Part II: While some legal scholars have spent the past two weeks explaining how narrow the First Amendment decision is, people who want to discriminate are ... discriminating.
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.
I misspoke. It is a narrow HOLDING. It is a deeply dishonest decision. It is a mouse that roared and brought back, as holding, a whimper. But it is a mouse with many many teeth, not just a tongue. In theory, a court is supposed to cite only the holdings of cases as precedent. In practice they both distort the holdings and rely on things not directly related to the holding but which sound really peachy for their own agendas.
One can't argue with the holding, which is that the state can't force you to sell creative things that are against your belief--whether the things are goods and services. Say a really misogynists group of artists put out a line specialty t-shirts denigrating women. Can a court force them to silk screen a whole lot of feminist t shirts? Of course not. That's the whimper of the holding. What those men can't do is say women are not allowed to buy the misogynist shirts because the men have a sincere belief, religious or not, that women would be too shocked to wear them and would faint dead away. The women can buy the shirts and burn them for all anyone cares. Your products may be as creatives as Picasso, but you have no right to have anyone respect that creativity as much as you would want.
The many teeth of that mouse are that people will argue-- courts, lawyers, and bigots in Michigan-- based on all the First Amendment stuff. And that is there ONLY because for some bizarre reason Colorado chose to argue that (to continue the analogy) the men COULD be forced to sell shirts with the sayings of Germaine Greer and THAT would violate their first Amendment rights. Which it probably would.
Just wanted to note here as a follow-on to the exchange we had on standing a month or so ago that this case like the debt forgiveness case basically ignored the standing issue -- it appears that for this court standing is irrelevant if there is a case they want to legislate on.
indeed it did. If what she was claiming she wanted to do (sell a Christian-based product with no rejection of gays who wanted to buy it) then the 10th Circuit was wrong about her being subject to immediate administrative action. The is nothing remotely illegal about selling Christian products, even creative ones, even books that express your deepest beliefs, and absolutely nothing that says you have to also write books expressing Muslim beliefs.
If she WANTED to overtly discriminate, standing might have been correct on that basis, but the actual CASE in FN5 says it is NOT about overt exclusion. So in FN 5 the court basically obliterates the 10th Circuit's basis for standing. It was able to do that because of the deeper problem of standing here: no one really has a clue about what her website designs would actually say.
The only explanation I can think of is that Colorado's lawyers thought it WAS required to sell products of all religions if you sold those aimed at one. Talk to Joel Osteen about that. Or else the Extremes were being MONUMENTALLY dishonest about the facts.
Per our discussion about standing previously where you indicated that the "Extremes" (love this!!) would be opening a Pandora's box with their ignoring of standing, what do you think we will see in terms of filings with no real standing -- will the willingness of this court to ignore standing result in lower courts being forced to ignore standing in many many new cases?
That scares me. But it is certainly not beyond this court to issue opinions that are on their own face unconstitutional--like analyzing "beginning of human life" from the point of view of one part of one religion. Or blowing off Case and Controversy and issuing actual "advisory" opinions whenever the agenda requires it.
I would hope that lower courts would continue to pay attention. Partly because if the case did NOT meet the Extreme's (or some Circuit's) agenda, they'd find themselves overturned
Will it spread to state courts? Geeze. Could you sue me to cut down a tree when I live 4 houses away because someday it MIGHT fall on another neighbor's fence?
I wonder if judges care about being overturned ... certainly Cannon and Kazmaryck don't -- in fact getting overturned is probably a benefit to them with Trump, McConnell, the Federalist Society, etc; puts them on the fast track to an appeals court slot the next time there's a Republican president.
"One can't argue with the holding, which is that the state can't force you to sell creative things that are against your belief" This is straw-manning. Again, if you sell wedding website design services to straight people you cannot deny service to gay people - OF THE SAME SERVICE.
I agree completely. That is NOT what I am saying. What she wanted to do--express her religious beliefs--was perfectly legal. What she couldn't do was deny those religious-celebrating services to people she just assumed wouldn't want them.
It isn't straw manning: it is the literal wording of the holding. The court turned it into straw-manning by coming up with all sorts of reasons she couldn't be prevented from doing that which she couldn't be prevented from doing from the get go. THAT is where this decision is both dishonest and dangerous.
Forget about websites. You are perfectly free to offer to perform wedding services themselves reeking of Christian values, so long as you don't DENY anyone who says "OK, I'll take the reek even though I don't believe in it. But Mama wants it." No one can insist that you perform a neo-pagan wedding, because that is not what you are offering. Basic contract law. There is one contract provision the law prohibits: requiring that you have to be of a certain class of people (and excluding protective classes thereby) to take advantage of your service.
In one sense it is a narrow decision--the holding is simply that a state can't force "a website designer to create expressive designs speaking messages with which the designer disagrees." That is in itself uncontroversial--do states require designers of creative rosaries to also design creative Islamic religious devices? The mystery is why Colorado seems to have argued that it can. See my reply to Spence of Austin's comment elsewhere in this thread.
