56
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US Supreme Court says First Amendment entitles web designer to refuse to do gay weddings
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- Title
- Supreme Court rules against Colorado in case that pitted religion against LGBTQ rights
- Authors
- Nina Totenberg
- Published
- Jun 30 2023
- Word count
- 490 words
How in the world does this person have legal standing when she hasn’t even created her business yet?
The court doesn't need standing when it's playing Calvinball. Seriously, they grossly misrepresented the facts of another recent case, to the point where the outright made stuff up in their decision.
This is a well-established technique.
The anti- group don't care about what's actually happening, they just want to bring court cases. They don't even care if they win or lose. They want to muddy the water. The value is in creating a narrative that's repeated in the news. Here the narrative is "gay people want to take away your freedom". The reality is more complicated (gay people don't necessarily want to give their money to open bigots, and there's a bunch of stuff that business owners can't do already) but like a Gish Gallop, the media has led with the quotes from the bigots and by the time anti-bigotry organisations get a reply the cycle has moved on and the general public doesn't care. But now there's a perception that "it's okay to not serve gay people because er, there was that case last year, right?", or "it's okay to not employ gay people, because er that case last year" and so on. We've had a long struggle to make discrimination less acceptable, less possible, and less legal, and this deliberate confusion is aimed at rolling some of that back.
The technique is particularly prominent in common law jurisdictions, because case law in those countries is law, and it can modify understanding of acts and statutes.
It's so grim to see it in action.
Well, at least if I go into any kind of creative work (I used to do web/design stuff at a local/hobby level), I can now refuse to provide work to conservative Christians. Don't get me wrong, this ruling sucks (religion is a choice, being LGBTQ+ is not, so there's a difference already and IMHO LGBTQ+ deserves more protection than religion does, even).
But, if they're going to use this discrimination against us, it's time to take the problem they've created and turn it against them. I will fight fire with fire and not shed a tear over it.
It's surprising how fragile our foundations have revealed themselves to be this past half decade, what with the gutting of Roe, the end to Affirmative Action, etc. Naturally, all of these things should be able to be codified into law (in my mind, this is better than a supreme court ruling and a chance to make better-worded laws), and I'm interested to see what will happen in 2024. If congress remains gridlocked, or if Biden loses reelection (which is entirely possible), then we may need to admit that this is what the people want. I don't think it's natural in the slightest to want hinder human progress, weaken the human condition, or simply to hate each other or be scared of one another. We need to follow the trail to the ant hill and show people where their hate comes from.
It's not what people want. It's that our political system wasn't set up with the idea that there would be bad actors who would just ignore precedent (There's a lot that just leaves it to good faith of politicians). And we have people like McConnell who are smart enough to figure out how to abuse that to the extreme. And stuff like gerrymandering. And even political apathy (people not caring or who gave up and wont' spend the time cause why bother when it's fucked anyways). Political apathy is a good reason we should have mandatory voting (but the assholes who keep winning this bullshit don't want that cause they would lose).
I mean I think this country is fucked, but I don't think it's cause the assholes are the majority. But they have a party that's willing to do whatever it takes to get power even if they aren't the majority choice (and they are fascists and don't really give a shit if that's what the majority wants). And we have partly an incompetent party and voters who don't go out unless they love the candidate. I mean it's good we question our own but in the end suck it up and pick the least worst option for fuck sack instead of using it as a reason to not vote or vote for some one who doesn't have a chance. I mean the republican voters realize this and look where it's gotten them (we have a much harder time winning against them even though they aren't the majority). And realize with our voting system that voting third party is just helping whatever side of the two parties that you dislike more that do have a chance win. It sucks, it should be changed, but it is what it is and you have to work with what you got. And that's what we got for now (and honestly it's going to be hard to change cause it doesn't benefit either of the two parties in power to change it).
Oh, and while they aren't the majority, the amount of assholes in this country are way too high.
If you have a country that is 1/3rd fascist, 1/3rd anti-fascist, and 1/3rd apathetic, then you have a country that is 2/3rds fascist.
