Free Speech

2-1 Decision Holds Web Site Designer May Be Required to Design Site for Same-Sex Weddings

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The case is 303 Creative LLC v. Elenis; the majority opinion is by Judge Mary Briscoe, joined by Judge Michael Murphy, with a dissent by Chief Judge Timothy Tymkovich. This was just handed down, so I thought I'd pass it along; I hope to blog more about it later. (Note that I co-filed an amicus brief on behalf of the Cato Institute, supporting the web site designer.)

At first glance, this appears to be inconsistent with the Eighth Circuit's decision in Telescope Media Group v. Lucero, which upheld videographers' right not to create videos of same-sex weddings. I expect this circuit split will make this a good candidate for Supreme Court review—unlike Masterpiece Cakeshop, this case indubitably involves the creation of speech, and not just of a wedding cake, so it squarely tees up the compelled-creation-of-speech issue. (There's also a religious freedom issue present as well, though I don't think there's a square split of authority on that particular subject, since the Arizona calligraphers' case, which upheld a religious freedom objection, focused on Arizona's religious freedom statute, not the federal Free Exercise Clause.)

NEXT: The Second Amendment and Vacated Ex Parte Domestic Protection Orders

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  1. There are some potential clients that are high maintenance and just difficult to deal with. It seems, that some of these complaints are made to stir up trouble.

      1. Just could be like that

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        1. Tell me more about the autonomous penis. Does it leave your body and go off on its own? Or does it just drag your body along for the ride? I’m not sure how I would feel about a detachable penis, but if I could sleep, and have great sex at the same time, count me in.

          1. King Missile had some words of warning about the autonomous penis. Though, from Sandy’s blurb, it may be Sikander E Azam has to be there for the autonomous size enlargement.

            1. Ah, so it is temporary autonomous size enlargement only. Hard pass.

              1. Again with the fascination with penises, Vinni? Specifically, the hard ones?

    1. Would someone please explain why the baker or HTML typist, or whatever — can’t simply say “tell me which one of you is the “husband” and which one of you is the “wife” — I don’t particularly care, but my product is designed for a “husband” and a “wife” and I need to know which of you is which.

      I’m reminded of Henry Ford saying that you could have a Model T in any color you wanted as long as it was black. Ford today won’t sell me a purple car with pink polka dots — I could probably find someone to paint it that way, but I can’t scream “sexual orientation” and make Ford itself sell a product that it doesn’t sell.

      Now if they refused to sell me a red vehicle in the standard red they sell them in, that would be a different issue….

      1. This assumes that somehow a gay man would be insulted by being referred to as a “wife.” As if a man being referred to in female terms is insulting? In the end, a married couple is a married couple no matter how childish the web designer or cake baker wanted to get over it.

        1. But, you see, the thing is that people who have valid, perfectly-legal same-sex marriages don’t really have marriages, because RELIGION! and there’s no logical argument that can touch that.

      2. I’m reminded of a old joke – one that lends itself to inserting whatever recently imprisoned famous person’s name you like:

        On his first day in prison, Ivan Boesky is introduced to his new cellmate – Leon – who was 6’6″ tall and weighed 285 pounds.

        Leon says “Ivan, what you have to decide is are you gonna be the husband or are you gonna be the wife?”

        Ivan thinks about it for a moment, then says “I think I’ll be the husband.”

        Leon smiles – then says “Fine! Now come over here and suck your wife’s dick!”

        1. Ha Ha! prison rape is funny!

      3. Would someone please explain why the baker or HTML typist, or whatever — can’t simply say ‘tell me which one of you is the ‘husband’ and which one of you is the ‘wife’ — I don’t particularly care, but my product is designed for a ‘husband’ and a ‘wife’ and I need to know which of you is which.

        Because you’re the only one who thinks that’s clever. And for the website designer, it’s obviously false.

  2. What sane person actually thinks’ that’s a legitimate decision, and why?

    1. It’s totally legitimate. Under controlling precedent, discrimination laws are usually applicable even to lines of business that involve expressive activity.

      I think there’s some plausible arguments that perhaps there’s what I used to call a Hooters Exception to anti-discrimination law (essentially, where a business’ entire message is in opposition to the values of anti-discrimination law, that might create an exemption, so that a Hooters might be able to impose requirements as to how their waitresses might look that an airline can’t impose with respect to flight attendants, for instance). But no court, to my knowledge, has recognized a Hooters Exception. Under current law, the businesses should lose these cases.

      And I’d argue that even under a Hooters Exception, most businesses should still lose them- it’s only when the very messaging of your business conflicts with anti-discrimination law that you should be able to discriminate. It’s not enough that you simply WANT to discriminate. We never allowed people to discriminate against Blacks simply because they were offended by integration. People who are offended by gay couples can be privately offended by gay couples, or they can express their opposition to same sex marriage as citizens. As business owners? They need to serve everyone.

      1. “They need to serve everyone.”
        It would be nice if SCOPUS would make a bright line decision.
        It would also be useful to the business if they just had a set of sub-contracts to had jobs that they found less than ideal for themselves for whatever reason.

        1. Why not let the market make the bright line?

          If you want a web designer who will create a website celebrating the joys of same sex marriage, patronize the business of a web designer who will do so.

          If the only game in town is the equivalent of Google or Facebook, then we do not have a free market and the gay couple looking for a website celebrating their upcoming nuptials has, in my view, a valid argument.

          1. Mike,
            Your suggestion “Why not let the market make the bright line?” begs the question.
            The answer is simple:
            We are a litigious society. People will bring law suits and law suits have to be adjudicated.

            1. In the Recitals of all of the irrevocable trusts I draft, I include a variation of the following in one recital:

              WHEREAS, the grantors note that they live in an enviable and litigious society and therefore seek to protect the assets to be conveyed hereto from the reach of their present and future creditors;

              1. which does not do a thing for the cake baker or flower arranger or website designer.

                1. Which does not illuminate the discussion in any way discernable to anybody.

                  1. The man asked a question, “Why not let the market establish the bright line?”
                    I answered, “We are a litigious society. People will bring law suits and law suits have to be adjudicated.’
                    You have to read the whole thread.

            2. And the proper adjudication is “go find a website designer who wants to work with you.”

              1. “Go find a restaurant who wants to serve people of your skin color.”

                1. “Go find a restaurant that wants to make [fill in ethnic food of your choice], we don’t do that.”

                  I guess it’s good that the people pretending to defend the decision are so eager to lie about what’s happening.

                  It;’s nice to know that even you scummy leftists feel some shame when discussing what you actually support.

                  1. You have an active imagination. It seems to have provided the entirety of the message you claim to be responding to.

                    1. Reading further comments, it seems to be a problem you’re prone to.

          2. Because for a lot of historical reasons, and because libertarian economic theory does not work very well in practice, we don’t let the market determine issues of discrimination based on protected class status.

            1. Libertarian economic principles, i.e., free enterprise, has worked very well in practice. Communism, progressivism, and socialism, not so much.

              1. Shorter answer:

                Libertarian economics don’t work in practice !

                Why ?

                Because they didn’t grant special status to the causes or cronies we desired so we changed the rules to give those people special status. See it fails !

                1. Uh I don’t think letting black people use gas stations in the South is exactly a “special status” to “cronies.”

                  1. Well, if your Democrat friends hadn’t made it illegal to serve blacks equally ….

                    1. Plenty of places without Jim Crow laws still operating under Jim Crow de facto.

                      But you knew that.

                      And I’m pretty sure you also know where the Dixiecrats went, and whose friends they are nowadays.

                  2. See, there’s the heart of the problem. There are THREE options here.

                    1) Don’t let gas stations serve blacks.
                    2) Don’t let gas stations NOT serve blacks.
                    3) Freedom.

                    For reasons of, essentially, impatience, the civil rights movement, which had started out preferring option 3, gave up on it, and switched to 2. And at this point is run by people who won’t even admit that option 3 was ever on the table.

                    This obsession with the unprincipled quick fix has, for reasons libertarians understand well, poisoned race relations, and infected an ever growing domain with ‘that which is not mandated must be forbidden ‘ thinking, where everyone who isn’t an all-in ally is a deadly enemy. CRT, essentially.

                    There can be no separate peace, no peace at all.

                    1. As if Jim Crow had not taught us anything about how free a hands-off policy ended up actually being.

                      Plus, of course, the hypocrisy of this philosophy not applying to social media.

                    2. Jim Crow wasn’t hands off. But you already knew that.

                    3. Lots of it was, Brett.

                      Checkout restrictive covenants some time. Private right of association, and also an attack on liberty.

                      Or, you know, businesses refusing to serve blacks for large swaths of the country even without government mandate.

                      You know this; we’ve been over this. History eviscerates your argument that there are no rights in tension on the other side here.

