malchior wrote: Mon Jul 03, 2023 7:41 pm
Kurth wrote: Fri Jun 30, 2023 4:14 pm
To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts:
Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation. App. to Pet. for Cert. 184a.
She will not produce content that “contradicts biblical truth” regardless of who orders it. Ibid.
Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction. Id., at 179a.
All of the graphic and website design services Ms. Smith provides are “expressive.” Id., at 181a.
The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates. Id., at 181a–182a.
Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.” Id., at 187a.
Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. Id., at 186a–187a.
Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.” Id., at 187a.
To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.” Id., at 190a.
Again, I have no idea what Colorado was doing stipulating to this bullshit. Especially galling are the stipulations I bolded above. I cannot grasp why the state would have stipulated to this stuff, and had it not, this case wouldn't have happened and we wouldn't be dealing with this steaming PoS of a decision.
So I wondered about this - in particular why CO would have agreed to this bullshit - and looked back at some of the documents in the trial. It appears the Attorney General of CO at the time was a woman named Cynthia Coffman...an elected Republican. I'm not saying this unfurled in some great plan but it was mishandled at the very least. Honestly it looks like the AG's office was sympathetic to the woman and just sort of went through the motions. They didn't do any due diligence including uncovering the "request" for a site was probably faked. The court didn't dig in too much either because they ended up dismissing it for lack of standing anyway which was overturned as part of the appeal. It's appears to be such a mess of a case through and through.
This comes down to me that SCOTUS picked up a hot mess because they wanted to. They ignored all the warts which the dissent dissects thoroughly. They had many options to not do this. They could have denied cert. They could have punted it back down for more fact finding. They didn't because I believe that stuff doesn't matter. They wanted to use their raw power and they did so.
That’s interesting. It would explain a lot of this whole 303 Creative case was really basically a set up. I couldn’t find much on Coffman, but it doesn’t seem she’s hard right or evangelically motivated. She’s most often referred to as a moderate Republican. But that doesn’t mean she and the CO attorney’s office weren’t in on it, or, maybe more accurately, not invested in handing Lori Smith and the Alliance Defending Freedom a loss.
I was listening again to some of the oral argument in this case, and it’s striking the degree to which this is really NOT a religious liberties case. This is a First Amendment case, through and through. It’s not about compelling religious speech: It’s about compelling any speech. Justice Jackson’s hypotheticals about race drove that home when she asked about other “expressive” businesses (photography studios, advertising companies, etc.) and whether they would have a right to discriminate based on race if they were asked to created customized, expressive content that conflicted with their firmly held racist convictions. To her credit, Smith’s attorney was consistent: She basically said, the First Amendment protects all kinds of horrible speech, and that’s just the cost of doing business in the U.S., one that we should be happy to pay in order to enjoy the freedoms we do (that’s a generous paraphrase on my part, but that was my take away of her message).
The result is, at least from my reading, the precedent in this case would equally support a racist wedding website designer who refused to service interracial couples and posted a notice explicitly stating so.
(The only way I can read 303 Creative to NOT support that conclusion is by focusing on Gorsuch’s use of the phrase, “matter of significance.” Over and over again, he refers to the question of gay marriage as a “matter of significance.” It’s not clear what he means by this, buy I think one plausible reading is that he’s saying that gay marriage is not a settled question - it’s still in play, despite precedent saying otherwise. Perhaps the majority would take the position that there is no “question” on interracial marriage and, therefore, it’s not a “matter of significance.” Even so, I think this goes more to the majority’s intent and motivation - logically, I don’t really know that it matters that the subject of the compelled speech is a deeply held conviction about a “matter of significance.” After all, the First Amendment is about valuing some speech over other speech.)
Moving forward, the battleground is truly going to be what constitutes an “expressive work,” and what’s just a commoditized good/service that doesn’t really involve speech.
If you’ve been reading along about the Warhol and Jack Daniels (“Bad Spaniels”) copyright and trademark cases, this word, “expressive,” keeps coming up. In the copyright context, there was the question of whether Warhol needed to license the underlying photo of Prince or whether his alterations to it were “expressive” enough to transform that photo into an entirely new work (NO). In the trademark context, the question was whether the “Bad Spaniels” dog toy was just a consumer good or whether it was an “expressive” work with a message poking fun at Jack Daniels, and, if it was, in fact, expressive, whether it deserved enhanced First Amendment protection from normal trademark infringement allegations (the answer was, thankfully, NO).
I don’t know why “expressive” seems to be the word of the day for SCOTUS, but it seems like an unfortunate one. It’s awfully squishy and often seems to come down to the eye of the beholder. It’s the reason this 303 Creative case is such a horrible mistake by the Court. The decision provides so little guidance on what an “expressive” or “customized” work is and is not, and this is because the entire case is built on a hypothetical and the above-mentioned stipulations. It’s terrible.
