It was surprising to me, and I believe most people to learn that 303 was a Freedom of Speech 1st A case. Before looking at it I assumed it was a 1st A free exercise case. The idea that non-discrimination law was coercive speech is just so ridiculous that only a Supreme Court with animus towards the gay community/desire to promote a Christian state would rule that way. But the other situations cited in this post will not be decided on free speech, but on free exercise. And the pro discrimination forces will win. That is the future this Court is charting, free exercise rules, the establishment clause, well it is being repealed by this Court, isn't it.
The answer to this comment is that we are evolving into a world where there is not equality before the law, but a dual presence where rights depend upon the position of the person advocating for the right.
For example, Parent’s Rights can be near absolute when it comes to not only which books their children have access to in schools but also which books other person’s children have access to. But in terms of medical care for their children, parents have no right when legal care proposed by trained and licensed and regulated health care professionals is opposed by those who would use government to dictate that care instead.
Another example, already noted here is with anti-discrimination. Those providing goods and services in the market place cannot discriminate against those who are served, unless that discrimination is based on a self declared deeply held religious belief, in which case discrimination is allowed.
Also, tax dollars are not to be used for the direct support of a religion, unless that religion is the “right” religion in which case tax dollars can directly support a religion as in the case of an Oklahoma granting tax dollars to a Catholic Charter school which will teach the Catholic religion.
So as far as the medical profession is concerned, while under the 1A speech cannot be compelled, it can be compelled to support the “right” position such as requiring physicians to verbally force alternatives to abortion onto their patients, and while under 1A speech cannot be suppressed based on content, speech that physicians may use to inform patients of their reproductive rights or try and prevent gun deaths due to unsafe handling of firearms in the home can be suppressed as that is not the “right” speech.
Isn't this the sort of case where Kagan puts together a 7-2 majority with a narrow holding? "When the government stipulates to having passed a law that directly violates First Amendment precedent, then the district court must enjoin enforcement."
This installment of the analysis of 303 Creative is precisely on target to my question after the first installment.
That leaves me with basically the same question though about what happens as this decision is tested further as we get down the road. Clearly, well at least as clearly as something this poorly done by the parties involved in Creative 303, there will have to be a lot more work done on this mess. There is the distinct possibility that Colorado's decision to stipulate away it's arguments on one side of this supporting it's legislation needs to be considered in light of malpractice/incompetence/fraud. Was this done intentionally? Was this done as a result of negligence? Was this done as a result of poor lawyering? Why wasn't this returned for proper consideration back to the lower courts?
I think I can produce a very good and very applicable question to these problems that will probably illustrate the impossibility of supporting this decision in the future. It will take some time but I will see if I can posit this decently.
I think Colorado was tricked and had no idea stipulating wedding websites that 303 Creative might one day sell were expressive would be manipulated by Federalist Society justices to wreck anti-discrimination law.
Who cares if a business sells expressive wares? Go on Etsy. Everything is expressive. This is the first time discrimination by a place of public accommodation was blessed from on high because the owner would allegedly use her imagination to make goods sometime in the future.
I have thought on this quite a bit. There is a case for testing law. There is a case for restraining the hypothetical tests of law in a court. In this instance, it would (should) surprise no one if the plaintif, the prospective client(s) of the plaintif and their business with each other was constructed out of whole cloth. That would seem to be to be perhaps the worst abuse of the system in that the very foundation of the test is based upon false information leaving no place to build the truth of the matter since there can be no truth to any of it. We altogether too often construct our works upon such basis and then need better men than we to find a way out of the mess.
As insane as it sounds, this Court is moving towards the position that all anti-discrimination laws fail in the face of any unsupported claim of sincere religious belief. Everyone should look at the history of support for segregation, where church doctrine was cited by lawyers and judges as the rationale for not allowing a "mixing" of the races. As a Jewish person I expect to see the Court uphold a business that denies services to Jews because doing so would require the business owner, a deeply devout Christian, to condone people who do not believe that Jesus is their Savior. Spoiler alert - He's not.
