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Lots of big Supreme Court decisions this week, all important in various ways--none, if you ask me, likely to be nearly as impactful as imagined by either their proponents or opponents. But I was struck by a particular take on the religious freedom in commerce case that I saw popping up in a few places today.
Very roughly, here's the deal: American courts can only decide "cases and controversies." This is a procedural thing, basically you need a plaintiff who has actually been harmed in some cognizable way before you can file a lawsuit. Sometimes this means you need someone willing to engage in a little civil disobedience, breaking the law for the express purpose of getting prosecuted. "Plaintiff shopping" is something activist lawyers have been doing for centuries. But to layfolk this can look a little suspicious, in much the way that forum shopping can seem suspicious. In fact American law is mostly indifferent to this kind of gamesmanship, and in some cases we even regard it as a clever thing to do (at least, when our ingroup pulls it off).
The CNN story presents itself as a "just the facts" observation that--hey, here's a party to the facts of this case who claims he didn't do what the record says he did! Isn't that interesting? Gosh, how "concerning," he says! Nobody even thought to contact him in six years!
No one is saying this changes anything, oh, no! Just, isn't it suspicious? (Is that... winking I hear?) Well, regardless, Stewart is only identified by his first name; CNN was able to contact him "through information in court filings." Although, in another funny coincidence,
Now, CNN is only a mid-sized comedy troupe, but it does rival some legitimate news organizations in size and scope. Still, what are the odds, huh?
I've got several friends in my social feeds sharing the story, now, making snide remarks about how Lorie Smith clearly ginned up this whole case out of nothing. Of course, the CNN story doesn't actually say that; it just reminds the reader how suspicious it is for a plaintiff to have, shall we say, gussied up their case.
But the point of this post is not to take the piss out of CNN. Rather, what struck me was one other remarkable coincidence. There is another incredibly famous LGB rights case from the Supreme Court in which the actual facts of the case are completely irrelevant to the holding: Lawrence v. Texas.
That link is to a New Yorker article called "Extreme Makeover." If you're not familiar with Lawrence v. Texas, this was the 2003 SCOTUS case in which Justice Kennedy declared that the government has no business telling you who you can have sex with, as long as it's consensual and you're in the privacy of your home. Much like the later Obergefell case, Kennedy's opinion in Lawrence is packed with paeans to the sanctity of love and the primacy of intimacy--so packed, indeed, that there is essentially no room for coherent legal analysis! But here's the crazy bit:
There was no gay sex in Lawrence. Indeed, there was no gay couple in Lawrence.
The plaintiffs were gay men, charged under Texas' anti-sodomy statute. If you haven't heard the story, you really must read the New Yorker article. But in short, Lawrence and Garner were not together, sexually or otherwise, before or after the case. But since they were the two charged under the anti-sodomy statute, and activist lawyers wanted a case to take to the Supreme Court...
And so:
Perhaps better court-watchers than myself had some idea of what was going on, but I did not know anything about any of this until the New Yorker article ran nine years later. Does it make any difference? Well, maybe it makes you suspicious. Maybe not. Maybe you're thinking, "hmm, isn't tu quoque an informal fallacy?" Well, I'm not really staking a claim either way. I don't like forum shopping, I don't like plaintiff shopping, but I don't think I have anything like a thoroughly-developed account of why--it's more like a general distaste for gamesmanship. But without gamesmanship, American jurisprudence might scarcely exist at all! So I don't know.
But taking CNN's "just asking questions" article at face value, it makes me wonder where all the real gay people are, and why we can't seem to get a gay rights case in front of SCOTUS with parties who aren't being puppeted, Chicago-style. Okay, that's a bit of hyperbole, but still, two points form a line. So long as Congress remains sufficiently split that impeachment and amendments are off the table, the Supreme Court is the last word on American law. Why bother with the democratic process, if you can convince five unelected and unaccountable moral busybodies to make the law instead? All it takes is a bit of theater, apparently.
It doesn't necessarily end well for the puppets, of course--from the New Yorker again:
I don't know what the moral of the story is. Being disillusioned with the legal process is nothing new or insightful. But this was what occurred to me when I read the CNN piece, and saw people sharing it around as proof positive of the Court's perfidy. No, silly people, the Court is not fundamentally deceptive. The Court is always and altogether--albeit willfully, like a moviegoer whose suspension of disbelief is essential to the process, like a wrestling fan whose kayfabe is the lifeblood of the art form--deceived.