                    4. For reasons of, essentially, impatience, the civil rights movement, which had started out preferring option 3, gave up on it, and switched to 2. And at this point is run by people who won’t even admit that option 3 was ever on the table.

                      The only problem with your analogy is that it is wrong and stupid.

                      Option 3 was, in many cases, on the table, and resulted in Blacks not being served. (not in gas stations, I think, but elsewhere.) Option 3 didn’t work. History makes this clear, whatever your wondrous libertarian arguments say.

                      And what is wrong with being impatient to have yourself treated as someone entitled to the ordinary respect we give other people?

                    5. Private right of association

                      Isn’t Jim Crow, but you already knew that.

                      Jim Crow was government mandated, government assisted, government backed. Nothing about it was free market.

                      Pointing out that some people would prefer not to associate with other people, for whatever reason, is not an argument against freedom, or in support of your weird argument that somehow private association is the same as Jim Crow.

                    6. Private right of association isn’t Jim Crow

                      You think Jim Crow was only Jim Crow Laws? Not what I learned, but I won’t get into a semantics fight with you – feel free to replace with racial segregation; the history is unchanged.

                      Pointing out that some people would prefer not to associate with other people, for whatever reason, is not an argument against freedom
                      Pointing how the horrible and unfree conditions allowing that caused shows your view to be myopic. As I said, there are rights on both sides of the ledger.
                      You find the Civil Rights part to be inconvenient, and thus ignore it. But it’s there for all to see.

                    7. You find the Civil Rights part to be inconvenient, and thus ignore it. But it’s there for all to see.

                      Seems to be the gist of most of your arguments of late.

                      “You’re wrong, because I say so.”
                      *Change goalposts*
                      *Red herring*
                      *straw man*
                      “You just don’t understand.”

                    8. There was massive discrimination that was not mandated by government. This includes various practices in states without Jim Crow laws, as well as activity in the South that was not covered by those laws.

                      Employment is a prime example of the latter. There really wasn’t much in the way of laws requiring racial discrimination in employment practices, yet it was extremely widespread, partly directly due widespread bigotry, and partly because that bigotry meant that it was economically rational for employers to discriminate. If your employees won’t cooperate with Black co-workers, or report to Back supervisors, then it make sense to discriminate.

                      Markets at work.

                    9. Same goalposts, whether you call them de facto Jim Crow or racial discrimination.

                      What is the red herring or strawman? My thesis is thus: it is the lesson of history that liberty is sometimes in tension with liberty – that free association is not the only part of freedom.

                      So I do not strawman you – do you disagree with this thesis?

                    10. So I do not strawman you – do you disagree with this thesis?

                      Is your thesis something that was argued in this comment thread before you made it your thesis?

                      Straw man (wiki wiki slim shady):
                      an informal fallacy of having the impression of refuting an argument, whereas the real subject of the argument was not addressed or refuted, but instead replaced with a false one.

                    11. I sure did state this previously:
                      https://reason.com/volokh/2021/07/26/2-1-decision-holds-web-site-designer-may-be-required-to-design-site-for-same-sex-weddings/#comment-9012975

                      I can’t help but notice that you did not refute my argument as laid out. Do you agree with it? And if not, why not?

                    12. Sigh. Let me explain this:

                      Massive discrimination, in the presence of the sort of police protection the equal protection clause actually mandates, can result in you not getting your choice of baker, but won’t result in you not GETTING a baker. Somebody is going to be willing to bake you that cake.

                      It takes legally mandated discrimination to see to it you can’t get the cake.

                      In precisely none of the recent discrimination cases, was the business being leaned on a monopoly provider. None of them. It was always a case of somebody just not getting their preferred vendor. And often a case of their preferring that vendor precisely because that vendor WAS unwilling! Somebody shopping for a lawsuit, or the thrill of imposing their will on someone they didn’t like, not a cake.

                      It hardly should require saying that, when public accomodation law got its start, the public goal was making sure somebody could get a meal, not making sure they could get it from an unwilling cook, when somebody else was perfectly willing to provide it.

                      This isn’t about existential needs anymore, and hasn’t been for a long time. It’s about what’s best in life: Crushing your enemies, driving them before you, and hearing the lamentations of their women. The motives behind these lawsuits aren’t pretty, people aren’t shopping for cakes anymore, they’re shopping for opportunities to crush the enemy.

                    13. I sure did introduce this strawman previously:
                      https://reason.com/volokh/2021/07/26/2-1-decision-holds-web-site-designer-may-be-required-to-design-site-for-same-sex-weddings/#comment-9012975

                      I can’t help but notice that you did not refute my argument as laid out. Do you agree with it? And if not, why not?

                      There’s no need to do anything more than burn your straw man to the ground.

                      If you want to introduce this shitty argument, do it by starting your own thread.

                    14. “Jim Crow was government mandated, government assisted, government backed. Nothing about it was free market.”

                      No free market at all, unless you assume that the voters who picked the politicians who built the Jim Crow laws were free to vote for whichever candidate they wanted. (Pointing out that the votes of the black people subjected to Jim Crow were routinely suppressed is both true and not relevant.)

                      Jim Crow’s relationship to free markets is as an example of how tyranny of the majority can make “free” markets less free. Similarly, any merchant who doesn’t like Colorado’s regulatory scheme is free to either work to elect different legislators and/or not live or work in Colorado.

                    15. Apparently, Vinni’s version of a straw-man argument is to complain biterrerly and frequently about straw-man arguments that don’t exist, instead of actually approaching the actual argument(s) raised.

                    16. “You’re wrong, because I say so.”

                      That wouldn’t be a problem if you didn’t insist on being wrong.

              2. “Libertarian economic principles, i.e., free enterprise, has worked very well in practice.”Libertarian economic principles, i.e., free enterprise, has worked very well in practice.

                This is true, if you happen to be one of the people for whom it worked. However, this class is far from all-inclusive.

            2. “Because for a lot of historical reasons, and because libertarian economic theory does not work very well in practice, we don’t let the market determine issues of discrimination based on protected class status.”

              Never thought I’d hear Dilan endorse Jim Crow.

              1. Let me know when he actually does.

                1. He did that. Because Jim Crow was state laws forcing private businesses to discriminate against black people, because they couldn’t trust “the market” to do it on their own.

                  Which is to say, those laws were passed because they “d[id]n’t let the market determine issues of discrimination based on protected class status.”

                  1. Greg:

                    That’s the logical fallacy of undistributed middle. Look it up if you’re unfamiliar with it.

                    It works like this:

                    Hitler was German
                    Hitler did bad things
                    Therefore Germans are bad people.

                    Nope.

                    1. Wow, Krychek_2, you can’t even to logical fallacies correctly. That’s rather sad.

                      Dilan: “we don’t let the market determine issues of discrimination based on protected class status.”

                      TwelveInchPianist: Dude, you just presented the exact same thought process behind Jim Crow

                      You: No he didn’t

                      Me: Yes, he did.
                      The makers of Jim Crow didn’t trust the market on issues of discrimination based on skin color, so they passed bad laws to force everyone to do it their way.
                      Dilan doesn’t trust the market on issues of discrimination based on “protected class status”, so he supports bad laws to force everyone to do it his way.

                      Logic, you might want to try it some time.

                      See: Harvard admissions policies, where Asians are discriminated against because they have “bad personalities” by virtue of their “wrong” skin color.

                      All “affirmative action” / “Diversity, Inclusion, Equity” is just Jim Crow with different targets

                    2. “Logic, you might want to try it some time.”

                      I’ll get in line behind you.

                    3. “Wow, Krychek_2, you can’t even to logical fallacies correctly.”

                      Gee, Greg, you can’t even English correctly while you falsely claim to have a better grasp of which logical fallacies you’re using.

                      You took a swing, you got caught, and then you decided “Hey, wait, I can screw this up even more” and proceeded to do so.

      2. It’s totally legitimate. Under controlling precedent, discrimination laws are usually applicable even to lines of business that involve expressive activity.

        I’m not sure what you mean by “involving expressive activity,” but this ruling held the website was compelled to speak a message it did not want to. The state nonetheless prevailed because strict scrutiny was satisfied. I found that conclusion surprising, particularly in light of Masterpiece Cakeshop where strict scrutiny implicitly applied (*) because Colorado’s treatment was not neutral towards the baker’s religious beliefs.

        (*) The Court did not explicitly apply strict scrutiny, instead summarily concluding the baker won once it held Colorado’s treatment was not neutral.

        1. A website speaks with the voice of its owner, not of the designer. So, no, this is not a case of “the website was compelled to speak a message it did not want to”, unless the people who commissioned its creation were ALSO against same-sex marriage.

          1. The court held the owner was compelled to speak a message they did not want to.

            1. Did they elaborate what it was? Because I’m pretty sure you’re misunderstanding. Very likely willfully so.

              1. From the decision:

                “The Accommodation Clause also “compels” Appellants to create speech that celebrates same-sex marriages

                The Appellants are Lorie Smith and her website design company 303 Creative, LLC.

