Web designer opposed to gay marriage at center of U.S. Supreme Court clash

[Cow Poke]

This case is about giving SCOTUS the chance to overturn anti-discrimination laws that protect LGBTQ+ customers of any business.

This case is about giving SCOTUS the chance to protect private businesses from intimidation and frivolous lawsuits by vindictive LGBTQ+ activists.

[Gondwanaland]

This all reads as the proverbial storm in a thimble - does anyone really care? She has acknowledged that her only concern is with gay marriage, nothing else

If people want to provoke an incident merely to satisfy some desire to make themselves "victims" it strikes me as rather pathetic.

However, rather like the ancient Egyptians, Americans do seem somewhat litigious.

We understand that a German like yourself wouldn't care, what with your lack of free speech in your own country.

[Diogenes]

We understand that a German like yourself wouldn't care, what with your lack of free speech in your own country.

For some reason, I think there was a case where a Chinese judge use Western Holocaust denial laws as a retort about free speech. I can't find that I saved the info, but was hilarious.

[firstfloor]

This case is about giving SCOTUS the chance to protect private businesses from intimidation and frivolous lawsuits by vindictive LGBTQ+ activists.

Actually, it’s part of an ongoing Christian Right war on gays. Another episode of the same old bigotry.

In the last two years, state legislatures nationwide have introduced hundreds of bills targeting transgender people and drag performances, according to L.G.B.T.Q. advocacy groups.

Conservative political and media figures have accused L.G.B.T.Q. people of “grooming”children, a homophobic trope that conflates homosexuality with pedophilia.

NYT

[Cow Poke]

Actually, it’s part of an ongoing Christian Right war on gays.

I think you're proving your earlier claim that you're a Martian.

[Diogenes]

In the last two years, state legislatures nationwide have introduced hundreds of bills targeting transgender people and drag performances, according to L.G.B.T.Q. advocacy groups.

Conservative political and media figures have accused L.G.B.T.Q. people of “grooming”children, a homophobic trope that conflates homosexuality with pedophilia.


NYT

It's simplistic, yes, but it's easier than having to try to fully explain critical theory, queer pedagogy, and drag pedagogy to the general public. And yes, paedophilia, or "cross-generational encounters" as it's described in literature, is part of the ideology even going back to Foucault and the 1977 petition against age of consent laws.

[seer]

Actually, it’s part of an ongoing Christian Right war on gays. Another episode of the same old bigotry.

So?

[Cow Poke]

Actually, it’s part of an ongoing Christian Right war on gays. Another episode of the same old bigotry.

No, darlin - it's resistance fighters doing their best to deal with the LGBTQSIJK+++ war on people minding their own business.

[firstfloor]

So?

There was no need for that. We already know that you are the least empathetic person on the planet.

[Cow Poke]

There was no need for that. We already know that you are the least empathetic person on the planet.

I am highly offended!!! Possibly even triggered!

[seer]

There was no need for that. We already know that you are the least empathetic person on the planet.

Wow, I'm actually the best at something!

[Cow Poke]

Wow, I'm actually the best at something!

Don't you have mothers to insult, or insults to bark at small children?

[firstfloor]

I am highly offended!!! Possibly even triggered!

seer can’t help himself, but you should know better. I see that Repubs playing their childish games in Cochise County have had their bottoms kicked. Is Kari Lake America’s stupidest woman?

[Cow Poke]

seer can’t help himself,

WHAT?!?!?! He masters it!

but you should know better.

When I grow up, I wanna be just like Seer.

I see that Repubs playing their childish games in Cochise County have had their bottoms kicked. Is Kari Lake America’s stupidest woman?

That would be Rachel.

[Teallaura]

That would have no effect. What is at issue is a Colorado law that is more extensive than the Civil Rights Act.

True but the basis for it being upheld as constitutional comes from the CRA.

I don't agree with this. First, freedom of association is not stated in the First Amendment. Now, some freedom of association can be inferred through the freedom of speech in the First Amendment, but that doesn't cause freedom of association in general, only those which can be reasonably extrapolated from freedom of speech (when one looks at the "freedom of association" court cases, one sees that only view freedom of association as protected in the cases where it would threaten freedom of speech). It is difficult to see how the things that were covered in the public accommodations portion of the Civil Rights Act, namely selling people standardized food or letting someone rent a hotel room can be construed as speech. The service is exactly the same; you make the exact same hamburger whether it goes to a black person or a white person. I do not believe it is therefore a violation--and I don't think, even when the public accommodations was challenged before the Supreme Court, anyone seriously tried advancing it as an argument.

