Moot court is great training for advocacy and requires no pesky facts. Only hypotheticals. Like 303’s hypothetical business and its hypothetical plans to engage in the sale of its First Amendment protected rights of expression. She may as well claim that “someday I might become a photographer of prom nights and if I did and if a gay couple wanted their photo taken I can decline on First Amendment grounds, just as I could decline to take photographs of couples posing in lewd positions. My First Amendment in the latter case aligns with legal prohibitions against child pornography. But if they didn’t I should be free to exercise my First Amendment rights to celebrate the beauty of young love.” Colorado is not compelling 303’s speech. 303 can offer up a wedding package that makes no distinction in gender combinations and proclaim “I am the artist and you have no say in the matter of my artistic expression.” But if it says “hire us and we will help you realize your vision” is that still the speech of the business? Is every expressive act of a fictive person to be embraced by the protection of the First Amendment? “Sorry, we can’t seat you in our restaurant which is themed as a 1923 restaurant in Yoknapatawpha County, Mississippi. Our artistic vision requires the utmost attention to strict historical accuracy, and you know that there is no circumstance under which a mixed race couple could ever have been seated in such an establishment.”
She had a wedding section of her website ready to go live, so it's quite a bit different than your photography hypo. That site also included a statement that she wouldn't create pages for gay marriages.
My anger at this is not assuaged. I’ve been practicing in federal court for almost 40 years. Because of Rule 11 - and fear of misrepresenting any fact to a federal court - I would never offer as proof something that was this questionable. Can you address Rule 11 for people who don’t know what that requires? IMHO, Smith’s lawyers were required to make an attempt to verify that website request. It was ONE witness whose contact information they had. And stipulated facts would not exempt you from that requirement.
And I get pre-enforcement challenges. But they still have to be decided on a REAL record. So in the trans litigations, the folks had to show that they were on medications, in treatment, capable of suffering real harm, etc. I disagree with those statutes but I couldn’t confer standing on myself simply by saying well, I think I would like to become a woman so I’m suing. That would allow me - a person with an agenda and not a real stake - to step in and control a litigation where the people most affected would be displaced.
Further, you need a real record. In the trans cases medical experts testified. This phantom customer should have been made to testify at a hearing on the application for the TRO or PI. They needed to be asked, what are you looking for? What are you asking Ms. Smith to do? Would the website - even though for a gay couple - be gender neutral? Would the requested website have steered clear of religion altogether? These are fundamental questions in my view to fashioning relief and deciding what the law should be. But it’s a phantom record over a phantom dispute.
This has all the earmarks of a put up job by a phony designated plaintiff. Right or left that’s corrosive of the process. This whole proceeding and decision smacks of pure Supreme Court legislation. They’re playing with fire. People are not going to stand for much more of this as they are negating rights and disregarding precedent. They’re creating a problem that will be addressed extra-judicially.
I don’t disagree with most of this — and I certainly think there are legitimate questions to be raised about the conduct at the district court — but I also think these comments don’t particularly address the case as it was decided by the 10th Circuit or argued and decided at the Supreme Court. Does that make sense?
As a non lawyer, who also sees this case as a total put up job by right wing extremists who want to discriminate against LGBTQ, I have to admit Asha Rangappa has a point when she says Colorado did a shit job defending against this. Bith Smiths lawyers AND CO lawyers should have checked into this phony request long before it reached the 10th circuit
ty. this was useful explanation, particularly the frequency of pre-enforcement rulings.
What is even more clear to me after reading this, is how artfully the case was designed for a SC ruling explicitly on Gay Rights.
The case states any marriage that “contradicts biblical truths”. That could include a multitude of restrictions which her religion might require. Is the marriage a male dominant relationship? Must the couple plan to produce children? Is religious counseling required to assure adherence to church rules? Many possibilities for restriction and refusal.
But she details a restriction only against the single item of gay marriage. No other explicit restrictions are noted.
The case also sidesteps the obvious question: how could someone be offended by being required to decorate a cake saying e.g. “congratulations Bob and Mark”. The case accomplishes this by stating that her cake decorating is so customized and so expressive of her religion that clearly she would never design anything so “neutral”.
This is why this particular ruling evokes such fear with respect to the gay community. It is a “shot across the bow”, a warning, that you are not safe, your legal rights are not secure. We can still find ways to shut you down.
New to this group. I'd like to interview Chris for a commentary to be sub.itted to Buckeye Flame, Ohio’s only LGBTQ+ periodical now that Gay People's Chronicle and Outlook News took dirt naps.