                1. “The Appellants are Lorie Smith and her website design company 303 Creative, LLC.”

                  So, NOT the owners of the website. Literacy, you should try it.

                  1. WTF? Smith is the owner.

                    1. “WTF? Smith is the owner.”

                      Ah, here’s your problem. Smith is the owner of what?

                  2. WTF, part II. From the decision:

                    303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner.

                    1. Now I get it. Your use of “owner” referred to who owns the content rather than hosting company. You could have have simply said so, but you chose to be a douchebag instead.

                      On the merits, the court held it doesn’t matter who owns the content. Once the hosting company helped to design the content, it’s speech is impacted.

                    2. Repeating your stupidity doesn’t make it any less stupid.

                      The owner of the website design company owns the website design company, not the websites designed for its customers. Even if the court noted who owned the design company.

                      If the contract is done right, they don’t even own any copyrights in the website.

      3. Dilan. You need to moveto Venezuela for your own welfare. The US is a free country. Take Artie with you. Get the hell out of the USA, USA, USA.

        1. Alas for you, it is indeed free.

      4. To quote from the dissent:

        The First Amendment prohibits states from “abridging the freedom of speech” or the “free exercise” of religion. U.S. Const. amend. I. And the freedom to speak necessarily guarantees the right to remain silent. So the majority ushers forth a brave new world when it acknowledges that CADA compels both speech and silence—yet finds this intrusion constitutionally permissible.

        From the majority:

        Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere. As discussed above, our analysis
        emphasizes the custom and unique nature of Appellants’ services. For the same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.

        In short, the majority ruled that “because you might to a really good job, you have no right to decide who you will do that good job for, and Colorado has the right to force you to do that job, and to speak, for whomever they choose to value.”

        1. “To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer.”

          To be sure, maybe paid employees may be able to pick your cotton, yet, planters will be unable to obtain cotton as cheaply if their workers get paid and have the right to walk off the job.

        2. “The First Amendment prohibits states from “abridging the freedom of speech” or the “free exercise” of religion. U.S. Const. amend. I. And the freedom to speak necessarily guarantees the right to remain silent. So the majority ushers forth a brave new world when it acknowledges that CADA compels both speech and silence—yet finds this intrusion constitutionally permissible.”

          Rights an be waived. Offering to build a website to your customer’s preferences in exchange for money is a fairly clear waiver of your ability to say what you want instead of what your customer wants.

          1. Wrong again, James.

            She’s not waiving her right to decide which jobs she’ll take. Thus the lawsuit.

            Just as opening a restaurant doesn’t mean you have to make [ethnic food of the whiners du jour]

            1. “Wrong again, James.”

              This message, coming from you, offers conclusive proof that I’m correct again, as usual.

              “Just as opening a restaurant doesn’t mean you have to make [ethnic food of the whiners du jour]”

              What a shock to learn that you are bad at analogies, too.

      5. Here’s “controlling precedent” (as quoted by the majority):

        It is a “fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995); Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (recognizing the principle “that freedom of speech prohibits the government from telling people what they must say”).

        Yet the majority decided that in the case, the State of Colorado DOES get to tell people what they must say.

        1. More correctly, the State of Colorado DOES get to tell people to say what they’ve been paid to say.

          1. How many times are you going to tell that lie?

            She’s stated she will tell her potential customers “I don’t do same sex ‘weddings'”.

            Thus she will never be paid to do one, because she won’t take their money to do that.

            What Colorado is trying to do is force her to take money that she doesn’t want to take, for business that she doesn’t want.

            How scummy and sleazy do you have to be, to feel the desperate need to lie about what you’re doing?

            1. “How many times are you going to tell that lie?”

              As many times as it takes for you to figure out that it isn’t a lie.

              1. “What Colorado is trying to do is force her to take money that she doesn’t want to take, for business that she doesn’t want.”

                There’s a word for when you form a contract, and then don’t perform. That word is not “freedom”.

                She offers to do work, and then after someone comes in to accept the offer, she tries to tell them she won’t do the work. OOH! The oppression of making people abide by their contracts!

                1. James, I believe you’ve said that you went to law school but do not practice law. If that’s the case, I would gently suggest that maybe you shouldn’t practice Internet website comment law, then, either. (If you didn’t go to law school, you also shouldn’t practice Internet website comment law.) (And if you did go to law school and do practice law, you should take some CLEs, stat!)

                  That’s not how contract formation works. Generally speaking — and there are no facts being described here that takes this scenario out of the general rule — an advertisement is not an offer that can be accepted. It is an offer to enter into negotiations, nothing more.

                  1. Offer – Acceptance – Performance is the order I was taught. Do you do it differently?

                    1. That is indeed the order. But I reiterate: an advertisement is generally not deemed an offer. (There are exceptions, when the advertisement proposes a specific transaction and there’s detrimental reliance, such as “Send in ten box tops and we’ll give you a tote bag.” But the general rule is that they are merely deemed invitations to enter into negotiations.)

            2. “How scummy and sleazy do you have to be, to feel the desperate need to lie about what you’re doing?”

              You’ll have to provide that answer, seeing as how you are the scummy/sleazy one.

      6. “People who are offended by gay couples can be privately offended by gay couples, or they can express their opposition to same sex marriage as citizens. As business owners? They need to serve everyone.”

        Why are you lying about this case?

        To quote from the majority:

        03 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will. Appellants do not yet offer wedding-related services but intend to do so in the future. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up.

        This is not a case about what customers they must serve. This is a case about forcing the web designer to design a website celebrating a same sex “marriage”.

        1. This is not a case about what customers they must serve.

          As the Court said in Christian Legal Society

          CLS contends that it does not exclude individuals because of sexual orientation, but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” […] Our decisions have declined to distinguish between status and conduct in this context. […] While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.” […] A tax on wearing yarmulkes is a tax on Jews.”

          In the current case, the website owner objects to conduct (same-sex marriage) that is closely correlated with being gay. The fact a friend or disinterested wedding planner may have requested the service is not material.

          1. CLS was wrongly decided and should be overturned.

          2. “A tax on wearing yarmulkes is a tax on Jews.”

            Or, at least, it’s a tax on male religious Jews who follow their rules.

            1: Refusing to make a product is NOT “a tax”, and it’s insane to pretend so

            2: You can be a male, or female, homosexual individual without participating in a same sex “marriage”.

            3: You can have a same sex “marriage” without getting any web designer, let alone one specific one.

            So nothing in that ruling has any relevance for this one.

            Is a doctor refusing to perform a female circumcision on a Muslim girl engaging in religious discrimination? Can a State force all Doctors to preform such “circumcisions” as a requirement to get and keep any sort of license to do medicine?

            How about circumcising male babies?

            Let me guess, “that’s different!” because there it’s not enforcing your thuggish and totalitarian views.

            1. Is a doctor refusing to perform a female circumcision on a Muslim girl engaging in religious discrimination?

              If he similarly refuses to perform a female circumcision on any girl, no. But, if he will only refuse for Muslim girls, yes.

              1. And if a wedding site designer refuses to do gay weddings for all couples, he’s not discriminating either.

                1. If a wedding site designer refuses to do interracial weddings for all couples, he’s not discriminating either?

                  That argument hasn’t flown for like 50 years. If the only factor different between a gay wedding and a nongay wedding is the immutable characteristics of the participants, that’s discrimination.

                  1. “If the only factor different between a gay wedding and a nongay wedding is the immutable characteristics of the participants, that’s discrimination.”

                    A real marriage is a marriage between members of the opposite sex. A seame sex “marriage” is a dishonest redefinition of the term.

                    Which is why “interracial” marriages have happened throughout human history, and same sex “marriages” are a perversion invented in the last 100 years.

                    But I do appreciate your willingness to take the mask off, and admit that your point here is that you’ve decided people’s religious beliefs are a thought crime, and you want the State to stamp out that thought crime.

                    The First Amendment be damned

                    1. I said I thought the case was wrongly decided.

                      You’re the one arguing discrimination is fine if it’s in your take on the Bible, and other peoples’ takes don’t count.

                    2. Legally, your understanding of what marriage is has as much validity as the church of no race mixing does.

                      Because otherwise we’d be checking into sincerity of beliefs.

                    3. “You’re the one arguing discrimination is fine if it’s in your take on the Bible”

                      “Discrimination” is required if you wish to live. I discriminate between foods that are good, and foods that are bad for me. I discriminate between bad companies, and good ones.

                      You are the one saying you have a divine mandate to decide for everyone what is the “allowed discrimination”

                      I’m the one saying that everyone has the right to make their own decision on that

                    4. Don’t play semantic games with what discrimination is, we all know what we’re talking about.

                      You’re saying interracial marriages are marriage, but gay marriages are not.
                      And you cite your faith as your authority.

