While not quite as momentous, attention-grabbing or as replete with historical meaning as the ruling in the affirmative action case, the U.S. Supreme Court also recently ruled in 303 Creative v. Elenis (a case I discussed previously). This was a case brought by Lorie Smith, a Christian website designer who has religious objections to designing custom websites for gay weddings, and who didn’t want to be forced by Colorado to do so. It’s a clear free speech issue: should anyone be forced to write an article, design a website or create a piece of art when they object to the message they’re being asked to convey in that article, website or artwork? Free speech advocates say “Hell no!”, while their critics (including the ACLU) characterise any objection as being tantamount to wanting to bring back “Jim Crow” laws or some such horror.
Justice Gorsuch delivered the opinion of the court in what was, as predicted, a 6–3 split along “party lines” in favour of Lorie Smith. His reasoning is lucid, compelling and succinct, and once he’d finished laying down the law, he laid into the confused and laborious dissent of Justice Sotomayor with devastating precision. One passage highlights the sheer absurdity of the left’s tangled position on this:
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include”. But if that is true, what are we even debating? [Internal references omitted.]
There’s plenty more for the interested reader to enjoy, but looking at it more broadly, this is one of several recent rulings that seem to show the Roberts court has largely regained its sanity after a difficult period where politics seemed to overtake it. But of course, in the eyes of Democrats, the court has become illegitimate because of an “illicit rightwing” majority (illicit how?).
In fact, there have been ongoing attacks on the court and its members since the Dobbs abortion case came before it, with top Democrat Senator Chuck Schumer getting the ball rolling by apparently threatening Justices Kavanaugh and Gorsuch, leading to a rebuke from Chief Justice Roberts. There followed the leaking of the majority opinion in Dobbs (and while we don’t know who did it, Justice Alito thinks he does), followed by numerous threats (including death and arson threats) from members of the public, after which the six conservative justices were doxxed online – leading to angry protests outside their houses, and concerns for their safety.
There have also been political attacks targeting Justices Thomas and Alito, trying (and failing) to catch them out on financial interest disclosures, and even suggesting Thomas’s wife’s legal consulting firm creates some vague conflict of interest. Perhaps they think Thomas and the others will change their legal reasoning because of threats against the court – based on an assumption that it’s all about politics and not the law? To be fair, this did happen when FDR threatened to pack the court (there’s no constitutional or statutory limit on the numbers of justices) if it didn’t sign off on the New Deal, and while Chief Justice Roberts appears to blow with the political wind, I rather doubt that of Thomas (smeared in his confirmation hearing but defiant) and Kavanaugh (ditto), at least. In fact, nothing seems to have moved the conservative justices into strange non-legal/political directions – as with Roberts in the Obamacare decision.
But maybe in 303 Creative, the activists have been up to something a bit more sneaky than these more overt attacks. You see, despite not being quite as alarming to the woke left as the end of affirmative action in universities, the outcome of this case is seen as a setback for their view of civil rights, and could be used to help overturn other “compelled speech” in the form of the mandatory use of “preferred pronouns” in the workplace, or potentially in any case where the wokerati want to force U.S. citizens to pay lip service to their version of reality. In other words, there’s considerable animus about this – which, in any case, we already knew because of the treatment meted out to the owner of Masterpiece Cakeshop, an almost identical case that ended up being decided on narrow technical grounds.
With all this in mind, I have a few questions about Melissa Gira Grant’s reporting in the New Republic of the fact that a document submitted by Lorie Smith to the court when the case was still at the federal district court is apparently inaccurate. Her story dropped just a day before the Supreme Court published its ruling, and was picked up almost immediately by the Guardian here in the U.K., with their U.S.-based court-watcher Sam Levine stating breathlessly:
The veracity of a key document in a major LGBTQ+ rights case before the US supreme court has come under question, raising the possibility that important evidence cited in it might be wrong or even falsified.
Typical responses on Twitter are that the entire case should be cancelled, or thrown out, or reversed, or something. Grant followed up the next day, when the ruling came out, with a piece beginning:
If the Supreme Court persists in making rulings based on fiction, how can we take any ruling seriously?
This must be a big deal, then?
No.