The problem is what I think of as "precedential creep." Lower courts interpret the holding to do more than it does based on the arguments, not the holding. And idiots like the Michigan woman read it as "free reign to discriminate" and some courts will agree with her.
Witness Scalia's assertion that his gun control decision was limited to handguns. And what bets that the "limited to abortion" ruling will find itself cited by the court itself to throw laws on contraception or interracial marriage back to the states?
I disagree. It is a very broad decision applied to "facts" that did not even exist. And this is where standing comes in. And yes, I know all about pre-enforcement challenges. But here we have a woman who never designed wedding websites. She had no track record of doing so. The one inquiry she got was false or fraudulent. When deciding constitutional issues, courts need to fashion as narrow a remedy as possible so as to address the issue at hand. But that was not done here. Regardless of any "stipulated facts" - and that was astounding malfeasance on the part of Colorado's AG - this case needed to be sent back for the development of a record. The plaintiff needed to be asked: What steps have you taken to enter the wedding website business? Precisely, what are your designs? Will they be templates? Will they permit customers to offer their own messages? What precisely would you be accommodating with? Are you just objecting to photos showing two same sex people? And then as to the phony request:
What are you asking this designer to do? What do you want to say? Did she respond?
If she did not respond isn't that evidence the whole thing was a sham?
The Supreme Court is not a g-d legislature. They have no business issuing hypothetical decisions. This decision is basically - this woman who does not do this thing which we're really not sure of isn't going to be sanctioned for not doing it. That's insane.
And people should be very p-d off at the Court for doing this.
It isn't clear on what basis you make this statement -- the evidence would suggest that the people who created it and the court itself perceive it as such.
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.
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.
Not talking about businesses that are open to the public and provide goods or the same services to whomever walks in the door, but businesses that provide specially tailored services and who select which clients to do business with.
This has been my position, with a slight twist. I don't see any reason why a business can't describe what exactly its product will or won't do. I don't see why this woman couldn't just say "we don't like untraditional pronouns and will not use them." (In fact, choice of pronouns has no correlation with whether the person is trans, particularly among the young--ask any random high school student, at least in my granddaughters school. Or the 303 Creative can say "all our designs will incorporate the Christian view of marriage." The difference is between completely refusing people on the basis of status, simply assuming that all people with that status will not accept the conditions, and giving those with that status the ability to choose whether or not they will accept the conditions.. What if an actual trans person says "I don't give a shit about what pronouns you use while doing my hair." Or a gay couple says "design away as you like, we don't care; our friends will think it's funny." The First Amendment allows anyone to express their own views regarding the product itself. It doesn't require that people actually believe those views if they choose to abide by what the product expresses.
Some have argued with me that the discrimination laws prohibit even such descriptive statements. I've looked at the Colorado law and can't see that is true. After all, if a person constructs custom hijabs, the state isn't going to accuse them of discrimination because they don't also construct embroidered yarmulkes. If it did, we'd certainly have heard about it by now.
I think if you do a walk in service that is available to all comers, you’re clearly a public accommodation. I thought the wedding cake case was easy. A baker inscribing words as directed on a cake is not personally endorsing what is described and the claim that it would run afoul of religious beliefs about gay marriage is disingenuous horse manure. A wedding planner or website designer being asked to take on a client, to me, represents a more complex issue involving the freedom to decide whom a person contracts with.
"freedom to decide whom a person contracts with" EXACTLY. Say what your site is doing, or what your hair salon will or won't do . Don't deny people based on assuming a protected class will reject your conditions. If they accept, serve them. It gives the customer the ability to decide who he does or doesn't want to contract with. This is different from "I can reject them because they can go elsewhere." It is "I can't reject them if they agree with my content and decide not to go elsewhere. I don't have to deal with them if they DO decide to go elsewhere--but that was THEIR choice, not mine.
I see you've been a lawyer for as long a time as I have. Respectfully, I think you have an overly narrow and distorted view of what a place of public accommodation is and requires once someone makes the decision to engage in interstate commerce. No one makes you go into the (in this case, phantom) business of designing wedding websites. But once you do, you can't claim your religion prevents you from serving someone who wants one because you don't like who they are with the phony excuse that you don't like what they are saying - as this is consistent with who they are in the first place. What the Court did was say religion now has some preferred position over other protected classes.
And recognize that this is a commercial business - yes, its principal has personal views, but a for-profit business nevertheless - claiming a religious exemption. Commercial speech is subject to regulation in a way that other individual speech is not. A commercial business does not approach the altar and take communion. It's a BUSINESS. And once that business decides to take advantage of interstate commerce, it is subject to all the privileges and obligations of other businesses.
This decision is not narrow. It is not merely a problem of precedential creep - although it is creepy. This is a decision that will be spat upon at one point either by a future Court when reversing it or by the people when they have had their fill of six clergy members rolling back rights previously won.
