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Brute force in the service of religious nationalism
July 1, 2023
On Friday, the Court’s reactionary majority issued opinions in two cases that did not include a constitutional prerequisite to the Court’s jurisdiction—that the issue to be decided presents an actual “case or controversy.” That requirement is set forth plainly and simply in the Constitution. You can look it up.
Instead, the reactionary majority ignored the absence of jurisdiction and proceeded to issue decisions in fake controversies because they can. Looking for deeper meaning is pointless. The reactionary majority has reduced the rule of law to brute force in the service of religious nationalism.
I will briefly address the constitutional issues below, but before I do, it is appropriate to set aside legal arguments to discuss the human dimensions of the majority’s ruling in 303 Creative. The majority ruled that a business offering creative services to the public can refuse to provide those services to LGBTQ people if the business claims doing so will impair its right to free speech. Forget the procedural background and the judicial arm-waving designed to distract us. At root, the decision authorizes American business owners to discriminate against LGBTQ people. Period. It is a first step, taken in bad faith and wrapped in lies.
I listened to an interview with the plaintiff in the case who said, “There are lots of other web design businesses where gay couples can take their business.” That statement betrays a profound ignorance of the injury inflicted by the new right to discriminate against LGBTQ people. In 1960, there were plenty of lunch counters that would give a seat to a Black customer ordering a cup of coffee. But the fact that the Woolworth’s store in Greensboro refused service to a single customer because of the color of his skin was the injury. It did not matter that he could buy a cup of coffee down the street or across town. The injury was the refusal to serve a customer on account of race. And it was an injury to every Black person in America, whether they entered Woolworth’s or not. Separate but equal is not equal. It is discrimination.
So, too, with the ruling in 303 Creative that a business can turn away an LGBTQ customer. It does not matter that the customer can go elsewhere; the injury is the refusal to serve that customer. And it is an injury to every LGBTQ person in America—whether they choose to patronize 303 Creative or not.
And it is more than a “legal” injury. It is an injury to every LGBTQ teenager wondering where they fit into a society that says they are fair game for discrimination because . . . because why? Are they “less than?” Is the core of their personhood an “affront” to an angry Christian god? Are their feelings of love for another person “wrong” or “immoral?”
Those are the messages that Amy Barrett, John Roberts, Neil Gorsuch, Sam Alito, Clarence Thomas, and Bret Kavanaugh have sent to every gay teenager—and adult—in America. Their decision is reprehensible and morally wrong. It is harmful, mean-spirited, un-Christian, and depraved. And they know so. Otherwise, they would not have contorted themselves into human pretzels to issue a ruling in a fake case fabricated by activist lawyers that presented no victim, no injury, and no case or controversy. In their haste to enshrine another tenet of Christian nationalism, they have violated their oaths to the Constitution at the most basic level.
I hope you can tell that I am angry about this decision. I hope you are angrier. We cannot let this decision stand. We must rally to support LGBTQ people and their families during a time of anxiety and fear that their hard-won gains of the last half-century are evaporating. And we must raise our voices in protest and anger so that the reactionary majority understands that it has crossed a line—many lines—in the last year. They must understand that they will soon be in the minority of a Court that is 13 or 17 or 29 members. The time for hand wringing and half-steps has passed. Real people have lost real liberties—starting with Dobbs and ending 303 Creative. If we do not stand up to protect them with every ounce of our will, we deserve what’s coming.
As to the fabricated nature of the 303 Creative case, I refer you to Ian Milliser’s excellent article in Vox, Supreme Court LGBTQ ruling: Neil Gorsuch has a problem with telling the truth, in 303 Creative v. Elenis. I will quote liberally from Millhiser, but please read his original article for additional important details. Millhiser writes,
“The case centers on Lorie Smith, a website designer who wishes to expand her business into designing wedding websites — something she has never done before. She says she’s reluctant to do so, however, because she fears that if she designs such a website for an opposite-sex couple, Colorado’s anti-discrimination law will compel her to also design wedding websites for same-sex couples. And Smith objects to same-sex marriages.
“The frustrating thing about this case is that it involves an entirely fabricated legal dispute. Again, Lorie Smith has never actually made a wedding website for a paying customer. Nor has Colorado ever attempted to enforce its civil rights law against Ms. Smith. Indeed, in its brief to the Supreme Court, Colorado expressed doubt that its anti-discrimination law would even apply to Smith.
“Yet Gorsuch’s majority opinion repeatedly paints Smith as a hapless victim, oppressed by wicked state officials who insist that she must proclaim a dogma that she denies. As he writes in the very first paragraph of his opinion, “Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe.”