First questions
How does the holding in 303 Creative apply to LGBTQ+ people seeking restaurant service?
Do any of the [specified] findings or rulings in 303 Creative uphold or strengthen state anti-discrimination laws?
Why did Sotomayor pretend Hurley, Dale and Masterpiece Cakeshop were utterly irrelevant as precedents?
This would significantly revise my August 2023 commentaries from Philadelphia Gay News and Out in South Florida, raising the question whether Pride 2024 might celebrate certain aspects of 303 Creative.
In spite of the stipulation, as the SCOTUS pointed out "Colorado claims to endorse this type of message-based refusal, asserting that "the Commission does not interpret [CADA] to require any business owner, regardless of religious beliefs, to produce a message it would decline to produce for any customer." Appellee Br. at 62. Yet Colorado and the majority argue that Ms. Smith must do exactly this: create expressive content celebrating same-sex weddings as long as she will create expressive content celebrating opposite-sex weddings. This is paradigmatic compelled speech."
You can stipulate anything you want, but if your arguments contradict that, the stipulation is meaningless. According to both the state and the commission in charge of the law, what she wanted to do, which is fully known and has been brought up in the proceedings, would not be protected. You say that if Colorado did argue that the descriptive approach violated the CADA, but that is exactly what they argued, and what the appellate court held to be the case. Additionally, the CADA does in fact prohibit such notices, because it creates a situation where a certain group cannot obtain the services for themselves. There is no gay wedding, and therefore there cannot be a gay wedding website. A gay couple could not agree to them getting a website that adheres to her values, because according to her values, that would be a statement that same sex marriage exists when it does not and that is a statement she cannot make so she'd have to give them literally nothing if they agreed to that.
Like I've asked, what would a wedding website for a gay marriage look like under Christian beliefs as held by the lady from 303 Creative? It wouldn't be able to feature the couple, as that would be against her beliefs. It wouldn't be able to acknowledge the wedding, as that would be against her beliefs. It wouldn't be able to declare they are marrying, because that would be against her beliefs that it's not possible. So what's left? Nothing but a blank page.
Do no, a gay couple could NEVER get a wedding website under her conditions, because there is no gay wedding under those conditions. They cannot be given a website for that purpose, when the premise of the website, the gay wedding, is what conflicts with the belief. It's not about what she cannot say, but what she would be forced to say. According to her beliefs, she cannot make a website that acknowledges a gay marriage, period. Freedom of speech is also freedom from compelled speech. You are arguing there wasn't anything that she "couldn't say", but that was never what it was about. She did not want to be forced to say something. Compelled speech is the relevant 1A violation. You say you've read it, but you did not comprehend it.
Nobody is being denied access based solely on who they are, that's the thing. There is nothing to address when you pull in hypotheticals that do not have any basis in this situation. I could make up random unrelated facts and pretend there is an equivalency when there isn't. The message is what is being denied, not the person. Pretending otherwise is just dishonest. She would make any website for a gay person that does not conflict with her beliefs. In the arguments, a scenario was used where a straight wedding planner asked her to make mock wedding websites, 4 opposite sex ones and one same sex one. She stated that she would refuse to make the same sex website. This is despite the person requesting it being straight. That scenario makes it very clear that the message of the same sex wedding is what's at issue, and not the person requesting it.
Additionally, she did not need to already be in the crosshairs for there to be a reason for the lawsuit. That is actually contrary to longstanding precedent. You merely need to show that there is reasonable grounds to assume that there will be such enforcement if you do something that you plan to do (or continue to do something) . That's the basis for any pre-enforcement lawsuit. The state has acted against similar things with masterpiece.
Yes, he refused to provide a wedding cake, because it would conflict with his beliefs that such a wedding is not possible. There is no gay wedding in his beliefs, therefore, he cannot make a wedding cake for a gay marriage, because making such a cake would inherently be a statement that such a marriage exists. So yes, he refused to make one, because there was no possibility of making one. It was not a status based rejection, because other cakes would be fine. He did not reject them because they were gay, he rejected them because they wanted a wedding cake for a gay marriage, which according to the bakers beliefs does not exist. A wedding cake is not just a random cake without meaning, no matter how many times you ignore that fact when it gets inconvenient. The only thing that could be done is refuse.