Of COURSE under the laws you can't refuse to "serve" someone because of your religious beliefs. What I am saying would have resolved this case long before it got to court---that you are free to sell "products" whether creative website designs or printed napkins that express your religious beliefs and no one can make you sell products that go against them. Look at the misogynist T-shirts example in my other comment to Spence in Austin. You put a product into commerce. Whoever wants to buy it can. If they don't like the product, they don't have to. What you CAN"T say, is that a protected class can't buy them.
And what this court somehow seems to imply in its arguments, not its holding, is that because of a made up rule she "worries about" religious people is allowed to flout laws that don't actually apply to them because of interstate commerce, The First Amendment, etc. What does that add but confusion to the whole deal? Which of course is what this court wants to do.
Take a look at this seller: do you seriously think that someone will try to make him sell custom portraits of Mohammed or Zoroaster?
I keep saying, slowly and over and over. She would be free to sell website designs that express her religious views. Just like customs painting of saints. And she would be required to sell those designs to anyone who agreed to designs with religious views, whether or not they agreed with said views. What she is saying underneath is that I don't want to sell to people with whose religious beliefs I disagree--but at least at the level of the high court she didn't really say that out loud--I looked for her statements that, like the cake guy, said "only opposite sex couples" She didn't. The court just thought she meant that and went galloping to her defense over something she needed no defense to do.
That is ALREADY existing law. It was only she (and her lawyers) who thought--or rather argued--that it wasn't. And Colarado rose to the bait instead of saying: "if you sell a religious product and don't refuse to sell it to people of different "abhorrent" beliefs, fine, go ahead. And the court basically affirmed this existing law with a whole slew of new arguments that can be used in very dangerous ways.
Why this non-case -nor -controversy in all senses ever even started is beyond me. Because lawyers with an agenda boxed Colorado into a trap and Colorado couldn't see the obvious way out.
Colorado took a really weird tack on this one. And opened the door to disaster.
You're off the mark. Nobody is forcing anyone to sell a particular product or service. The issue is if you sell a service in interstate commerce - designing wedding websites - you are a commercial business operating a place of public accommodation and cannot sell that service to straight people and deny selling it to gay people because they or their "conduct" - which is bogus, that defines status in the first place - offends you. That's what civil rights law in this area is all about.
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.
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.
I think it's safe to say that there's no way in hell this will be interpreted narrowly. I understand where you're coming from, but I don't want to see bigots able to refuse service to anyone, queer, black, or whatever. If you live in a big city, you can easily stay within your safer service community. The rest of America? Not so much.
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.
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...
"Code as speech" (and the relationship between digital products and IP law more generally) is a complicated and messy concept, not helped by the mutual ignorance of lawyers and tech people. As someone who knows not only the difference between a website and a piece of software but also the difference between patents, trademarks, and copyright, *I* don't see how this decision moves the bar on first amendment protections for computer code, but it would be easy to misunderstand some aspect in that direction, and in any event there are already substantial grey areas that the existing frameworks can't really sort out.
(For example, generative AI raises the following question: does the Star Wars copyright properly belong to the estate of Joseph Campbell? We can see that the answer *should* be "no", but it's easy to imagine a pack of lawyers screwing up a Chat-GPT case in a way that could imply "yes".)
I get why business entities have free speech and due process rights. (How would you have media businesses otherwise?)
I don’t get how for-profit business entities have religious freedom. That’s essentially nullifying the legal distinction between the entity and the owners. But that’s probably a different topic for another time.
On the topic of for-profit business entities having religious freedom: It was my understanding that the plaintiff's attorney's actually avoided the freedom of religion argument altogether, because it could have been problematic (???). I thought that's why they based it on a 1st Amendment claim, and in fact structured the whole case the way they did because of that. I believe they were arguing that you cannot compel creative speech, and because the web designer didn't believe gay marriages were the truth or some such thing - it was oddly described - that she couldn't be compelled to "speak" in that manner. I'm butchering this! Not an attorney here!
Now, we both know that the whole reason they even considered the case is that it really, truly was about freedom to exercise your Christian religion. If I had tried to bring this case as a Muslim, for example, I can't imagine they would have taken it. They have an agenda.
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.
Do you have an agenda? In other words, what is motivating your argument? I'm not sure why you would argue against recognizing that the state can have compelling interests, unless you deliberately want to discriminate. Am I misunderstanding your point? Paying attention only to the text you have written, and without understanding the context in which you are making your statements, I'll respond with a few thoughts.
The framers never intended for the Constitution to be easily interpreted by just anybody. It's a legal document, and they knew very well that laws need adjudication when conflicts arise. If the meaning of the Constitution were crystal clear, we wouldn't need a judiciary branch. They set up a detailed framework for the way the judiciary would work precisely because they knew there would be friction between the 3 branches, misunderstandings with law enforcement, disagreement among the citizens, etc.
They did try to make it as clear as possible. However, the Constitution has context. It was written in a particular point in history, with certain accepted norms, and it requires careful interpretation. It's not a simple "just follow the text" document, or we could just have a dictionary instead of the court system. On that subject, have you seen what happens when a justice plucks a definition from the dictionary to support their non-standard (lacking clear precedent) interpretation? Mayhem. You really cannot say the meaning is clearly laid out in the text, and one only has to read the literal words. You have to follow the text IN its context, you apply (ahem, hopefully...) case law and precedent, and that's just a starting point.
