“Alice in Wonderland” at the Supreme Court.

December 6, 2022

          On Monday, the Supreme Court held a bizarre hearing on a case the Court should have refused to hear. The reactionary majority bent over backward to accept review of 303 Creative v. Elenis, a case that was hand-crafted by religious advocacy groups to expand the grounds for discriminating against LGBTQ people. Based on comments by the reactionary justices during oral argument, the majority will rule that business owners can discriminate against LGBTQ people if their business offers services that involve “speech” of any kind. 303 Creative v. Elenis is merely the latest step in the Court’s effort to advance the religious agenda of the Christian evangelical base that successfully appointed Justices Gorsuch, Kavanaugh, and Barrett.

          The oral arguments regarding 303 Creative devolved into offensive and unhinged hypothetical questions from Justice Alito because the case does not present an actual “case or controversy”—as required by the Constitution. In general, the jurisdiction of federal courts is limited to real disputes in which the plaintiff can show actual injury. (That is a gross oversimplification of a complicated judicial doctrine, but stick with me for a moment!)

          The 303 Creative “controversy” was manufactured by a religious advocacy organization (ADF). The plaintiff is a web design company that might—in the future—offer such services for weddings. But the plaintiff does not yet offer that service, may never do so, and (therefore) has not yet been asked to provide those services to a same-sex couple. Nonetheless, the plaintiff asks the Court for an advisory ruling about its obligations under a Colorado statute prohibiting discrimination on the basis of sexual orientation.

          The metaphysical nature of the alleged “case or controversy” in 303 Creative is explained by Mark Joseph Stern’s article in Slate, The Easy-to-Miss Twist That Makes the Supreme Court’s New Gay Rights Case So Strange. Per Stern,

No same-sex couple has ever asked Smith to make them a wedding website; in fact, she has never made a wedding website for anyone. Her work to date focuses on local politicians, dog breeders, contractors, and houses of worship—not celebrations of life events.

Smith one day might be asked to make a same-sex couple’s website, ADF asserted. And when that day comes, she wants the right to say no.

There is no live controversy, and therefore no facts against which the justices could test their legal theories. It would be supremely helpful to know, for instance, how Smith would have responded to a request from a same-sex couple.

          Critically, the Colorado statute at issue would permit the plaintiff to refuse to make a custom website for same-sex couples, but if the business offers “off the shelf” website designs for sale to the public, Colorado requires those “templates” to be made available to everyone. But 303 Creative claims it can refuse to sell a standardized product to same-sex couples. As explained by Ian Millhiser in Vox,

The main thing that Colorado’s law requires, according to the state, is that once a web designer agrees to sell a particular web design to the public, it must provide the same service to people of all sexual orientations.

          The “Alice-in-Wonderland” quality of the alleged “dispute” presented to the Court resulted in wildly speculative hypotheticals as the justices attempted to grapple with a case that presented no actual dispute. Particularly offensive was Justice Alito, who asked questions about a “Black Santa Claus” being photographed “with a child who’s dressed up in a Ku Klux Klan outfit.” After Alito posed his offensive hypothetical, he then said the following (apparently as a sarcastic “joke”):

You do see a lot of Black children in Ku Klux Klan outfits, right? All the time!

          The bizarre hearing should cause the justices to conclude they erred in granting review of the case and dismiss the appeal. (Hold onto your keyboards, my attorney friends! No one knows what “Certiorari was improvidently granted” means!) But the conservative majority will not do so; instead, it will chip away at the right of LGBTQ people to be treated like “people”—human beings who possess the same rights, privileges, and responsibilities as all other Americans.

          The rightward lurch of the Court coincides with efforts of many state legislatures to legitimize discrimination against LGBTQ people by prohibiting discussion of gender identity and sexual orientation in educational settings. Florida’s “Don’t Say Gay” law has inspired a variety of similar bills in a dozen states. Such bills serve as a wedge for legitimizing future discrimination against other groups. They are also culture war “cluster bombs” designed to conceal the moral bankruptcy of the Republican Party.

          Florida’s attack on LGBTQ people is a lesson not lost on Vladimir Putin, who today imposed his own supercharged “Don’t Say Gay” law. See Cathy Young in The Bulwark, Russia to Gays: Shut Up and Disappear. (The law prohibits all public speech or actions deemed to encourage “distorted notions of the social equivalency of traditional and nontraditional sexual relations.”)

          Of course, Putin is using discrimination against LGBTQ people to distract attention from Russia’s catastrophic invasion of Ukraine. And although Putin’s law is more comprehensive than Florida’s, his modus operandi is identical to that of Ron DeSantis: Attack a vulnerable minority to intimidate others into submissive obedience. Such is the way of all dictators—and religious reactionaries across the ages.

          Sadly, the conservative majority of the Supreme Court has decided to aid and abet the efforts of religious reactionaries in America to impose their parochial views on the strong majority of Americans who do not share those views. Today in the Supreme Court, the target of that reactionary minority was the LGBTQ community. We must resist attacks on the rights and dignity of LGBTQ people with all our might—just as we must also defend the full personhood and citizenship of women, ethnic and racial minorities, people with disabilities, and other vulnerable groups subject to discrimination by MAGA extremists.