There is no middle ground. No way to make a wedding cake for them that adheres to his beliefs, because the simple creation of such a cake is what goes against his beliefs. How can a gay couple say "yes, make us a wedding cake that adheres to your Christian beliefs", when that would literally be no cake, because there is no such thing as a gay wedding? That's a nonsense argument. It doesn't work that way, as agreeing to that would be agreeing to pay for literally nothing. This is why she had standing, because the law has been used precisely for such a thing. In the shop, upon inquiring from the customer to his services, he informed them that he could not make it, because he cannot make a statement that goes against his beliefs. He did not refuse them service in general (as he did in fact have multiple openly gay regulars, he clearly had no issue serving gay people), and he too, would refuse a wedding cake for a gay wedding regardless of who requested it, because it would always be against his beliefs. Even if a straight wedding planner asked him to make one as an example, he would not, because it would still conflict with his beliefs. So what could he have done besides refuse? Nothing, because the request was something he could never provide. There is no gay wedding cake at all under his beliefs. How do you suggest the parties in the two cases produce something that, according to their beliefs, cannot exist at all? Under the stipulation that they only provide services that adhere to their Christian values, there is no way to accommodate such a request in any form. They can only refuse. That's one of the issues when values are polar opposites. There's no middle ground between "doesn't exist at all" and "does exist", and merely acknowledging the existence of it is against the beliefs they hold.
Do I think their beliefs are bad? Yes. I'd even go as far as believing it would be best to abolish religion as a whole. But my opinion of it does not change the fact that they do have the right to not be forced to make a statement they disagree with, namely a statement that acknowledges something exists when they sincerely believe that it cannot exist.
Also the site is kinda broken, so I cannot read your comment properly outside of the email notification. As that thing is a wall of text, it is very hard to read and I may have missed something.
What I don’t get is why the court or anyone thinks she can’t express her religious views in describing the sites she will create. People sell explicitly religious stuff all the time. Any gay looking at her offering could take it or leave it, just as she would probably pass on a handcrafted rosary containing in its beads water from Lourdes if she isn’t Catholic. Problem solved. But no, she wants to say “I will not serve gays.” That isn’t an expression of belief at all. It’s an “expression” of an act, just as “I will not donate to that church” is--that statement also doesn’t express a religious belief.
By saying “I will not serve gays” even IF they agree to a design that “celebrates” her views on marriage in intricate detail, she hasn’t been “denied” anything. She’s had her say, and someone weird enough to accept it when it contradicts their own union is just a masochist , which is their own business
Everyone was focused on what she was “denied” rather than acknowledging what she could in fact do without any guff from “administrative proceedings”. Without those looming, there goes standing. The court simply wanted to rule that religious belief of a “creative” person lets that person discriminate against a protected class. So it weaseled it’s way into doing so. And why no one from Colorado’s attorneys argued this is beyond me.
It doesn't discriminate against a protected class though, as she is willing to work for people of any orientation. The only thing she does not want to do is produce specific statements that she does not agree with on religious grounds. If you're gay, she will happily make you a website that promotes your new business. If you're straight, she'll still refuse to make you a website that promotes LGBTQ viewpoints.
It isn't about the person requesting the message, it's about the message being requested. That is an important distinction. Compelled speech is ALSO against the first amendment, and laws cannot force someone to make a specific statement. Under this ruling, specific statements can be refused, not people.
It's quite literally not discrimination because the person who requests the statement is irrelevant, it's simply the statement that they won't make. Something is only discrimination if the characteristics a person has being changed results in a different outcome. They do not. She will still refuse to produce a gay wedding website if a straight woman comes in to request it. She will still produce a business website if a gay couple comes in and requests it. Only the statement matters, not the person, and therefore there is no discrimination.
Not being able to compel speech is a far cry from being discriminated against.
The problem is that there is nothing at all forcing her to produce a website for gays that does anything but express her religious views. THERE IS NO COMPELLED SPEECH HERE. She just has to tell people considering the site what it sells, which is site designs promoting a Christian view of marriage
If a painter advertises that she will paint you an original painting, in colors you want, the size you want, which glorify Catholic saints, there is zippo requirement that she also have to paint Hindu gods. If a store sells handcrafted hijabs there is no requirement that they sell a creatively designed yarmulke. You sell a service that does X. You set out what X is. If people don’t want X they don’t buy it.
The whole “I’d be forced to do something against my religious beliefs” is a total scam. If gays want to work with her to produce a site that celebrates a Christian view of “only a man and a woman” they are welcome to do so. She just doesn’t want to TELL people what her designs require and then have the freedom to refuse to serve if that lack of their knowledge means they order up of something she objects to.
The thing is, there actually IS something that forces her to do that. Or was, prior to that ruling. Under the law as it was, she had to provide the service of "producing a wedding website" for anyone, including a gay couple wanting one for their own marriage, which would have conflicted with her beliefs. According to the state itself, if she did what you say, she would have been charged under that law. That's quite literally how the law applied according to both her and the state, and that was not an issue at controversy, as both parties agreed.
