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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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