More on Trump’s call for “termination of the Constitution.”

          I received many reader comments on yesterday’s newsletter about Trump’s call to “terminate the Constitution.” I include below a few points raised by readers that I should have noted yesterday:

          First, Jessica Craven in Chop Wood, Carry Water 12/5 has provided a suggested word script for demanding that your elected representatives in Congress condemn Trump’s statement in the strongest possible terms. Phone calls to elected representatives matter!! Even if you do not speak to a real person, staff members “tally” the calls they receive to advise members of Congress on the mood of their constituents. Please check out Jessica’s “action steps” in her newsletter, linked above.

          Second, I omitted an important fact—that Twitter blocked links to the NYPost story about Hunter Biden’s laptop for only twenty-four hours. See Newsweek, Twitter Reverses Course on Hunter Biden Stories, Says It Won't Block Hacked Content. (10/15/20). Per the Newsweek article in October 2020, Twitter posted the following:

Over the last 24 hours, we've received significant feedback (from critical to supportive) about how we enforced our Hacked Materials Policy yesterday. After reflecting on this feedback, we have decided to make changes to the policy and how we enforce it.

[A Twitter representative] said that Twitter would no longer remove "hacked content" unless it is directly shared by the hackers or people working with them. Instead, Twitter will label tweets as being based on hacked content in order to provide additional context. [The Twitter representative] clarified that all other rules will apply to posting or linking to hacked materials, including doctored media, private information or "non-consensual nudity.”

          So, any alleged “censorship” by Twitter regarding the NYPost article lasted only a day, although nude photos of Hunter Biden and others were blocked permanently.

          Many readers noted that friends, relatives, and business associates are adamant that the laptop contains proof that Joe Biden committed various financial crimes. But the FBI has had possession of Hunter Biden’s laptop since December 2019 and has been investigating Hunter Biden since 2018. And yet, in four years of FBI investigation—two years of which occurred under Donald Trump’s highly comprised and politically motivated DOJ—there has been no hint that Joe Biden has done anything illegal or inappropriate. There is nothing that a congressional committee will be able to discover that has not already been investigated—and dismissed—by the FBI over the last two-and-half years. (It is possible that Hunter Biden will be indicted, however.)

          Finally, many readers made a comparison between the non-interference of the Hunter Biden laptop story and the actual interference by suppression of the story regarding Trump’s pay-off to Karen McDougal to keep their affair out of the press. See The Guardian, National Enquirer owner admits to 'catch and kill' payment to ex-Playmate. Per The Guardian,

The publisher of National Enquirer has said it coordinated with Donald Trump’s presidential campaign to pay a Playboy model $150,000 in hush money, placing the president and his inner circle in further legal peril. 

American Media Inc (AMI) told prosecutors it worked “in concert” with Trump’s campaign when it bought Karen McDougal’s story of a sexual affair with Trump, which it suppressed “to prevent it from influencing the election”.

          So, if Congress is concerned about “election interference” because of “censorship” of stories relating to candidates, it would do well to examine the admission by the National Enquirer that it purchased and killed a story about Trump’s infidelity to “influence the election.”

Concluding Thoughts.

          The run-off election between Raphael Warnock and Herschel Walker will be close, notwithstanding single-day records for early voting. We need to be careful with our expectations. Careful, but hopeful.

          Caution is appropriate because the Republican plan to suppress votes in the run-off has worked. After the 2020 election, the GOP-controlled legislature shortened the run-off early voting period to depress the number of early votes—which is precisely what happened. NBC4, Georgia’s Early Voting Turnout Far Lower Than Last Runoff After State Changes Election Laws.

          In the 2022 general election, about 2.2 million Georgians voted early, while in the 2022 run-off only 1.7 million Georgians voted early. Will those 500,000 Georgians who voted early in November but not in December show up on Tuesday of this week? And if not, will that make a difference in the outcome? The Republican legislature certainly hopes so.

          Given the hours-long lines during early voting, we should expect the same (or worse) on Tuesday. How many Georgians can afford to take off four hours from work to vote? Again, the Georgia legislature hopes that working-class Georgians will not be able to show up to vote on election day, giving retirees and residents of small rural counties a disproportionate voice in the outcome.

          The early voting returns are encouraging for Democrats—and long lines on Tuesday will be daunting for everyone, including retirees and MAGA supporters who must work on Tuesday. Expect the election to be a close contest, with the race being called late in the evening or early morning.

          The lesson from the Georgia runoff is that fair elections begin with the state legislature, which has the ability to throttle voter participation at will. That power is an antidemocratic relic of Georgia’s Jim Crow past that has no place in a modern democracy. Whatever happens on Tuesday, we must take the fight for voting rights to the state legislature in Georgia—and every state. When more people vote, Democrats do better. That fact should make Democrats feel better about their prospects in the future.

          Stay strong as we hope for the best on Tuesday!

          Talk to you tomorrow!