The lawsuit was in order to acquire the right to do that. To have the right to "sell a website that promotes the Christian view of marriage". She literally WANTED to do just that, say that she only makes websites for weddings according to the Christian view. So how is that a total scam? From the very start, the issue at hand was that she wasn't allowed to do the exact thing you are saying she should have done.
And yes, the gay people are fully allowed to request a straight wedding, and always have been, and still are, and she has no issue with that. Under the law as it was, however, she would have had to make one promoting a gay wedding too, or be sued by the rejected customer, or alternatively charged by the state.
No she did not. She was not required to produce a website for "anyone." There is NOTHING in the facts that shows this--she just SAID her websites would be for "anyone" She didn't have to say that. She didn't have to DO that. Both parties agreed for some reason unknown; someone from the Colorado AG did not have their thinking caps on.
If she DID want to design a website for "anyone" then she courted state charges if she then refused to produce one that "celebrated" gay marriage. It was SOLELY her choice to decide on "all."
Are you saying that the painter or the hijab maker would HAVE to design things beyond their own description?? Or that a Catholic church that advertised creative Masses for weddings HAS to create creative Muslim wedding ceremonies? If that's the law in Colorado, then Colorado has a problem. But I really don't think they require that, creative or not.
The issue at hand was that she wasn't even allowed to advertise that she would not produce one for a gay marriage. That's quite literally one of the undisputed facts in this lawsuit. The state agrees with her, that she wasn't allowed to advertise as such because that would be the denial of the "fair and equal enjoyment" of the services as defined under the laws of Colorado. She was not allowed to make any distinction that denied access to a protected class in any way.
And this is part of the facts. Apparently you have not read the case, because the advertisement of the service as she wanted to post it is part of the arguments. A simple notice that she did not want to produce websites to promote same-sex marriages and referring people to other companies instead.
The rulings of lower courts even held that, in fact, the law CAN be used to deny her the ability to say that she won't produce that as part of her service advertisement, and to then force her to produce that. That's why it got as far as it did.
It wasn't solely her choice, at every step of the way the courts agreed with the plaintiff and the defendants, that the law as it was would forbid her from advertising her services in any way that would exclude same sex weddings. It's one of the things everyone in the case, all judges and both parties, agree on.
She didn't have to say she wouldn't design one for a gay marriage. She just had to say that she designed websites promoting the "one man one woman" view of marriage. The gays could take it or leave it.
I'm not a lawyer, but I have logically prior questions that I haven't seen addressed.
* Is anyone forcing Lorie Smith to offer web design services in the public marketplace? Surely she could use design skills or front-end programming skills in jobs that would avoid this religious conflict.
* Is anyone forcing Lorie Smith to include wedding websites in her website design business? She could probably run a profitable website design business without wedding websites, especially since popular sites let you create customized wedding websites for free without a designer.
If Smith could offer a public accomodation without discriminating against a protected class, wouldn't that be the obvious resolution?
No one is forcing her to — it’s the opposite. She was arguing that she *wants* to start offering wedding websites — but only for opposite-sex weddings — and that the reason she did not do so was because she feared Colorado would go after her.
Yes, but she argued that Colorado's public accomodations law would compel her to express ideas that were contrary to her beliefs. I was making the point that she didn't have to operate in that space at all. She *chose* to offer services to the public that would create a conflict with the law.
Yes. That is the entire point of her case. I'm not sure we disagree, but no one is questioning any of that. Obviously, if she chose not to enter the wedding website marketplace, then there would be no case. She wanted to, and her lawyers wanted her to, because they thought the law was wrong.
Hard to see how "you must give up your right to free speech to engage in business" is any more constitutional than when the issue is framed as straightforward compelled speech.
That would be one of the possible effects I discuss in the last paragraph. Again, though, I do not believe we have enough information at this point for that to happen.
One of the questions I have about this is where the manufactures request came from. It’s unlikely that counsel knew. It’s possible that the proprietor manufactured it. Ip addresses might reveal this.
The states attorneys appeared disinterested in discovery and helped move the legal resolution (good case management-bad appellate strategy- the government usually fights every procedural nuance for exactly this reason).
