A Dishonest Court. A Dishonest Case.

I’ll begin with a warning: This will be a bit longer than my usual post, because I’m livid.

I began to write about 303 Creative v. Elenis, the case brought by a website designer who wants an exemption from Colorado’s civil rights/public accommodation law. She claims her “sincere religious beliefs” prevent her from “endorsing” same-sex marriages, and wants the Supreme Court to exempt her from the law’s non-discrimination requirement. She is asserting that the First Amendment–which among other things  prohibits government from compelling speech–protects “artists” and those engaged in “expressive” work from endorsing behaviors they consider sinful, and  further asserts that the act of providing a wedding website would constitute such endorsement.

Initially, I just intended to argue that framing this conflict as a Free Speech issue is dishonest.

.As David Cole pointed out in the New York Times, 

The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians?

Cole points out that artists don’t have to open businesses in the first place.

Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.

Cole also reminds us that  businesses open to the public are free to define the content of what they sell. “A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.””

The lawsuit frames a website designer as an “artist” who should be exempt from public accommodation laws because her product includes an “expressive” element. As Cole points out, multiple businesses are expressive: interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among others.

I intended to argue that, on the ground of dishonest framing alone, the plaintiff should lose. But then I did some further research, and what I found appalled me.

I already understood that this case had been intentionally  constructed–manufactured– to appeal to our newly theocratic Supreme Court majority. The plaintiff has the same lawyer who brought the bakery case a few years ago raising the same arguments. The Court essentially “punted” on that one, returning it to Colorado without reaching the merits, and this case has clearly been manufactured to try again.

But that isn’t the half of it. Robert Hubbell provides the ugly underside.

It turns out that this case does not involve an actual “case or controversy”—as required by the Constitution.( In the United States, courts are not allowed to issue advisory opinions, only to decide actual, existing conflicts.)

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.

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.

The first question any lawyer–or any law student– would ask is: in the obvious absence of an actual case or controversy, why did the Court agree to hear this case? I’m afraid the answer to that is chilling: because this is a Court with a rogue, theocratic majority intent upon imposing  religious beliefs held by a minority of Americans on the rest of us–intent upon making the U.S. a “Christian nation.”

There’s more. It turns out that the Colorado statute already has language that would allow Smith to refuse to make a custom website for same-sex couples.  Only  if the business offers “off the shelf” website designs for sale to the general public would she be required to sell them to anyone who wants one. This so-called “artist” wants the Court to say that she can refuse to sell a standardized product to same-sex couples.

Let’s get real. If a business owner really, sincerely doesn’t want to work with particular customers,  it is supremely easy to evade nondiscrimination laws. The proprietor can always say something like, “Gee, Mrs. Smith, I am so backed up with orders that I can’t meet your timeline,” or “I’m so sorry, Mr. Jones, but I’m short-handed right now”…there are lots of ways these pious bigots can refrain from “participating in sin” without trumpeting their disdain or trying to change the law to encourage others to discriminate.

I will also note that the use of such all-purpose excuses would allow Smith to deny service to other “sinners”–surely her “sincere” religious beliefs would prohibit sales to adulterers or women who’ve had abortions, or atheists…interesting how these “godly” folks are laser-focused on just one sin…

It’s depressing enough to realize how many “Christian soldiers” are fixated on making life miserable for us “others.” It is absolutely terrifying to realize that the Supreme Court of the United States is controlled by theocrats intent upon eviscerating the wall of separation erected by the First Amendment’s religion clauses in order to enforce their version of “morality” on all  Americans.

Iran has morality police. How’s that working out for them?

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Same-Sex Marriage Is Next

So you don’t have a uterus, and you don’t care about the Supreme Court’s decision striking down Roe v. Wade? Better hope you aren’t a member of the LGBTQ community, either–because gay folks are now in the line of fire, per Talking Points Memo.

After passing the House with the support of 47 Republicans, the Respect for Marriage Act, which would protect marriage rights for same-sex couples if the Supreme Court were to overturn its 2015 decision in Obergefell v. Hodges, faces much dimmer prospects in the Senate. There is one reason why: the Christian right still controls the Republican Party. Movement leaders know it took 50 years to reverse Roe, and are committed to a similar strategy to undermine and eventually overturn Obergefell. With abundant clues in the Supreme Court’s June decision overturning Roe that LGBTQ rights could be next on the chopping block, it is unimaginable that movement leaders would sink that goal by allowing this bill to become law.