But first, some facts. This supposedly “key” document is a record of a request put in to Lorie Smith’s website, purportedly by a gay couple named Stewart and Mike who wanted Lorie Smith to do some design work for their wedding, including invites, placenames and possibly a website – exactly the sort of thing that Lorie Smith would have to decline, and in fact couldn’t even respond to without potentially facing immediate action from the Colorado authorities. Notably, this request via Lorie Smith’s website arrived just a day after she filed her original case in federal district court (i.e., when it became public), and is similar to the kinds of insincere requests made of Masterpiece Cakeshop that sparked that case.
However, as Melissa Gira Grant reported, the contact details given in this request were actually those of a San Francisco man who is happily married – to a woman – and who has a child (already a strong case of the notgays), and who is not planning on marrying anyone else, let alone anyone named Mike, and who was rather bemused to find out a few days ago that his name had turned up in court filings. He had no knowledge of the request: it was bogus. Yet Lorie Smith’s lawyers had used it in the district court to rebut claims that she would never be likely to receive a request to do creative work for a gay wedding (she brought this action before receiving any such requests, in anticipation of the same).
That’s all true, as far as we know, but here’s why there’s no scandal:
The first issue is that Lorie Smith and her lawyers couldn’t have known it was bogus – they had to avoid contact with this “Stewart and Mike” because any conversation could have ended up eliciting an admission that she was refusing them her custom services, which Colorado could have found out about, leading them to apply penalties and force her to attend a re-education camp. She wanted to avoid that.
Secondly, Smith and her lawyers didn’t have much incentive to create a false request in this way: her case was always based on her own intended course of conduct – which would include a statement on her website saying she wouldn’t do gay weddings – that’s prohibited by state law and which could therefore lead to Colorado taking enforcement action. It was a “pre-enforcement” lawsuit, and didn’t require that any gay wedding requests had been received, or even that they necessarily would. So if Smith wanted to fake such a request, she ought to have done so before filing her original case, and then used different legal arguments.
Thirdly, Smith and her lawyers were apparently unaware of this request during a period in which it might have been useful to them. The defence argued in district court, a month after the case began, that it should be dismissed because Smith hadn’t actually received a request for a gay wedding. Her team responded to that without citing the “Stewart and Mike” request, and it only turned up in a filing months later.
Fourthly, and most importantly, it doesn’t matter to the case. In fact, the district court (which does the fact-finding in these cases) rejected the notion that it was even a genuine gay wedding request anyway, claiming that “Stewart” and “Mike” could be girls’ names (yes, really) and so it wasn’t necessarily from a gay couple at all. The appellate court, with that fact, decided the key issue of standing on Lorie Smith’s “intended course of conduct” and her “credible fear of prosecution”, and the Supreme Court’s opinion didn’t refer to it, even obliquely, in any way. None of the legal reasoning depends on it at all. It simply doesn’t matter.
But this didn’t stop Melissa Gira Grant from claiming that “the plaintiff’s main argument rested on the claim that someday, out there, a same-sex couple would want her to design a wedding website” and that this is something gay people “have not yet done, nor ever will do”. This is not only false, it’s gaslighting. We know what happens to the sorts of businesses that are openly against gay marriage – they immediately get targeted by activists (and in fact, Lorie Smith has since received other, similar requests). But the case would stand regardless of whether that ever happened or not. Any suggestion to the contrary is disingenuous at best. It does not, as Sam Levine claims in the Guardian, undermine her standing to bring the suit, so it’s very sad that it’s being used to delegitimise the ruling (and the court), offering the chief legal officer of Lambda Legal, an “LGBTQ+” rights organisation, some cover to make statements like this:
This sort of revelation tends to reinforce to many people that the fundamentalist [!] Christian victim narrative is without foundation.
This is a classic case of The Law of Merited Impossibility, although the overall situation is also an example of Young’s Law (you’re welcome, Toby!).
Anyway, I said I had some questions about Melissa Gira Grant’s reporting of all this, which has got lefties all lathered up and looking foolish – including the former US Acting Solicitor General. The fact that the bogus request arrived the day after the original district court case was filed, and that the story about its bogosity appeared the day before the Supreme Court ruling, and the fact this has been misused to undermine that ruling, all seems a bit fishy. To be clear, I have no evidence that Ms Grant has done anything wrong, but I’m curious about her statement: “This week, I decided to call Stewart and ask him about his inquiry.”