Moot court is great training for advocacy and requires no pesky facts. Only hypotheticals. Like 303’s hypothetical business and its hypothetical plans to engage in the sale of its First Amendment protected rights of expression. She may as well claim that “someday I might become a photographer of prom nights and if I did and if a gay couple wanted their photo taken I can decline on First Amendment grounds, just as I could decline to take photographs of couples posing in lewd positions. My First Amendment in the latter case aligns with legal prohibitions against child pornography. But if they didn’t I should be free to exercise my First Amendment rights to celebrate the beauty of young love.” Colorado is not compelling 303’s speech. 303 can offer up a wedding package that makes no distinction in gender combinations and proclaim “I am the artist and you have no say in the matter of my artistic expression.” But if it says “hire us and we will help you realize your vision” is that still the speech of the business? Is every expressive act of a fictive person to be embraced by the protection of the First Amendment? “Sorry, we can’t seat you in our restaurant which is themed as a 1923 restaurant in Yoknapatawpha County, Mississippi. Our artistic vision requires the utmost attention to strict historical accuracy, and you know that there is no circumstance under which a mixed race couple could ever have been seated in such an establishment.”
She had a wedding section of her website ready to go live, so it's quite a bit different than your photography hypo. That site also included a statement that she wouldn't create pages for gay marriages.
Thanks for pointing out that the pre-enforcement nature isn’t new and is also used for other challenges than the license for religious bigotry.
I honestly didn’t know this. I’m a little disappointed that this hasn’t been mentioned in MSM - maybe everyone knows this, but I didn’t.
My anger at this is not assuaged. I’ve been practicing in federal court for almost 40 years. Because of Rule 11 - and fear of misrepresenting any fact to a federal court - I would never offer as proof something that was this questionable. Can you address Rule 11 for people who don’t know what that requires? IMHO, Smith’s lawyers were required to make an attempt to verify that website request. It was ONE witness whose contact information they had. And stipulated facts would not exempt you from that requirement.
And I get pre-enforcement challenges. But they still have to be decided on a REAL record. So in the trans litigations, the folks had to show that they were on medications, in treatment, capable of suffering real harm, etc. I disagree with those statutes but I couldn’t confer standing on myself simply by saying well, I think I would like to become a woman so I’m suing. That would allow me - a person with an agenda and not a real stake - to step in and control a litigation where the people most affected would be displaced.
Further, you need a real record. In the trans cases medical experts testified. This phantom customer should have been made to testify at a hearing on the application for the TRO or PI. They needed to be asked, what are you looking for? What are you asking Ms. Smith to do? Would the website - even though for a gay couple - be gender neutral? Would the requested website have steered clear of religion altogether? These are fundamental questions in my view to fashioning relief and deciding what the law should be. But it’s a phantom record over a phantom dispute.
This has all the earmarks of a put up job by a phony designated plaintiff. Right or left that’s corrosive of the process. This whole proceeding and decision smacks of pure Supreme Court legislation. They’re playing with fire. People are not going to stand for much more of this as they are negating rights and disregarding precedent. They’re creating a problem that will be addressed extra-judicially.
I don’t disagree with most of this — and I certainly think there are legitimate questions to be raised about the conduct at the district court — but I also think these comments don’t particularly address the case as it was decided by the 10th Circuit or argued and decided at the Supreme Court. Does that make sense?
As a non lawyer, who also sees this case as a total put up job by right wing extremists who want to discriminate against LGBTQ, I have to admit Asha Rangappa has a point when she says Colorado did a shit job defending against this. Bith Smiths lawyers AND CO lawyers should have checked into this phony request long before it reached the 10th circuit
ty. this was useful explanation, particularly the frequency of pre-enforcement rulings.
What is even more clear to me after reading this, is how artfully the case was designed for a SC ruling explicitly on Gay Rights.
The case states any marriage that “contradicts biblical truths”. That could include a multitude of restrictions which her religion might require. Is the marriage a male dominant relationship? Must the couple plan to produce children? Is religious counseling required to assure adherence to church rules? Many possibilities for restriction and refusal.
But she details a restriction only against the single item of gay marriage. No other explicit restrictions are noted.
The case also sidesteps the obvious question: how could someone be offended by being required to decorate a cake saying e.g. “congratulations Bob and Mark”. The case accomplishes this by stating that her cake decorating is so customized and so expressive of her religion that clearly she would never design anything so “neutral”.
This is why this particular ruling evokes such fear with respect to the gay community. It is a “shot across the bow”, a warning, that you are not safe, your legal rights are not secure. We can still find ways to shut you down.
New to this group. I'd like to interview Chris for a commentary to be sub.itted to Buckeye Flame, Ohio’s only LGBTQ+ periodical now that Gay People's Chronicle and Outlook News took dirt naps.