This gets a lot more complex, but those are the thoughts I have time for here.
I would argue explicitly that they absolutely meant for it to be understood by “just anyone.”
They did not speak in Latin. They used plain language. They were explicit (shall not, shall, etc…) and they went to great lengths (federalist and anti federalists) to actually ensure that the population knew EXACTLY what what they were saying. Why bother publicizing at all what you mean (before writing it in clear language text) if you didn’t mean for “We the People” to understand it? It would be nonsensical to go to such effort. Are you saying they wrote 80+ essays purely for their own self aggrandizement and not to ensure the general public would have had explicit reasoning for everything? Madison wrote in one of the FP that for anyone to interpret “general welfare” to mean ANYTHING other than what it actually pertains to — the clearly written limited powers — it would be (paraphrasing) tantamount to blowing up the meaning of the limited powers in the first place. Yet…. People use that as a crutch for every sort of legal justification for things NOT pertaining to the limited powers. How is it NOT understood? Didn’t you read the same meaning I did in the FP/AFP’s? How can you even think about interpreting it to mean anything else when Madison — the father of the constitution — went to such lengths to tell you “no, you can’t interpret it that way?”
We need to get back to meaning what we say and what we write. Amendments need to be more common if we are going to interpret everything based on the current mood of the country. It leads to everyone making assumptions otherwise.
Other than following the actual constitution’s words, absolutely not. Your comment makes it clear why we should not interpret for any interest, state or otherwise.
You imprinted upon me much, much more than what I said — which was that we need clear language & we need debate & amendment to further interpret anything, and NOT “I want to discriminate.”
That comment/response shows why creating out of whole cloth, any method in which we create interpretable “state interests” is ultimately poor judgment because someone will come along and pervert its meaning. 200 years from now, someone could say “he was discriminatory” when in fact the only goal here was to be overly fair, and force law to mean what it actually says and to define it more clearly so that it can be applied uniformly and in the manner in which it was truly meant.
Confusion is caused by not having laws written in that straightforward and clear way. “New definitions” of terms can now happen with a keyboard and an internet connection if, say, Merriam Webster decides to change what a word means. Does that and should that now open up law to debate or should we be more explicit in our meanings? I vote for an explicit and not an implicit meaning to all of our legal words.
I'm sorry to tell you this but "compelling state interest" and "rational basis" - as those terms are used in the standard of review applicable to whether some law or state action is constitutional - are terms of art. They have specific meanings in the law that those of us who are lawyers spent parts of semesters on. If you are trying to apply the language in some "ordinary English" way you will not get very far. These are essentially outcome determinative terms. If the applicable standard of review is a rational basis test, the action or law will be upheld. It's a minimum standard. If the compelling state interest test applies, the action or law will almost certainly be struck down. Then there is intermediate review. The battle between litigants is generally over what standard of review applies.
So, in short, it (any sort of “except when” or “if the state has a compelling interest”) does not in fact appear in, nor is granted by, the constitution , but instead is a made up legal construct made “normal” by courts and decisions over many years. Then taught as a bedrock principle to any and all law students despite the absolute dead on fact that no provision for exceptions other than when changed by an amendment, exists. See, I do NOT (at all) respect “Stare Decisis” just because it’s been done or accepted for all this time.
I rather think that it’s a novel idea to NOT put words in the founders mouths, and I very much believe the right thing (not always executed by law, for instance slavery was very obviously wrong to modern people) is not always the practiced or normal thing.
Interpretation can be fine. But all too often it’s the interpretation of law that perverts the legal system and allows the citizens of this great country to stay so ignorant, apathetic, and in avoidance of tackling tough issues via amendment. That’s the ONLY way the constitution should EVER be changed or meanings instituted. That’s a real full on debate requiring supermajority support. If we can accomplish that? We can live with it. It is ALWAYS what the court interprets that give us the worst problems. Even slavery itself as lifelong servitude via law was started because Anthony Johnson won his court case. Who were the folks who “interpreted” that indentured servitude could (and should) last a lifetime? We didn’t vote on that. We did not vote on having slaves. It haunts us to this very day. The harder road of amendment and supermajority is (in my opinion) the fat better road to travel.
Spend three years in law school. The law is a profession and an art. Lawyers and judges do not - and are not going to - treat each new case as a case of first impression. Precedent tells you what the law is and governs and guides the next decision. Without precedent no one would know what the law is.
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.
I misspoke. It is a narrow HOLDING. It is a deeply dishonest decision. It is a mouse that roared and brought back, as holding, a whimper. But it is a mouse with many many teeth, not just a tongue. In theory, a court is supposed to cite only the holdings of cases as precedent. In practice they both distort the holdings and rely on things not directly related to the holding but which sound really peachy for their own agendas.
