Did the Supreme Court Roll Back Gay Rights and Civil Rights?
Join Reason on YouTube and Facebook Thursday at 1 p.m. Eastern for a live discussion of the Court's recent rulings on affirmative action and same-sex wedding services.
In two much-anticipated decisions, the Supreme Court struck down the use of race-based affirmative action in college admissions and upheld the right of a web designer to decline to create products celebrating same-sex marriages.
Writing for the 6–3 majority in Students for Fair Admissions v. President and Fellows of Harvard College, Chief Justice John Roberts said that when it came to admissions at public and private universities, "Eliminating racial discrimination means eliminating all of it…. The student must be treated based on his or her experiences as an individual—not on the basis of race."
In 303 Creative LLC v. Elenis, Justice Neil Gorsuch wrote for the 6–3 majority that the government can't compel expression. "The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong," he said. "Tolerance, not coercion, is our Nation's answer" to differing points of view.
Are these good decisions from a libertarian point of view? Do they expand freedom or legitimize discrimination against minorities? What will the actual effects be in terms of college admissions and retail commerce?
Join Nick Gillespie, the Cato Institute's Walter Olson, and podcaster Coleman Hughes for a live, freewheeling discussion of two of the most controversial Court rulings in years.
Watch and leave questions and comments on the YouTube video above or on Reason's Facebook page.
- Producer: Bess Byers
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Short answers...
Are these good decisions from a libertarian point of view?
Fuck yes. This has been one of the most libertarian courts of recent memory.
Do they expand freedom or legitimize discrimination against minorities?
They are neutral on freedom towards some minorities, but do expand colorblindness and religious/artistic freedom.
What will the actual effects be in terms of college admissions and retail commerce?
Colleges will still try to circumvent the new rules. There will probably be no real effect on retail commerce other than to let artists have the freedom not to do something against their consciences.
This has been one of the most libertarian courts of recent memory.
Any court which decides Jones v Hendrix the way it did cannot be regarded as libertarian, notwithstanding its other cases, like Tyler v Hennepin County. Samia v US isn't a good look either for an allegedly libertarian court.
FWIW the two justices most likely to dissent in this most libertarian of courts were Thomas and Alito. So maybe you're right after all. 🙂
he didnt say 100% libertarian. he said the most libertarian of courts and he is right . by a mile.
True, he did not say 100% libertarian, but given the cases I cited, I doubt that he is close to being right. Further, one may view cases as “easy” v “difficult” libertarian decisions. An easy decision for the conservatives on the court is where the libertarian position fits conservative biases. The SFA case is an easy one. Ask any conservative, they will support it without needing any libertarian considerations. Tyler is another easy one – not quite as easy, but still easy. There’s a general opposition across the entire political spectrum to civil asset forfeiture.
But Jones and Samia are difficult ones – here libertarian principles conflict with the general conservative desire to deny bad people the rights that good people are entitled to (Thomas, passim). In the former case, a man is legally innocent but has to stay in prison because that’s apparently what the law says, regardless of the obvious violation of constitutional – and libertarian – principles. (I note that the canonical expression of the right-wing position here – which is wholly antithetical to libertarian thought – is in the Scalia/Rehnquist position in Herrera v Collins, that there is no constitutional obstacle to the execution of an innocent man.) In the latter case, the Court accepted an argument that a properly instructed jury would act on that instruction to ignore evidence – which I suspect every prosecuting and defence attorney knows is bullshit. Easy to find against the defendant if you’re a conservative. Difficult to find for him – unless on libertarian principles you don’t trust the system enough to be confident about the jury’s instructed behaviour.
So the SC might have decided the easy cases in a pro-lubertarian way, but not the difficult ones. FWIW obviously Thomas and Alito are not remotely libertarian so when they vote on a pro-libertarian decision, you can assume it’s an easy one.
Do you have other SC sessions to compare this one with?
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"colorblindness "
I've lately come to think this term is inappropriate. I'm not colorblind. I can SEE that you're black or asian or whatever. I just DON'T CARE. Your skin color is no more relevant to our relationship (whatever that may be and however fleeting that may be) than is your left-handedness or inability to eat cilantro.
