Monday, December 05, 2022
The First Amendment Is Not a License to Discriminate
Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday, when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.”
But that’s the wrong question. 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?
The answer to these questions would seem to be, just as obviously, “no.”
So why is the first question the wrong one in this dispute? The case before the court was brought by 303 Creative, a business that says it wants to offer wedding website design services to the public, but doesn’t want to serve gay couples. Under Colorado’s “public accommodations law,” businesses that choose to serve the public at large cannot turn people away because of their race, sex, religion, sexual orientation or other protected characteristics. 303 Creative claims that because its service is expressive and its owner objects to same-sex marriage, it can’t be required to obey Colorado’s law.
If this sounds familiar, that’s because five years ago the Supreme Court considered a similar case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a bakery asserted a free-expression right to turn away a gay couple that asked it to make a cake to celebrate their wedding. The court resolved that dispute on other grounds, so did not answer the question. Masterpiece Cakeshop’s lawyers are back before the court, making the same argument with a new client. (303 Creative has actually never made a wedding website for anyone, but it claims that it can’t even get started without a legal ruling that it can turn away gay couples.)
The A.C.L.U. has been this nation’s leading defender of free speech for more than a century. We firmly believe that states cannot compel artists or anyone else to express messages with which they disagree.
But we filed an amicus brief supporting Colorado in 303 Creative, and we defended the same law five years ago on behalf of the gay couple denied service by Masterpiece Cakeshop. We did so because Colorado’s law does not do what 303 Creative claims it does.
Public accommodations laws, which have been on the books since the 19th century, ensure that everyone has equal access to the public marketplace without regard to attributes historically marking them for second-class status. Those laws don’t trigger serious First Amendment concerns because they treat all businesses equally, whether they take corporate headshots or serve burgers and fries. The purpose of these laws is not to dictate the content of anyone’s speech, but to make sure that nobody is denied goods or services in commercial markets for discriminatory reasons.
Two features of the law make clear that Colorado’s law does not coerce artists to express a message with which they disagree.
First, no artist has to open a business to the public in the first place. . . . . the choice to benefit from the public marketplace comes with the legal obligation to equally serve members of the public. And requiring businesses that offer expressive services in the public marketplace to follow the same rules as all other businesses does not violate the First Amendment.
Second, even 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.”
303 Creative argues that it is not turning away same-sex couples because they are gay, but because it objects to the message that making a wedding website for them would convey. The company has, however, asked the court to declare its right to refuse to make any website for a same-sex couple’s wedding, even if its content is identical to one it would design for a straight couple.
303 Creative has plenty of freedom to speak or not speak as it wishes. It need not serve the public and it need not design wedding websites featuring content it would not sell to anyone. But the First Amendment does not give it an exemption from laws requiring equal treatment of customers simply because its service is “expressive.”
Otherwise, interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contains some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group. The First Amendment protects the right to have and express bigoted views, but it doesn’t give businesses a license to discriminate.
Sunday, December 04, 2022
SCOTUS May Limit States' Non-Discrimination Law
The Supreme Court on Monday will revisit a long-simmering tension between legal protections for LGBTQ people and the rights of business owners who oppose same-sex marriage. The case, 303 Creative v. Elenis, is a challenge by a Colorado website designer to a state law that bars businesses that are open to the public from discriminating against gay people or announcing their intent to do so. The designer, Lorie Smith, argues that subjecting her to the law would violate her right to free speech. Colorado counters that exempting Smith from the law would open a Pandora’s box that would “upend antidiscrimination law – and other laws too.”
The justices have already grappled with this question once. In 2018, the court handed a narrow victory to Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. Justice Anthony Kennedy’s opinion rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.
Enter Lorie Smith, the owner of 303 Creative LLC, a designer of websites and graphics based in Littleton, Colorado. Smith is a devout Christian who believes that marriage “is only between one man and one woman.” So although Smith wants to expand her business to include wedding websites, she does not want to design websites for same-sex weddings, and she wants to post a message on her own website to make that clear.
In 2016, Smith went to federal court in Colorado, seeking a ruling that Colorado could not enforce its public-accommodations law, known as the Colorado Anti-Discrimination Act, against her because it would violate her First Amendment rights to free speech and free exercise of religion. When the U.S. Court of Appeals for the 10th Circuit rejected her arguments, Smith came to the Supreme Court. The justices agreed in February to take up her case – but only on the free speech question, not on the free exercise issue.