First questions
How does the holding in 303 Creative apply to LGBTQ+ people seeking restaurant service?
Do any of the [specified] findings or rulings in 303 Creative uphold or strengthen state anti-discrimination laws?
Why did Sotomayor pretend Hurley, Dale and Masterpiece Cakeshop were utterly irrelevant as precedents?
This would significantly revise my August 2023 commentaries from Philadelphia Gay News and Out in South Florida, raising the question whether Pride 2024 might celebrate certain aspects of 303 Creative.
In spite of the stipulation, as the SCOTUS pointed out "Colorado claims to endorse this type of message-based refusal, asserting that "the Commission does not interpret [CADA] to require any business owner, regardless of religious beliefs, to produce a message it would decline to produce for any customer." Appellee Br. at 62. Yet Colorado and the majority argue that Ms. Smith must do exactly this: create expressive content celebrating same-sex weddings as long as she will create expressive content celebrating opposite-sex weddings. This is paradigmatic compelled speech."
You can stipulate anything you want, but if your arguments contradict that, the stipulation is meaningless. According to both the state and the commission in charge of the law, what she wanted to do, which is fully known and has been brought up in the proceedings, would not be protected. You say that if Colorado did argue that the descriptive approach violated the CADA, but that is exactly what they argued, and what the appellate court held to be the case. Additionally, the CADA does in fact prohibit such notices, because it creates a situation where a certain group cannot obtain the services for themselves. There is no gay wedding, and therefore there cannot be a gay wedding website. A gay couple could not agree to them getting a website that adheres to her values, because according to her values, that would be a statement that same sex marriage exists when it does not and that is a statement she cannot make so she'd have to give them literally nothing if they agreed to that.
Like I've asked, what would a wedding website for a gay marriage look like under Christian beliefs as held by the lady from 303 Creative? It wouldn't be able to feature the couple, as that would be against her beliefs. It wouldn't be able to acknowledge the wedding, as that would be against her beliefs. It wouldn't be able to declare they are marrying, because that would be against her beliefs that it's not possible. So what's left? Nothing but a blank page.
Do no, a gay couple could NEVER get a wedding website under her conditions, because there is no gay wedding under those conditions. They cannot be given a website for that purpose, when the premise of the website, the gay wedding, is what conflicts with the belief. It's not about what she cannot say, but what she would be forced to say. According to her beliefs, she cannot make a website that acknowledges a gay marriage, period. Freedom of speech is also freedom from compelled speech. You are arguing there wasn't anything that she "couldn't say", but that was never what it was about. She did not want to be forced to say something. Compelled speech is the relevant 1A violation. You say you've read it, but you did not comprehend it.
Nobody is being denied access based solely on who they are, that's the thing. There is nothing to address when you pull in hypotheticals that do not have any basis in this situation. I could make up random unrelated facts and pretend there is an equivalency when there isn't. The message is what is being denied, not the person. Pretending otherwise is just dishonest. She would make any website for a gay person that does not conflict with her beliefs. In the arguments, a scenario was used where a straight wedding planner asked her to make mock wedding websites, 4 opposite sex ones and one same sex one. She stated that she would refuse to make the same sex website. This is despite the person requesting it being straight. That scenario makes it very clear that the message of the same sex wedding is what's at issue, and not the person requesting it.
Additionally, she did not need to already be in the crosshairs for there to be a reason for the lawsuit. That is actually contrary to longstanding precedent. You merely need to show that there is reasonable grounds to assume that there will be such enforcement if you do something that you plan to do (or continue to do something) . That's the basis for any pre-enforcement lawsuit. The state has acted against similar things with masterpiece.
Yes, he refused to provide a wedding cake, because it would conflict with his beliefs that such a wedding is not possible. There is no gay wedding in his beliefs, therefore, he cannot make a wedding cake for a gay marriage, because making such a cake would inherently be a statement that such a marriage exists. So yes, he refused to make one, because there was no possibility of making one. It was not a status based rejection, because other cakes would be fine. He did not reject them because they were gay, he rejected them because they wanted a wedding cake for a gay marriage, which according to the bakers beliefs does not exist. A wedding cake is not just a random cake without meaning, no matter how many times you ignore that fact when it gets inconvenient. The only thing that could be done is refuse.
