I am not exaggerating when I say that this 303 v. Elenis case is one of the more frightening episodes in my lifetime. Why? Because it should have been an open and shut unanimous decision, but it wasn’t.
From the article:
“The Court’s decision in Smith’s favor—ruling that ‘the United States is a rich and complex place where all persons are free to think and speak as they wish, not as the government demands’—protects all of us from imposition on our ability to express ourselves.”
How did three Liberal Supreme Court justices manage to vote against that principle? This article offers the culture wars as an explanation, and certainly some kind of Left Wing echo chamber may have played a role. But it shouldn’t have. It is more or less the job of Supreme Court justices to rise above factional ideologies. And the fact that the Liberal judges failed to do that in this case shakes my own commitment to the Democrat Party to its core. To be blunt: I don’t want any more liberal judges on the court if they’re going to be voting against free speech.
But that state of affairs leaves me politically homeless. We have, on the one side, the social-justice Left abandoning free speech in its ends-justifies-the-means mania for a better world, and, on the other hand, we have the populist right attempting a coup and violently attacking the Capital building to keep Trump in power.
And I’m out. I can’t align myself with either of those two groups. Strange and disturbing times indeed.
I had a similar experience with the Pledge of Allegiance in high school in the late 1950s to early 1960s but in my case I quietly refused to say the words “under god” because I thought this was enforcing a belief I didn’t hold at the time. I do not think this wedding website situation is exactly the same though. The website creators are not being asked to hold the same beliefs as the gay couple they refused service to, just do the work of creating the website. They could have removed their business from direct connection publicly by not putting the usual piece about them having done the job, which such businesses often do.
This case is about a business which has material advantages created by the laws, ordinary commerce and publicly created structures. This is why a restaurant can no longer refuse to serve Black or Hispanic customers, and why there have been recent cases where such discrimination was alleged by gay couples. As a public business you can’t do that. Again, they are not being asked to believe in homosexuality, just to create a wedding website the couple will use. That is work in exchange for money, not forced expression of belief.
Being forced to say the Pledge of Allegiance in a publicly funded school is not about pay in exchange for work done, so this is not the same. I agree that this could create discomfort for a liberal couple approached by a couple that wants Nazi symbols, but that doesn’t change the situation from the point of view of the First Amendment.
Yes! That is, resounding “no” to compelled speech. Justice Jackson, at the height of World War II, would not compel the child of Jehovah’s Witnesses to recite the Pledge of Allegiance . Ironically, at the same time the. Nazis were persecuting JW’s and sending c. 2000 to concentration camps where an estimated 1200 died. Their triangles were purple
Great piece. However, I think we are missing the main point here. This isn't a clash of the old social justice tribe and the moral prudes on the right. The Pledge of Allegiance example does not fit into the same box, IMO. As we experienced during the pandemic (and its lingering impacts are still felt) and with clear admission within the critical theory "scripture" backing the current activism to compel, weaponize and persecute speech... it is all about political power. More specifically it is all about a massive coordinated attempt by people and institutions comprising several disparate socioeconomic demographic groups. The financial backers of this massive project are the global multi-billionaires and Wall Street. They offer spoils to the activist and managerial and laptop-class minions support them to remake the US and other western democracies into a giant globalist "EU" headed by and controlled by the very people that brought us COVID misery. The defense of this case could give a rat's ass about gay rights... as gay rights have never been less an issue to fight about.
The defense of the Colorado rules to compel speech are all about protecting their progress to exploit the very freedoms provided in our current system to systematically and incrementally inject the tyranny of totalitarian authoritarianism into the system. The victims groups they claim to support are just pawns and props in this, what is, a global war. It is WW-III but waged in the class room, political halls, media and big tech. Only our Constitution and the part of our judicial not yet infested with the totalitarian radicals is saving us from complete defeat... because we are asleep and treating these ongoing attacks on our 1A rights as just a civil difference of opinion.
I agree. I am a lesbian who had no problem with that ruling, given the facts. (Though, of course, it turned out those facts were made up, and there was no gay couple who asked for her to design such a site, but... https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court.) And I did opt out of the pledge of allegiance when I was young - and was thankful for the Jehovah's Witnesses many law suits that gave us that right, and others...