I’m curious about it, because she doesn’t say why she decided to wade through court documents to look for Stewart’s phone number and give him a ring all of a sudden, and at this juncture. She seems to have been aware that it had been dismissed as irrelevant by the district court, so it seems like an odd thing to do. Did she receive a tip-off? Such things happen. During Covid, I received a message in my Daily Sceptic email account from an unknown person asking me to call a certain telephone number at a certain time. Intrigued, I did so, and found myself in a secret high-level military conference call, the precise details of which I can’t reveal because even members of the public are bound by the Official Secrets Act – although it seemed very boring and I didn’t really know what they were talking about.
The point is, there might be more to this. We know that Lorie Smith and her team couldn’t have contacted Stewart without some risk, but there’s no reason someone else – someone on the other side, perhaps – couldn’t have. Or maybe some internet sleuthing revealed who Stewart really was, some considerable time ago. “Who knew what, when?” – that would be another interesting question.
Stop Press: The Washington Post, in a somewhat sensible discussion of the topic, reports that Stewart is an LGBTQ activist who was working for the Clinton campaign when the bogus request was made to Lorie Smith in 2016. As noted, he has denied making the request.
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I don’t plan to read a 70 page opinion from another country’s supreme court about their own affairs but the quoted passed raises some philosophically interesting points and is not as clear cut as Gorsuch implies.
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include”. But if that is true, what are we even debating?
Think of two extremes.
It would be quite shocking to return to the days where a landlord would refuse to offer a room based blatantly on race (remember “no Irish, no niggers”). This kind of thing is presumably the basis of the idea that a company – or an individual – cannot refuse full and equal enjoyment of services.
On the other hand suppose a publisher were asked to design a web site (or printed material) with blatantly racist content. In this sense a company should have the right to refuse to include these messages.
The distinction is between refusing services based on who is receiving the service (particularly if this is based on race, gender, sexual preference etc) as opposed to refusing to provide certain kind of services independently of who is asking for them. This is merely an extension of a fairly obvious right to refuse to make or do anything if you think the object or service is immoral.
I don’t know the details of the Lorie Smith case but it may well be poised between these two cases. Remember that her concern was not that she might be forced to included certain material in web sites but that she might be forced to offer her services to gay couples. The service being offered is in some senses the same service that is being offered to heterosexual couples but the fact that the couple is gay might be taken to imply an approval of gay relationships.
It is not obvious to me that the dissent is self-contradictory.
I discussed this in my previous article (and I didn’t want to repeat myself here), but it’s important to recognise the distinction between providing goods and services (e.g., hotel rooms, newspapers, etc.) where speech is only incidental and those where it is important (e.g., writing an article or creating a custom website). Public accommodation laws prevent one refusing to sell goods and services in the former category to someone because of their race, sex, etc.; but when speech is implicated (e.g., writing an article in favour of slavery), one can refuse if one has an objection to it.
The left has tried to claim there’s no distinction between the two, but they end up getting tangled in knots, because they can’t say that people can’t express themselves how they want (because of clearly established law), but at the same time they also have to say that if they want to win. The quote neatly, I think, highlights that central problem with their arguments.
I’d recommend you read Gorsuch’s opinion – it’s not 70 pages long, and it’s very legible and well-explained. It’s on pages 7–32 of the PDF (pages 1–26 of the paper document).
The fundamental point is that if I rent someone a hotel room, I’m not being compelled to say something I don’t believe, but if that person asks me to write or create something objectionable, that’s a different matter.
The fundamental point is that if I rent someone a hotel room, I’m not being compelled to say something I don’t believe, but if that person asks me to write or create something objectionable, that’s a different matter
OK I just read your previous article and you make some good points. I am still not convinced that this primarily about free speech. Almost any product or service can bear a message (think golliwogs). And those services that do include speech or text are not typically taken to be the opinions of the person/company providing the services – certainly no one thinks the content of wedding web sites is the opinion of the web site designer!
Nevertheless I support the right of anyone or any organisation to refuse to provide services or products they genuinely consider to be immoral. This has to be somehow combined with the requirement not to refuse services/products based on the race/gender/sexuality of the recipient. For some services/products this is easier than others.