                      Which is just special pleading for your brand of Christianity.

                      If your logic requires that a wedding site designer has an absolute right to refuse to do interracial weddings, well, you’re just someone who doesn’t think civil rights exist. And there’s no further debate t be had.

                    5. “You’re saying interracial marriages are marriage, but gay marriages are not.”

                      Wrong.

                      I’ve never said anything about “my faith”, because I have none.

                      I’m saying interracial marriages are marriage, but gay marriages are not, based on 5000+ years of recorded history. Going from 1950 back, I know of one “same sex marriage”. Some perverted Roman Emperor dressed a boy up as a girl and “married” “her”. That’s the sum total of “same sex marriages” that defenders of SSM I’ve argued with have come up with.

                      You got any actual history showing that “same sex marriages” are anything other than a modern perversion invented by kooks desperate to pretend they’re something they’re not?

                    6. “A real marriage is a marriage between members of the opposite sex. A seame sex “marriage” is a dishonest redefinition of the term.”

                      You think so, but the state isn’t using your rules for some reason.

                    7. “I’ve never said anything about ‘my faith’, because I have none.”

                      You just like to insult anyone you think you can get away with because you’re an asshole. Which is your business. But you sure seem to get all steamed up whenever anyone points out that you’re insisting on a right to be an asshole. Didn’t you just argue that a right to discriminate against anyone for any reason is fine? Well, you’re being discriminated against for being an asshole, and that won’t get you much, if any, sympathy for the oppression you suffer, you poor, delicate snowflake.

                2. Same-sex marriage is linked to being gay (as wearing yarmulkes is linked to being Jewish) in a manner that female circumcision is not linked to being Muslim (at least to my knowledge, it is not almost exclusively practiced by Muslims).

                  1. “it is not almost exclusively practiced by Muslims”

                    Yes, it IS almost exclusively practiced by Muslims. Your knowledge is false, absent you provide valid links to proof otherwise

                    1. Didn’ t realize you were an expert on Muslim vaginas. About as much as you are an expert on anything else.

                    2. Say, would you mind pointing out the Muslim scripture that tells Muslims to mutilate their children? I mean, finding where the Jews required it is not difficult, and it was an early decision by the Christians that, well, now that Jesus was gone, and they wanted to grow the church, maybe it would be okay if new converts to the faith did NOT have to mutilate their genitals.

                3. You can’t use a civil rights class adjective to justify discriminatory service of a civil rights class. There are no ‘gay/black/Catholic/Irish’ weddings, there are just weddings.

                  If this is ‘speech’ and the business sells ‘straight wedding’ speech, a customer can buy it for their wedding of a same-sex couple.

                  Silly? Yeah we all see this deceit is about refusing sale a very similar product to a customer because of the ‘message’ of selling to THEM, not the. product itself.

                  1. “You can’t use a civil rights class adjective to justify discriminatory service of a civil rights class”

                    That is meaningless bullshit.

                    There are black/Catholic/Irish weddings. There are no gay weddings, there are gay “weddings”, fake travesties of the real thing.

                    1. There is no Greg J, just a fake travesty of a real human being.

                  2. “There are no ‘gay/black/Catholic/Irish’ weddings, there are just weddings.”

                    There absolutely ARE Catholic weddings. And they have different rules from what the state requires.

            2. “2: You can be a male, or female, homosexual individual without participating in a same sex “marriage”.”

              You can be a dimwit, and not participate in same-sex marriage. This tells you nothing whatsoever about the people who ARE in one.

          3. “In the current case, the website owner objects to conduct (same-sex marriage) that is closely correlated with being gay.”

            The owner of the design company objects to making websites for other people, who would then own their websites.

        2. Greg,
          As the Orange Clown used to say “We shall see.” there is bound to be an appeal.

          1. If this particular clown is as good at picking lawyers as His Royal Orangeness, then appeals won’t matter.

        3. Greg, that’s a tired argument. If the local gay community center wants a web site, and the company refuses to design it, the reason is that they’re gay. Even if they dress it up as status versus conduct.

          1. I don’t know this case, but from Greg’s comment, it’s apparent that your response is entirely evasive.

            According to the quote Greg presented, the local gay community center would not be refused a LGBT website, or a gay community center website. But, the local Christian community center would be refused a website promoting same-sex marriage.

            Logic, so tough.

            1. You’re not understanding that status and conduct are often proxies for one another.

              Suppose I own a business and I don’t want to serve blacks. So I make a rule that says that I won’t serve people with certain hairstyles or certain wardrobes that blacks are more likely to have. Now, is that race discrimination, or is that hairstyle discrimination? In my heart of hearts, the true reason for the rule is race discrimination; I know that I can exclude a lot of blacks without saying that that’s the real reason.

              If you won’t bake a cake, or design a web site, for a gay wedding, it’s homosexuality that you disapprove of. The fact that you are willing to bake a birthday cake for a gay customer doesn’t change that. There are different levels of hostility, and it may be that there are bakers who would refuse to bake a birthday cake for someone they knew was gay just because they want nothing to do with gay people. But the lesser hostility of doing birthday cakes but not wedding cakes for gays is still based on hostility toward homosexuality.

              In other words, I see Greg’s distinction, but I don’t think it makes any real difference.

              1. “If you won’t bake a cake, or design a web site, for a gay wedding, it’s homosexuality that you disapprove of. ”

                No, I won’t bake a cake for your same sex “marriage” because I believe that they’re fake marriages, they’re lies, they’re a pustule on the body politic forced on us in violation of all democratic, legal, and judicial norms, and therefore I don’t want anything to do with them

                Now, if it’s your belief that, in order to engage in business, I must surrender all my religious, moral, and ethical beliefs, and adopt yours instead, you are a vile monster.

                And if that’s not your belief, you can’t defend this decision.

                1. “No, I won’t bake a cake for your same sex “marriage” because I believe that they’re fake marriages, they’re lies, they’re a pustule on the body politic forced on us in violation of all democratic, legal, and judicial norms, and therefore I don’t want anything to do with them.”

                  How is that different from a baker who won’t make a cake for Martin Luther King Day because he believes blacks are monkeys, apes, low IQ, prone to crime and tending to assault white women? It’s that very sort of idiocy that anti-discrimination laws were intended to remove from the economy. Privately, you can still think whatever you like.

                  1. Why in the world should a baker be forced to make a cake that celebrates YOUR event?

                    Just how morally wretched are you, that you believe you have the right to force other people to make you happy?

                    1. “Why in the world should a baker be forced to make a cake that celebrates YOUR event?”

                      For being in the business of making cakes for other people, in exchange for money. If you don’t want to make cakes for other people, then “baker” was a poor choice of career path.

                      “Just how morally wretched are you, that you believe you have the right to force other people to make you happy?”

                      Says the guy who’s mad because a judge won’t let him and his pals inflict his opinion on marriage on other people…

                2. “Now, if it’s your belief that, in order to engage in business, I must surrender all my religious, moral, and ethical beliefs, and adopt yours instead, you are a vile monster.”

                  We get it, you’re against marriage.

              2. Oh, great mind reader, please tell us more.

                If you won’t bake a cake, or design a web site, for a gay wedding, it’s homosexuality that you disapprove of. The fact that you are willing to bake a birthday cake for a gay customer doesn’t change that. There are different levels of hostility, and it may be that there are bakers who would refuse to bake a birthday cake for someone they knew was gay just because they want nothing to do with gay people. But the lesser hostility of doing birthday cakes but not wedding cakes for gays is still based on hostility toward homosexuality.

                “I’ll bake you a cake with rainbows. I’ll bake you a cake celebrating Pride month. I won’t bake you a cake for a same-sex wedding”.

                It’s teh GAYS, he hates teh GAYS! My mind reading says so!

                That’s the best you’ve got?

                1. Find me an actual baker who will bake a cake for Pride month but not for gay weddings, then we’ll talk.

                  1. Let’s say you are right in implying that 100% of “no gay marriage cakes” bakers would also refuse a Pride cake.

                    But if that baker will make a cake celebrating a birthday, graduation, or any of the other millions of things that people enjoy in life not tied to their sexual orientation, them the orientation is clearly the only aspect of the person that is being rejected, not the person as a whole, which would be required for it to actually be “discrimination” based on orientation (because the refusal would be based solely on that characteristic AND it would be present in the otherwise non-orientation based celebrations).

                    If you faithfully served black people who did not run afoul of your dress requirements then then it is only an assertion of racism, not an example of it. If, in your heart of hearts (which only you can know), you begrudgingly served blacks who did not run afoul of your dress code, then yes… you would be a racist. But that can not be proven… as you already pointed out… it is a privately held belief that must be discerned via gnosticism by our betters sans an admission by you. And the presumption of innocence would mean that without proof beyond assertion, you can’t legally rule someone is acting racist.

