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Notes -
Lots of big Supreme Court decisions this week, all important in various ways--none, if you ask me, likely to be nearly as impactful as imagined by either their proponents or opponents. But I was struck by a particular take on the religious freedom in commerce case that I saw popping up in a few places today.
Very roughly, here's the deal: American courts can only decide "cases and controversies." This is a procedural thing, basically you need a plaintiff who has actually been harmed in some cognizable way before you can file a lawsuit. Sometimes this means you need someone willing to engage in a little civil disobedience, breaking the law for the express purpose of getting prosecuted. "Plaintiff shopping" is something activist lawyers have been doing for centuries. But to layfolk this can look a little suspicious, in much the way that forum shopping can seem suspicious. In fact American law is mostly indifferent to this kind of gamesmanship, and in some cases we even regard it as a clever thing to do (at least, when our ingroup pulls it off).
The CNN story presents itself as a "just the facts" observation that--hey, here's a party to the facts of this case who claims he didn't do what the record says he did! Isn't that interesting? Gosh, how "concerning," he says! Nobody even thought to contact him in six years!
No one is saying this changes anything, oh, no! Just, isn't it suspicious? (Is that... winking I hear?) Well, regardless, Stewart is only identified by his first name; CNN was able to contact him "through information in court filings." Although, in another funny coincidence,
Now, CNN is only a mid-sized comedy troupe, but it does rival some legitimate news organizations in size and scope. Still, what are the odds, huh?
I've got several friends in my social feeds sharing the story, now, making snide remarks about how Lorie Smith clearly ginned up this whole case out of nothing. Of course, the CNN story doesn't actually say that; it just reminds the reader how suspicious it is for a plaintiff to have, shall we say, gussied up their case.
But the point of this post is not to take the piss out of CNN. Rather, what struck me was one other remarkable coincidence. There is another incredibly famous LGB rights case from the Supreme Court in which the actual facts of the case are completely irrelevant to the holding: Lawrence v. Texas.
That link is to a New Yorker article called "Extreme Makeover." If you're not familiar with Lawrence v. Texas, this was the 2003 SCOTUS case in which Justice Kennedy declared that the government has no business telling you who you can have sex with, as long as it's consensual and you're in the privacy of your home. Much like the later Obergefell case, Kennedy's opinion in Lawrence is packed with paeans to the sanctity of love and the primacy of intimacy--so packed, indeed, that there is essentially no room for coherent legal analysis! But here's the crazy bit:
There was no gay sex in Lawrence. Indeed, there was no gay couple in Lawrence.
The plaintiffs were gay men, charged under Texas' anti-sodomy statute. If you haven't heard the story, you really must read the New Yorker article. But in short, Lawrence and Garner were not together, sexually or otherwise, before or after the case. But since they were the two charged under the anti-sodomy statute, and activist lawyers wanted a case to take to the Supreme Court...
And so:
Perhaps better court-watchers than myself had some idea of what was going on, but I did not know anything about any of this until the New Yorker article ran nine years later. Does it make any difference? Well, maybe it makes you suspicious. Maybe not. Maybe you're thinking, "hmm, isn't tu quoque an informal fallacy?" Well, I'm not really staking a claim either way. I don't like forum shopping, I don't like plaintiff shopping, but I don't think I have anything like a thoroughly-developed account of why--it's more like a general distaste for gamesmanship. But without gamesmanship, American jurisprudence might scarcely exist at all! So I don't know.
But taking CNN's "just asking questions" article at face value, it makes me wonder where all the real gay people are, and why we can't seem to get a gay rights case in front of SCOTUS with parties who aren't being puppeted, Chicago-style. Okay, that's a bit of hyperbole, but still, two points form a line. So long as Congress remains sufficiently split that impeachment and amendments are off the table, the Supreme Court is the last word on American law. Why bother with the democratic process, if you can convince five unelected and unaccountable moral busybodies to make the law instead? All it takes is a bit of theater, apparently.
It doesn't necessarily end well for the puppets, of course--from the New Yorker again:
I don't know what the moral of the story is. Being disillusioned with the legal process is nothing new or insightful. But this was what occurred to me when I read the CNN piece, and saw people sharing it around as proof positive of the Court's perfidy. No, silly people, the Court is not fundamentally deceptive. The Court is always and altogether--albeit willfully, like a moviegoer whose suspension of disbelief is essential to the process, like a wrestling fan whose kayfabe is the lifeblood of the art form--deceived.
What we’re seeing now in the media is a concerted campaign to delegitimize the Supreme Court now that it is solidly red team. Yes, the “plaintiff shopping” aspect is a non-issue to anyone who has been paying attention, but now it’s convenient to mention because the Supreme Court is not making the “correct” rulings anymore.
I’ve seen twitter comments (granted) making a big deal of Alito’s fishing trip, suggesting that his vote on the student loan case was due to being bought off by the interests of the super wealthy, as if his lengthy jurisprudential track record wouldn’t make predicting his vote on it an obvious no-brainer.
Now that the Court has a solid majority on the right, we’ll see more attempts to lower the esteem of the Supreme Count in the public, until, of course, it flips again back to making the decisions the PMC likes.
In the long view, the rising and falling perceptions of the Supreme Court would make an interesting study of where legitimacy of our public institutions come from. We’re in a time of change.
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303 Creative is a freedom of speech chase, not a religious freedom case.