Republican senators are keenly aware of this. That is why South Dakota’s John Thune and Louisiana’s Bill Cassidy accused Democrats of introducing the bill to distract from inflation. It is why Florida’s Marco Rubio called it “a stupid waste of time,” and claimed gay Floridians are “pissed off” about something else — high gas prices. And it is why Maine’s Susan Collins, who was one of the bill’s four original Republican supporters, came up with the laughing-crying emoji argument that, because Majority Leader Chuck Schumer (D-NY) and Sen. Joe Manchin (D-WV) had struck a surprise deal on Democratic legislative priorities late last month, she would struggle to win fellow Republicans’ support for the marriage bill. “[I]t was a very unfortunate move that destroys the many bipartisan efforts that are under way,” she told HuffPost.

The article went on to document the “avalanche of opposition” to the bill from the Christian Right that effectively controls today’s GOP.

The Family Research Council Action began calling the bill the “(Dis)Respect for Marriage Act” before it even reached the House floor, and pointed to the provision in the party’s   platform (back when the GOP still bothered with such things) that states, “[t]raditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values.”

FRC Action also ginned up fear among its members by alleging that the bill would be used to persecute them and take away their religious freedom. (I remind readers that–in Christian Nationalist language, “religious freedom” is defined as freedom to impose their fundamentalist  Christianity on everyone else.)

It reminded them that in the 1970s, the IRS revoked the tax exemption of the segregationist, fundamentalist Christian Bob Jones University over its racist policies, suggesting, despite the fact that it hasn’t happened in the seven years since Obergefell, that universities and nonprofits that oppose marriage equality could face a similar fate. The American Family Association called the bill “an Orwellian attempt to pretend that the Court’s very recent discovery of a constitutional right to same-sex marriage is not controversial and offensive to many people around the country.” The Heritage Foundation called it a “publicity stunt” aimed at “tak[ing] the spotlight off progressives’ radical policies and paint conservatives as bigots — and all this conveniently before the midterm elections.”

Ever since Justice Alito’s dishonest framing in Dobbs, I have warned that his attack on the doctrine of substantive due process–the doctrine that certain matters are none of government’s business–threatens numerous rights beyond abortion. If a woman no longer has the right to choose abortion, what about choosing to use birth control? What prevents government from decreeing that same-sex marriage erodes “the foundation for a free society?”

As Talking Points Memo concluded,

It’s crucial not only to understand what Christian nationalism is as an ideology, but to understand how right-wing operatives have attained the power to subvert democratic structures and democratic values in order to make it the core of anti-majoritarian rule. The opposition to the Respect for Marriage Act is an object lesson in how that power works. Christian right operatives and lawyers argue that America is a Christian nation, that Christians’ right to practice their religion must be protected from secular, progressive incursions like constitutional rights for LGBTQ people, and that it is the duty of judges and government officials to ensure that these “biblical” values are secured. With a sympathetic majority on the Supreme Court and a razor-thin Democratic majority in the Senate with filibuster rules favorable to conservatives, the Christian right has every incentive to deploy this power. And because Republicans no longer have an alternative base upon which to build a coalition, they will continue to relent.

Voting Blue has never been more important.

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Let’s Try This One More Time…

What’s wrong with the argument–made on this site most recently by Paul Ogden–that our differences about abortion should be resolved by democratic debate, and not by Judges issuing edicts?

Certainly, we Americans decide lots of things democratically–legislatures in the various states make policies about taxation, about criminal law, property rights, public transportation and innumerable other issues, and those decisions presumably reflect the majority sentiment in those states. (Okay, maybe not, given the extent of gerrymandering…but theoretically.)

Why do you suppose that those legislators and their constituents don’t get to vote on other matters: the right to free speech, the right to pray to the God of your choice (or not), the right to read books of one’s own choosing, the right to be free of arbitrary searches and seizures, the right of citizens to cast votes in elections…

The reason we don’t subject those and similar rights to majority preferences is because the courts have determined–properly–that under our constitution, they are fundamental rights. And the majority doesn’t get to decide whether person X or person Y is entitled to fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that certain decisions should not be made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

The question, by the way, is who decides–who gets to make a particular decision, not what the decision should be.

The deeply dishonest ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into the private lives of its citizens. Its “reasoning” would allow fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that the right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by majority rule is no different from putting my choice of reading material, or your choice of religion, up to a vote of your neighbors.