I’m unconvinced that this is the voters fault, that “If they would just vote for the candidate we chose for them - The DNC” everything would be all ok. There is legitimate grievance with how our political system has shaken out, with two choices that voters didn’t really choose. The candidate on the right has it easier because they are singular in focus and that makes it easier to unite. But the left, being a catch all for all sorts of large and small groups, doesn’t have singular focus and therefore is never going to be as easy to corral. Does that mean it’s their fault if they don’t “Suck it up” and vote for someone who doesn’t represent them? Should they just cast aside their needs and rights to give the election to a candidate that is, sometimes (if not most of the time) interested in keeping the status quo as normal as possible. The DNC has the same propensity to treat our politics as a business that should be largely unchanged, because it serves them. I have trouble pointing a finger at voters and saying “How dare you exercise your right to refuse support to someone who you believe doesn’t have your interests in mind at all, but is rather just using them to better themselves.”
As painful as it is, and it’s painful, sometimes the game is longer than just one election cycle. This 30-year plan by conservatives to shift the court is a great example of that. Maybe the left let itself become so stale and complacent, because they didn’t think they had much to lose. Now they stand to lose a lot and are forced to reckon with what needs to change in order to survive. Maybe the US has some really painful years ahead of itself, not because of the voters failed, but because the elected officials got fat and greedy and abdicated their responsibility to protect this all. Plenty of countries have fallen for this very reason and the US isn’t immune.
And this kind of thinking is how we got the supreme court where it is. Sometimes you do have to think about the short term cause it won't matter if what happens in teh short term will affect the long term. You think it's going to be easier or harder to change our system with the supreme court how it is? Guess what, people were sayign the same thing about justifying not voting for Hillary cause she wasn't their perfect candidate. And then Trump got to decide Supreme Court nominees (and we already knew for a fact he'd be able to imbalance the court cause McConnell was making sure the next president got the already guarenteed spot to pick.. it got worse and he got two spots to pick). And they are FOR LIFE. And we already are seeing how that can really give the REpublicans a lot of power. Those people who refused to vote for hillary cause she didn't represent them (not cause they liked the republicans) helped fuck over our country a lot for Life of the people on the court. And that is very long term.
As I said, our system is what it is and it is what we have to work with. You aren't going to get change in the long term if you don't vote out the party that wants to be fascist even if the other party isn't great either. And you most certainly aren't going to get a better voting system out of the fascist group (though I admit that probably won't happen with the democrats either. But really, can people at least wait until we dont' have one truly evil party before they start deciding to make it easier for that party to take over?).
Right now we don't have the luxury of not voting (or voting third party cause our system just makes that a throwaway vote) just cause both parties are bad. One party is going to absolutely destroy our country and turn it fascist. Even status quo is better than that! And yes, voting third party is a throw away vote. Do you see the needle having moved much to convince enough people to make third party viable? you really think you're going to convert enough people to do taht (third parties still get way smaller part of the vote than the two main parties)? You're really living in a fantasy world if you think it would happen with our voting system.
But go ahead, keep justifying why you won't vote for one side because it doesn't represent you even though the other side will actively try to harm you.
You want change? It won't happen fast (unless you want violent revolution) but if we got enough people to actually make the Republican party not viable it would cause the Democrat party to split (cause like you said, there is a lot of different idealogies in it and the only reason it doesn't split is the viable alternative if it doesn't win is an absolutely atrocious party) and we could possibly have two not absolutely evil parties (but first we have to get rid of the absolutely evil one. You aren't going to do that without getting rid of the Republicans first).
First, I think it's important that we take note of the fact that hindsight always makes it more clear what should have been done. By it's very nature, it makes the decisions of the past seem like they were no brainers, because how could you not see how things would play out. But we also know that history is long and full of people spouting "Sure things" that were wrong in the end. Yes, your argument seems more well founded, because just look at all this (gesturing around wildly), but the people making those decisions at that time didn't have your luxury. They saw the flaws in our system, neither party of which wanted to fix, so they used their voice to speak as loudly as they could. Did things turn out badly? Yeah, absolutely. But the reality those voters lived in told them that in all likelihood, they were never going to get the just system they were promised, they were only ever going to get people who maintained the status quo, so they made the best decision they could.
I get that the rise of fascism in the US is a problem, many informed voters do, but most voters aren't informed, they decide in the booth. So it's not surprising that they needed a catastrophic presidency and Senate to slap them in the face in order to jump into action. Voters turned out harder than ever in 2018 and 2020, they'll also likely do the same this year and next. Sometimes people need to experience a taste before they can be willed into action, because anyone and everyone will guarantee them the end of the world is certain, but we all know those guarantees don't hold water regularly.