“This claim is simply untrue. Colorado has not brought any enforcement action against Smith, or taken any other step to compel her to say anything at all — or to design any website that she does not want to design. Nor has anyone ever sued Smith for allegedly violating Colorado’s anti-discrimination law.
“Indeed, in one particularly amusing turn, Smith alleged during an early stage of this litigation that she was approached by a man about doing some design work for his wedding to another man. Yet, after the New Republic’s Melissa Gira Grant contacted this man, she learned that he never reached out to Smith — and that he was married to a woman.”
The reactionary majority knows that Smith’s claim that she was approached to create a website for a gay man is likely untrue. But instead of jealously guarding the Court’s jurisdiction by applying the “case or controversy” requirement, it simply ignored the fabricated nature of the claim to issue an advisory opinion that amounts to a legislative repeal of a Colorado statute.
Justice Kagan wrote in dissent:
“Battling discrimination is like “battling the Hydra.” Whenever you defeat “one form of . . .discrimination,” another “spr[ings] up in its place.” Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks. [¶¶¶]
“Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.”
There is so much more to say on this topic, but I will stop here for the evening. I urge readers to express themselves in the Comments section, which is open to everyone this weekend. As always, be respectful.
The reactionary majority utilized the same gambit in the student loan forgiveness case. As explained by Mark Joseph Stern in Slate,
“The biggest question in the case was whether anyone could establish standing to challenge the program in the first place. After all, the federal government itself holds this debt, and no one is obviously “injured” by the government helping somebody else by erasing their debt.
“Missouri tried to get around this problem by fixating on MOHELA, a corporation created by the state that services student loans. The Missouri attorney general asserted that MOHELA would suffer financially because of Biden’s plan—which turns out to be false—and that the state itself could represent its interests in court.
“A key flaw in this reasoning is that MOHELA is an independent entity from Missouri that could have sued to defend its own interests, but refused to do so, and even refused to help Missouri “represent” it in court.
“Roberts didn’t care about any of that. MOHELA is “an instrumentality of Missouri,” he wrote, and Biden’s plan “will cut MOHELA’s revenues.” (Again: provably false!) “
So, even though the actual party in interest—the corporation that serviced the student loan debt—refused to file suit or assist Missouri in the appeal to the Supreme Court, John Roberts found that Missouri could assert the interests of a party not before the Court and which claimed no injury.
John Roberts didn’t care about the absence of jurisdiction. He was too eager to ensure that students who borrowed to get an education pay every penny they owed. Of course, it turns out that the largest block of borrowers who would have benefitted from the loan forgiveness plan are Black women. See US Census Bureau, Student Debt Weighed Heavily on Millions Even Before Pandemic.
Per the Census Bureau,
“Women overall were 28% more likely than men to have student debt.
“In 2017, non-Hispanic Black women were the most likely of any gender group to have student loans. About 1 in 4 non-Hispanic Black women had student debt, compared to 1 in 8 non-Hispanic White men.”
And, according to ABC News,
“Black women, in particular, carry a disproportionate burden of student debt. They hold nearly two-thirds of the nearly $2 trillion outstanding student debt in the U.S., according to data from the Census Bureau.”
John Roberts has now authored three opinions that disadvantage Black Americans—in voting (Shelby County), educational access (Students for Fair Admissions), and debt relief (Biden v. Nebraska). At some point, it is too coincidental to be a coincidence that it is always John Roberts pulling up the ladder from Black Americans with the wag of his finger and a condescending “Tsk, tsk.”
Roberts was clearly stung by Elana Kagan’s dissent in the student loan case. He wrote,
“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.
“We have employed the traditional tools of judicial decision-making in doing so. Reasonable minds may disagree with our analysis — in fact, at least three do.
“We do not mistake this plainly heartfelt disagreement for disparagement.
“It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”
“The lady doth protest too much, methinks.” The fact that John Roberts inserted the defensive footnote designed to “mansplain” what Justices Kagan, Sotomayor, and Jackson are saying is insulting. They have, in fact, said plainly that the reactionary majority’s rejection of precedent and resort to advisory opinions based on lies is “harmful to the Court and our country.” Don’t pretend that their cries of “foul” are “heartfelt disagreement.” They are not. They are saying the Court has eroded its legitimacy and is acting as a roving legislature. Read the room, John.
I am spent. The comments section is open to all. Please be respectful. [Update: The trolls have found the open Comments section, so I am locking it down to paid subscribers to prevent my readers from being subjected to bad-faith and upsetting comments. So sorry about this situation.]
I am going to take a vacation night on Sunday, so there will be no newsletter on Monday, the 3rd of July.
I will talk to you on Tuesday. Have a happy and safe 4th of July, everyone!