There is no middle ground. No way to make a wedding cake for them that adheres to his beliefs, because the simple creation of such a cake is what goes against his beliefs. How can a gay couple say "yes, make us a wedding cake that adheres to your Christian beliefs", when that would literally be no cake, because there is no such thing as a gay wedding? That's a nonsense argument. It doesn't work that way, as agreeing to that would be agreeing to pay for literally nothing. This is why she had standing, because the law has been used precisely for such a thing. In the shop, upon inquiring from the customer to his services, he informed them that he could not make it, because he cannot make a statement that goes against his beliefs. He did not refuse them service in general (as he did in fact have multiple openly gay regulars, he clearly had no issue serving gay people), and he too, would refuse a wedding cake for a gay wedding regardless of who requested it, because it would always be against his beliefs. Even if a straight wedding planner asked him to make one as an example, he would not, because it would still conflict with his beliefs. So what could he have done besides refuse? Nothing, because the request was something he could never provide. There is no gay wedding cake at all under his beliefs. How do you suggest the parties in the two cases produce something that, according to their beliefs, cannot exist at all? Under the stipulation that they only provide services that adhere to their Christian values, there is no way to accommodate such a request in any form. They can only refuse. That's one of the issues when values are polar opposites. There's no middle ground between "doesn't exist at all" and "does exist", and merely acknowledging the existence of it is against the beliefs they hold.
Do I think their beliefs are bad? Yes. I'd even go as far as believing it would be best to abolish religion as a whole. But my opinion of it does not change the fact that they do have the right to not be forced to make a statement they disagree with, namely a statement that acknowledges something exists when they sincerely believe that it cannot exist.
Also the site is kinda broken, so I cannot read your comment properly outside of the email notification. As that thing is a wall of text, it is very hard to read and I may have missed something.
What I don’t get is why the court or anyone thinks she can’t express her religious views in describing the sites she will create. People sell explicitly religious stuff all the time. Any gay looking at her offering could take it or leave it, just as she would probably pass on a handcrafted rosary containing in its beads water from Lourdes if she isn’t Catholic. Problem solved. But no, she wants to say “I will not serve gays.” That isn’t an expression of belief at all. It’s an “expression” of an act, just as “I will not donate to that church” is--that statement also doesn’t express a religious belief.
By saying “I will not serve gays” even IF they agree to a design that “celebrates” her views on marriage in intricate detail, she hasn’t been “denied” anything. She’s had her say, and someone weird enough to accept it when it contradicts their own union is just a masochist , which is their own business
Everyone was focused on what she was “denied” rather than acknowledging what she could in fact do without any guff from “administrative proceedings”. Without those looming, there goes standing. The court simply wanted to rule that religious belief of a “creative” person lets that person discriminate against a protected class. So it weaseled it’s way into doing so. And why no one from Colorado’s attorneys argued this is beyond me.
It doesn't discriminate against a protected class though, as she is willing to work for people of any orientation. The only thing she does not want to do is produce specific statements that she does not agree with on religious grounds. If you're gay, she will happily make you a website that promotes your new business. If you're straight, she'll still refuse to make you a website that promotes LGBTQ viewpoints.
It isn't about the person requesting the message, it's about the message being requested. That is an important distinction. Compelled speech is ALSO against the first amendment, and laws cannot force someone to make a specific statement. Under this ruling, specific statements can be refused, not people.
It's quite literally not discrimination because the person who requests the statement is irrelevant, it's simply the statement that they won't make. Something is only discrimination if the characteristics a person has being changed results in a different outcome. They do not. She will still refuse to produce a gay wedding website if a straight woman comes in to request it. She will still produce a business website if a gay couple comes in and requests it. Only the statement matters, not the person, and therefore there is no discrimination.
Not being able to compel speech is a far cry from being discriminated against.
The problem is that there is nothing at all forcing her to produce a website for gays that does anything but express her religious views. THERE IS NO COMPELLED SPEECH HERE. She just has to tell people considering the site what it sells, which is site designs promoting a Christian view of marriage
If a painter advertises that she will paint you an original painting, in colors you want, the size you want, which glorify Catholic saints, there is zippo requirement that she also have to paint Hindu gods. If a store sells handcrafted hijabs there is no requirement that they sell a creatively designed yarmulke. You sell a service that does X. You set out what X is. If people don’t want X they don’t buy it.
The whole “I’d be forced to do something against my religious beliefs” is a total scam. If gays want to work with her to produce a site that celebrates a Christian view of “only a man and a woman” they are welcome to do so. She just doesn’t want to TELL people what her designs require and then have the freedom to refuse to serve if that lack of their knowledge means they order up of something she objects to.
The thing is, there actually IS something that forces her to do that. Or was, prior to that ruling. Under the law as it was, she had to provide the service of "producing a wedding website" for anyone, including a gay couple wanting one for their own marriage, which would have conflicted with her beliefs. According to the state itself, if she did what you say, she would have been charged under that law. That's quite literally how the law applied according to both her and the state, and that was not an issue at controversy, as both parties agreed.