I do not believe that the voters are to blame for what has happened in this country, they have been conditioned by the status quo to accept lackluster leadership that is only interested in benefiting the country as an entity, themselves, and their most important citizens - corporations. Voters weren't given a good reason to vote until they actually saw what was happening. So, maybe the loss of their rights or the crumbling of the country is what will bend the trajectory of human rights in north America back in the right direction. We have numerous examples of that throughout history, intermixed between all the terrible violence of humanity's story.
The democrats' strategy of holding their voter base hostage by relying on the other side being seen as worse (even if the other side actually is worse in practice), is not enough for me to support their candidates. In fact, it makes it pretty clear that the democratic party is obsolete. The US needs a viable progressive party not beholden to the status quo. The biosphere will burn down around us while bootlicking, conflict averse liberals cling to their outdated, broken system.
This next presidential election will be the deciding factor if I continue to live in the US. I cannot go Thur another era where a president uses social media as a weapon, a president who blackmails other countries and uses the Federal government to enrich himself and friends. Literally the most miserable time of my life.
My wife and I have also been exploring a move outside the US since 2018-19 and felt the same during the 2020 election, we'll also reassess after 2024. It's scary to think about moving out of the country you've spent your entire life, though, at least it is for us.
I think this applies a serious misconception to the voting system, the idea that it actually represents the people. It doesn't. The voting system disenfranchises large swathes of people, in various ways, to the point where either people have become so disillusioned with it that they don't vote, or that it's very difficult or inconvenient for them to vote, their vote doesn't count or doesn't have equal weight as others' votes, or that they potentially can't vote at all.
Whether it comes to voting districts and gerrymandering, electronic vs paper voting, voting systems like First Past the Post or Proportional and all the subsets and variations related to that, money = speech and so much more, the idea that you can say the result of an election is "what the people want" is farcical. The people barely have a voice, and historically that's probably often been the case, especially in the US.
You're 100% right. I encourage you and everyone else to get out and vote in 24 no matter the obstacle, though I don't think you will personally need any encouragement from me 👍
Not that it matters, but I don't actually know if I can vote or what obstacles I have to overcome to vote, because my legal residence is not the one that I actually reside in.
It matters. I'm just a 35 year old dude, but I want to offer you some wisdom if you'll accept it.
The best advice I ever received was "be proactive, not reactive". You'll get nothing done by languishing on the problem. Be solution-oriented. It's a Point A to Point B thing. If you see a barrier between you and casting your vote, that vote is tremendously valuable. You need to overcome it.
This is faulty reasoning and I’ll explain why — there’s more hateful bigots (on the orders of 10 to 100 times more) than there are LGBT people and this will be used to harm proportionally magnitudes more LGBT people than it ever can hurt cisgender straight fascists.
They know that. They’re counting on it.
My post was not an argument FOR the decision.
In regards to your post I don't disagree with you at all, but in the face of the inevitability of what has happened, any amount of pushback is welcome. All I'm saying is fight. Make sure, even if in very little ways, that those that push for this kind of thing are punished in return.
There’s a small group of extremists who act upon this. I’m more infuriated with the “apolitical” people who enable, protect and effectively support those extremists for non-ideological reasons (usually “it’s easier/comfortable” for them to just let it happen).
Exactly. I would love to see this done. It has shown to be effective too (talk to the church of satan I believe whose whole purpose is to piss off christians when they claim freedom of religion to make them see why the freedom to force your religion on others is not freedom of religion. Many times they will use rules to insist then that if christians get to have a class on christianity in public school, so do us satanists. And suddenly, the christians are like pikachu face and realize that maybe not allowing religious classes in school is more allowing freedom of religion.
Isn't this the exact same as the "gay wedding cake" debacle? IE, you are obligated to make a cake/website for someone, but that obligation doesn't extend to custom designs for concepts you disagree with.
Her suing before it even became an issue is odd. I wonder how she had standing.
Pretty much. But with the gay wedding cake, the court just avoided the question of whether or not you can compel a business to provide service or not, so it didn't amount to much.
Hiring someone to make a custom site, yea, they can be a bigot. But denying queer content on say wix would be discrimination.