There's about 500 other things about you that more pertinent than the color of your skin.
No. It restored constitutional rights.
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The SFA case can be viewed either as a win for candidates or as a loss for an organisation which one might argue has the right to admit who it wishes (though many cans of worms get opened up here.)
The 303 Creative decision, even if fraudulently procured, is the right one - speech should not be compelled.
My complaint with the 303 Creative decision is honestly that it didn't go far enough. I'm sure it would have been difficult to get a complete rollback of public accommodation, but it needs to go. The court is basically saying here that expressive rights are somehow more important or greater than property rights.
Similarly, I think affirmative action should be legal (even if morally wrong) for completely private entities, but absolutely illegal for public ones. What I don't really know is precisely how "private" Harvard really is.
Can't win 'em all. Take what they will give you. On the whole, these decisions both advance liberty in my opinion.
What I don’t really know is precisely how “private” Harvard really is.
Harvard accepts federal funding and so is subject to Title VII of the Civil Rights Act of 1964, which is read to prohibit what the Equal Protection Clause of the Fourteenth Amendment prohibits. If Harvard is willing to forego such funding, then it would not need to worry about Title VII; although, it would still be subject to Massachusetts anti-discrimination laws.
But that seems to conflict with what religious organisations are now entitled to do when in receipt of public funding.
And Massachusetts courts, which... well, good f***ing luck to whatever plaintiff who gets stiffed by Harvard once they're stuck dealing with THOSE biased moonbats.
Civil Rights act of 1964 needs to go
Good luck with that. The Civil Rights act has pretty much superseded our Constitution. Talk like that will likely get you arrested for trying to start an insurrection.
Did the Supreme Court Roll Back Gay Rights and Civil Rights?
No.
Are these good decisions from a libertarian point of view?
Yes.
Neither of these cases have anything to do with gay rights so I'm curious as to how the Reason writers could be so dense as to associate that subject with these cases.
somebody heard a narrative @politico & it stuck
Reason is firmly in the "gays deserve special rights" camp
what's really depressing is that there are 3 bolsheviks on the court who dissented in these cases that are crystal clear to any half wit.
It's scary as fuck these women are on the court.
That's affirmative action in action, right there, all three of them.
Especially Jackson. Holy mackerel Adam West. The cream doesn't always rise to the top now does it?
I know. I'm racist. Assumes position. Asks for more.
Neither, they supported religious freedom.
Do they expand freedom or legitimize discrimination against minorities?
These are not contradictory. In fact, they go hand in hand. A free person is free to discriminate.
Not something Gillespie or Reason will agree with unless we're talking about unilateral discrimination against those they dislike
both cases should have been unanimous ... & Bakke should never have been in the first place
Bakke is a good decision. It says that the Equal Protection Clause of the Fourteenth Amendment prohibits racial quotas by public institutions. The problem was Justice Powell’s concurrence saying that race could be used as a plus factor.
quotas bad, racism still good is a coin toss in a Twilight Zone fashion
edit: in the friendliest way possible ^^
Did SCOTUS roll back gay rights?
No.
Now the Pride movement and trannies have absolutely started that ball rolling.
Can't fathom why anyone feels a need to ask such silly questions but have my suspicions ; and '....freewheeling discussion of two of the most controversial Court rulings in years.....' What's controversial about stating and then applying, the obvious intent and purpose of the 'laws' in question?
The AA case was pointless. Until and unless the SCOTUS mandates a merit-only application scheme (which I predict it will never do), all it's doing is saying "no, this scheme isn't allowed" and kicking the can down the road. Schools are going to re-jigger their application process trying to figure out what SCOTUS meant, and in five to ten years SCOTUS will be given another opportunity to say "yes, this is good" or "no, this isn't good". And outside of the most "elite" institutions, none of it is going to matter.