There is only one point in the line. You seem to think that 303 Creative was an enforcement action brought by the state of Colorado against the company. It wasn't. It was a lawsuit brought by 303 Creative and its owner, for an injunction, because she planned to enter into the wedding website business, but had not done so yet, because she feared that she would get embroiled in an enforcement action. From the Supreme Court decision:
Note also that the fact that the standing issue was not disputed before the Court means that the whole issue of whether or not anyone asked for a wedding website is essentially a red herring.
It is an odd case, given the claims here, and the fact that it's in Colorado just makes it murkier.
Were I a Christian businessowner in Colorado planning to get into the wedding business for whatever slice of the action (cakes, flowers, wedding planner) I'd be very cautious about "will a lawsuit come down the pike if I don't serve LGBT customers?" because those have already happened and been decided in Colorado. The trans case against the baker who eventually won his case seems to be on the part of a Colorado lawyer called Autumn Scardina who is taking the case due to being trans themselves (and who knows, it probably doesn't hurt to get their name out there as LGBT friendly law firm) and is dragging on forever and, my own personal take on it, Scardina is hounding the guy because they do want to drive him out of business because he's not pro-LGBT. I've read so many articles on this I can't remember where I read it, but I think I read that Scardina said part of the reason for asking for the trans cake was in order to bring the case because they hated the anti-gay decision about the wedding cake.
So 303 Creative taking a case makes sense in that environment. But what happened? Did she want to take a case about "suppose someone asks me to design for a gay wedding and I refuse", and was told "they won't decide on that" and she, or her lawyer, or somebody else, then invented or put in a fake claim that a gay guy asked her to do this?
Did somebody really ask her to do it but it wasn't Stewart Nolastname, it was somebody else using his name?
Is somebody trying to get her into trouble - like Scardina with the bakery - but then six years before springing "Aha! There is no gay threat!" seems like an awfully long time to wait?
Did Stewart Nolastname really do it, because he was setting up a CNN exposé story? Again, though, six years is an awfully long time to wait before doing the Hour Long Special.
I have no idea what to think here, and we badly need fresh and accurate information.
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What kind of speech (or silence) are we talking about, here? Are you one of those people who pedantically interjects that the civil war was a state's rights issue, not a slavery issue?
For whatever it's worth, my choice of words there was deliberately poking at the number of people calling this an "LGBT rights case." Because of course the case is sufficiently about that, that it's not entirely inaccurate to characterize the case that way, and yet flip that rhetoric on its head and certain people are bound to get worked up...
Sorry to have given you that impression, but no--I've never thought that at all.
Yes, very good--this is why I found the CNN article, and its downstream effects on conversation in my vicinity, noteworthy.
Freedom of religion and freedom of speech are completely different issues with completely different jurisprudences. If we are trying to understand why the Court ruled as it did, conflating the two is counterproductive.
No, it is not very accurate to call it an LGBT rights case, but since the case is about the permissible scope of a law that protects LGBT rights, it is not entirely inaccurate either.
I don't think they are. First of all, if they were completely unrelated, it'd be weird for them to be mentioned as part of the same constitutional amendment. After all, it's not like the framers wanted to cram everything into a single amendment - they had ten of them initially, they could have eleven. It's more likely that they did consider it all part of the same issue - the freedom of one to live out and speak out their own conscience.
Of course, the caselaw concerning each parts is different - but that's natural for big issues, within freedom of speech there are also a lot of subdivisions, and sub-sub-divisions with its different law framework. Of course, when considering a specific case, one needs to understand that - e.g. not to try and apply commercial speech precedent for religious speech question, or something like that. But they are not entirely unrelated.
If one likes, the case can be formulated as "do 'LGBT rights' include the 'right' to force certain person to speak in certain ways because the person doing the forcing identifies as LGBT" and fortunately, it was decided that the answer has been "no". I am a bit disappointed that the actual answer had to involve religion, because I don't see why it would be more permissible to force an atheist or an agnostic to speak against their will than it is for a Christian, and why should I hide behind a crucifix to not be forced to perform speech I do not want to perform. The mere fact that the speech is not voluntary should have ended the deal. But I guess a small win is still a win.
Yes, but that what I said: that the jurisprudence is different. As I noted elsewhere, in its cert petition, 303 Creative asked the Court to decide both the free speech issue and the freedom of religion issue, but the Court granted cert only onthe free speech issue:
Thus, unless the Court strayed from the issue on which it granted cert, which it didn't, it is inaccurate to frame the resulting opinion as an opinion re freedom of religion.
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This is... not quite right, actually. Both fall under the heading of "First Amendment jurisprudence" and are generally taught to aspiring attorneys together in "First Amendment Law." It is true that there are specific bits of jurisprudence dealing with Speech, Press, Separation, Free Exercise, etc. but as fundamental rights yielding strict scrutiny analysis, the bleed between these issues is substantial. One view, which in my experience is common but which the Court itself has only hinted at, is that all the rights enumerated in the First Amendment are supposed to encompass something like a general "freedom of conscience," or "freedom of thought," or something along those lines. To call them "completely different issues with completely different jurisprudences" is perhaps an understandable mistake for someone who lacks much background in First Amendment law, but it is still definitely a mistake.
Indeed, and since the case encompasses a law that infringes on, inter alia, religious rights, my description is "not entirely inaccurate," either--well said.
Well, I don’t know anything about your background, but I know mine, and I would guess that I have more expertise on First Amendment law than you do. And in fact there is almost no overlap between freedom of religion jurisprudence and freedom of speech jurisprudence. The mere fact that both are fundamental rights to which strict scrutiny is applied means nothing; strict scrutiny applies to all fundamental rights. Note that the Court in 303 Creative did not cite religious freedom cases, and note the complete lack of overlap in Kennedy, the football coach prayer case from last year, between the discussion of whether he had established a violation of his religious expression and his free speech rights.