In the Supreme Court, Smith’s argument is straightforward: Applying CADA to her would violate the First Amendment because it would require her to create messages that are inconsistent with her religious beliefs, and it would bar her from announcing those beliefs on her website.
Smith points to the Supreme Court’s 1995 decision in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, holding that Massachusetts could not require the private organizers of Boston’s St. Patrick’s Day parade to allow an LGBTQ group to march in the parade.
Under Hurley, Smith argues, courts must consider two questions: whether the service or good involved is speech or conduct; and whether the speaker’s message was affected by the speech it was required to accommodate. Both of those criteria are met in this case, Smith contends. The service at the center of the dispute is her design services, which are “pure speech,” and CADA requires her to change that speech “in untenable ways.”
Colorado makes an equally straightforward argument, albeit one that is diametrically opposed to Smith’s: CADA merely regulates sales, rather than the products or services being sold, and therefore does not require or bar any speech.
Public-accommodations laws like CADA, the state writes, follow “a common-law tradition that predates the Founding” and are intended to protect marginalized groups like LGBTQ people and racial minorities from discrimination in the marketplace. Such discrimination, the state explains, can create “wide-ranging” injury, from “the difficulties of finding a hotel while traveling” to “humiliation, frustration, and embarrassment” when a business refuses to serve someone.
CADA, the state stresses, does not require Smith to offer specific kinds of design services or bar her from including biblical quotes reflecting her view of marriage on any wedding websites that she might create. All that CADA requires, the state insists, is that Smith sell whatever products or services she decides to offer to anyone who wants to buy them.
The state points to Rumsfeld v. Forum for Academic and Institutional Rights, the Supreme Court’s 2006 decision holding that a federal law withholding some federal funding for colleges and universities that restricted the access of military recruiters to students did not violate the First Amendment. Just as in this case, the state argues, the court reasoned in FAIR that the law “regulates conduct, not speech” because it “affects what law schools must do – afford equal access to military recruiters – not what they may or may not say.”
Although the justices declined to review Smith’s claim that CADA violates her right to freely exercise her religion, both sides nonetheless argue that the court’s ruling will have a sweeping impact on religious rights. And numerous scholars and interest groups have weighed in on ramifications for disfavored populations.
Colorado counters that the exemptions that Smith and her supporters propose would “upend antidiscrimination law – and other laws too.” These exemptions would create “an enforcement regime riddled with uncertainty and inconsistency,” the state says, because Smith and her supporters offer “no meaningful standards” to determine what services are covered by an exemption. Allowing businesses an exemption based on the effect that a law would have on their message would, the state contends, allow businesses to opt out of public-accommodation laws for a wide variety of reasons, including racist, sexist, or anti-religious beliefs.
“Friend of the court” briefs supporting the state echo the state’s warnings. The carve-out from public-accommodation laws that Smith seeks, a brief by religious organizations cautions, “risks devastating consequences for all historically marginalized groups,” but particularly for religious minorities. A brief on behalf of LGBTQ service members notes that those service members and their families are often required to live in places where, without public-accommodations laws, they might be targets of discrimination that would strip away their access to important products and services.
The Supreme Court has changed substantially since it gave Phillips a narrow victory in 2018. Kennedy, the author of the ruling, retired that year and was replaced by the more conservative Justice Brett Kavanaugh. And perhaps most notably, in 2020 Justice Amy Coney Barrett succeeded the late Justice Ruth Bader Ginsburg, cementing a solid 6-3 conservative majority. The decision to take up Smith’s case, combined with the court’s recent rulings expanding religious liberties, suggests that Smith may be on the verge of securing the broader victory that Phillips sought four years ago.
The GOP Can’t Hide From Extremism
The role of extremist white nationalists in the GOP may be approaching an inflection point.
The backlash against former President Donald Trump’s meeting with Nick Fuentes, an avowed racist, anti-Semite, and Christian nationalist, has compelled more Republican officeholders than at any point since the Charlottesville riot in 2017 to publicly condemn those extremist views.
Yet few GOP officials have criticized the former president personally—much less declared that Trump’s meeting with Fuentes and Ye, the rapper (formerly known as Kanye West) who has become a geyser of anti-Semitic bile, renders him unfit to serve as president again.
Even this distancing from Fuentes (if not Trump) comes as House GOP Leader Kevin McCarthy, the putative next speaker, is poised to restore prominent committee assignments for Representatives Marjorie Taylor Greene and Paul Gosar, two House Republicans who have publicly associated with Fuentes. It also comes as Republican officials, including McCarthy and Governor Ron DeSantis of Florida, are locking arms in support of Elon Musk’s push to allow extremist voices more access to Twitter.