For 303 Creative, the impact will also be minimal. This is only going to affect cases involving gay people moving forward (unless you're really thinking that she would have gotten cert if she had instead said she objected to making sites that celebrated the union of mixed-race couples?), and those cases are under-represented among non-discrimination cases anyway (and over-represented in media coverage. Like seriously, a half-dozen cases over almost two decades. It's ridiculous).
Groff is more likely to have an impact, depending on what the courts make of the new standard. But seeing as the SCOTUS punted on that, saying they didn't like the old standard but wouldn't articulate the new one, it's a bit early to tell.
"Schools are going to re-jigger their application process trying to figure out what SCOTUS meant"
No. School administrators know what SCOTUS meant, but will try to secretly make admissions and hiring decisions on racial grounds anyway. If they didn't continue discriminating against Asians, more than half their students would be Asian even though Asians are only 7.2% of the US population. That's all because Asians study harder.
Or rather, it's because _some_ Asians study harder. It must really suck to be an intelligent Hmong-American, a group that does not emphasize education but are still discriminated against like they were all the children of Chinese Tiger-Moms.
Betteridge's law of headlines is an adage that states: "Any headline that ends in a question mark can be answered by the word no ."
We all know that on the inside Woppo, Welchie, Triple M, and all the rest are seething and raging just like the rest of their leftie media brethren.
I hope that when the next court term begins that they take on eminent domain next, yet another big issue that the anti-Constitution courts that predominated for most of my lifetimes have gotten wrong for decades.
It would be great if Kelo got overturned.
It’s the wrong question.
Did SCOTUS follow the Constitution? That’s the only relevant question. Ever.
If, by following the Constitution, SCOTUS ends up in a place that you don’t like on any particular topic, you may, in this order — 1) amend the Constitution 2) get new laws passed that are consistent with the Constitution 3) bring Court cases to interpret current laws consistent with the Constitution and the result you want
What “effect” SCOTUS rulings may have should not be a consideration for 9 people. CONSTITUTION. Beginning, middle, and end.
^THIS. This is so self-evident that it shouldn't even need to be explained, but apparently it does.
The founding fathers were atheist edgelords of their time. They may be confused by the emergence of LGBT rights in the modern age, but they'd be appalled by the prevalence and political power of religion.
Gorsuch's opinion relies on the same retarded logic I read constantly on this very site like a decade ago. "Gay people are free to get straight married like everyone else." Sotomayor was right to call his opinion embarrassing.
Ah. I see Tony has never changed. /wipes tear.
The Founding Fathers were Theists.
There are no LGB rights...there are no Straight rights...just natural rights which apply regardless of sexual preference.
Sexual mutilation of kids is not LBG rights. It is inhuman and immoral.
What does this ruling on AA have to do with gays?
It's an excellent decision. Rational.
Thomas Sowell explains the bull shit about AA best.
How can Nick ask this question with a straight face? Reason has gone down the left "libertarian" hole it seems. Open borders, fiat currency, deficit spending, foreign globalist wars, child sterilization and of course abortion on demand till term.
AA was just a term used to soft sell discrimination. portions of the CRA were clearly unconstitutional...no not the parts about govt discriminating or forcing people to but the determination that "tribes" had "rights" and while buyers could discriminate, sellers couldn't under some circumstances (opening a politicians dream to pass laws which give preferential treatment to buy votes).
303 Creative was just an elaborate way of saying you can't sue (or impose civil or criminal penalties against) a Muslim or Jewish caterer who won't serve pork, ham, or (pig-derived) bacon at your wedding.
They don't carry the product, so they don't have to provide it. Even for those uppity Christians and athiests.
The website designer does not carry the product of "gay wedding websites." Gay people are still free to order any of her products that are ACTUALLY available. She said she'd make them most sites, just not certain expression.
Compelled speech is slave labor. Should have been 9-0.
nice
Can I start throwing Nigs out of my business now?
Can I force them to ride in the back of my Bus?
Can I kick them out of my private school?
Can I refuse to hire them because they are black?
We need to get back to our American roots, back to Jim Crowe and slavery.
God blesses the supreme court.
No, no, no, no, and you have clearly spent zero effort on understanding what you're posting about. All you did was display your astonishingly ignorant bigotry.