Huh. Why did I think you were a schoolteacher?
Well. I'm a university professor with citations to scholarly work from federal courts in First Amendment cases. The only way you you have more expertise on First Amendment law than I do is if you're a federal judge. If you regularly practice First Amendment law, then you have more practical experience than me, but you might occasionally have reason to consult me on matters of theory if you're writing an appeal. Are you a First Amendment lawyer (or federal judge)? That would be interesting, because some of your takes in this thread strike me as really, really bad. In an effort to avoid a pissing contest I earlier deleted an incredulous question about where you went to law school. But now that you've brought background into it, I really do have to wonder!
That you were wrong about this when I thought you were a schoolteacher was kinda whatever. If you are a law-trained person, like, get a refund, because this is a really bad take. But you know--don't take my word for it! Consider this:
The piece goes on to acknowledge a bit of what I think you might be trying to say, but feel free to clarify!
Most of this is Establishment issues, rather than Free Exercise, but
So, yeah--they're different! There's a difference. Like, obviously, right? But the idea that there is--to quote you directly--"almost no overlap between freedom of religion jurisprudence and freedom of speech jurisprudence" is either wrong, or a motte and bailey on "almost no." Could there be more overlap? Well, yes, I assume there could. Is there "a lot" of overlap? Well, what's "a lot?" If we disagree about what "a lot" is, then how can we mediate that disagreement besides endlessly nitpicking one another's phrasing? You yourself raised Kennedy, which is a case of overlap, so you were clearly aware of some overlap! So why lead with
??? That was wrong! Demonstrably from your own comment that was wrong! And instead of acknowledging, "okay, I overstated my position, but I do think this specific case we're talking about is sufficiently separate..." etc. etc. you went with a weasel-worded "almost no." This is very lawyerly of you, but at minimum it's horrible Motte etiquette. It's what I'm constantly fielding reports on for your trollish "what do words even mean" contributions to discussions here. You can't even seem to say true things (which you often do!) without making soldiers of your arguments.
To recap: you said that "Freedom of religion and freedom of speech are completely different issues with completely different jurisprudences." This claim was false, and I tried to point that out gently. Everything you've said since then appears to be an attempt to just... pretend you didn't say what you said? I guess? You'd save more face by just owning the mistake.
Some people think based on narrow categories “if X, then Y with the concomitant need to narrowly define X.” Otherwise try more to synthesize disparate issues to understand the common through way.
There are of course differences between freedom of speech cases and freedom of religion. But you have identified (I think correctly) the thruway which is probably a better predictor of outcomes.
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I have had tow careers
My law degree is from Berkeley
Yes, of course it is true that "The Supreme Court has described the First Amendment as protecting certain rights of conscience. This general description can encompass the related protections for both speech and religion." But a "general description" is a far cry from the jurisprudence. Freedom of speech cases don't cite free exercise cases, and free exercise cases don't cite free speech cases.
Except, that as I pointed out, it isn't. Duh, Mr. Kennedy made both arguments in the same case, but as I said, when deciding the case there was a complete lack of overlap in the Court's discussion of whether he had established a violation of his religious expression and his free speech rights. The Court cited free speech jurisprudence in the free speech section, and religious expression cases in the religious expression section.
That is pretty rich coming from someone who refuses to own up to the fact that he erroneously said that 303 Creative is a religious freedom in commerce case.
And, by the way, note that in their cert petition 303 Creative asked the Court to determine "[w]hether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment," but in granting cert, the Court "limited [review] to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." Rather odd, if 303 is a religious freedom case.
But, if makes you happy, instead of saying that they are "completely different issues with completely different jurisprudences", perhaps I should have said that they are 99% different. Or even 95% different. But that does not transform the case into a religious freedom case, given that the Court refused to grant cert on the religious freedom issue.
Forgive this question, asked out of genuine ignorance. What is a tow career? I presume it doesn't involve tugboats or tow trucks, but that's about it.
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I did explain, already, that my phrasing there was a somewhat tongue-in-cheek inversion on the many people erroneously insisting (often, in news headlines) that this is an "LGBT rights" case, since of course the jurisprudence on suspect classifications is, let's say, 95% separate from the jurisprudence on Free Speech. Sorry you didn't feel that was sufficient "owning up."
I don't really understand why you're being such a sourpuss about this. I really tried to keep it light when I noticed your initial response, in which you classically ignored any point of interesting substance in favor of seeking boring nits to pick out of some misguided sense of tribal enmity. You always, always make me regret talking to you, in ways that have nothing to do with the substance of our disagreements, and I don't know what to do about that. Often you're pretty good at correcting the ways that people sometimes apply distorted interpretation to various facts, but you seem totally unwilling or unable to apply that ability to your own arguments, or indeed the arguments of anyone you perceive to be your ingroup.
Cool cool. Glad we could reach some accord on your error.
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What I am struck by is just how incompetent the Colorado civil rights apparatus is. This is now the second case where Colorado has shot itself in the foot. They didn't have to describe religious objections as, "one of the most despicable pieces of rhetoric that people can use" in Masterpiece Cakeshop, and they didn't have to stipulate in this case that:
"Just like the other services she provides, the wedding websites Ms. Smith plans to create 'will be expressive in nature.'"