303 Creative is a freedom of speech chase, not a religious freedom case.
There is only one point in the line. You seem to think that 303 Creative was an enforcement action brought by the state of Colorado against the company. It wasn't. It was a lawsuit brought by 303 Creative and its owner, for an injunction, because she planned to enter into the wedding website business, but had not done so yet, because she feared that she would get embroiled in an enforcement action. From the Supreme Court decision:
Note also that the fact that the standing issue was not disputed before the Court means that the whole issue of whether or not anyone asked for a wedding website is essentially a red herring.
What kind of speech (or silence) are we talking about, here? Are you one of those people who pedantically interjects that the civil war was a state's rights issue, not a slavery issue?
For whatever it's worth, my choice of words there was deliberately poking at the number of people calling this an "LGBT rights case." Because of course the case is sufficiently about that, that it's not entirely inaccurate to characterize the case that way, and yet flip that rhetoric on its head and certain people are bound to get worked up...
Sorry to have given you that impression, but no--I've never thought that at all.
Yes, very good--this is why I found the CNN article, and its downstream effects on conversation in my vicinity, noteworthy.
Freedom of religion and freedom of speech are completely different issues with completely different jurisprudences. If we are trying to understand why the Court ruled as it did, conflating the two is counterproductive.
No, it is not very accurate to call it an LGBT rights case, but since the case is about the permissible scope of a law that protects LGBT rights, it is not entirely inaccurate either.
I don't think they are. First of all, if they were completely unrelated, it'd be weird for them to be mentioned as part of the same constitutional amendment. After all, it's not like the framers wanted to cram everything into a single amendment - they had ten of them initially, they could have eleven. It's more likely that they did consider it all part of the same issue - the freedom of one to live out and speak out their own conscience.
Of course, the caselaw concerning each parts is different - but that's natural for big issues, within freedom of speech there are also a lot of subdivisions, and sub-sub-divisions with its different law framework. Of course, when considering a specific case, one needs to understand that - e.g. not to try and apply commercial speech precedent for religious speech question, or something like that. But they are not entirely unrelated.
If one likes, the case can be formulated as "do 'LGBT rights' include the 'right' to force certain person to speak in certain ways because the person doing the forcing identifies as LGBT" and fortunately, it was decided that the answer has been "no". I am a bit disappointed that the actual answer had to involve religion, because I don't see why it would be more permissible to force an atheist or an agnostic to speak against their will than it is for a Christian, and why should I hide behind a crucifix to not be forced to perform speech I do not want to perform. The mere fact that the speech is not voluntary should have ended the deal. But I guess a small win is still a win.
Yes, but that what I said: that the jurisprudence is different. As I noted elsewhere, in its cert petition, 303 Creative asked the Court to decide both the free speech issue and the freedom of religion issue, but the Court granted cert only onthe free speech issue:
Thus, unless the Court strayed from the issue on which it granted cert, which it didn't, it is inaccurate to frame the resulting opinion as an opinion re freedom of religion.
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This is... not quite right, actually. Both fall under the heading of "First Amendment jurisprudence" and are generally taught to aspiring attorneys together in "First Amendment Law." It is true that there are specific bits of jurisprudence dealing with Speech, Press, Separation, Free Exercise, etc. but as fundamental rights yielding strict scrutiny analysis, the bleed between these issues is substantial. One view, which in my experience is common but which the Court itself has only hinted at, is that all the rights enumerated in the First Amendment are supposed to encompass something like a general "freedom of conscience," or "freedom of thought," or something along those lines. To call them "completely different issues with completely different jurisprudences" is perhaps an understandable mistake for someone who lacks much background in First Amendment law, but it is still definitely a mistake.
Indeed, and since the case encompasses a law that infringes on, inter alia, religious rights, my description is "not entirely inaccurate," either--well said.
Well, I don’t know anything about your background, but I know mine, and I would guess that I have more expertise on First Amendment law than you do. And in fact there is almost no overlap between freedom of religion jurisprudence and freedom of speech jurisprudence. The mere fact that both are fundamental rights to which strict scrutiny is applied means nothing; strict scrutiny applies to all fundamental rights. Note that the Court in 303 Creative did not cite religious freedom cases, and note the complete lack of overlap in Kennedy, the football coach prayer case from last year, between the discussion of whether he had established a violation of his religious expression and his free speech rights.
Huh. Why did I think you were a schoolteacher?