Although it took days to develop, some believe the widespread Republican criticism of Trump’s meeting could signal a new determination to restore the barriers between mainstream conservatism and far-right Christian and white nationalism that eroded during the Trump era.
Elizabeth Neumann, a former assistant secretary at the Department of Homeland Security under Trump who focused on domestic extremism, told me she believes the backlash—however belated—combined with the GOP’s disappointing performance in last month’s midterm elections, could mark a turning point.
Yet others remain unconvinced that the GOP is ready to fundamentally break with Trump or ostracize the coalition’s overtly racist, homophobic, and anti-Semitic white supremacists and Christian nationalists. “I think what we are looking at is the entrenchment of extremism, and that’s what is so worrisome,” Jonathan Greenblatt, the CEO of the Anti-Defamation League, told me.
Michael Edison Hayden of the Southern Poverty Law Center’s Intelligence Project told me. If Musk opens the door to extremist organizing on Twitter, Hayden said, the white-nationalist presence in the GOP coalition will become “potentially irreversible in the short term.”
Other officials inside the GOP coalition have pushed through the boundaries Trump has weakened. Gosar and Greene both appeared at Fuentes’s America First Political Action Conference. So did Republican Arizona State Senator Wendy Rogers, who called the audience at one of the events “patriots,” and declared, “We need to build more gallows. If we try some of these high-level criminals, convict them, and use a newly built set of gallows, it’ll make an example of these traitors who have betrayed our country.”
The Republican-controlled Arizona State Senate censured Rogers this year for threatening her colleagues, but she was nevertheless fulsomely embraced by Kari Lake, the Republican nominee for Arizona governor this year. Other prominent GOP candidates, including Doug Mastriano in Pennsylvania, also associated with white and Christian nationalists or directly echoed themes from those movements this year.
McCarthy also promised Greene and other hard-line conservatives that he would authorize an investigation into the government’s prosecution and treatment of the January 6 insurrectionists, many of whom are extremists tied to white and Christian nationalism.
“After Trump’s rise, these barriers became softer and softer, and they really broke down in the aftermath of January 6 altogether,” Hayden said. “And now you have this kind of opening between the fringe world and the mainstream world in a way that is very difficult to separate.”
Musk has quickly become a major new factor in further razing those barriers between the far right and the conservative mainstream, restoring the Twitter accounts of figures banned for misinformation, promotion of violence, or intimidation—including Trump and Greene. Hayden said the Southern Poverty Law Center’s research shows that some previously banned white nationalists have already been restored to the site.
In a torrent of combative posts, Musk wrapped himself in the mantle of “free speech” to justify restoring accounts previously banned for violating the site’s standards. And he’s accused individuals and institutions that argue for drawing a line against extremist rhetoric of threatening the core American value of free expression. In Musk’s formulation, even the most noxious forms of hate speech can be justified as free speech, and any effort to combat divisive rhetoric is an un-American attempt at censorship or intimidation by the “woke” mob. . . . According to Musk’s logic, it’s a form of “tyranny” to oppose his amplification of authoritarian, racist, and neo-Nazi views antithetical to democracy.
The rush of GOP leaders such as McCarthy, DeSantis, and incoming House Judiciary Chairman Jim Jordan to support Musk as he works to restore more banned accounts shows how hard it will be for the GOP to completely divorce itself from white and Christian nationalism.
[O]nly about one in 11 Republicans expresses directly favorable views of white-nationalist groups such as the Proud Boys and Oath Keepers . . . . But a much larger slice of Republican partisans express views that might be called white-nationalist adjacent. In various polls, preponderant majorities of GOP voters have said that discrimination against white people is now as big a problem as bias against minorities, that Christianity in the U.S. is under assault, and that the growing number of immigrants threatens American values and traditions. About half of Republicans have expressed agreement in other polls with tenets of white nationalism, including the racist “replacement theory” . . . .
[T]he receptivity of so many Republican voters to arguments, even if less virulent, that overlap with those championed by white- and Christian-nationalist organizations may be a crucial reason for party leaders’ reluctance to confront Trump and others, like Greene, who have associated with such groups. Given the extent of such views inside the GOP coalition, Neumann said, Republicans feel no political incentive to reject the far right “other than out of the goodness of their heart and moral clarity. And apparently that wasn’t enough.”