The reason so many people are outraged over Dobbs and disgusted by the misogynistic culture warriors in the Indiana legislature is because they recognize that we are arguing about a very basic American principle: the right of each individual to live in accordance with his or her own deeply-held beliefs rather than in servitude to the beliefs of others–even if those others constitute a majority (which in this case, they pretty clearly do not.)

The reason so many women understand  Dobbs to be an assault on women is that its result requires believing that a right to self-determination claimed only by women is not a fundamental right, but a privilege that can be withdrawn by legislative bodies.

By definition, rights don’t depend upon your ability to obtain a favorable decision by a majority of your neighbors. 

Think of it this way: I may strongly disagree with the way in which you are using your freedom of speech. I may think your religion is ridiculous, and your choice of reading material stupid–but I don’t get to vote to shut you up, close your church or censor your books–and you don’t get to vote on my reproductive decisions. 

That’s because fundamental rights are not subject to majority vote.

I’ll end this diatribe with one more repetition of the libertarian principle that undergirds the real “original intent” of America’s particular approach to government–and especially animates the Bill of Rights: Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

Autocrats and theocrats have a whole lot of trouble with “live and let live…”

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Pride…And Prejudice

It’s June. Pride Month.

I’ve followed–and supported–the movement for LGBTQ equality for more years than I can count. When Indianapolis had a newspaper that served the gay community, I was a regular columnist; when I was Executive Director of Indiana’s ACLU, I established a “Project for Equal Rights”–a project focused on gay rights (back then, ambiguity in the title was advisable.)

So I’ve been gratified by the enormous cultural and legal changes that have led to wide acceptance of gays and lesbians (transgender folks not so much…), reflected in positive newscasts about upcoming Pride events and the enormous growth of participation in those events.

I attended the first Pride Parade (proper name: Cadillac Barbie Pride Parade–don’t ask me how that name originated; I have no idea). It was a resolute effort, but as I recall (granted, at my age, memory is fallible) a fairly sad affair. There were six or eight floats, and at most a couple hundred spectators. My husband, kids and (later) grandkids have attended every year since, and at the last parade–held before COVID imposed a hiatus–there were something like 80-100 floats and over a 100,000 spectators.

It isn’t simply that the numbers have grown; the nature of the participants has expanded. Initially, both the parade floats and festival were sponsored by bars and other businesses and nonprofits that catered specifically to the gay community. These days, marchers and floats include a mix of churches and synagogues, healthcare organizations, car dealerships, universities, civil rights groups, government officials and political candidates–an array broadly representative of the entire Indianapolis community.

LGBTQ progress is undeniable. But the current backlash isn’t limited to the determined assault on women’s rights. As the Brookings Institution recently warned, this year’s Pride comes at a perilous time for the LGBTQ community.

The report began with recognition of widespread cultural change

The year 2015 marked a historic milestone in the struggle for LGBTQ+ rights: the Supreme Court’s recognition of marriage equality. The court’s ruling both reflected and promoted an incredible sea change in American life. In the two decades prior to the decision, public opinion on LGBTQ+ rights improved more rapidly than any other attitude in the history of American opinion polling.

The author followed that paragraph with a description of research reflecting those changes, especially focusing on their effects for students and young people.

He then described the less-rosy findings of that research:

For the first time ever, the CDC included a question about sexual identity in its national Youth Risk Behavior Survey (YRBS). This survey provided the first population-based, nationally representative portrait of sexual minority high school students since the Add Health study two decades prior. The results were sobering. Among students who identified as lesbian, gay, bisexual, or “not sure” (LGBQ), about 40% reported being bullied, 39% reported having “seriously considered” suicide, and a full 56% reported clinically significant signs of depression. Although some of the CDC’s estimates were later shown to be inflated by “mischievous responders,” these bullying and mental health disparities remained remarkably stable across analyses.

Since 2015, the story told by America’s LGBQ high school students has not improved. (Because these data do not assess gender identity or sexual identities beyond L/G/B/Q, I refer here only to LGBQ students). In Figure 1, I present estimates from the 2015, 2017, and 2019 National YRBS. For LGBQ respondents, the results show no change in bullying, no change in suicidal ideation, and a slight upward trend in depression. On every measure, LGBQ students report substantially worse outcomes than their straight peers: LGBQ students are about 70% more likely to report bullying, twice as likely to report suicidal ideation, and three times more likely to report depression. Population-representative data on transgender students are more limited. However, the data that are available provide a picture of an especially vulnerable population, reporting outcomes similar to or worse than those reported by LGBQ students. Early indications suggest that the experiences of LGBTQ+ teens only worsened during the COVID-19 pandemic.