Many good points but it still seems to me that our ability to say “No” is not absolute. We already have several classes (race, religion, gender) where we cannot simply say “No - I will not serve you” no matter our religious (or other) beliefs. The author wants to nuance this by saying that the web designer was willing to work with all those protected classes (and presumably gays as well) just not if they forced her to actually create something that was against her “religious” beliefs related, in this case, to gays. It’s a pretty thin line. Easy to see a gay business person asking her to design a business web site but if you are a gay couple looking for a wedding website (which was, I think, her main business) you are going to be denied service. Not quite sure where I stand on that.
I loved what you had to say. I'm not sure, though, that the problem is traceable to our culture wars. We see and understand the world differently. Sometimes we forget that simple truth. Our culture wars are a symptom, not the cause, of our blindness. Beautiful article Angel.
It seems to me that this is most directly addressed the first amendment's guarantee that the people have the "right of the people peaceably to assemble. "
Or, presumably, the right not to assemble.
Why would refusing to do business with a person whose beliefs you consider beyond the pale be unprotected?
I know that would completely trash most of civil rights law and jurisprudence, but ?
By letting us see you as a 7th grader bravely refusing to recite the Pledge of Allegiance you take all of us back to our school days. At about the same I was wrestling with the question why we were pledging our allegiance in public to a flag?
I could imagine 19th soldiers needing all of the courage they could summon to follow the flag into battle. Requiring them to pledge publicly their allegiance to the flag made sense to me. We without any context we were being told to promise to follow the “flag” wherever it went. I however didn’t have the courage or integrity to refuse. I just lowered my voice and told myself that was protest.
Like you I learned later of the courage of the Jehovahs Witness girls and of the Barnett case. in fact, fifty years later I became one of Jehovah’s Witnesses by making a commitment to follow a way of life.
This is the first time I have heard the case framed this way. The way you have framed it, I agree with you. But this is certainly not the way that the media understood it (at least no media I am aware of) and is evidently not the way the more left-leaning judges understood it. Are you sure she was willing to serve trans, etc. It certainly didn't sound that way in her public statements. Were all of these folks being deliberately misleading?
By the way, when I have a constitutional question, I always refer to the US Constitution Center, based in Philly. An amazing resource. Jeffrey Rosen does an amazing job.
It may be that "forcing a web designer to express approval for gay marriage exercises precisely the same principle as...forcing an artist to paint a flattering portrait of a white supremacist".
However, in the example of the artist and the white supremacist, the artist's objection would surely be based on a rejection of the racist and (by definition) divisive views this person has CHOSEN to adopt. Presumably, the artist would not deny him a portrait because of some immutable characteristic (his maleness, straightness or whiteness) the painting would communicate about him that they happen to dislike, and would not like to be seen to be endorsing.
I too feel uncomfortable with the idea that the Supreme Court should force any person who provides a non-essential product to serve people they don't wish to do business with. Particularly if doing so would be seen as an endorsement of something one has an objection to. But let's not pretend religious intolerance and prejudice against people for who they fundamentally are is every bit the equal to rejecting someone for the extremist political views their choose to hold. This seems a sleight of hand by David French in this analogy, who I otherwise respect and admire.
Although this essay makes many valid points, to be convincing, it would need to consider the distinction between language as expression and language as formula. Recipients of engraved invitations do not assume that they express the printer’s desires. I do not know how truly creative 303 Creation’s wedding announcements are. If they include, for example, original poetry with each wedding webpage they design, then Ms. Smith should be allowed to select her clients for any reason she deems fit. If, however, these webpages are boiler plate, as most wedding invitations are, then to my mind she is refusing to provide a standard product—and no more justified in doing so than a clothing store would be in refusing to provide a gay couple tuxedoes.
Identitarian ethics, the ethics of what is best for one's identity group, is in direct conflict with an ethics of individual rights. Bentham said it best: Individual Rights are nonsense on stilts. Your rights end not where the rights of an other begins but whenever the pleasure of the crowd says so. Indeed the tyranny of the self righteous has arrived: We live in the age of the Millennial Inquisition. Torquemadas all of them.
As George Orwell wrote, "Freedom is the right to say no." Mr. Eduardo expresses well one reason why I am a FIRE member.