                    Plus, in order for your system to work it defintionally must be impossible to object to a gay wedding cake but not to serving grays in other ways. Because if that is at all possible, them the distinction is de facto a message (I do not hate gays/sinners, but I refuse to celebrate that aspect of their life which is a gay marriage/sin in accordance with my faith). And if it is a message, 1A applies.

                2. “‘I’ll bake you a cake with rainbows. I’ll bake you a cake celebrating Pride month. I won’t bake you a cake for a same-sex wedding’.”

                  Once the cake is paid for, the baker’s role is finished, and trying to insist on placing limits about where it can be taken or to whom it may be served is highly presumptuous.

                  1. You want to buy a cake that the baker wants to sell? Have fun!

                    You want to demand that the baker bring the cake to your event that he doesn’t want to be part of? FOAD. Pick up your own damn cake.

                    You want him to write on it something he doesn’t want to write? FOAD

                    1. Maybe stick to arguing with things I actually wrote, instead of all the things flying around loose in your head.

              3. Can I go to a gay website designer and demand that said designer make a website for my gay conversion business (to specify, my business helps people who are gay convert to being straight)?

                how about a website celebrating the complete superiority of heterosexuality over homosexuality?

                How about going to a Muslim web designer, and demanding that he make a website supporting my ham and bacon business? You know, a site that has lots of pictures and celebrations of people eating bacon and pork?

                Let me guess, it’s only the case where thugs like you get to force people to give up their sincerely held beliefs, and replace them with yours, that this magical “right to a website design” is invoked.

                Right?

                1. It depends, and I need more information. For example, do you live in a jurisdiction in which religion is a protected class? If so, then the gay Web site designer probably has to do your conversion therapy web site if your business is religion-based. That would probably apply to your second one as well. Ham and bacon eaters are not a protected class in any jurisdiction I’m aware of, so the Muslim is probably off the hook, unless you have a religion that compels you to eat ham, in which case you might have a religion claim.

                  Greg, your problem is that you have a 40-watt brain in a 100-watt world. You see things only in their most simplistic and starkest of terms. You are wholly incapable of understanding things like nuance, and you traffic in false alternatives. The world is far more complicated than you realize.

                  1. “Protected class” is garbage. it’s simply a fancy way of saying “we want to pretend this is a principle, but not actually be bound by it.”

                    If you want your hair styled in an “afro”, and no one at the hair salon you go to does that style, you do NOT have a valid discrimination claim, so long as they’re willing to cut your hair in one of their styles.

                    If none of their styles work for your hair, then you go to a different hair salon.

                    The designer will design and sell you a website that celebrates a real (opposite sex) marriage. you can buy that whether you’re gay, or straight, or bi. That is ALL that a legitimate public accommodation law can allow

                    1. The law, in its majestic equality, makes it illegal for both rich and poor to steal bread, sleep under bridges, or beg in the streets.

                    2. At least provide the attribution when you steal irrelevant quotes.

                    3. Toranth,
                      1. The quote seemed relevant to me.
                      2. I think there’s nothing wrong with giving attribution re quotes. But some are SO well-known, people leave it out. “Trust but verify.” “I had a dream…” “Give me liberty or give me death.” “I’ll give you ___, when you pry it from my cold dead hands.”

                      And so on.

                2. “Can I go to a gay website designer and demand that said designer make a website for my gay conversion business (to specify, my business helps people who are gay convert to being straight)?”

                  No, because assisting in fraud is illegal.

              4. “In other words, I see Greg’s distinction, but I don’t think it makes any real difference.”

                If I have a hair salon, I can refuse to do certain styles of cuts, even ones strongly favored by the black / Hispanic / gay / Jewish / Muslim communities, and no State may force me to do otherwise as a condition of having my business open.

                And that is the legitimate analogy between this case and your “hair” analogy.

                Let me make it real simple for you:

                If you make a law saying “you must accept all customers, regardless of their religion, sex, skin color, or political affiliation”, you might have a legitimate law.

                If you say “as a cost of doing business, you must provide anything any person will want, regardless of your desires”, then you are an eager slave master, and a vile human being.

                1. See my comments directly above, Mr. 40-Watt. No one is saying that a business owner must provide anything any customer could possibly ask for. But if you sell Web sites, or cakes, you can’t refuse to serve blacks and gays, even if you dress it up as “that’s not what we offer.”

                  1. They’re not refusing to serve blacks, or gays, so stop lying.

                    The fact that they refuse to make a type of website that the majority of customers for would be gay, does not mean they don’t serve gays.

                    If a gay person tries to get a birthday celebration website, and the owner refuses to make any birthday websites for that gay person, THAT would be “refusing to serve gays”.

                    Refusing to design a “birthday celebration website” that includes images of people having anal sex, OTOH, does NOT qualify as “refusing to serve gays”.

                    Because the rights of the business owner are at least exactly as important as are the rights of the customer.

                    1. “They’re not refusing to serve blacks, or gays, so stop lying.”

                      They ARE refusing to serve gays, or anyone trying to help a gay, so stop lying.

                2. “If I have a hair salon, I can refuse to do certain styles of cuts, even ones strongly favored by the black / Hispanic / gay / Jewish / Muslim communities, and no State may force me to do otherwise as a condition of having my business open.”

                  Sure, but when you decline to give a haircut to a member of a protected class, expect a demand letter in the mail.

                  1. It must really suck to hold views that are just so wretched that even you won’t actually defend them. instead you lie about the case, and attack your lies, rather that the actual case.

                    She’s not refusing to make websites for “members of a protected class” / refusing to give ANY haircut to a “member of a protected class”. She’s refusing to make a type of website she doesn’t want to be associated with / refusing to do a certain style of haircut.

                    You want that website / style? Go to someone who wants to make it for you

                    1. “It must really suck to hold views that are just so wretched that even you won’t actually defend them.”

                      Tell us all about how wretched it is.

                      “She’s not refusing to make websites for “members of a protected class” ”

                      Except she is.

              5. So, I take it from this that you realize you’re being dishonest, and just don’t care:

                You: If the local gay community center wants a web site, and the company refuses to design it, the reason is that they’re gay.

                VinniUSMC: Your reading comprehension sucks. They’ve already said they’re happy to make a website for the “local gay community center”.

                You: You’re not understanding that status and conduct are often proxies for one another.

                So, what you’re really saying is that “if they won’t make an anal sex promoting website for the local gay community center, then they’re discriminating against gays.”

                But, even you aren’t stupid enough to think that will fly, so you spew BS like the last bit instead.

                Because you’re not stupid enough to believe you can honestly promote that, but you’re evil enough that you want to do so, anyway

                1. I sure hope you feel better now that you have that out of your system.

                2. VinniUSMC: Your reading comprehension sucks. They’ve already said they’re happy to make a website for the “local gay community center”.

                  Greg, you seem to have confused me with krychek. I was posting in agreement with your understanding of the situation. Seems to me that it is your reading comprehension which sucks.

                  1. VinniUSMC, i was writing the gist of what you said, not directing something at you

                    1. Doesn’t matter, you’re both wrong.

                3. “So, I take it from this that you realize you’re being dishonest, and just don’t care:”

                  You’re stupid, and don’t care who knows it. Ditto for being an asshole, and a bigot.

                  1. Hmm, let’s see, I correctly called out your bullshit, but I am “stupid”.

                    Which is to say: you understand that you’ve been show to be full of sh!t, and are now running away while screaming insults

                    Run, baby, run

                    1. No need to confirm what I said. I already said you weren’t concealing it.

            2. “According to the quote Greg presented, the local gay community center would not be refused a LGBT website, or a gay community center website.”

              Unless, maybe, appellant said something that wasn’t quite true. But she wouldn’t lie, would she?

          2. Depends on the website and content.

            Take a look at the YMCA of New York. If the website looks like this, without promoting “Christian” or “Gay” values, then many will take the money. There’s no message to disagree with, religious or “gay”.

            https://ymcanyc.org/

          3. Just checking in here, Krychek_2:

            How do you feel about Twitter and Facebook discriminating against conservatives?

            1. They’re not; they discriminate against the nutcase fringe wing of conservatism. Mainstream conservatives post there just fine.

              But even if they did, conservatism is not a protected class.

              1. So, you’re fine with it?

                1. Are you asking if I think that’s what the law is, or if that’s what I think the law should be? That’s two different questions.

                  I’m not aware of any jurisdiction in which a person’s political views make them a protected class. You can fire, or refuse service to, someone for being a Democrat, Republican, libertarian, Nazi, socialist, or politically apathetic. That’s what the law is (except, perhaps, in California where the Unruh Act may protect political viewpoint; not sure about that one). So, Twitter and Facebook are within their legal rights.

