacts me and asks me to design a website for their organization. Suppose that organization is actually white nationalism/Nazi or adjacent. Am I legally or morally required to create the website that they wish me to create?

Suppose I am also baker who specializes in special occasion cakes, with words as part of the decoration. Am I required to provide a cake for the above organization if it insists I write words in support of white nationalism or Nazis?

I see both scenarios as legally equivalent.

I contend that I am not required to create any content that I find repugnant or morally offensive or wrong. I believe that I would be required to sell a cake to the cretins asking for one but I am NOT required to write offensive (to me) content on that cake. I contend that I am NOT required to create a website that includes or supports any organization or includes content I find repugnant.

They are not equivalent, as Nazis aren't born Nazis. Gays, blacks, whites are dealt their hands at birth. Allowing the prohibition of sales can create islands of no service to groups of people that are considered legally deprivable of their rights.

This has nothing to do with Nazis and their repugnant existance. This has to do with human beings trying to enjoy the rights and privileges that are promised to them in the Constitution of the United States.

I don't disagree that being a Nazi is a choice and being gay is not. This is absolutely NOT about equivalency of a political position vs being a person of any color, shape, gender identity, sexual preference, religious affiliation or race or nationality or anything else.

It is ENTIRELY about whether or not someone can be legally compelled to create content that they find repugnant.

A bakery would be compelled to sell any of its goods to any paying customer who wished to make a purchase. A bakery would not be compelled to CREATE a product that displayed WORDS or IMAGES that it found repugnant or offensive.

 

[TomC]

I see both scenarios as legally equivalent.

You think being gay and being Nazi are equivalent??

Do you think Nazis are born Nazis?

Do you think restaurant owners should be allowed to refuse service to black people?

You're missing @Toni s point.

Eating lunch that's prepared exactly like all the other lunches a business serves is not the same as wanting a completely unnecessary custom product.

As Toni points out, people who refuse service to queer folks for ideological reasons are acting like assholes. People do that all the time. That doesn't mean we need laws that other assholish people can use.
Tom

 

[Toni]

I see both scenarios as legally equivalent.

You think being gay and being Nazi are equivalent??

Do you think Nazis are born Nazis?

Do you think restaurant owners should be allowed to refuse service to black people?

You're missing @Toni s point.

Eating lunch that's prepared exactly like all the other lunches a business serves is not the same as wanting a completely unnecessary custom product.

As Toni points out, people who refuse service to queer folks for ideological reasons are acting like assholes. People do that all the time. That doesn't mean we need laws that other assholish people can use.
Tom

Yes, I could not go into a Jewish delicatessen and insist that they sell me food that is halal*. They would be compelled to sell me whatever they sold any other customer.


*halal is the set of Muslim dietary laws. I am not Muslim nor am I Jewish but the principle of what a person can or cannot compel a business to provide is the same.

 

[Copernicus]

I see both scenarios as legally equivalent.

You think being gay and being Nazi are equivalent??

Do you think Nazis are born Nazis?

Do you think restaurant owners should be allowed to refuse service to black people?

No, I don’t think that. It is absolutely not about whether or not a creator ( web sites, wedding cakes, etc.) is allowed to refuse to provide service to someone based on inborn characteristics or political philosophy.

It is about whether someone can be compelled by law to write or create content that they find morally repugnant.

I don’t think that bakeries should be allowed to refuse service to anyone based on their race, gender, gender identity, LGBTQIA+ status, etc.

I do think that bakeries or advertisers or website creators, etc. should be allowed to refuse to create content, to write words or symbols or other content that they find repugnant or unacceptable.

Example: if a baker has a portfolio of decorated cakes that include rainbows, for example, I don’t think they should be able to legally refuse to create a cake so decorated with a rainbow for someone who is LGBTQIA+. I DO think they should NOT be compelled to write Happy Gay Pride Month on the cake. I do think they would be assholes and bigots for refusing to do so but no, I don’t think they can be legally compelled to write content they find offensive.

I also don’t think that a bakery should be compelled to create a rainbow cake for anyone if that is not in their repertoire of cakes.

I think that a bakery which creates wedding cakes should be required to create a cake for anyone requesting one. I do NOT think that the bakery should be compelled to write Congratulations Steve and Jeff. I don’t think a bakery ( or any one) should be compelled to create content which violates their sincerely held beliefs. So, no, a Christian baker should not be compelled to write Satan Lives! Nor should a Wiccan baker be compelled to write Christ is Lord on cakes.