This is basically the holding. It was clear after oral arguments that the artistic and/or editorial component of the work in question is the primary question.
I mean i do the same, i don't do side work for conservatives but i don't run a business, just help out friends with IT issues.
Unfortunately, they've once again expanded the "free speech" rights of public corporations. This is an end run around anti-discrimination laws of all kinds - race, religion, sexuality, political alignment, you name it. The theory used to be that corporations exist for public benefit, and they can be constrained in ways that aren't acceptable when regulating individual rights.
The U.S. government can't generally force an individual citizen to associate in ways that violate their precepts, as one of the Bill of Rights freedoms. There are exceptions, like requirements for children to go to school (this can be done privately to facilitate freedom of religion), military service (with non-combat and conscientious objector exceptions), etc. But prior to Citizen's United, these rights were never extended to businesses serving the public. Hobby Lobby permitted a private company to discriminate against the reproductive rights of its employees on religious grounds. And it's just going to continue until no one is protected from corporate "rights" of speech and association.
Doesn't even need to be a real corporation of business anymore to get free speech. The one in this case was non-existent. Prepare for a lot more hypothetical situations to extend rights to Christians above all. I see a lot of people saying they will turn this around on them, but the supreme court does not care about consistency or precedent anymore.
If anyone wants to read the opinions you can do so here
I honestly felt like I was about to have an anxiety attack for a moment.
There have been so many small signs that this country is going to fall to fascism but this one hurt personally. Not only is this something that has an actual effect on me, but the way it happened makes absolutely zero sense. This case didn't even have standing because the whole thing was hypothetical; they never suffered any damage of any kind, but the supreme court picked it out and they decided they were going to change the rules.
Fuck this shit.
I need to get out of this country so badly. I don't want to be here to suffer at the hands of the fascist uprising.
So I've been reading the opinion. In practice, this boils down future discrimination cases about denial of service to the legal test as to whether the product of the service is considered speech. The argument the course made was that the act of designing a website is considered speech, and under the 1st amendment, the government cannot compel speech. So if the service is speech, then you can discriminate by not doing the service against anyone of any characteristic.
The gray area there is also where it matters the most.
For the web design case itself, I think it's fair to consider it speech, and in cases where the product is clearly speech, in practice I'm not sure it changes all that much. If a gay couple were to ask this nutjob for a wedding website, even if they had to make it for them, they'd be within their legal right to simply do a really bad or offensive job. They can take the photos and photoshop the couple in hell or something. Slap bible verses all over. In practice, for something like a website you'd never go to designers who so poorly align with your beliefs for that reason. And the same for all the other cases where the product is clearly speech.
The old cake case is more in the gray zone and where it could have an affect. Does writing names on a cake count as "speech", or it just a routine service? The court didn't opine on anything in that case, so we don't know.
I think certainly things like service at a restaurant, or admissions at a school, would not count as speech.
Interesting. This is the kind of information I find missing in news coverage and social media, much of which frames the case ruling as "it's now okay to discriminate against gay people".
I think this ruling... makes sense? The distinction between services that are and are not speech is important.
I'm a gay designer. Personally, I dislike religions that are anti-gay. If such a religious organization came to me to design a website, whether it's as innocuous as a church website or as abhorrent as a conversion therapy service website, I'd like to have the freedom to decline them as a client.
I've seen a lot of comments that come down to this, and I can see that. However, I was under the impression that a large part of what informs this case is the fact that sexual orientation is a protected class. Even if you can't compell speech, surely it does in reality result in discriminating against that protected class? I believe that plaintiff says that she doesn't discriminate based on sexual orientation for any other kind of website; however, doesn't this essentially state that you can discriminate against what is an action that is essential to the identity of that protected class? You can't discriminate against LGBTQ people, but you can discriminate against what LGBTQ people do. You can't discriminate against Muslims, but you can discriminate against what Muslim people do. You can't discriminate against people for their race, but you can discriminate if they are two different races getting married.
I've also seen folks saying that a ruling otherwise would say that you could force someone to make a website for a white supremacist, for example. Would I be wrong to say that that doesn't apply because political opinions aren't protected? I really don't understand why the fact that LGBTQ people are a protected class is being entirely ignored. This strikes me as much the same argument that it's not discrimination against LGBTQ people because they still have the right to get het married.