                  As far as what I think the law should be, the people being de-platformed are mostly conspiracy theorists, January 6 revisionists, anti-vax nuts, overt racists, promoters of violence, and the like. So yeah, I’m fine with it. If and when someone gets deplatformed for opposing single payer health care, or supporting the overturning of Roe v. Wade, or some other mainstream conservative position, get back to me.

                  1. “So yeah, I’m fine with it.”

                    Just checking. Glad to see your commitment to free speech extends only to those you agree with or you think have “valid” viewpoints.

                    1. Doesn’t matter what I said, you would have twisted it to mean I think free speech only applies to those I agree with or have valid viewpoints.

                    2. AL, same thing I said to Greg: You don’t seem to understand the concept of nuance. I write out a response in which I give a nuanced explanation for why things aren’t as simple as you seem to think they are, and you slide right past my nuance and assign an either-or meat cleaver position to me that doesn’t really reflect what I said. Your false alternatives are just that; false alternatives. The world is more complex than your simplistic mind seems to realize.

                    3. Krycheck, here’s what you wrote.

                      “As far as what I think the law should be, the people being de-platformed are mostly conspiracy theorists, January 6 revisionists, anti-vax nuts, overt racists, promoters of violence, and the like. So yeah, I’m fine with it.”

                      Now, there’s an old statement promoted by people who defend liberty. “I disapprove of what you say, but I will defend to the death your right to say it”. It’s something I largely agree with. There are very isolated exceptions.

                      Now, you may justify to yourself that the people being deplatformed are “racists” and “conspiracy theorists” and “nuts”, and you may be “fine with it”. But that’s the very opposite of “defending their right to say it”.

                      But if that’s what you pick, so be it. Just understand what exactly it is you’re picking. Exactly whose shoes you’re following in. It’s always easy to justify silencing the outliers, those society doesn’t deem “acceptable”. For whatever reason.

                    4. AL, it depends on who is doing the censoring. If the government proposed to silence a Nazi, I would object because it’s the government. If it’s the private sector, whether I would object would depend and I need more facts. You can’t just say that censorship is censorship.

                      In this case, a private business has decided not to offer a forum to people whose conspiracy theories led to the events of January 6. I’m fine with that. The ideas in question have a demonstrated track record of leading to bad things, and if Facebook doesn’t want to contribute to the problem, I’m not going to say they have to anyway. But it’s a case specific inquiry. Had there been no January 6 I might feel differently. We’re talking about speech that got a police officer killed and threatened to shut down, at least temporarily, our democratic government.

                      And yeah, if Antifa is planning a riot that will lead to millions of dollars in property damage, I’d be fine with deplatforming them too. But if all they’re doing is having an academic discussion about critical race theory, that’s different.

                      Again, nuance. You don’t seem to understand the concept.

                    5. Krycheck…

                      Do you hear yourself? Really?

                      ” if Antifa is planning a riot that will lead to millions of dollars in property damage, I’d be fine with deplatforming them too”

                      Antifa DID plan riots that DID lead to millions in property damage. You understand this. Right?

                    6. BLM didn’t even plan most of the protests this summer, much less Antifa.

                    7. BLM didn’t even plan most of the protests this summer, much less Antifa.

                      MosTLy pEAcEFul

                    8. Mostly organized by others, you mean.

                    9. “So yeah, I’m fine with it.
                      Just checking. Glad to see your commitment to free speech extends only to those you agree with or you think have ‘valid’ viewpoints.

                      If you didn’t like this answer, why did you write it that way?

                  2. “But even if they did…”

                    Implies for the sake of a hypothetical that censorship of a political ideology as a whole is happening (because you grant the questioner his position which was not related to only the fringe otherwise you last statement would make no sense).

                    “… conservatism is not a protected class.”
                    A defense of the action which any reasonable person would assume is an implication of support (for if you did not support the underlying statement you would have offered a critique, or a statement of indecision if we are being charitable, rather than a defense.

                    Given those two things… it is logically sound to accept that you would not object to (therefore be passively in agreement with) censorship of a whole ideology.

                    Totalitarian tendencies, much?

                    1. Sparkstable, articulating what the law is — conservatism is not a protected class — says nothing about whether I think it should be. That’s an “is” statement, not an “ought” statement. The rest of your logical fallacies fare no better.

                    2. burn.

            2. “How do you feel about Twitter and Facebook discriminating against conservatives?”

              If it ever happens, you should cancel your account and demand a full refund.

              1. And if a website designer refuses to make the website you want, you should demand a refund (of the money you didn’t pay, because she didn’t take the job) and go to another one.

                Is it a requirement for leftists to be utter morons who can’t even understand the concept of “having a principle”? Or is it just you?

                1. “Is it a requirement for leftists to be utter morons who can’t even understand the concept of “having a principle”? Or is it just you?”

                  You’ll have to ask a leftist, instead of me. I don’t speak for them any more than I speak for you.

        4. “Why are you lying about this case?”

          That would be you. Doing the lying, I mean.

          “This is not a case about what customers they must serve. This is a case about forcing the web designer to design a website celebrating a same sex “marriage”.

          If you offer your services on the free market, you run the risk that someone might want to use your services in a way you wouldn’t have if you hadn’t been hired.

          1. When I offer my services on the free market, I reserve the right to chose which jobs I’ll take, and which customers I’ll work with

            That’s what it means to have a “free” market: both sides of the transaction are free to accept, or not.

            1. “When I offer my services on the free market, I reserve the right to chose which jobs I’ll take, and which customers I’ll work with”

              Knowing that you don’t honor your contracts tells us a lot about you.
              Hint: That message is NOT that you support freedom.

              1. Hint: there’s no contract in existence until after the service provider agrees to provide the service.

                1. Hint: I wouldn’t have contracted with him in the first place, so that’s not even relevant.

                  1. It’s relevant to your claim that his being choosy about which customers to accept constitutes not honoring his contracts.

            2. “I reserve the right to chose which jobs I’ll take, and which customers I’ll work with”

              And if you violate antidiscrimination law, you get consequences.

              That’s what it means to live in a republic. Sometimes they make laws that you wouldn’t have.

      7. The right of Hooter’s to hire large-breasted women doesn’t exist and, in the alternative, if they had such a right, the Web designer would not benefit from that precedent?

        I’m not so sure of your alternative argument no. 2.

        1. “The right of Hooter’s to hire large-breasted women doesn’t exist”

          Yes it does. The right they don’t have is the right to hire ONLY large-breasted women.

          1. What is the point of this stupid semantic pedantry? It adds nothing to the conversation other than making you look like a douche.

            1. You think you’re adding to the conversation and looking like a not-douche? You were wrong on both counts.

      8. Dilan. You need to take my business suing lawyers. You may not discriminate against my anti lawyer views. Selecting cases by lawyers is just white privilege.

        1. The fact that you are an idiot counsels against taking your business. You seem likely to ask for something that is not possible to do, and to complain when it isn’t delivered as you demanded.

          If I go to the same website designer, and demand that they create for me a website that will convince the anti-gays that they’ve been bigoted assholes and should stop that behavior right away, then impossibility is a valid reason to decline to take on the job.

      9. It’s legitimate to describe every artist as a “monopoly of one”, and because of that, be able to use anti-monopoly laws to force artists to promote works they don’t agree with?

        1. “It’s legitimate to describe every artist as a ‘monopoly of one’”

          The existence of art forgery suggests otherwise.

      10. ‘As business owners? They need to serve everyone.’

        This is a nice sentiment, does it hold true for all situations, all people? A question, not a presumption that it does not. I agree with it, I suspect, but can think of instances upon which I am undecided. I find it’s wise to not to base thinking on how things ‘should be,’ and the ‘need to’ translates as should. That aside, the issue itself is undecided, as this split indicates.

        1. “This is a nice sentiment, does it hold true for all situations, all people? ”

          As it happens, anti-discrimination law recognizes situations and classes of people for whom they apply, and others are not covered. So I can’t sue the Ferrarri dealer for not letting me take a test drive because I can’t afoordto buy a Ferrarri, and I can’t then sue for being denied the ability to obtain transportation. I can’t sue the Toyota dealership either, even if I don’t have a down payment for one of those, either. Turns out “broke deadbeat” isn’t a protected class, so even if the dealership manager thinks I might be one, I can’t sue for being discriminated against on that basis.

      11. This one strikes me as a “forced speech” situation, though. As a married gay man and a former web developer, I’m trying to imagine building a web page celebrating the marriage of two people without using words or imagery that might run afoul of my 1A rights.

        Bake me a cake with no words — easy enough. But build me a wedding website…? I’m having trouble imagining how that might work.

        1. No one disputes that this is a compelled speech case. The question is whether strict scrutiny is satisfied. The majority found that it is, and the dissent differed.