One can't argue with the holding, which is that the state can't force you to sell creative things that are against your belief--whether the things are goods and services. Say a really misogynists group of artists put out a line specialty t-shirts denigrating women. Can a court force them to silk screen a whole lot of feminist t shirts? Of course not. That's the whimper of the holding. What those men can't do is say women are not allowed to buy the misogynist shirts because the men have a sincere belief, religious or not, that women would be too shocked to wear them and would faint dead away. The women can buy the shirts and burn them for all anyone cares. Your products may be as creatives as Picasso, but you have no right to have anyone respect that creativity as much as you would want.
The many teeth of that mouse are that people will argue-- courts, lawyers, and bigots in Michigan-- based on all the First Amendment stuff. And that is there ONLY because for some bizarre reason Colorado chose to argue that (to continue the analogy) the men COULD be forced to sell shirts with the sayings of Germaine Greer and THAT would violate their first Amendment rights. Which it probably would.
Hi Susan,
Just wanted to note here as a follow-on to the exchange we had on standing a month or so ago that this case like the debt forgiveness case basically ignored the standing issue -- it appears that for this court standing is irrelevant if there is a case they want to legislate on.
indeed it did. If what she was claiming she wanted to do (sell a Christian-based product with no rejection of gays who wanted to buy it) then the 10th Circuit was wrong about her being subject to immediate administrative action. The is nothing remotely illegal about selling Christian products, even creative ones, even books that express your deepest beliefs, and absolutely nothing that says you have to also write books expressing Muslim beliefs.
If she WANTED to overtly discriminate, standing might have been correct on that basis, but the actual CASE in FN5 says it is NOT about overt exclusion. So in FN 5 the court basically obliterates the 10th Circuit's basis for standing. It was able to do that because of the deeper problem of standing here: no one really has a clue about what her website designs would actually say.
The only explanation I can think of is that Colorado's lawyers thought it WAS required to sell products of all religions if you sold those aimed at one. Talk to Joel Osteen about that. Or else the Extremes were being MONUMENTALLY dishonest about the facts.
Per our discussion about standing previously where you indicated that the "Extremes" (love this!!) would be opening a Pandora's box with their ignoring of standing, what do you think we will see in terms of filings with no real standing -- will the willingness of this court to ignore standing result in lower courts being forced to ignore standing in many many new cases?
That scares me. But it is certainly not beyond this court to issue opinions that are on their own face unconstitutional--like analyzing "beginning of human life" from the point of view of one part of one religion. Or blowing off Case and Controversy and issuing actual "advisory" opinions whenever the agenda requires it.
I would hope that lower courts would continue to pay attention. Partly because if the case did NOT meet the Extreme's (or some Circuit's) agenda, they'd find themselves overturned
Will it spread to state courts? Geeze. Could you sue me to cut down a tree when I live 4 houses away because someday it MIGHT fall on another neighbor's fence?
"... they'd find themselves overturned."
I wonder if judges care about being overturned ... certainly Cannon and Kazmaryck don't -- in fact getting overturned is probably a benefit to them with Trump, McConnell, the Federalist Society, etc; puts them on the fast track to an appeals court slot the next time there's a Republican president.
"One can't argue with the holding, which is that the state can't force you to sell creative things that are against your belief" This is straw-manning. Again, if you sell wedding website design services to straight people you cannot deny service to gay people - OF THE SAME SERVICE.
I agree completely. That is NOT what I am saying. What she wanted to do--express her religious beliefs--was perfectly legal. What she couldn't do was deny those religious-celebrating services to people she just assumed wouldn't want them.
It isn't straw manning: it is the literal wording of the holding. The court turned it into straw-manning by coming up with all sorts of reasons she couldn't be prevented from doing that which she couldn't be prevented from doing from the get go. THAT is where this decision is both dishonest and dangerous.
Forget about websites. You are perfectly free to offer to perform wedding services themselves reeking of Christian values, so long as you don't DENY anyone who says "OK, I'll take the reek even though I don't believe in it. But Mama wants it." No one can insist that you perform a neo-pagan wedding, because that is not what you are offering. Basic contract law. There is one contract provision the law prohibits: requiring that you have to be of a certain class of people (and excluding protective classes thereby) to take advantage of your service.
In one sense it is a narrow decision--the holding is simply that a state can't force "a website designer to create expressive designs speaking messages with which the designer disagrees." That is in itself uncontroversial--do states require designers of creative rosaries to also design creative Islamic religious devices? The mystery is why Colorado seems to have argued that it can. See my reply to Spence of Austin's comment elsewhere in this thread.
The problem is what I think of as "precedential creep." Lower courts interpret the holding to do more than it does based on the arguments, not the holding. And idiots like the Michigan woman read it as "free reign to discriminate" and some courts will agree with her.
Witness Scalia's assertion that his gun control decision was limited to handguns. And what bets that the "limited to abortion" ruling will find itself cited by the court itself to throw laws on contraception or interracial marriage back to the states?