Wedding web sites are particularly tricky. Most wedding websites are just about where to go, timings, the order of service, what to wear, accommodation. If you removed the pronouns and photographs it would be hard to tell whether it was a heterosexual marriage or a homosexual marriage. (My son is getting married next month so I am up-to-date on this!). What makes the site controversial is the fact the recipients are gay.
I will try to find time to read the mere 26 pages of Gorsuch’s opinion but I suspect the court made the correct decision – I just think the dissent deserved more respect than you implied.
I think it’s pretty simple, MTF. If I am the one providing the service, I and only I decide if I provide it, and I am under no obligation to state my reasoning.
Assuming I am not the State, with a monopoly on certain services, then a person is free to look elsewhere for the service they would have received from me.
That would be my starting point, instinctively.
However some non-state providers of goods and services are effectively monopolies – for example water companies, train operating companies, your local leisure centre provider. Also organisations acting in concert or copying each other or going with the prevailing wind can simply all decide to, for example, refuse to serve people not wearing “covid face coverings” or those not “vaccinated against covid” – and if you think that’s impractical and the market would not let it happen, what about banks refusing to provide banking services to known conservative/free speech organisations and individuals?
So if the service is a room to let or say dentistry then there is nothing immoral in me refusing it to people on the basis of colour or sexual preference as long as I don’t say why?
MAK can give his own answer but my answer would be that something being immoral and being illegal are different things. Most/all illegal things would generally be considered immoral but not all immoral things should necessarily be illegal.
I agree – obviously you can have immoral laws. I guess we are discussing the morality of the law.
My point was more that I might consider a dentist refusing to treat people on the basis of their colour or sexual preference to be immoral but would not necessarily say it should be illegal, though to be honest I am not sure exactly what I think the ideal way of dealing with this is.
I take your point. Not every immoral behaviour should be illegal. This is such a complicated and subtle area. One consideration is that making something illegal can change what is normal and acceptable – so the public idea of what is moral follows the law. I am thinking of things like drinking and driving as well as blatant discrimination. But I digress …
The left had Roe vs Wade, which used (and subsequently tossed aside) a mentally ill, young, pregnant woman who wasn’t going to have an abortion and, indeed, didn’t have an abortion, in order to create a hypothetical case that made abortion legal, so it’s kind of amusing that when a verdict based on hypotheticals goes a different way from the way they want it, they now claim falsehoods.
Roe vs Wade was crazy. At the time the amendment they used to justify it was ratified, I think abortion was illegal everywhere in the US, so the people who ratified it cannot possibly have thought it conferred a right to have an abortion.
Dear downvoter, please explain the flaw in my logic.
They never do, do they? Cowards.
The attacks on Justice Thomas are despicable and silly. He has kept to an originalist line from the start of his tenure, so to claim he is being influenced by gifts is absurd. There’s no evidence for it. From the start he has come in for extra vitriol from the left because he is a black conservative.
As Candace Owens has put it, they don’t like black people who leave the Democrats’ ‘plantation’!
“Supreme Court Upholds First Amendment – Lefties Go Wild”
I lurv headlines like this.
In the not too distant past many people worked as servants. They had to address the people they served with specific titles, names and pronouns. In addition the servants had to do their master’s and mistress’s bidding. It would have been unwise to contradict any of the subservience that was demanded. The Industrial Revolution, WW1 and WW2 allowed many people to escape subservient work.
Now we have a group of people demanding that they are addressed in very specific ways and that they can demand any trade or person to make or do things as they decide without question. The difference between working as a servant or being on the receiving end of the alphabet activists is you could leave an employer and find someone better as a servant, whereas to mis-gender or mis-pronoun or refuse to do what is demanded can result in destructive fines and a criminal record. Why is it OK that one group can demand subservience of others with the backing of the law.
“Bogosity”
Respect.
Apparently Quantum Bogodynamics is a thing, standard unit the Bogon.
“Colorado could have found out about, leading them to apply penalties and force her to attend a re-education camp. She wanted to avoid that.”
My God, Colorado?! Or North Korea
or China?…Why the hell has Colorado got a re-education camp? Have all 54 States got re-education camps? What time do you have to get up? What do you get for breakfast? Does the forced indoctrination include mandatory brainwashing booster injections?
We have lost America, I tell you.