57 Comments

I think there is likely to be a lot of litigation over what constitutes an “expressive product”. Those who want to pretend that this is a narrow reading either disingenuously or naively ignore that virtually all work in a largely service based economy has an expressive component. The example I have used is the STAPLES hypothetical. You want flyers printed up for a pro-choice rally. YOU designed them. It’s YOUR message. The franchise owner says making me print your fliers violates my religious beliefs. Go away. I say it’s not a “custom” service. ADF says every job is “custom” because the content of every flier request is different.

You have to be stupid or a liar to believe this is a narrow decision. And mark my words as these decisions - which ignore precedent and roll back rights already won - begin to pile up. 9 unelected people who represent a minority view fighting a culture war in a country of 300 million people WILL eventually trigger a response they are not going to like. They will find out that the Court as an institution is considerably more fragile than they imagine.

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I appreciate your analysis; it is one of the best I've read. I hesitate to state this publicly, but as someone who has professionally written or edited for most of my adult life and wouldn't ever want to be put in a position of of being compelled by the government to use my creative efforts to support something I disagree with, I can support the ruling ** when interpreted narrowly in the way that Carpenter did **. One of the main problems with this decision — and I'm glad you pointed it out, as few other analysts have — is that the ruling was based on a set of stipulations. And those stipulations may have not been the reality of what 303 Creative was planning to do.

Essentially, the Supreme Court made a ruling based on a hypothetical — and the hypothetical was written by the prevailing side.

Technically, with that narrow of an interpretation of the ruling, it would be possible to enforce a nondiscrimination law if a web designer were building a wedding website based on a template rather than designing every wedding website from scratch, as Lorie Smith presumably will be doing. I'm skeptical that that'll be the reality.

But you're right. This is 2023, and the ruling isn't going to be understood that narrowly until and unless a future Supreme Court says it should be. The court left totally unanswered what constitutes expressive conduct, and I fully expect we'll see that question litigated for the foreseeable future.

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I’m struggling with the issue of public accommodations. Is a web designer really properly considered one? If a business involves any client selection and differential work, as opposed to just having goods for sale or non-selective services like restaurants or hotels, do we really want to get into enforcing the mindset for why a business person decides to take on one client but not another? I think a baker just taking cake orders from whoever walks in the door is different from a wedding planner or web designer who can pick and choose which client business to accept.

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While I understand the way this case is going to be used to bulldoze civil rights laws and protections, I can't help but feel that a narrow reading would be beneficial - unless we want to compel Jewish bakers to decorate cakes with swastikas, for example. That may be an extreme example but it's one that keeps giving me pause.

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Consider a role reversal: Now that gay hairstylists or bakers who have a sincerely held religious belief, such as Unitarian Universalism, that oppose the sort of bigotry, are free to deny expressive services to MAGAs and Neo-Nazis. Likewise, Quaker and Jehovah's Witness artists are no longer required to create for the "Support Our Troops" or "Blue Lives Matter" customers.

Because in the United States, freedom is either for everyone or for no one.

As a Queer person, I have been a lone voice in support of 303 Creatives for some time. I'd rather prefer someone like Loree to be honest and transparent about her hate and bigotry upfront so I won't have to do business with those who might begrudgingly offer me services and inevitably do a mediocre job. I'll spend my money at shops where owners wholeheartedly support the LGBTQ+ community, instead. If Loree and Masterpiece Cakes and Sweet Cakes by Melissa don't want my business, that's their loss and their problem.

In the sex positive community there's a saying, "consent is sexy." Consent means a wholehearted, eager, unequivocal "yes" -- anything less than that is not consent. In the same way, I won't force my business on anyone -- the contract clause of the U.S. Constitution prohibits the government from interfering with freely made contracts between consenting adults.

Frankly, the sort of mass hysteria coming from the Left is embarrassing.

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Regardless of what’s been “done” or even what is considered “normal” the constitution in no way whatever confers “except when” power to law.

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The Supreme Court let yet another genie out of the bottle with its decision in 303 Creative, as it did with Dobbs (and I would submit that it did so intentionally in both cases). It will be borderline impossible to get that genie back in.

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It's very helpful the way you parsed the situations in which the decision could have various impacts. I had seen some arguments essentially saying, hey, this decision is actually a good thing, which I found incredibly troubling.

For example, a Substack writer who lobbies for tech firms was saying it's terrific, because it recognizes that computer code is speech. So I guess, you can code anything you want, and it's protected??

Gosh, what else shall we categorize as protected speech that trumps all other legal arguments and compelling interests of the state?

I see speech by a business as a very slippery slope. If money is speech (campaign contributions), then isn't anything I sell for money also a form of speech? My very willingness to sell it is speech, then, right? So can't I control who I sell to, since that is a form of expression? And if so, maybe as a white atheist, I don't want to sell to blacks, or Christians, or to both. (I am making that up, of course!) Now, I would frame my arguments in a clever way... Because of course, I don't discriminate against protected classes...

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So please tell me where the constitution makes the argument that there can be an exception to its plain language because of a “compelling state interest.” This is wrongheaded and the very idea of it turns bedrock to mush and words of meaning to meaningless & perspective based directives. The constitution was meant to be clear and unadorned language, with no ulterior or other motive, understandable by a population that did not have compelled state education, nor one that would have to hire counsel to navigate or understand it. This idea is a perversion that lets us avoid debate. If we “meant” it, we need to AMEND with clear language. Hard? Yes. But meaningfully so. Every Justice or other legal representative should be ashamed at letting ambiguity rule over clarity of design. If you’re fearful of an amendment, or the work involved, then that should tell you it was not ever meant to be incorporated into our society. Ease and expediency is not the way the framers set this up. They wanted real, universal appeal & debate. The supermajorities needed to inflict change shows that mankind is disposed to suffer evils while they are sufferable and are not meant to make changes for light or transient causes, if I may paraphrase the greatest of statements.

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