The lawsuit was in order to acquire the right to do that. To have the right to "sell a website that promotes the Christian view of marriage". She literally WANTED to do just that, say that she only makes websites for weddings according to the Christian view. So how is that a total scam? From the very start, the issue at hand was that she wasn't allowed to do the exact thing you are saying she should have done.
And yes, the gay people are fully allowed to request a straight wedding, and always have been, and still are, and she has no issue with that. Under the law as it was, however, she would have had to make one promoting a gay wedding too, or be sued by the rejected customer, or alternatively charged by the state.
No she did not. She was not required to produce a website for "anyone." There is NOTHING in the facts that shows this--she just SAID her websites would be for "anyone" She didn't have to say that. She didn't have to DO that. Both parties agreed for some reason unknown; someone from the Colorado AG did not have their thinking caps on.
If she DID want to design a website for "anyone" then she courted state charges if she then refused to produce one that "celebrated" gay marriage. It was SOLELY her choice to decide on "all."
Are you saying that the painter or the hijab maker would HAVE to design things beyond their own description?? Or that a Catholic church that advertised creative Masses for weddings HAS to create creative Muslim wedding ceremonies? If that's the law in Colorado, then Colorado has a problem. But I really don't think they require that, creative or not.
The issue at hand was that she wasn't even allowed to advertise that she would not produce one for a gay marriage. That's quite literally one of the undisputed facts in this lawsuit. The state agrees with her, that she wasn't allowed to advertise as such because that would be the denial of the "fair and equal enjoyment" of the services as defined under the laws of Colorado. She was not allowed to make any distinction that denied access to a protected class in any way.
And this is part of the facts. Apparently you have not read the case, because the advertisement of the service as she wanted to post it is part of the arguments. A simple notice that she did not want to produce websites to promote same-sex marriages and referring people to other companies instead.
The rulings of lower courts even held that, in fact, the law CAN be used to deny her the ability to say that she won't produce that as part of her service advertisement, and to then force her to produce that. That's why it got as far as it did.
It wasn't solely her choice, at every step of the way the courts agreed with the plaintiff and the defendants, that the law as it was would forbid her from advertising her services in any way that would exclude same sex weddings. It's one of the things everyone in the case, all judges and both parties, agree on.
You seem to be saying that the painter would HAVE to sell paintings of Hindu gods under Colorado law. Do you REALLY believe that??
She didn't have to say she wouldn't design one for a gay marriage. She just had to say that she designed websites promoting the "one man one woman" view of marriage. The gays could take it or leave it.
I'm not a lawyer, but I have logically prior questions that I haven't seen addressed.
* Is anyone forcing Lorie Smith to offer web design services in the public marketplace? Surely she could use design skills or front-end programming skills in jobs that would avoid this religious conflict.
* Is anyone forcing Lorie Smith to include wedding websites in her website design business? She could probably run a profitable website design business without wedding websites, especially since popular sites let you create customized wedding websites for free without a designer.
If Smith could offer a public accomodation without discriminating against a protected class, wouldn't that be the obvious resolution?
No one is forcing her to — it’s the opposite. She was arguing that she *wants* to start offering wedding websites — but only for opposite-sex weddings — and that the reason she did not do so was because she feared Colorado would go after her.
Yes, but she argued that Colorado's public accomodations law would compel her to express ideas that were contrary to her beliefs. I was making the point that she didn't have to operate in that space at all. She *chose* to offer services to the public that would create a conflict with the law.
Yes. That is the entire point of her case. I'm not sure we disagree, but no one is questioning any of that. Obviously, if she chose not to enter the wedding website marketplace, then there would be no case. She wanted to, and her lawyers wanted her to, because they thought the law was wrong.
Hard to see how "you must give up your right to free speech to engage in business" is any more constitutional than when the issue is framed as straightforward compelled speech.
Shouldn't Lori Smith be investigated for perjury? It's quite possible the sender of the "Stewart" wedding request can be traced.
That would be one of the possible effects I discuss in the last paragraph. Again, though, I do not believe we have enough information at this point for that to happen.
One of the questions I have about this is where the manufactures request came from. It’s unlikely that counsel knew. It’s possible that the proprietor manufactured it. Ip addresses might reveal this.
The states attorneys appeared disinterested in discovery and helped move the legal resolution (good case management-bad appellate strategy- the government usually fights every procedural nuance for exactly this reason).
Yes, as I said, we still do not know where this request came from.