        2. Build the website with a content-management system in it. Then you provide exactly 0% of the content.

    2. I haven’t read the decision, but the conclusion seems right to me. Note that even Eugene couldn’t bring himself to use the normal phrase “compelled speech”, and rather chose “compelled-creation-of-speech”, despite the fact that there is no compelled creation of speech doctrine. The website is absolutely speech, but it is understood by just about everybody as the speech of the people who commissioned it, the couple getting married, not the speech of the web designer. The web designer has no legitimate speech interest here.

      1. Your ignorance is vast, and hideous.

        Quotes provided above, since I actually did bother to read the decision

        1. “Your ignorance is vast, and hideous.”

          And this opinion is coming from an expert on ignorance, with many years of experience.

      2. This court did not agree with your logic, instead holding there was compelled speech. They nonetheless ruled for the state because they felt the state met its strict scrutiny burden.

        Assuming for the sake of argument you are correct that the speech is not the website’s (a proposition which I find at least plausible), perhaps not being compelled to create someone else’s speech is a doctrine worth considering (I could persuaded either way).

        1. The court seem to have made the jump from “it’s speech” to “it’s the web designer’s speech” implicitly without any thought or analysis, which seems concerning.

          I would also point out that the plaintiff here is the web designer, not the website (which would presumably be owned by the couple who commissioned it). It would at least be a rather different case, maybe a closer one, if the website had different ownership and objected.

          Nobody is compelling the web designer to enter into the business of creating other people’s speech. But if she does choose to, I don’t see any reason why she should get to choose which speech to create and which not to. Ideally I would like businesses, like the government, not to discriminate on viewpoint.

          1. The court seem to have made the jump from “it’s speech” to “it’s the web designer’s speech” implicitly without any thought or analysis, which seems concerning.

            That’s because it is the web designer’s speech. You seem to have confused “It’s not the web designer’s message” with “it’s not the web designer’s speech.”

            Marie and Gathie Barnett could not be compelled to recite the pledge of allegiance on the grounds that since the board of education told them to say it, it was really the board of education’s speech and not theirs.

            1. From Rumsfeld v FAIR

              Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message. We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message. […] The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.

              So, it appears to me the determining factor isn’t whether the web designer is speaking (of course she is), but rather whether her message is affected. That strikes me as a close call, and perhaps since she is required to create the speech, it leans a bit more towards affecting her message. Or even if that is not the case, perhaps being compelled to create the message ought to be enough for her to win the case (again, I could be persuaded either way).

              1. As I mentioned in last week’s discussions about speech, Rumsfeld is just not apposite. It isn’t a compelled speech case. The holding of Rumsfeld turned on the fact that it regulated conduct, and speech was only incidentally affected. (To be sure, one can disagree with this framing by SCOTUS, but that’s the framing SCOTUS chose.)

                You’re quoting something out of context, misleadingly so. SCOTUS is not saying that compelled speech cases turn on whether the speaker’s own message was affected. SCOTUS was saying that a different class of cases — compelled association — could also run afoul of compelled speech protections if it affected the speaker’s message.

                But this situation is a pure compelled speech case, and those don’t turn on whether the compulsion affects the speaker’s message. (Look at the very first sentence you quote: “Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message.” But this is a situation in which an individual must personally speak the government’s message, and so that is the determining factor.)

                1. SCOTUS was saying that a different class of cases — compelled association — could also run afoul of compelled speech protections if it affected the speaker’s message.

                  Why would SCOTUS analyze a different class of cases and not even mention the class (there is no reference to “compelled association” in Rumsfeld)? SCOTUS established the rule for hosting another speaker’s message as I stated above. To be sure in that particular case, they concluded the universities message wasn’t affected because the school wasn’t speaking at all. But, the rule they established applies to instances where the host is speaking.

                  But this is a situation in which an individual must personally speak the government’s message

                  I disagree. The government’s message is not the celebration and advertisement of a same-sex wedding. The message is that of a private third party that the government requires the website to host.

                  1. The way they get there would force an individual to personally speak the government’s message.

                    They define an artist as a “monopoly of one”. And there are a host of anti-monopoly laws in force, that can make monopolies do the government bidding.

                  2. Why would SCOTUS analyze a different class of cases and not even mention the class (there is no reference to “compelled association” in Rumsfeld)?

                    Sure there is. I mean, no, you can’t CTRL-F the words “compelled association,” but that’s what the paragraph you’re citing — and, indeed, the entire first amendment analysis — is about. Hurley, which is discussed in one of the sentences you elided, is a compelled association case.

                    The distinction is between cases where the litigant himself is compelled to actually say something he disagrees with, and cases where the litigant is required to associate with someone else who says things the litigant disagrees with.

                    In the former situations, the cases do not ask whether it dilutes the speaker’s message; in the latter situations, the cases do.

                    1. The Rumsfeld Court analyzed each of Hurley, Tornillo and Pacific Gas as instances where the litigant was compelled to say something he disagreed with.

                    2. The Rumsfeld Court analyzed each of Hurley, Tornillo and Pacific Gas as instances where the litigant was compelled to say something he disagreed with.

                      No. The Rumsfeld Court analyzed those cases as instances where the litigant was compelled to accommodate other people’s messages. The parade organizers weren’t themselves being compelled to say anything. They could have stayed silent. They could have marched next to the IAGLB people with their own signs saying, “We hate these people,” with arrows pointing at the IAGLB contingent. The argument was that simply having them around interfered with the parade organizers’ message.

                    3. If the Miami Herald and Pacific Gas were merely accommodating other people’s message rather than speaking when they included printed versions of those messages in their publications, why isn’t Kinkos doing likewise?

                  3. “I disagree. The government’s message is not the celebration and advertisement of a same-sex wedding.”

                    You’re wrong. Read the decision. If that;’s too hard for you, read my summary below (search for “Thinking some more about this case”).

                    The designer filed the lawsuit because she wants to make websites that “celebrate” real marriages, but does not want to make websites celebrating same sex “marriages”.

                    The Appeals Court ruled that the State of CO can force her to make the websites she doesn’t want to make, ones that “celebrate” same sex “marriages”.

                    1. What a bummer that if you want to be in the business of celebrating peoples’ marriages, you might be forced to celebrate peoples’ marriages!

                    2. She wants to only celebrate real marriages. What a bummer that a$$hole thugs like you want to bully her into doing more than she wants to do

                    3. She doesn’t know what a real marriage is, and a$$hole thugs like you join her in this disability. No sympathy for being stupid.

            2. David,

              I don’t think I’m making that particular mistake. The distinction here I think is about whose speech a hearer hears. Why do you think schools want students to recite the pledge? It is not because schools want people to understand that the school staff have loyalty to the US. It is because schools want people to understand that students have loyalty to the US, that students are make a commitment when they pledge allegiance. People understand the students to be making a statement, not simply relaying the school administration’s message, when they pledge allegiance. That is what makes it the students speech, and therefor means that the school cannot compel it.

              The same can’t be said of a web designer building a website. I’ll bet you couldn’t even name a single web designer who worked on any of the websites that you have visited today. So how could you understand the web designer, rather than the organization running the website, to be speaking? When I was in law school, I was the business manager of one of the journals, and I commissioned a friend to build a website for the journal. This friend had no other connection with the legal profession, she was just a good web designer, and built a better website than I could have. But she did not understand herself to be speaking the journal’s message, I did not understand her to be speaking the journal’s message, and nobody else in the legal world ever even knew who she was. Everyone who visits that website understands it to be the journal’s speech. So how could my friend possibly have been speaking? She wasn’t. And neither is the plaintiff in this case.

              1. The distinction here I think is about whose speech a hearer hears.

                But who cares? The first amendment is not about hearers, but speakers. (Or, at least, it’s only secondarily about hearers.) Moreover, I’m not even sure what hearers you’re referring to in the context of the pledge of allegiance; only school officials and the students are even present on a daily basis when the pledge is recited.

                People understand the students to be making a statement, not simply relaying the school administration’s message, when they pledge allegiance. That is what makes it the students speech, and therefor means that the school cannot compel it.

                But that argument is self-refuting. If one recites something only because one is compelled to do so, then one is simply relaying the compeller’s message. (You’re talking about some hypothetical that doesn’t reflect the real world in which we live; when we hear students recite the pledge, we do not think that’s the students’ message at all, but the government’s.) Compelled speech, under your rubric, would always be permissible under the 1A as long as the government made clear that the speech was in fact compelled.

                Again, Wooley v. Maynard is fatal to these arguments. The state of New Hampshire printed license plates with a message on it, and required everyone in the state (well, everyone with cars) to display those plates with that message. Nobody on the planet thought that the Maynards themselves were expressing any view at all on whether living unfreely or dying was preferable. But the Maynards were still not required to relay the government’s message on that subject. The dissent argued that because the Maynards could put up a disclaimer making clear that the speech wasn’t theirs, the law was valid. But that position, obviously, lost.