Well. I'm a university professor with citations to scholarly work from federal courts in First Amendment cases. The only way you you have more expertise on First Amendment law than I do is if you're a federal judge. If you regularly practice First Amendment law, then you have more practical experience than me, but you might occasionally have reason to consult me on matters of theory if you're writing an appeal. Are you a First Amendment lawyer (or federal judge)? That would be interesting, because some of your takes in this thread strike me as really, really bad. In an effort to avoid a pissing contest I earlier deleted an incredulous question about where you went to law school. But now that you've brought background into it, I really do have to wonder!
That you were wrong about this when I thought you were a schoolteacher was kinda whatever. If you are a law-trained person, like, get a refund, because this is a really bad take. But you know--don't take my word for it! Consider this:
The piece goes on to acknowledge a bit of what I think you might be trying to say, but feel free to clarify!
Most of this is Establishment issues, rather than Free Exercise, but
So, yeah--they're different! There's a difference. Like, obviously, right? But the idea that there is--to quote you directly--"almost no overlap between freedom of religion jurisprudence and freedom of speech jurisprudence" is either wrong, or a motte and bailey on "almost no." Could there be more overlap? Well, yes, I assume there could. Is there "a lot" of overlap? Well, what's "a lot?" If we disagree about what "a lot" is, then how can we mediate that disagreement besides endlessly nitpicking one another's phrasing? You yourself raised Kennedy, which is a case of overlap, so you were clearly aware of some overlap! So why lead with
??? That was wrong! Demonstrably from your own comment that was wrong! And instead of acknowledging, "okay, I overstated my position, but I do think this specific case we're talking about is sufficiently separate..." etc. etc. you went with a weasel-worded "almost no." This is very lawyerly of you, but at minimum it's horrible Motte etiquette. It's what I'm constantly fielding reports on for your trollish "what do words even mean" contributions to discussions here. You can't even seem to say true things (which you often do!) without making soldiers of your arguments.
To recap: you said that "Freedom of religion and freedom of speech are completely different issues with completely different jurisprudences." This claim was false, and I tried to point that out gently. Everything you've said since then appears to be an attempt to just... pretend you didn't say what you said? I guess? You'd save more face by just owning the mistake.
Some people think based on narrow categories “if X, then Y with the concomitant need to narrowly define X.” Otherwise try more to synthesize disparate issues to understand the common through way.
There are of course differences between freedom of speech cases and freedom of religion. But you have identified (I think correctly) the thruway which is probably a better predictor of outcomes.
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I have had tow careers
My law degree is from Berkeley
Yes, of course it is true that "The Supreme Court has described the First Amendment as protecting certain rights of conscience. This general description can encompass the related protections for both speech and religion." But a "general description" is a far cry from the jurisprudence. Freedom of speech cases don't cite free exercise cases, and free exercise cases don't cite free speech cases.
Except, that as I pointed out, it isn't. Duh, Mr. Kennedy made both arguments in the same case, but as I said, when deciding the case there was a complete lack of overlap in the Court's discussion of whether he had established a violation of his religious expression and his free speech rights. The Court cited free speech jurisprudence in the free speech section, and religious expression cases in the religious expression section.
That is pretty rich coming from someone who refuses to own up to the fact that he erroneously said that 303 Creative is a religious freedom in commerce case.
And, by the way, note that in their cert petition 303 Creative asked the Court to determine "[w]hether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment," but in granting cert, the Court "limited [review] to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." Rather odd, if 303 is a religious freedom case.
But, if makes you happy, instead of saying that they are "completely different issues with completely different jurisprudences", perhaps I should have said that they are 99% different. Or even 95% different. But that does not transform the case into a religious freedom case, given that the Court refused to grant cert on the religious freedom issue.
Forgive this question, asked out of genuine ignorance. What is a tow career? I presume it doesn't involve tugboats or tow trucks, but that's about it.
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I did explain, already, that my phrasing there was a somewhat tongue-in-cheek inversion on the many people erroneously insisting (often, in news headlines) that this is an "LGBT rights" case, since of course the jurisprudence on suspect classifications is, let's say, 95% separate from the jurisprudence on Free Speech. Sorry you didn't feel that was sufficient "owning up."
I don't really understand why you're being such a sourpuss about this. I really tried to keep it light when I noticed your initial response, in which you classically ignored any point of interesting substance in favor of seeking boring nits to pick out of some misguided sense of tribal enmity. You always, always make me regret talking to you, in ways that have nothing to do with the substance of our disagreements, and I don't know what to do about that. Often you're pretty good at correcting the ways that people sometimes apply distorted interpretation to various facts, but you seem totally unwilling or unable to apply that ability to your own arguments, or indeed the arguments of anyone you perceive to be your ingroup.
Cool cool. Glad we could reach some accord on your error.
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