"Those wedding websites will be 'customized and tailored' through close collaboration with individual couples, and they will 'express Ms. Smith’s and 303 Creative’s message celebrating and promoting' her view of marriage."
By declaring it's intention to prosecute speech as speech, Colorado is teeing up the Supreme Court for an easy smackdown.
I think a lot of elites simply aren’t very religious themselves and thus are sort of befuddled by religious objections and thus tend to assume it’s about the other people. Like the state leadership of Colorado seems to be assuming that his religious objections are a rhetorical device and a way to say “gay people are yucky”. I think they just honestly don’t understand religion as a belief. To a religious person it’s about obeying God, and thus violating this is out of the question. I tend to find most people in those elite positions tend to be heavily utilitarian and consequentialist — they don’t really start with axioms that you can’t violate, they start with who is affected and how. They’re seeing only the effects — gay couple not getting a website. And that must have been the intention by the religious person, because they chose the actions that denied gays the website.
I think you’re almost certainly overcomplicating a thought process that goes more along the lines of ‘we like gays, we don’t like conservative religious people, anybody smart enough to be a Supreme Court justice must be the same even if they pretend otherwise, so we need to impress on them that this is a really, really important issue’.
I don't think that's quite right. I think they see the supreme court as fundamentally about policy—which is better: A or B? I think we agree that people think like that. Moreover, if they have any knowledge of the facts of the case at hand, they will usually think that their side is correct, because they trust the people on their side to convey things accurately. In that context, the people on the other side of the supreme court are clearly doing what they are doing because they have bad values or corruption, and are finding justifications for the things they want, rather than doing what's objectively correct. They don't need to consider whether they're actually good at reasoning, they only need to think the conservative justices are able to generate some nonsense justification. And so they don't need to conceptualize the supreme court justices as very smart.
At least, for those who aren't looking at the law itself.
I'll also note that it's not as if most conservative people have much higher of an opinion of the liberal justices, although at least the conservatives are more willing to think of the supreme court about law, rather than policy, I think.
As a result of this, I think I'm more likely than you to think that liberals are willing to recognize that the supreme court justices are doing things because of values they have. That is, they'd think that the legal arguments are disingenuous, but think that they have genuine, but wrong, terminal values.
At least, that's how I, a non-leftist, read rank-and-file leftists.
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So their plan to appeal to a Supreme Court judge who’s a conservative Catholic is to be as offensive to people who happen to believe in a religion? Like I don’t see this as a possible political move, or at least not one they thought about. “Hey, court, you know, people only claim religion because they think it means they can hate on gay people,” this doesn’t seem like it takes the protections of free exercise very seriously as it’s completely dismissive of the idea that such a claim could have been made in good faith.
There might, in some cases, be a case to be made that someone is irreligious and is hiding behind religion, if you’re suing on discrimination and they say they’re doing so on religious grounds, then it might be reasonable to point out that this person attends no religious services, or they’re claiming Islam or Judaism and eat ham sandwiches, or something. But a carte Blanche claim of “no religious claims are true, it’s just about hating gays” is completely different.
The idea it seems like lots of progressives have is that the conservative catholic Supreme Court justices(or at least some of them) must obviously not believe in conservative Catholicism because they’re obviously well qualified, intelligent, competent people, just like the thinker of this thought, who after all doesn’t understand how anyone could believe in those ideas. So therefore Roberts(trying to control the rowdier more hardline conservatives to his right) and kavanaugh(vengeance) have some other motive for professing conservative catholic beliefs and generally ruling in accordance with them, and if you can appeal to their inner, true beliefs hard enough they’ll start acting like the good liberals they are deep down.
Now this thought process is clearly wrong, but it doesn’t seem like that’s the sort of thing that would stop anyone from having it. Trump, notably, seemed to have the same belief in reverse around the 2020 elections- it’s not a purely partisan thing.
I mean I think we largely agree I think quite honestly that since the vast majority of the types of people bringing suits to SCOTUS are more or less agnostic consequentialists and generally hanging around other people like themselves that they lack any perspective that being a conservative Catholic means something to that Catholic. And therefore they can’t fathom religion being a reason and assume it must be an excuse for whatever they really want.
Think about it from the point of view of visiting a tribe with a taboo against wearing blue. You probably have never thought twice about the color of your clothing (and given how common the color is, I’m assuming that you’re probably wearing blue now). So you walk up to a member of this tribe wearing blue, a color that in their culture is reserved only for the gods. They’re obviously going to not want to be around you, because from their point of view you’re using something reserved for the gods — it’s blasphemy to them. But you can’t wrap your head around it being about the color of your clothing. It must be xenophobia or racism or something. It couldn’t possibly be that they take this blue thing seriously.
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I think the difference to a certain extent is the difference between routine (eg a chef who cooks the same meal day in or day out) or bespoke (a florist who specifically designs something for a particular event. Indeed Phillips himself was willing to sell a routine cake to the gay couple but wasn’t prepared to make a bespoke cake.
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On the contrary, by stipulating to those facts, Colorado avoided a court finding that websites are per se expressive in nature. That gives them great freedom in the future to argue that other websites are not expressive, not to mention other ostensibly expressive businesses, such as wedding cakes or flower arrangements. This is very competent lawyering.
Great! If flower arrangments for weddings are not expressive, then all I have to do to set up in business for gay weddings is stick a bunch of dandelions in an old tin can and there you go, that will be €300 for the wedding thanks.