It was surprising to me, and I believe most people to learn that 303 was a Freedom of Speech 1st A case. Before looking at it I assumed it was a 1st A free exercise case. The idea that non-discrimination law was coercive speech is just so ridiculous that only a Supreme Court with animus towards the gay community/desire to promote a Christian state would rule that way. But the other situations cited in this post will not be decided on free speech, but on free exercise. And the pro discrimination forces will win. That is the future this Court is charting, free exercise rules, the establishment clause, well it is being repealed by this Court, isn't it.
Hmm. I wonder what the implications of this decision are for doctors forced to give false information to patients who are considering abortion.
The answer to this comment is that we are evolving into a world where there is not equality before the law, but a dual presence where rights depend upon the position of the person advocating for the right.
For example, Parent’s Rights can be near absolute when it comes to not only which books their children have access to in schools but also which books other person’s children have access to. But in terms of medical care for their children, parents have no right when legal care proposed by trained and licensed and regulated health care professionals is opposed by those who would use government to dictate that care instead.
Another example, already noted here is with anti-discrimination. Those providing goods and services in the market place cannot discriminate against those who are served, unless that discrimination is based on a self declared deeply held religious belief, in which case discrimination is allowed.
Also, tax dollars are not to be used for the direct support of a religion, unless that religion is the “right” religion in which case tax dollars can directly support a religion as in the case of an Oklahoma granting tax dollars to a Catholic Charter school which will teach the Catholic religion.
So as far as the medical profession is concerned, while under the 1A speech cannot be compelled, it can be compelled to support the “right” position such as requiring physicians to verbally force alternatives to abortion onto their patients, and while under 1A speech cannot be suppressed based on content, speech that physicians may use to inform patients of their reproductive rights or try and prevent gun deaths due to unsafe handling of firearms in the home can be suppressed as that is not the “right” speech.
Hopefully this clears things up.
Isn't this the sort of case where Kagan puts together a 7-2 majority with a narrow holding? "When the government stipulates to having passed a law that directly violates First Amendment precedent, then the district court must enjoin enforcement."
THANK YOU!
This installment of the analysis of 303 Creative is precisely on target to my question after the first installment.
That leaves me with basically the same question though about what happens as this decision is tested further as we get down the road. Clearly, well at least as clearly as something this poorly done by the parties involved in Creative 303, there will have to be a lot more work done on this mess. There is the distinct possibility that Colorado's decision to stipulate away it's arguments on one side of this supporting it's legislation needs to be considered in light of malpractice/incompetence/fraud. Was this done intentionally? Was this done as a result of negligence? Was this done as a result of poor lawyering? Why wasn't this returned for proper consideration back to the lower courts?
I think I can produce a very good and very applicable question to these problems that will probably illustrate the impossibility of supporting this decision in the future. It will take some time but I will see if I can posit this decently.
I think Colorado was tricked and had no idea stipulating wedding websites that 303 Creative might one day sell were expressive would be manipulated by Federalist Society justices to wreck anti-discrimination law.
Who cares if a business sells expressive wares? Go on Etsy. Everything is expressive. This is the first time discrimination by a place of public accommodation was blessed from on high because the owner would allegedly use her imagination to make goods sometime in the future.
Preposterous.
I have thought on this quite a bit. There is a case for testing law. There is a case for restraining the hypothetical tests of law in a court. In this instance, it would (should) surprise no one if the plaintif, the prospective client(s) of the plaintif and their business with each other was constructed out of whole cloth. That would seem to be to be perhaps the worst abuse of the system in that the very foundation of the test is based upon false information leaving no place to build the truth of the matter since there can be no truth to any of it. We altogether too often construct our works upon such basis and then need better men than we to find a way out of the mess.
As insane as it sounds, this Court is moving towards the position that all anti-discrimination laws fail in the face of any unsupported claim of sincere religious belief. Everyone should look at the history of support for segregation, where church doctrine was cited by lawyers and judges as the rationale for not allowing a "mixing" of the races. As a Jewish person I expect to see the Court uphold a business that denies services to Jews because doing so would require the business owner, a deeply devout Christian, to condone people who do not believe that Jesus is their Savior. Spoiler alert - He's not.