I am not exaggerating when I say that this 303 v. Elenis case is one of the more frightening episodes in my lifetime. Why? Because it should have been an open and shut unanimous decision, but it wasn’t.
From the article:
“The Court’s decision in Smith’s favor—ruling that ‘the United States is a rich and complex place where all persons are free to think and speak as they wish, not as the government demands’—protects all of us from imposition on our ability to express ourselves.”
How did three Liberal Supreme Court justices manage to vote against that principle? This article offers the culture wars as an explanation, and certainly some kind of Left Wing echo chamber may have played a role. But it shouldn’t have. It is more or less the job of Supreme Court justices to rise above factional ideologies. And the fact that the Liberal judges failed to do that in this case shakes my own commitment to the Democrat Party to its core. To be blunt: I don’t want any more liberal judges on the court if they’re going to be voting against free speech.
But that state of affairs leaves me politically homeless. We have, on the one side, the social-justice Left abandoning free speech in its ends-justifies-the-means mania for a better world, and, on the other hand, we have the populist right attempting a coup and violently attacking the Capital building to keep Trump in power.
And I’m out. I can’t align myself with either of those two groups. Strange and disturbing times indeed.
I had a similar experience with the Pledge of Allegiance in high school in the late 1950s to early 1960s but in my case I quietly refused to say the words “under god” because I thought this was enforcing a belief I didn’t hold at the time. I do not think this wedding website situation is exactly the same though. The website creators are not being asked to hold the same beliefs as the gay couple they refused service to, just do the work of creating the website. They could have removed their business from direct connection publicly by not putting the usual piece about them having done the job, which such businesses often do.
This case is about a business which has material advantages created by the laws, ordinary commerce and publicly created structures. This is why a restaurant can no longer refuse to serve Black or Hispanic customers, and why there have been recent cases where such discrimination was alleged by gay couples. As a public business you can’t do that. Again, they are not being asked to believe in homosexuality, just to create a wedding website the couple will use. That is work in exchange for money, not forced expression of belief.
Being forced to say the Pledge of Allegiance in a publicly funded school is not about pay in exchange for work done, so this is not the same. I agree that this could create discomfort for a liberal couple approached by a couple that wants Nazi symbols, but that doesn’t change the situation from the point of view of the First Amendment.
Yes! That is, resounding “no” to compelled speech. Justice Jackson, at the height of World War II, would not compel the child of Jehovah’s Witnesses to recite the Pledge of Allegiance . Ironically, at the same time the. Nazis were persecuting JW’s and sending c. 2000 to concentration camps where an estimated 1200 died. Their triangles were purple
No coercive orthodoxy in the land of the free!
Great piece. However, I think we are missing the main point here. This isn't a clash of the old social justice tribe and the moral prudes on the right. The Pledge of Allegiance example does not fit into the same box, IMO. As we experienced during the pandemic (and its lingering impacts are still felt) and with clear admission within the critical theory "scripture" backing the current activism to compel, weaponize and persecute speech... it is all about political power. More specifically it is all about a massive coordinated attempt by people and institutions comprising several disparate socioeconomic demographic groups. The financial backers of this massive project are the global multi-billionaires and Wall Street. They offer spoils to the activist and managerial and laptop-class minions support them to remake the US and other western democracies into a giant globalist "EU" headed by and controlled by the very people that brought us COVID misery. The defense of this case could give a rat's ass about gay rights... as gay rights have never been less an issue to fight about.
The defense of the Colorado rules to compel speech are all about protecting their progress to exploit the very freedoms provided in our current system to systematically and incrementally inject the tyranny of totalitarian authoritarianism into the system. The victims groups they claim to support are just pawns and props in this, what is, a global war. It is WW-III but waged in the class room, political halls, media and big tech. Only our Constitution and the part of our judicial not yet infested with the totalitarian radicals is saving us from complete defeat... because we are asleep and treating these ongoing attacks on our 1A rights as just a civil difference of opinion.
I agree. I am a lesbian who had no problem with that ruling, given the facts. (Though, of course, it turned out those facts were made up, and there was no gay couple who asked for her to design such a site, but... https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court.) And I did opt out of the pledge of allegiance when I was young - and was thankful for the Jehovah's Witnesses many law suits that gave us that right, and others...