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The weird thing is that, perhaps unlike Lawrence v. Texas, there were plenty of real cases in the system. The original Masterpiece Cakeshop was such a case, and there have been several others (including more against Masterpiece Cakeshop) since. That it is this case -- one where all parties agree that the harm was merely expected, not actual -- which made it to the Supreme Court for a decision on the merits strikes me as the Supreme Court (or rather, the conservative majority) wanting to make a statement without any particulars to cloud things up.
And of the recent decisions, this is likely to be the only one with any effect. Harvard has already all but announced it'll use Roberts's talisman to get around the affirmative action decision. Biden has already announced he's going to work around the student loan decision AND smack "defect" as hard as he can on the deal which ended the payment moratorium. But this one doesn't provide easy outs and lower courts do accept the First Amendment as something to consider.
Yeah, but the case is in Colorado, which has already demonstrated that the Civil Rights Commission is panting and straining at the leash to hand out smackdowns to Christian businessowners who refuse on religious principle to cater for specifically LGBT requests.
My own view would be "it's just a cake, bake it and let them go to Hell on their own merits" but I'm not as serious or as Protestant. Were I operating in Colorado and likely to go "sorry, I don't do gay wedding cakes or gay websites", then hell yeah I'd want legal advice on "will I be put out of business by the state of Colorado or not?"
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This is my feeling as well (hence my opening comment about doubting the impact of most of this week's cases). What will limit the impact of this case, of course, is just the facts of commerce; most people are pretty happy to take money for whatever, and there are so many alternative cake bakers, web designers, etc. that the freedom to refuse service will generally amount the freedom to get out-competed.
There really does seem to be a bit of a gulf between enforcement on progressive versus conservative court victories. The Supreme Court enforces a novel approach to marriage and we start throwing political dissidents in jail. The Supreme Court says "stop discriminating by race, you can consider its impact in individual lives but you can't make it a determinative factor" and Harvard effectively flips them the bird and says "who's gonna make me?" Not that it would probably be great optics for the right, but can you imagine the president of Harvard going to jail for contempt of court here?
I honestly don't know what Roberts is playing at, in these cases. He seems to have managed to achieve results that are easy to report in maximally inflammatory ways, potentially imposing political costs on right-wing candidates, while failing to generate any rulings that seem likely to noticeably and impactfully protect the interests they purport to protect.
A public official who is jailed for contempt of court for refusing to obey a court order to comply with the law is not being jailed for "dissenting." She was free to quit her job (as many public officials have done in similar circumstances in the past) and picket the clerk's office, or keep her job and picket on her off hours. She was also free to write opeds, to lobby, and to dissent all she wanted in other ways. But she was not free to refuse to do the job that the taxpayers pay her to do. And of course someone who is jailed for contempt of court can be jailed only until she agrees to comply with the court order or it becomes clear that continued imprisonment will not compel her to do so.
This is incredibly common, see public sector unions, SCOTUS justices legislating from the bench, etc. I’m fine if “throw them in jail” becomes the typical response but we know it won’t.
None of those are examples of people refusing to obey a court order, were they? If they were, they should also be jailed for contempt. Which (does indeed happen)[https://www.nytimes.com/2006/04/11/nyregion/transit-union-leader-sentenced-to-10-days-in-jail-over-strike.html#:~:text=Roger%20Toussaint%2C%20the%20president%20of,to%2010%20days%20in%20jail.]
And, regardless, the laziness of public sector union members does not transform Kim Davis into someone who was jailed for being a "dissident."
I see little functional difference between “not doing something you’re supposed to” and “doing something you’re not supposed to” other than the placement of the “not”. These sorts of semantic differences are the playground of lawyers though so I don’t expect to make any headway.
? I didn't make that distinction. The difference is between someone who has disobeyed a court order -- whether that be an order to do something, or an order to refrain from doing something -- and someone who has not.
And, again, regardless, the laziness of public sector union members does not transform Kim Davis into someone who was jailed for being a "dissident."
Obergefell is the poster child for legislating from the bench. That’s not the job my tax dollars pay the judicial branch to do. Defying the constitution is fine, but I guess defying a court order is just a bridge too far.
I don’t care much for the dissident discussion, it’s just semantics. I’d say she was definitionally a “dissident”, and she was jailed for it. But Bill Ayers is also a “dissident”. The difference in their treatment at the hands of The Law is very instructive.
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The affirmative action issue is a winning issue for republicans. A large majority of whites, Hispanics and Asians support eliminating affirmative action. It is almost a dead heat amongst blacks.
If Biden tries to make the affirmative action case this term’s Dobbs, he will lose. This is one where there is a big disconnect between the democrat activist base and the population (mirror result of abortion).
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I keep saying that, and people keep complaining I'm too black pilled.
And the Supreme Court says "no, you can't cancel all the student loans" and Biden goes "We'll figure out another way to do it". And flips the bird to the Republicans about the provision in the debt ceiling deal too. And there's Bruen, the main effect of which has been to make it even MORE illegal to carry a gun in Times Square -- before it required a permit you couldn't get, now it might be easier to get the permit but the permit won't help you.
At this point if Alabama purported to nullify all gay marriages and arrested gay couples claiming to be married... it'd be no more of a lawless action than what the Democrats do.
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People pay a fortune to live in an area with "good schools". Groups that are overrepresented in causing trouble can cost far more money than the revenue they bring in. When I worked in a ghetto the gym I went to had outrageous prices on the door, yet offered discounts to almost every pro social group such as students, office workers, retired people. Basically they priced everyone they didn't want out of the gym.
A handful of crazy people can scare away a hundred mild mannered customers.