I do agree there is some weird gray area. I imagine that the plaintiff would be in her right to say that every single one of her websites will have a Christian message, or a quote from the Bible. This doesn't discriminate against Muslim or LGBTQ people (or even weddings) in particular. But the plaintiff specifically said she wanted to put up a message saying she wouldn't make websites for LGBTQ weddings.
I don't know, I don't have any legal background. But I do have a lot of questions.
Yeah, that's what makes it a case, since otherwise you'd be free to deny service to people you don't want to provide service for.
I'm not sure what you mean by this. Basically, what the court says is that the 1st amendment trumps equal protection for protected classes. So if your service is speech, and you are discriminating by not providing speech, then you can discriminate, in that manner, against a particular race, religion, or sexuality.
No, you're correct that a political ideology like "white supremacist" is not protected, and in general you can deny service for any reason.
Ah, OK! I was assuming protected classes trump that, but I suppose that's what the entire case was about. Thanks for clearing it up!
Designing a website, if it can be considered speech at all, is at most commercial speech, which is legally differentiated from other forms of speech. Designing a website is no more speech than directing a televising advertisement, and if the government can compel pharmaceutical companies to include a list of side effects for the public good, then it can compel a web designer that they cannot discriminate against their clients on the basis of sexual orientation as a matter of public good. The real reason they won't is because at the end of the day Roberts and co don't believe protecting the LGBT community from discrimination is for the public good. Roberts didn't think it mattered in Obergefell; he doesn't think it matters now.
The question should not be whether web design could be considered speech or art or if it involves creativity. If you want to find similarities, you'll find similarities. If that were really all that mattered, then child porn and bomb threats would easily be categorized as artistic speech. Think of the creativity involved! The editorial considerations! The statements being made!
But they're not consisted speech, are they? At lease not protected speech. Because it's not how similar they are to other forms of speech but rather how they are different that is important. It's the practical effect that the speaker has on the public that takes precedence over the right to expression.
...
Also, with respect to enforcement, they would absolutely not be within their right to do an intentionally bad job. That's literally the entire reason we had a civil rights movement in this country over "separate but equal". If it were a client requesting help setting up a black dating site and the designer didn't want to help because they were racist then we wouldn't even be having this discussion.
Someone invented a scenario where they might have to serve lgbtq people and now discrimination is legal in America.
Fuck America. I'm done. I'm fucking done. Get fucked.
And we even have people even here saying it’s okay, even though if it was a site designer refusing to serve Black people it would’ve gone differently.
Reddit didn't even sticky a thread about it. We don't matter. Message received.
Asking this sincerely - what if the web designer decided not to work for a group of Nazis? I certainly wouldn't want to be forced to design Nazi websites.
At what point then do we make the split? When do we allow people to decide what work they want to do and for whom?
edit: thinking more about it, maybe the issue is that gender identity and sexual preference are not protected classes, despite the likely fact that people are born into it and thus, unlike being a nazi, is something the person did not choose?
this is a pretty well-settled area of discrimination law, called protected classes.
things like race and sexual orientation are protected classes, which means discrimination based on them is not allowed. being a Nazi is in general not a protected class (some jurisdictions, including here in Seattle, do include political ideology as a protected class)
this is also why a business can put up a "no shoes, no shirt, no service" sign, but not a "no blacks" sign. not wearing shoes is not a protected class.
Nazism isn't a protected class. Are you being serious right now? We're talking about protected classes here - on gender, race, sex, ability. Not political beliefs.
I swear I am, not trying to rouse rabbles here and I appreciate your response.
So if the SC is going to say religious ideas trump things like protected classes, what's to stop one from saying "my jesus hates black people" and then refusing to serve black people?
This ruling doesn't make any sense to me.
Sexual orientation and gender are protected class characteristics as per Bostock v Clayton.
However, the US insists on carving out special hand outs for religious people to not obey the law.
I guess one would differentiate between a group based on political convictions and other groups of "non-choice-based" adherence such as gender, ethnicity, sexual preference etc.
I'm not a lawyer, but that's what it seems like to me, too. And that's been the goal of conservatives for years. Get their judges appointed, refuse to even hold nomination hearings for the opposing side's judges, and then file suits for the sole perhaps of appealing all the way to the Supreme Court and changing precedent.