And then there is the “far-reaching and well-orchestrated backlash against LGBTQ+ rights.”  The Brookings report tells us that a record-breaking number of anti-LGBTQ+ measures have been proposed and passed across the country over the past three years. (In just the first three months of this year, 238 bills restricting LGBTQ+ rights have been introduced.)

 These legislative initiatives also appear to have emboldened a wave of LGBTQ+ book bans, efforts to dismantle gay-straight alliances, and the forced removal of LGBTQ+-affirming materials from school spaces.

Given the success of Mitch McConnell and his Senate Republicans in politicizing  the Supreme Court, rights like marriage equality “appear newly uncertain.”

On June 11th, my family will join the throng of supporters cheering for Pride –and hoping for the defeat of re-emerging prejudice.

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Sin And Crime

Several years ago, I had a conversation with the Rabbi of the synagogue I had attended growing up. She had asked why I no longer belonged. When I responded that I didn’t believe in God, she retorted “Sheila, no one believes in the God you don’t believe in!”

What she meant, of course, was that I was rejecting a certain image of deity–the guy with a long white beard up in the sky who earns the gratitude of football players who win their games. (I always wonder whether they think their God hates the other team…) I have several friends who are Christian clergy who share the Rabbi’s more sophisticated concept of Godliness, and I have even thought that I could count myself a believer if we defined “God” as, say, the existence of humans’ ethical impulse.

What triggered these recollections and musings was a reminder of a class I taught for a couple of semesters “back in the day,” titled “Sin and Crime.” It was what we called a “Topics” class, a one-credit, two week offering, and it was intended to probe the consequences–and legitimacy–of basing criminal laws on religious conceptions of sin.

Given the renewed efforts of the biblical literalists who control today’s GOP, those consequences–and their illegitimacy–are worth revisiting.

The class began with a consideration of the difference between sin and crime. Sin, the students clearly understood, was violation of a religious precept, a behavior thought to be against the teaching of a particular faith tradition. An action that displeased one’s concept of God.

Crime, on the other hand, was rooted in government’s obligation to maintain order and protect the weak from the strong. Unlike theocracies, America’s particular approach to government is contractual: We the People give government a monopoly on the use of coercive force, and in return, government undertakes to keep some  people from harming others.

That practical, contractual approach was always inconsistent with plenty of laws that characterized an earlier America–blue laws that “kept the (Christian) sabbath holy” and Prohibition are a couple that come to mind. It is also inconsistent with laws against “consensual” behaviors, often called “victimless crimes.”  The Bill of Rights privileges personal autonomy, or self-government. A cherished (if often ignored) American principle is the right of individuals to form and hold their own moral, religious and political beliefs.

That focus on individual liberty and especially liberty of conscience is arguably incompatible with laws regulating prostitution, gambling, drug use, pornography, and  private, consensual sexual relations. (I still remember one of my students, a 40-something Black woman who often referenced her church, indignantly asking why she couldn’t sell her own body if for some reason she decided to do so…)

Obviously, some of these behaviors might lead to harm: the person who becomes dependent upon drugs might commit robberies to support his habit, the person consuming pornography might prey on children. But these consequences are rare and mostly conjectural, and just as we no longer  penalize drinking–we penalize drunk driving–lawmakers can make the necessary distinctions.

Turning what some religions categorize as sin into crimes creates all sorts of problems. Most consensual crimes cannot be fairly enforced (the local constable can’t invade bedrooms to ensure that no one is engaging in sodomy, for example), so these laws are usually justified as “setting a social standard.” In the real world, as many of my gay friends can attest, they are far more likely to end up encouraging selective enforcement. Research confirms that Whites use illicit drugs as much or more than Blacks, but enforcement occurs disproportionately in Black communities.

The  GOP’s single-minded focus on culture war–and especially, it’s persistent effort to deny civil equality to LGBTQ folks–is a result of the party’s takeover by Christian Nationalists. In a theocracy–the form of government they clearly favor–those in power can and do impose their religious beliefs on everyone else.

We’ve always had these Puritans, but they haven’t previously controlled one of the country’s two major parties.

Current estimates place these Evangelical Christians at 14% of the population, a percentage that shouldn’t be as worrisome as it is. But religious zealots are motivated and noisy –and they will vote, because they have remade the GOP into a religion, and by voting, they are venerating the guy with the white beard who lives in the sky, watches everything they do, and wants them to vanquish their enemies. (That would be the rest of us.)

They definitely believe in the God I don’t believe in…

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