I disagree. It is a very broad decision applied to "facts" that did not even exist. And this is where standing comes in. And yes, I know all about pre-enforcement challenges. But here we have a woman who never designed wedding websites. She had no track record of doing so. The one inquiry she got was false or fraudulent. When deciding constitutional issues, courts need to fashion as narrow a remedy as possible so as to address the issue at hand. But that was not done here. Regardless of any "stipulated facts" - and that was astounding malfeasance on the part of Colorado's AG - this case needed to be sent back for the development of a record. The plaintiff needed to be asked: What steps have you taken to enter the wedding website business? Precisely, what are your designs? Will they be templates? Will they permit customers to offer their own messages? What precisely would you be accommodating with? Are you just objecting to photos showing two same sex people? And then as to the phony request:
What are you asking this designer to do? What do you want to say? Did she respond?
If she did not respond isn't that evidence the whole thing was a sham?
The Supreme Court is not a g-d legislature. They have no business issuing hypothetical decisions. This decision is basically - this woman who does not do this thing which we're really not sure of isn't going to be sanctioned for not doing it. That's insane.
And people should be very p-d off at the Court for doing this.
"The Supreme Court is not a g-d legislature."
It isn't clear on what basis you make this statement -- the evidence would suggest that the people who created it and the court itself perceive it as such.
Which people thought that they were setting up a super legislature? Marbury? No.
Trump, McConnell, the Federalist Society, Harlan Crow, etc.
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.
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.
"... do we really want to get into enforcing the mindset for why a business person decides to take on one client but not another?"
This question was the entire basis of the Civil Rights movement -- business people deciding not to serve people they decided they didn't want to.
Not talking about businesses that are open to the public and provide goods or the same services to whomever walks in the door, but businesses that provide specially tailored services and who select which clients to do business with.
"... but businesses that provide specially tailored services and who select which clients to do business with."
Like realtors, mortgage brokers, lawyers, landlords, taxi drivers, etc, etc, etc.
This has been my position, with a slight twist. I don't see any reason why a business can't describe what exactly its product will or won't do. I don't see why this woman couldn't just say "we don't like untraditional pronouns and will not use them." (In fact, choice of pronouns has no correlation with whether the person is trans, particularly among the young--ask any random high school student, at least in my granddaughters school. Or the 303 Creative can say "all our designs will incorporate the Christian view of marriage." The difference is between completely refusing people on the basis of status, simply assuming that all people with that status will not accept the conditions, and giving those with that status the ability to choose whether or not they will accept the conditions.. What if an actual trans person says "I don't give a shit about what pronouns you use while doing my hair." Or a gay couple says "design away as you like, we don't care; our friends will think it's funny." The First Amendment allows anyone to express their own views regarding the product itself. It doesn't require that people actually believe those views if they choose to abide by what the product expresses.
Some have argued with me that the discrimination laws prohibit even such descriptive statements. I've looked at the Colorado law and can't see that is true. After all, if a person constructs custom hijabs, the state isn't going to accuse them of discrimination because they don't also construct embroidered yarmulkes. If it did, we'd certainly have heard about it by now.
I think if you do a walk in service that is available to all comers, you’re clearly a public accommodation. I thought the wedding cake case was easy. A baker inscribing words as directed on a cake is not personally endorsing what is described and the claim that it would run afoul of religious beliefs about gay marriage is disingenuous horse manure. A wedding planner or website designer being asked to take on a client, to me, represents a more complex issue involving the freedom to decide whom a person contracts with.
"freedom to decide whom a person contracts with" EXACTLY. Say what your site is doing, or what your hair salon will or won't do . Don't deny people based on assuming a protected class will reject your conditions. If they accept, serve them. It gives the customer the ability to decide who he does or doesn't want to contract with. This is different from "I can reject them because they can go elsewhere." It is "I can't reject them if they agree with my content and decide not to go elsewhere. I don't have to deal with them if they DO decide to go elsewhere--but that was THEIR choice, not mine.
I see you've been a lawyer for as long a time as I have. Respectfully, I think you have an overly narrow and distorted view of what a place of public accommodation is and requires once someone makes the decision to engage in interstate commerce. No one makes you go into the (in this case, phantom) business of designing wedding websites. But once you do, you can't claim your religion prevents you from serving someone who wants one because you don't like who they are with the phony excuse that you don't like what they are saying - as this is consistent with who they are in the first place. What the Court did was say religion now has some preferred position over other protected classes.
And recognize that this is a commercial business - yes, its principal has personal views, but a for-profit business nevertheless - claiming a religious exemption. Commercial speech is subject to regulation in a way that other individual speech is not. A commercial business does not approach the altar and take communion. It's a BUSINESS. And once that business decides to take advantage of interstate commerce, it is subject to all the privileges and obligations of other businesses.
This decision is not narrow. It is not merely a problem of precedential creep - although it is creepy. This is a decision that will be spat upon at one point either by a future Court when reversing it or by the people when they have had their fill of six clergy members rolling back rights previously won.