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Is there even any mechanism to punish the president or any relevant legislatures if they keep repeatedly enacting something already shown to be unconstitutional?
No. It used to be that you got punished for violating norms by getting banned from the club; having to cry alone in your mansion instead of drinking cocktails at the gala style thing.
That boat sailed with Grover and Gingrich and finally Mcconnell proving positively that norms aren't real and rules that require a majority vote are just loyalty checks.
Just like conservatives are picking up some lib tactics in the culture war; libs are finally waking up to the fact that political compromise is fucking stupid and you can just lie to your opponents and it will never actually come back to you.
Ah, but there are consequences to being unable to make any deals with the opposition. Each day Democrats further retroactively justify Republican obstructionism during the second term of the Obama administration.
Your causal arrows are backwards. Watching Obama get cucked over and over by the legislature (even when he had a majority!) managed to finally penetrate the thick ridge of bone the average congress critter uses to protect the part of their brain that turns sense data into long term memory.
I think the trauma of loosing two seats on the unelected unaccountable high priest council finally traumatized regular dems into realizing that the reps aren't playing the same game as them.
Nah, it's as someone else once said - Republicans defected on a game show, Democrats burned down the set.
Republican obstructionism is not even in the same ballpark as, "Literally every institution in the country must discriminate by race, based on my racial revenge fantasy, without any evidence that this will work, forever. By the way, I'm going to post in major medical journals about how your race should be 'eliminated'."
In my view, as a response it's completely unhinged. I'm closer to thinking the party should be legally dissolved at this point to force a reboot of their coalition than I would like.
I'm prepared to give the Republicans almost anything they want, because "merit is white supremacist" is incompatible with industrial civilization in a way banning abortion is not.
This view is irrational. You are treating your tribal positions as the default.
Until recently, AA with the majority opinion. As in, more than 50% of all people said "yes, good". It is therefore rational in a democracy to implement it. The republicans didn't even give much of a shit about AA because their donor class still could (and still can) just buy seats at whatever table they want.
That is changing now; but only over the last 4-6 years, long after conservative obstructionism hit full swing.
Conservatives deciding to make governance impossible against all norms wasn't some sort of principled stand against the bugbear of AA; it was a realpolitik move to consolidate power.
When team R does X and it works, you can't be surprised when team D does X right back.
You misread the post as referring only to elite college admissions, when actually it refers to incidents like race-based medical rationing based on a "white" vs "everyone else" system which is scientific racism much less sophisticated than conventional race science, major outlets referring to the existence of asians in engineering departments as a "problem", and explicitly race-based debt relief that had to be shut down by the courts. These are all mainstream, center/left-of-center sources.
This is just what ideas like "white privilege" theory and "race conscious" policy mean.
It is true that Republicans were opposed to Democrats in 2010, but this change, kicking off around 2014, is wildly disproportionate to what the Republican Party actually did.
The Democrats are a party of irrational, tribalistic, collective, intergenerational ethnic grievance, as seen by use of terms like "BIPOC" that make no sense as a scientific category. Their proposed interventions have no beneficial effects, and they have abandoned the modest evidence for modest success they used to have for their previous policy set in 2010.
This makes me immensely more comfortable with the manipulation of procedural outcomes to prevent the Democratic Party from gaining more power and resources than I was in 2010. Republicans playing hardball with the Supreme Court was apparently necessary for me to keep my human rights, as seen by the recent rolling back of "corrective" racial discrimination programs.
The Democrats could simply have some frank conversations to break their coalitional interest deadlock instead of doing this weird racialist nonsense that has even less backing than conventional scientific racism. They're not obligated to be, somehow, as inconceivable as it was from 2008, literally color supremacist.
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Impeachment if you can manage it. Otherwise, revolution.
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The student loan decision did not say that loan cancellation was unconstitutional, but only that the specific statute relied upon by the DOE did not empower them to cancel loans. There is nothing illegitimate in an administration trying to find a legal way to accomplish a goal.
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I'm not a lawyer, so maybe I'm missing something, but I'm not sure I see your point. The plaintiffs in Lawrence had a harm to bring a case over: they really were charged with sodomy. Is your assertion that the facts of the case didn't support the charge so it was dishonest of them to take a legal strategy of "that shouldn't be illegal" instead of "we didn't do that"? (I don't know, maybe they did try the "we didn't do that" line of defense in a lower court and failed? I can't imagine a case based on the word of a few gay men vs. the word of police officer eyewitnesses going well for the gay men.)
That seems different from the claim that no gay marriage website was ever ordered, so the whole case was actually about a hypothetical harm, which I thought was grounds for throwing a case out, as otherwise the courts would be flooded with hypotheticals and they already have trouble keeping up with the concrete cases.
Reading up about the Lawrence case before, it is the same general idea as Roe vs Wade or the Scopes Monkey Trial: the popular view of what went on is not the actual truth. Both sides in Scopes agreed to the trial, the prosecution because they wanted a test case on teaching evolution in school and the defence because they hoped a big public trial would attract national attention and revive the town's flagging fortunes, so the teacher agreed to be prosecuted:
When Roe vs Wade went to trial, Norma McCorvey had already had the baby and the lawyers were using her as the test case for the real plaintiffs:
There's a lot going on when the sausage is being made that the public never see or know about!
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Not when the plaintiff is seeking an injunction, and can show a likelihood of future injury:
Kenny v. Wilson, 885 F. 3d 280 (4th Cir 2018)
That was not my layman's understanding of "standing", so thanks for the reference.