Many good points but it still seems to me that our ability to say “No” is not absolute. We already have several classes (race, religion, gender) where we cannot simply say “No - I will not serve you” no matter our religious (or other) beliefs. The author wants to nuance this by saying that the web designer was willing to work with all those protected classes (and presumably gays as well) just not if they forced her to actually create something that was against her “religious” beliefs related, in this case, to gays. It’s a pretty thin line. Easy to see a gay business person asking her to design a business web site but if you are a gay couple looking for a wedding website (which was, I think, her main business) you are going to be denied service. Not quite sure where I stand on that.
I loved what you had to say. I'm not sure, though, that the problem is traceable to our culture wars. We see and understand the world differently. Sometimes we forget that simple truth. Our culture wars are a symptom, not the cause, of our blindness. Beautiful article Angel.
It seems to me that this is most directly addressed the first amendment's guarantee that the people have the "right of the people peaceably to assemble. "
Or, presumably, the right not to assemble.
Why would refusing to do business with a person whose beliefs you consider beyond the pale be unprotected?
I know that would completely trash most of civil rights law and jurisprudence, but ?
There was a time when the ACLU actually stood for Civil Liberties. Of course, that was a long time ago. These days the ‘A’ stands for ‘Anti’.
By letting us see you as a 7th grader bravely refusing to recite the Pledge of Allegiance you take all of us back to our school days. At about the same I was wrestling with the question why we were pledging our allegiance in public to a flag?
I could imagine 19th soldiers needing all of the courage they could summon to follow the flag into battle. Requiring them to pledge publicly their allegiance to the flag made sense to me. We without any context we were being told to promise to follow the “flag” wherever it went. I however didn’t have the courage or integrity to refuse. I just lowered my voice and told myself that was protest.
Like you I learned later of the courage of the Jehovahs Witness girls and of the Barnett case. in fact, fifty years later I became one of Jehovah’s Witnesses by making a commitment to follow a way of life.
This is the first time I have heard the case framed this way. The way you have framed it, I agree with you. But this is certainly not the way that the media understood it (at least no media I am aware of) and is evidently not the way the more left-leaning judges understood it. Are you sure she was willing to serve trans, etc. It certainly didn't sound that way in her public statements. Were all of these folks being deliberately misleading?
By the way, when I have a constitutional question, I always refer to the US Constitution Center, based in Philly. An amazing resource. Jeffrey Rosen does an amazing job.
It may be that "forcing a web designer to express approval for gay marriage exercises precisely the same principle as...forcing an artist to paint a flattering portrait of a white supremacist".
However, in the example of the artist and the white supremacist, the artist's objection would surely be based on a rejection of the racist and (by definition) divisive views this person has CHOSEN to adopt. Presumably, the artist would not deny him a portrait because of some immutable characteristic (his maleness, straightness or whiteness) the painting would communicate about him that they happen to dislike, and would not like to be seen to be endorsing.
I too feel uncomfortable with the idea that the Supreme Court should force any person who provides a non-essential product to serve people they don't wish to do business with. Particularly if doing so would be seen as an endorsement of something one has an objection to. But let's not pretend religious intolerance and prejudice against people for who they fundamentally are is every bit the equal to rejecting someone for the extremist political views their choose to hold. This seems a sleight of hand by David French in this analogy, who I otherwise respect and admire.
Although this essay makes many valid points, to be convincing, it would need to consider the distinction between language as expression and language as formula. Recipients of engraved invitations do not assume that they express the printer’s desires. I do not know how truly creative 303 Creation’s wedding announcements are. If they include, for example, original poetry with each wedding webpage they design, then Ms. Smith should be allowed to select her clients for any reason she deems fit. If, however, these webpages are boiler plate, as most wedding invitations are, then to my mind she is refusing to provide a standard product—and no more justified in doing so than a clothing store would be in refusing to provide a gay couple tuxedoes.
Identitarian ethics, the ethics of what is best for one's identity group, is in direct conflict with an ethics of individual rights. Bentham said it best: Individual Rights are nonsense on stilts. Your rights end not where the rights of an other begins but whenever the pleasure of the crowd says so. Indeed the tyranny of the self righteous has arrived: We live in the age of the Millennial Inquisition. Torquemadas all of them.