Of COURSE under the laws you can't refuse to "serve" someone because of your religious beliefs. What I am saying would have resolved this case long before it got to court---that you are free to sell "products" whether creative website designs or printed napkins that express your religious beliefs and no one can make you sell products that go against them. Look at the misogynist T-shirts example in my other comment to Spence in Austin. You put a product into commerce. Whoever wants to buy it can. If they don't like the product, they don't have to. What you CAN"T say, is that a protected class can't buy them.
And what this court somehow seems to imply in its arguments, not its holding, is that because of a made up rule she "worries about" religious people is allowed to flout laws that don't actually apply to them because of interstate commerce, The First Amendment, etc. What does that add but confusion to the whole deal? Which of course is what this court wants to do.
Take a look at this seller: do you seriously think that someone will try to make him sell custom portraits of Mohammed or Zoroaster?
https://www.etsy.com/listing/1310079793/custom-patron-saint-portrait-your-choice?
I keep saying, slowly and over and over. She would be free to sell website designs that express her religious views. Just like customs painting of saints. And she would be required to sell those designs to anyone who agreed to designs with religious views, whether or not they agreed with said views. What she is saying underneath is that I don't want to sell to people with whose religious beliefs I disagree--but at least at the level of the high court she didn't really say that out loud--I looked for her statements that, like the cake guy, said "only opposite sex couples" She didn't. The court just thought she meant that and went galloping to her defense over something she needed no defense to do.
That is ALREADY existing law. It was only she (and her lawyers) who thought--or rather argued--that it wasn't. And Colarado rose to the bait instead of saying: "if you sell a religious product and don't refuse to sell it to people of different "abhorrent" beliefs, fine, go ahead. And the court basically affirmed this existing law with a whole slew of new arguments that can be used in very dangerous ways.
Why this non-case -nor -controversy in all senses ever even started is beyond me. Because lawyers with an agenda boxed Colorado into a trap and Colorado couldn't see the obvious way out.
Colorado took a really weird tack on this one. And opened the door to disaster.
You're off the mark. Nobody is forcing anyone to sell a particular product or service. The issue is if you sell a service in interstate commerce - designing wedding websites - you are a commercial business operating a place of public accommodation and cannot sell that service to straight people and deny selling it to gay people because they or their "conduct" - which is bogus, that defines status in the first place - offends you. That's what civil rights law in this area is all about.
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.
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.
I think it's safe to say that there's no way in hell this will be interpreted narrowly. I understand where you're coming from, but I don't want to see bigots able to refuse service to anyone, queer, black, or whatever. If you live in a big city, you can easily stay within your safer service community. The rest of America? Not so much.
Regardless of what’s been “done” or even what is considered “normal” the constitution in no way whatever confers “except when” power to law.
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.
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...
"Code as speech" (and the relationship between digital products and IP law more generally) is a complicated and messy concept, not helped by the mutual ignorance of lawyers and tech people. As someone who knows not only the difference between a website and a piece of software but also the difference between patents, trademarks, and copyright, *I* don't see how this decision moves the bar on first amendment protections for computer code, but it would be easy to misunderstand some aspect in that direction, and in any event there are already substantial grey areas that the existing frameworks can't really sort out.
(For example, generative AI raises the following question: does the Star Wars copyright properly belong to the estate of Joseph Campbell? We can see that the answer *should* be "no", but it's easy to imagine a pack of lawyers screwing up a Chat-GPT case in a way that could imply "yes".)
I get why business entities have free speech and due process rights. (How would you have media businesses otherwise?)
I don’t get how for-profit business entities have religious freedom. That’s essentially nullifying the legal distinction between the entity and the owners. But that’s probably a different topic for another time.
On the topic of for-profit business entities having religious freedom: It was my understanding that the plaintiff's attorney's actually avoided the freedom of religion argument altogether, because it could have been problematic (???). I thought that's why they based it on a 1st Amendment claim, and in fact structured the whole case the way they did because of that. I believe they were arguing that you cannot compel creative speech, and because the web designer didn't believe gay marriages were the truth or some such thing - it was oddly described - that she couldn't be compelled to "speak" in that manner. I'm butchering this! Not an attorney here!
Now, we both know that the whole reason they even considered the case is that it really, truly was about freedom to exercise your Christian religion. If I had tried to bring this case as a Muslim, for example, I can't imagine they would have taken it. They have an agenda.
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.
And that's why defamation is not a tort in the United States.
Do you have an agenda? In other words, what is motivating your argument? I'm not sure why you would argue against recognizing that the state can have compelling interests, unless you deliberately want to discriminate. Am I misunderstanding your point? Paying attention only to the text you have written, and without understanding the context in which you are making your statements, I'll respond with a few thoughts.
The framers never intended for the Constitution to be easily interpreted by just anybody. It's a legal document, and they knew very well that laws need adjudication when conflicts arise. If the meaning of the Constitution were crystal clear, we wouldn't need a judiciary branch. They set up a detailed framework for the way the judiciary would work precisely because they knew there would be friction between the 3 branches, misunderstandings with law enforcement, disagreement among the citizens, etc.