I've definitely seen people on the left complain about the difficulty/time it takes to get a test case through the courts for things like the recent abortion restrictions in various states. I wonder if this will lead to the left trying to use the same legal tactic to challenge those laws faster (and how that will go for them). Or maybe they already are and it's just not covered.
I am pretty sure that was the basis for the recent successful challenges to "drag ban" laws. And it certainly was re the injunction re the "Stop WOKE Act." Re abortion restrictions, I would think that it would be easy enough to find someone who is pregnant and wants an abortion.
I could see that being difficult because there's no possibility of the case being resolved fast enough to matter for the plaintiff.
A plaintiff can get a court order pretty quickly in such cases. This suit was filed on June 25, 2022, and a temporary restraining order was issued on June 27.
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To the extent that I have a point at all, it's that the jurisprudence of homosexuality--and perhaps, we might infer, many other things--is substantially fictive. I think many people are suspicious of forum shopping, fewer are aware of plaintiff shopping but people do seem to be a bit suspicious of that, too. Most people are aware of civil disobedience, though, and don't necessarily think of it as problematic, even though it does involve ginning up a case rather than addressing the law from a position of organic (so to speak) social interaction. I do think CNN's "just asking questions" article is too coy by half, but as I noted in another reply, I don't have any serious objections to how these cases turned out. Just--if you're (the general you, not you personally) going to raise doubts about one SCOTUS case based on its loose connection to real events, you might not like where that leads (or, more likely, you're just engaged in isolated demands for rigor).
While I don't think SCOTUS mentioned the "chilling effects" doctrine in 303 Creative, the Court has long recognized that the law does actual, rather than hypothetical, harm in cases where the law is clearly intended to "eliminate disfavored ideas" (p. 25).
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Is there not a reason why we symbolise Justice with a blindfolded angel/goddess, though?
Hah! This is an beautifully parsimonious take which absolutely should have occurred to me, and did not. Of course, the reason for the blindfold is commonly held to be that all are equal before the law, not judged by station or appearance. But it is my understanding that the blindfold was first added, in 1494, as satire, to suggest that Justia was blind to the injustices being committed by lawyers:
It's a fun bit of trivia to share with students from time to time, but it honestly did not even occur to me that it might apply to my critique, here. I guess because I'm not entirely persuaded that these cases are really miscarriages of justice? I don't have any real problem with the outcomes of either case, despite my poking fun at Kennedy's writing style. More like--I'm just not persuaded that either case is as grounded in reality as we might naturally prefer our landmark cases to be?
Agreed. If we were designing the Constitution from scratch, I think it would actually be kind of difficult to come up with a convincing argument as to why we should have a case and controversy requirement for constitutional impact litigation in particular. The sweep of a SCOTUS decision is so vast in proportion to the individual plaintiffs that I'm not sure what practical effect it has other than to slow SCOTUS down -- but SCOTUS can do that directly via its ripeness doctrine, and it doesn't necessarily constrain SCOTUS if it wants to hasten its review (I believe it could choose to grant cert directly on appeal from a pre-trial motion). For the most part, it's easy enough to find or manufacture a case when there is the will to mount a challenge. There are the occasional scenarios where it isn't clear that anyone could have standing to challenge a particular policy, even in theory, but that strikes me as more of a bug than a feature, insofar as I'm not sure why we should want that particular class of scenarios to be immune to judicial review.
I think the particular cases that end up before SCOTUS are mostly just a quirk of fitting a square peg (Marbury v. Madison) into a round hole (a constitution that purports to forbid advisory opinions), and my baseline assumption is that those specific petitioners/cases are extreme outliers -- either manufactured or highly selected as vehicles -- and unlikely to be representative of the practical effect that the litigation is intended to produce. Such is the nature of systems that are evolved rather than designed, I suppose.
My vague impression was that, pre-Marbury v. Madison, when the constitution was being written, it was considered not unlikely that the court would do judicial review?
That doesn't seem quite right to me, because Federalist 78
argues quite ardently that judicial review is necessary to preserve individual rights.
Did you miss the double negative? I was saying that it was expected for there to be judicial review.
Yes I did, sorry.
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The New Yorker article says why they had to go with Lawrence & Garner
As to why 303 Creative didn't have any real gay clients demanding wedding websites:
Except, of course, for the part where they did not "have to" go with anyone. The case need never have been filed; society would have continued to function, and likely legislation would have eventually been updated one way or another. Rather, they wanted a case--hence, plaintiff shopping.
I mean, given my point, it's not puzzling at all, is it? It's how activists function, by either finding or outright creating cases crafted to reach the legal result they're after.
Well, they needed a plaintiff if they wanted the policy change. The absence of live controversies doesn't necessarily indicate a lack of impact. The chilling effect of the threat of prosecution (and its downstream effect on other policy debates) is what they were trying to lift.
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I think the New Yorker piece overstates Carpenter’s analysis of Lawrence, and in turn Carpenter’s paper is more than a little conclusory. It is very hard to read this and come away with the assumption the two men certainly or even likely never had sex, even if it raises some weak questions about whether they were caught immediately in the act (or drunkly continue before police) rather than just having been undressed in a room with a lot of gay porn when caught.
I don't find it hard at all! This is literally an associate professor of law at Yale asserting "my reconstruction of events based on interviews long after the fact is more plausible than the story told by Lawrence and Garner themselves"--men who, as the New Yorker article notes, were specifically preferred by activists in part because they had "little to lose." Here's from the law review piece:
Of course, I wasn't there, I don't know, maybe the professor is correct. But if so, then Lawrence and Garner (and by extension, their advocates) were lying to the Court anyway, which is kinda my original point, so... not sure what that gets you?