Neumann, now the chief strategy officer of Moonshot, a company that combats online extremism, worries that organized far-right violence could still erupt if Trump ever faces a trial as a result of the various investigations targeting him. But she sees the possibility that the visibility and influence of the extreme right inside the GOP peaked with this fall’s converging events, especially the party’s disappointing election results.
For the short term future at least, expect more hate, bigorty and extremism to explode within the GOP base.
Saturday, December 03, 2022
The GOP is Stuck in a Doom Loop
One cannot be surprised to find the Republican Party adrift. This is what happens to ships boarded by pirates, plundered and set aflame on the high seas.
Poor Kevin McCarthy (Calif.), leader of the House majority-to-be: How glum he looks as the Cuckoo Caucus binds his hands to walk the plank of a doomed speakership. He knows he will soon bob helplessly amid the same swarm of sharks that devoured predecessors Paul D. Ryan and John A. Boehner.
The pendulum of history suggests that something will eventually be salvaged of the GOP. But it won’t be a quick fix, because righting the ship is not simply a matter of striking the orange skull and crossbones and raising the standard of some better-behaved buccaneer. Deeper problems made the party vulnerable to raiding in the first place.
The problems go back 30 years. Republicans created in the 1970s and 1980s some of the strongest presidential mojo in American history. The five nationwide elections during that period — 1972, 1976, 1980, 1984 and 1988 — produced four GOP landslides, including some of the largest on record. Republicans lost only once, in 1976, in a squeaker, when the economy was mired in stagflation and the Republican incumbent had resigned in disgrace two years earlier.
Americans have voted in eight presidential elections in the three decades since. Only once, in 2004, has the Republican won a majority of the popular vote. Running as an incumbent in wartime, George W. Bush eked out 51 percent of the popular vote against a weak opponent named John F. Kerry.
What happened? Until the GOP faces the answer, it will continue to drift as a national party.
The landslides ended in 1992. Many Republicans remember it as the year Texas billionaire H. Ross Perot flew a suicide mission into George H.W. Bush’s reelection campaign. But the first fatal blow to Bush Sr. was dealt by hard-right pundit Patrick J. Buchanan. His angry populist campaign carried all the way to the convention, where he traded a grudging endorsement of Bush for influence over the opening-night program. Buchanan anchored an evening of hatreds and resentments that presaged the politics of today.
With Bush Sr. gone, de facto leadership of the GOP passed to Rep. Newt Gingrich (R-Ga.), who had risen from the backbenches of the House by perfecting a politics of personal destruction. Gingrich was the first speaker of the House to stir up a presidential impeachment that had no chance of success in the Senate . . . . .
One of the fathers of modern American conservatism, William F. Buckley Jr., had Buchanan on his mind in the months leading up to that fateful 1992 campaign. In a 40,000-word essay published late in 1991, Buckley examined the pitchfork populist’s tendency to deal in antisemitic tropes and allusions. His conclusion: “I find it impossible to defend Pat Buchanan against the charge that what he did and said during the period under examination amounted to anti-Semitism, whatever it was that drove him to say and do it.”
George W. Bush’s 2000 campaign was a repudiation of the Buchanan movement. Bush promised to govern as a “compassionate conservative” . . . . But he did no more to vindicate this approach than his father had, leaving office amid a failing war and a crashed economy.
Buchananism, with its ugly undertones and shades of paranoid grievance, was the only energy remaining in the GOP. It expressed itself in the tea party movement of 2010. Mitt Romney’s failed 2012 campaign was the last gasp of the party elite, which was too exhausted to resist Donald Trump’s takeover four years later.
From Buchanan to Gingrich to Trump, the drivers of the Republican Party have pushed relentlessly toward anger, accusation, isolationism, pessimism and paranoia. In the guise of battling the left, they wage their most effective warfare against their fellow Republicans. Having purged proponents of the overwhelmingly popular ideas of the 1970s and 1980s . . . . they offer nothing positive. Literally: In 2020, the GOP did not offer any platform.
Trump’s supper with a Holocaust denier brings Buchanan’s assault on the GOP to its dismal conclusion — at a hateful dead end. Individual Republicans will continue to win races, if only because the Democrats have their own self-destructive elements. But the party will not be popular as long as the dark side’s in charge.
With the GOP poised to control the House of Representatives, we can expect a circus of batshit craziness with "investigations" that will go nowhere and do nothing but thrill the party base while reminding the majority of Americans why the GOP in its present form should never be given power. The base, of course, is blind to this reality as are House Republicans who semingly only are concerned with further prostituting themselves to the ugliest elements of the party base.
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