The United State Supreme Court begs to differ.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
*emphasis mine

Here's the long version from Cornell Law. The gist is that freedom of association stems from freedom of assembly, case law primarily in the 1950's.


CRA case law is where the public accommodation under the Commerce Clause comes from. Can't remember off the top of my head if this was part of the specifics that the Court then expected to be eventually overturned as circumstances failed to further warrant. That case law has been cited as late as 2005 if memory serves, by Sandra Day O'Connor. (I'm sure of the Justice but not the date).

Now, I do not think that is what is going on in this case. In this case, we are not talking about a standardized, same-for-anyone-who-orders-it product, but website design. In my view, the moment you step aside from a standardized product that is the same for everyone and have any level of customization, then it becomes an issue of freedom of speech. But in regards to the things that the Civil Rights Act actually prohibited, it was (as far as I am aware) all "standardized" services that are the same regardless of who is purchasing them.

I think there's some later case law supporting this view but if I recall correctly, it was either limited or contested (5/4 split). Again, it's assembly, not speech, that forms the basis - the expansion to other services could be different - I don't think so but I am not that current on the case law.

Well, not quite. If it was a violation of the First Amendment (which again I don't think it was), it was a violation of the First Amendment regardless of whether it involved interstate commerce. But I don't think anyone was actually trying to argue in the applicable case that it was a violation of that; the challenge was whether congress had the power to enact such a law.

Er, no. The CRA was never really constitutional. The Court literally let it slide because of the discrimination against blacks at the time - kind of an affirmative action thing. The Court expected it to be overturned - which it should have been decades ago. Without that case law, the justification for public accommodation laws pretty much vanishes as the Commerce Clause (the basis for which the Congress has power in public accommodations) runs afoul of the Freedom of Assembly/Association. Freedom of Association is much stronger case law than the CRA case law but assembly will do.

Basically, First Amendment trumps Interstate Commerce.

Every law passed by Congress must be an exercise of at least one of its "enumerated powers" of which the Constitution has a big list (some subsequent amendments add powers). The one utilized here was the commerce clause, which says that congress can regulate commerce among the states (interstate commerce). However, it doesn't give it power to regulate commerce within states, and what qualifies as interstate and what qualifies as intrastate has been the focus of a ton of court decisions and much arguing, especially as they became increasingly intertwined as time went on as commerce became much less localized (adding to the confusion is the Necessary and Proper Clause, which gives congress the power to enact laws that are necessary and proper to exercise its enumerated powers, thereby inherently giving everything a bit extra leeway). Long story short, the Supreme Court ruled in Heart of Atlanta Motel v. United States that the public accommodations law was permitted under the Commerce Clause. Two justices wrote concurring opinions asserting they felt the Equal Protection Clause would also justify it, but that wasn't in the majority opinion itself.

Dude, the First Amendment was long since incorporated. If public accommodation laws are unconstitutional for Congress, they are unconstitutional for the states. Sure, the Court could just rule that Congress didn't have the power to begin with under the Commerce Clause (which would be absurdly bad law) but they'd be opening a weird can of worms doing that alone. More likely - and what I'm suggesting - is the decision that the CRA has run its course and the First Amendment now rules.

So while the question of interstate commerce was important, it wasn't a way to "get around" freedom of association, as that wasn't regarded as being at stake in the case to begin with.

I wasn't bothering to attack the Colorado case since the constitutionality of that law rests on the CRA ultimately. No CRA, no constitutionality, not even for the states. Incorporation for the win!

The problem is that even if we accept this reasoning, this would only make the public accommodations section of the federal Civil Rights Act unconstitutional, not the Colorado law in question. The reason the question of interstate commerce came up in the Civil Rights Act at all was because it was a federal law; had a state enacted a law that said exactly the same thing, there would have been no constitutional question at all because that restriction is only present in congressional law, not state law.

Incorporation, The First Amendment APPLIES to the States! The only BoR Amendment left that doesn't is poor lonely Number Nine.