Yes, but the Yalie's claims still includes sections like :
This isn't compatible with "But in short, Lawrence and Garner were not together, sexually or otherwise, before or after the case", nor "the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex." At most, Carpenter's analysis tries to question whether the men were having oral sex, or whether the police had actually seen them fucking rather than just recognized that they had been.
But that is not actually the legal question relevant to the case. Even had Lawrence and/or Garner brought a not-guilty plea, rather than plead no contest, and faced a jury, the jury would not have asked which of the two had topped for a minute in front of police, but merely whether they had sex. Even excluding the contested police statements, it doesn't exactly take a giant leap of faith to think that the two men found naked in a room with some gay porn, after a false police call that was triggered by a lover's spat, were Down Bad. Separately, the men were long-term confirmed bachelors, but this isn't even a 'but they might someday violate the statute' question; the available evidence suggests this wasn't even the first time the two fucked. It's possible that the two were merely remarkable fans of frottage or manual masturbation, or that prosecutors wouldn't consider rimming to count, or what have you, but it's a bit of a reach.
These are reasonable discussions! It's quite likely that at least one if not all of the police testimonies were 'embellished' if not simply lying as a way to implement 'contempt of cop' as a charge, and that does say something for these laws in specific and for due process in general (although I think Carpenter is a little too quick to assume contradiction and, for that, which direction: drunken guys making bad decisions are not ). But the 1973 statute in question banned both oral and anal sex, and like all crimes allows arrest and charge on relatively low standards of evidence. And neither Lawrence nor Garner would have to have lied. After all, "no contest" does not require you to plea that the factual allegations in a claim are true, unlike a guilty plea (indeed, a lot of states have case law about people having to plea no contest because they could not remember facts of an incident well enough or even at all to plea guilty).
I expect Carpenter tolerates, if not intentionally courts, this confusion: there's a reason his paper subtitles a section as "Posing As Somdomites [sic]". But Carpenter only says this in the subtitles, which are apparently in the group of things no one expects to be honest, and tbf he throws in an annoying footnote. This sort of thing is neither unusual nor is Carpenter (or the New Yorker) particularly severe here. But it's still kinda relevant to recognize that they were sodomites, and almost all the available evidence suggests that they were at least working on the practical side of that with each other the day of the arrest.
The revelation that Lawrence and Garner were not married-in-everything-but-name is more honest and contradicts a lot of the implications the Lawrence cert request about not merely couples but 'long-term couples', and in Kennedy's writing (along with its other problems: the man's first draft was so florid gay clerks asked him to tone it down), and it's somewhat more fair.
((Indeed, here perhaps Carpenter is either unwilling or too unfamiliar with the matter to actually Darkly Hint: his analysis, at most, suggests that Lawrence and Garner had a one-night stand or perhaps a threesome-turned-twosome with an annoyed third wheel. That neither Eubanks nor Garner had regular employment and were staying late at night in a large apartment rented by a man of moderate income... sometimes that sorta thing is someone genuinely providing as much as they can to destitute soon-to-be-friends. Sometimes helping down-on-their-luck gay guys out means a bunch of gay guys will be in your apartment. And then sometimes it means they'd owe you a favor. I'd bet closer to category one or two, here, but I've seen the aftermath of people chasing three.))
That they were not a traditional couple (or threepul or whatever) is a more realistic criticism of Kennedy's writing. But that still does not get us to "Plaintiff shopping", "All it takes is a bit of theater", or a place where we can't find "parties who aren't being puppeted". Indeed, Carpenter and Lewis both agree that all three of Eubanks, Garner, and Lawrence were very far from the sort of parties that anyone would want for a court case. One of the police that night (Quinn, the man who alleged to have been exposed to over a minute of two men fucking at gunpoint) thought it was an intentionally-farmed case. But Carpenter dismisses that entirely; Quinn's report is the one Carpenter believes was most heavily 'exaggerated'.
There are aggressively shopped cases and plaintiffs; even assuming the report for 303 Creative isn't lying it still wouldn't be the most severe. US v. Miller is my long-standing favorite, simply because the 'controversy' involved a man who was dead before the case was decided. There are even some traits for this case after the charges were filed: the defense lawyers requesting that their own clients face higher fines (so they could appeal) are one of the more obvious.
Rather than being picked as people to find a case, or perhaps had a case with facts selected to best present before the court, the gay men here seemed to have been 'picked' once they were already facing prosecution, and picked mostly in the sense that they and Lawrence in particular (previously pulled to a police car in his underpants while shouting at police!) were obstinate enough to pick a fight.
There's a fair critique that these men did not have the information to understand what that fight would entail for them over the long term, or that given costs of what they paid that the broader movement owed them more; the New Yorker piece ends with a bit on that. And it's quite true: I've made my case for smaller-scale problems, but the extent the legal community depends on an army of sacrificial lambs is pretty appalling. But it is less an argument in favor of 'natural' cases as against them.
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Going from memory: those cops were indeed liars. One cop claimed those gay guys were just sitting and not having sex, another cop claimed they were having oral sex and the third claimed they were having anal sex. So at the very least 2 out of 3 lying.
A bit strange that author is acting like it's weird or implausible that cops would lie in order to railroad someone. And particularly these obvious liar cops who didn't coordinate their lies correctly.
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