And advertising agencies or a website creators should not be compelled to create content for any person or cause or promoting any message they find morally repugnant. For example: No one should be compelled to create content that is pro life, if they support abortion rights. Likewise no one should be compelled to create content that is pro-choice if they disagree with that.

Excellent point, but it is important to view the case in terms of the Colorado state law that the Court is attacking with this ruling. That law is about providing services to protected groups, not necessarily the content of what is on a wedding cake this time. The last time, it was about producing a wedding cake with maybe an image of two men or two women joining hands in matrimony. Being religiously opposed to such marriages was the excuse for not providing the service, so the Court began to make freedom of religion be more important than discrimination against protected minorities in terms of injury. If the injured parties are opposed to that wedding cake because it would require them to disrespect God, then it didn't matter that the other party--a group--was being discriminated against.

The new ruling attacks the law on the grounds of free speech, not religion. So now a web site designer is being forced to promulgate speech over the internet that makes her company appear to say something in favor of same sex marriages. I'm not sure how that harms her or her business, since there was never a victim to step forward and inform the authorities that their protected class was being injured. So the law was not actually invoked, and it isn't at all clear that the state would have brought charges under the law in this case. The ideologues on the Court really needed there to be a viable application of that state law in order to be able to make their ruling. I suspect that was communicated to the plaintiff behind the scenes, which was why a "Stewart and Mike" suddenly appeared out of nowhere to at least provide a concrete pretext for standing.

Nazis are not a protected minority, but gay men and women are. Now the hypothetical is that the state would have required the business to design that web site for a protected group. The designer's business was communication with the public--a form of advertising--and the injury to the designer was her being forced to promulgate something publicly that the web designer believed to be wrong. She supposedly felt she was being used as a hand puppet by liberals. The designer would not be required to do that for Nazis, so her freedom to refuse Nazis comes to trump the law banning discrimination against gay men and women. Free speech becomes a weapon against antidiscrimination laws. Much broader and more effective than using religion as a weapon against antidiscrimination laws.

 

[CosmicJellyfish]

It is ENTIRELY about whether or not someone can be legally compelled to create content that they find repugnant.

Do you think a racist graphic artist who wants to design wedding websites should be allowed to refuse to work with interracial couples? Wedding websites are going to have custom content, including pictures of the betrothed couple displaying affection in various ways that a racist will likely find repugnant.

WASHINGTON (AP) — In a defeat for gay rights, the Supreme Court’s conservative majority ruled on Friday that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples.

The Supreme Court rules for a designer who doesn't want to make wedding websites for gay couples

The Supreme Court’s conservative majority ruled a Christian graphic artist who wants to design wedding websites can refuse to work with gay couples, a setback for LGBTQ+ people and another win for religious plaintiffs.

apnews.com

 

[Copernicus]

It is ENTIRELY about whether or not someone can be legally compelled to create content that they find repugnant.

Do you think a racist graphic artist who wants to design wedding websites should be allowed to refuse to work with interracial couples? Wedding websites are going to have custom content, including pictures of the betrothed couple displaying affection in various ways that a racist will likely find repugnant.

WASHINGTON (AP) — In a defeat for gay rights, the Supreme Court’s conservative majority ruled on Friday that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples.

The Supreme Court rules for a designer who doesn't want to make wedding websites for gay couples

The Supreme Court’s conservative majority ruled a Christian graphic artist who wants to design wedding websites can refuse to work with gay couples, a setback for LGBTQ+ people and another win for religious plaintiffs.

apnews.com

Let's see how it plays out when a web design business decides that it won't display pictures of interracial marriages because the owner of the business is against race mixing. I suppose that Thomas would be in favor of the Colorado law putting an end to that, but maybe not. He could take the libertarian route and say that people can just patronize a business that is not against race mixing, assuming that the Klan has not found ways to limit the availability of such separate but equal businesses.

 

[Toni]

It is ENTIRELY about whether or not someone can be legally compelled to create content that they find repugnant.

Do you think a racist graphic artist who wants to design wedding websites should be allowed to refuse to work with interracial couples? Wedding websites are going to have custom content, including pictures of the betrothed couple displaying affection in various ways that a racist will likely find repugnant.