They did try to make it as clear as possible. However, the Constitution has context. It was written in a particular point in history, with certain accepted norms, and it requires careful interpretation. It's not a simple "just follow the text" document, or we could just have a dictionary instead of the court system. On that subject, have you seen what happens when a justice plucks a definition from the dictionary to support their non-standard (lacking clear precedent) interpretation? Mayhem. You really cannot say the meaning is clearly laid out in the text, and one only has to read the literal words. You have to follow the text IN its context, you apply (ahem, hopefully...) case law and precedent, and that's just a starting point.
This gets a lot more complex, but those are the thoughts I have time for here.
I would argue explicitly that they absolutely meant for it to be understood by “just anyone.”
They did not speak in Latin. They used plain language. They were explicit (shall not, shall, etc…) and they went to great lengths (federalist and anti federalists) to actually ensure that the population knew EXACTLY what what they were saying. Why bother publicizing at all what you mean (before writing it in clear language text) if you didn’t mean for “We the People” to understand it? It would be nonsensical to go to such effort. Are you saying they wrote 80+ essays purely for their own self aggrandizement and not to ensure the general public would have had explicit reasoning for everything? Madison wrote in one of the FP that for anyone to interpret “general welfare” to mean ANYTHING other than what it actually pertains to — the clearly written limited powers — it would be (paraphrasing) tantamount to blowing up the meaning of the limited powers in the first place. Yet…. People use that as a crutch for every sort of legal justification for things NOT pertaining to the limited powers. How is it NOT understood? Didn’t you read the same meaning I did in the FP/AFP’s? How can you even think about interpreting it to mean anything else when Madison — the father of the constitution — went to such lengths to tell you “no, you can’t interpret it that way?”
We need to get back to meaning what we say and what we write. Amendments need to be more common if we are going to interpret everything based on the current mood of the country. It leads to everyone making assumptions otherwise.
Other than following the actual constitution’s words, absolutely not. Your comment makes it clear why we should not interpret for any interest, state or otherwise.
You imprinted upon me much, much more than what I said — which was that we need clear language & we need debate & amendment to further interpret anything, and NOT “I want to discriminate.”
That comment/response shows why creating out of whole cloth, any method in which we create interpretable “state interests” is ultimately poor judgment because someone will come along and pervert its meaning. 200 years from now, someone could say “he was discriminatory” when in fact the only goal here was to be overly fair, and force law to mean what it actually says and to define it more clearly so that it can be applied uniformly and in the manner in which it was truly meant.
Confusion is caused by not having laws written in that straightforward and clear way. “New definitions” of terms can now happen with a keyboard and an internet connection if, say, Merriam Webster decides to change what a word means. Does that and should that now open up law to debate or should we be more explicit in our meanings? I vote for an explicit and not an implicit meaning to all of our legal words.
I'm sorry to tell you this but "compelling state interest" and "rational basis" - as those terms are used in the standard of review applicable to whether some law or state action is constitutional - are terms of art. They have specific meanings in the law that those of us who are lawyers spent parts of semesters on. If you are trying to apply the language in some "ordinary English" way you will not get very far. These are essentially outcome determinative terms. If the applicable standard of review is a rational basis test, the action or law will be upheld. It's a minimum standard. If the compelling state interest test applies, the action or law will almost certainly be struck down. Then there is intermediate review. The battle between litigants is generally over what standard of review applies.
Thanks for explaining this! The Law School of Google Search was only getting me so far. :) It's very interesting stuff.
So, in short, it (any sort of “except when” or “if the state has a compelling interest”) does not in fact appear in, nor is granted by, the constitution , but instead is a made up legal construct made “normal” by courts and decisions over many years. Then taught as a bedrock principle to any and all law students despite the absolute dead on fact that no provision for exceptions other than when changed by an amendment, exists. See, I do NOT (at all) respect “Stare Decisis” just because it’s been done or accepted for all this time.
I rather think that it’s a novel idea to NOT put words in the founders mouths, and I very much believe the right thing (not always executed by law, for instance slavery was very obviously wrong to modern people) is not always the practiced or normal thing.
Interpretation can be fine. But all too often it’s the interpretation of law that perverts the legal system and allows the citizens of this great country to stay so ignorant, apathetic, and in avoidance of tackling tough issues via amendment. That’s the ONLY way the constitution should EVER be changed or meanings instituted. That’s a real full on debate requiring supermajority support. If we can accomplish that? We can live with it. It is ALWAYS what the court interprets that give us the worst problems. Even slavery itself as lifelong servitude via law was started because Anthony Johnson won his court case. Who were the folks who “interpreted” that indentured servitude could (and should) last a lifetime? We didn’t vote on that. We did not vote on having slaves. It haunts us to this very day. The harder road of amendment and supermajority is (in my opinion) the fat better road to travel.
Spend three years in law school. The law is a profession and an art. Lawyers and judges do not - and are not going to - treat each new case as a case of first impression. Precedent tells you what the law is and governs and guides the next decision. Without precedent no one would know what the law is.
"Without precedent no one would know what the law is."
Welcome to the Roberts, Scalia, Thomas court.
Well said, thank you.