WASHINGTON (AP) — In a defeat for gay rights, the Supreme Court’s conservative majority ruled on Friday that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples.

The Supreme Court rules for a designer who doesn't want to make wedding websites for gay couples

The Supreme Court’s conservative majority ruled a Christian graphic artist who wants to design wedding websites can refuse to work with gay couples, a setback for LGBTQ+ people and another win for religious plaintiffs.

apnews.com

I think a graphic artist should be legally allowed to accept or refuse any clients they choose fir whatever selection criteria they use.

I believe that selecting clients on the basis of their race, religion, ethnicity, gender identity, sex or sexual preferences or because the clients are a mixed race couple is morally repugnant and disgusting, the same as I believe that belonging to a Nazi organization is disgusting and morally repugnant. But it’s not constitutionally forbidden to be disgusting or morally repugnant.

 

[CosmicJellyfish]

It is ENTIRELY about whether or not someone can be legally compelled to create content that they find repugnant.

Do you think a racist graphic artist who wants to design wedding websites should be allowed to refuse to work with interracial couples? Wedding websites are going to have custom content, including pictures of the betrothed couple displaying affection in various ways that a racist will likely find repugnant.

WASHINGTON (AP) — In a defeat for gay rights, the Supreme Court’s conservative majority ruled on Friday that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples.

The Supreme Court rules for a designer who doesn't want to make wedding websites for gay couples

The Supreme Court’s conservative majority ruled a Christian graphic artist who wants to design wedding websites can refuse to work with gay couples, a setback for LGBTQ+ people and another win for religious plaintiffs.

apnews.com

I think a graphic artist should be legally allowed to accept or refuse any clients they choose fir whatever selection criteria they use.

You think a graphic artist should be allowed to discriminate based on race but a restaurant shouldn't? What's the difference? A chef could argue that his meals are a form of artistic expression.

I believe that selecting clients on the basis of their race, religion, ethnicity, gender identity, sex or sexual preferences or because the clients are a mixed race couple is morally repugnant and disgusting, the same as I believe that belonging to a Nazi organization is disgusting and morally repugnant. But it’s not constitutionally forbidden to be disgusting or morally repugnant.

Let's try to avoid motte/bailey.
The issue at hand here is actual real world discrimination against classes of people, not holding morally repugnant views.

Equal Protection Clause - Wikipedia

en.wikipedia.org

 

[Toni]

It is ENTIRELY about whether or not someone can be legally compelled to create content that they find repugnant.

Do you think a racist graphic artist who wants to design wedding websites should be allowed to refuse to work with interracial couples? Wedding websites are going to have custom content, including pictures of the betrothed couple displaying affection in various ways that a racist will likely find repugnant.

WASHINGTON (AP) — In a defeat for gay rights, the Supreme Court’s conservative majority ruled on Friday that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples.

The Supreme Court rules for a designer who doesn't want to make wedding websites for gay couples

The Supreme Court’s conservative majority ruled a Christian graphic artist who wants to design wedding websites can refuse to work with gay couples, a setback for LGBTQ+ people and another win for religious plaintiffs.

apnews.com

I think a graphic artist should be legally allowed to accept or refuse any clients they choose fir whatever selection criteria they use.

You think a graphic artist should be allowed to discriminate based on race but a restaurant shouldn't? What's the difference? A chef could argue that his meals are a form of artistic expression.

I believe that selecting clients on the basis of their race, religion, ethnicity, gender identity, sex or sexual preferences or because the clients are a mixed race couple is morally repugnant and disgusting, the same as I believe that belonging to a Nazi organization is disgusting and morally repugnant. But it’s not constitutionally forbidden to be disgusting or morally repugnant.

Let's try to avoid motte/bailey.
The issue at hand here is actual real world discrimination against classes of people, not holding morally repugnant views.

Equal Protection Clause - Wikipedia

en.wikipedia.org

What people create is covered under protections of free speech.

 

[TomC]

Do you think a racist graphic artist who wants to design wedding websites should be allowed to refuse to work with interracial couples?

Yes. Absolutely.

Another question might be, "Why would an interracial couple demand a wedding website by a racist? What possible reasons are there for wanting a website by that particular designer?"

The answer is obvious to me.
Do you understand it?
Tom