                Similar problem with Tornillo. The state of Florida couldn’t save its right-of-reply law by noting that the newspaper could just put a disclaimer up saying that the content is not theirs and doesn’t reflect their views, and they’re printing it only because they’re legally required to do so.

                ’ll bet you couldn’t even name a single web designer who worked on any of the websites that you have visited today. So how could you understand the web designer, rather than the organization running the website, to be speaking?

                Well, many websites do in fact identify the web designer at the bottom, but it doesn’t matter what I as a reader understand. The web designer can’t be compelled to speak someone else’s message in a forest with nobody around to hear. Again, it’s about the speaker, not the hearer.

                Your argument about your friend is a bit puzzling. Presumably she doesn’t actually post content on the website; she just designed the site. So of course nobody attributes the content to her. But nonetheless, we can certainly attribute to her the message that the existence of law journals is acceptable.

                To put the issue in stark relief: would your friend have agreed to design a website for the local chapter of the KKK? Presumably not, even if nobody else on the planet even knew who designed the website. It isn’t a question of what the audience thinks.

            3. Maybe here’s an analogy that would be good for helping lawyers understand: when you write a brief, and send it off to a professional printer to be printed in the very specific ways that a particular court requires, is the printer speaking? Of course not, you the lawyer are. The web designer is just a printer who works in a different medium, nothing more.

              1. What if the printer created some of the substance rather than just cranking out copies?

                1. What if you changed the hypothetical to make the answer easier?

              2. I have two responses.

                (a) is the one Josh R points out below. A web designer is not just a printer. A web designer contributes content, rather than merely serving a ministerial purpose.

                (b) is that I disagree with your premise, for the reasons I expressed in my comment above: just because I prepare content does not mean that someone else who distributes my content isn’t speaking it.

                1. I agree Kinkos has a First Amendment right to refuse to print a government brochure it disagrees with. But apparently your reading of Rumsfeld leads you to believe they also have a First Amendment right to refuse to print copies of a same-sex wedding invitation they had no part in creating. That strikes me as wrong.

                  1. I see no distinction between those two scenarios.

                    (At least not for first amendment purposes. If one wants to make the argument that antidiscrimination law represents a compelling state interest that allows the law to survive strict scrutiny, that’s may be a distinction, but it doesn’t change the fact that it’s compelled speech either way. (And as we saw in Rumsfeld, the government is perfectly capable of arguing that disseminating its own message is a compelling interest too.))

                2. There may sometimes be a blury line between an author and a printer – book editors surely do have some influence on the content of the books they publish. Never the less, they are not authors, and do not get their names on the books. My understanding is that web designers don’t do anything that would put them in the category of an author rather than an editor or printer or research assistant or something like that. If this web designer intends to cross that line and really author a website, then she might have a case, but I don’t see any facts discussed in this opinion that would support that.

                  When I hear students reciting the pledge, I do think it is the student’s message. So do the students, that is the point of asking them to recite it. I don’t know what world you are living in where people don’t have that understanding. On your understanding, why would the school want to ask students to recite the pledge? Does the school not have better mechanisms for getting its own message out?

                  When I see a pro-life license plate, I generally do understand that to be the speech of the driver, so Maynard doesn’t seem to distinguish our positions.

                  I think disclaimers are often not enough to actually change people’s perceptions, if people even read disclaimers, which they often do not, so I don’t think the inadequacy of disclaimers to solve a compelled speech issue is inconsistent with my position.

                  Here’s the big issue though: how would you go about deciding who the speaker of a particular instance of speech is, if not by looking at who ordinary reasonably people in our society understand to be speaking? The alternative, which I’m amazed that you are seem ok with, is to make it purely mechanistic, to suggest that Kinkos has a free speech right to refuse to print something. That strikes me as utterly absurd. Has any court ever articulated such a standard?

                  1. For arguments sake. There are three people standing shoulder to shoulder, you, me, and Bob.

                    In front of us is Dan, his back turned so he can’t see us.

                    You point a gun at me and force me to speak a message I disagree with. I go stand behind Bob and say the message from where he is standing. This is the only voice Dan ever heard and as such can not distinguish on voice alone who spoke, but only from where the sound came from. Before he turns to see who spoke, I return to my original position, not near Bob. Dan thinks Bob spoke.

                    Did you violate my1A rights or is your defense predicated on what a reasonable “hearer” would conclude as to who the speaker is?

                    1. “Did you violate my1A rights”

                      No, but you have a pretty good case for tortious assault. Stick with that.

                  2. When I hear students reciting the pledge, I do think it is the student’s message. So do the students, that is the point of asking them to recite it.

                    They don’t “ask” kids to recite it; they tell kids to recite it. (Yes, Barnette says that the kids can refuse, but I’ve never encountered a school — my own or my kids’ — that mentioned that.) I mean, kids start saying the pledge in kindergarten. Do you think those kids even know what the message is? They’re just memorizing and reciting words on command, like trained seals.

                    I don’t know what world you are living in where people don’t have that understanding. On your understanding, why would the school want to ask students to recite the pledge? Does the school not have better mechanisms for getting its own message out?

                    No; its own message is, “We’re so patriotic that we’re compelling students to express patriotism.” Which is expressed by compelling students to recite the pledge.

                    When I see a pro-life license plate, I generally do understand that to be the speech of the driver, so Maynard doesn’t seem to distinguish our positions.

                    I think you misunderstand the factual context. Yes, nowadays most (if not all) states have multiple license plates and drivers can pick the one that has a message that they like. That was not the case for the Maynards. They had no choice. Every single NH driver was compelled by law to display a license plate with that message.

                    You should read the case. The Supreme Court did not ask whether people would mistakenly think the plate was the Maynards’ message. (Only the dissent did.) That just wasn’t a relevant consideration. They were required to spread the message; the state didn’t have a compelling interest in such a requirement; therefore, it offended the 1A.

                    Similarly with respect to Tornillo. That case did not even consider the question of whose speech the public might consider it to be. The fact of compulsion, not the understanding of the reader, was the issue. Same with PG&E.

                    Here’s the big issue though: how would you go about deciding who the speaker of a particular instance of speech is, if not by looking at who ordinary reasonably people in our society understand to be speaking?

                    By looking at who is actually speaking. I don’t understand why you think it matters who ordinary people would understand to be speaking. (And you once again conflate the question of whose message it is with the question of who is speaking.) My objection to being compelled by the government to speak is not that people will mistakenly think that I hold those views; my objection is that I don’t want to express those views at all.

                    The alternative, which I’m amazed that you are seem ok with, is to make it purely mechanistic, to suggest that Kinkos has a free speech right to refuse to print something. That strikes me as utterly absurd. Has any court ever articulated such a standard?

                    It strikes me as utterly noncontroversial. Why on earth wouldn’t Kinkos have such a right? That’s within the core of what the first amendment is designed to protect.

                    Of course courts have articulated such a standard. Again, that’s Wooley. But if you want something whose facts are a bit closer, see, e.g., Printing Industries of Gulf Coast v. Hill, 382 F. Supp. 801 (S.D. Tex. 1974), rejecting the notion that commercial printers were just “conduits” of other people’s speech and didn’t have first amendment rights of their own to assert regarding what they could be forced to print.

                    1. “No; its own message is, ‘We’re so patriotic that we’re compelling students to express patriotism.’ Which is expressed by compelling students to recite the pledge.”

                      No, the school’s message is “look how regimented and obedient these kids are!”

                    2. “My objection to being compelled by the government to speak”

                      To invoke your right to remain silent, you have to say so, despite your preference to remain silent.

    3. “What sane person actually thinks’ that’s a legitimate decision, and why?”

      Most of them, and because they’re more grown-up than your childish ass.

  3. It is a shame that the Court punted in Masterpiece Cakeshop when there was a sensible bright line test that the bakery may have violated. If you put something in your (proverbial or actual) “display case,” you can’t control how it is used and public accommodation laws trump. If you have a blank sheet cake, cookies, or a website template it doesn’t matter. If I say I want 20 pounds of rainbow cookies, you can’t deny my request just because of where they may be served. However, when I request any customization, such as requesting that the rainbow cookies be in red, white, and blue layers, then your first amendment rights are invoked and you can deny my request if you have a religious objection.

    1. Such an insult to rainbows, being the hijacked trademark of the queer. So sad.

      1. Hey, Gays. Please, do not take my Skittles away for your cause.

        1. Hey, twit, no hijacking of Skittles!

      2. Such an insult to rainbows, being the hijacked trademark of the queer. So sad.

        Hijacked? The message of rainbows, as long as I can remember is “all the colors of the rainbow”, which has always been taken to mean “being inclusive of differences.” It seems that they merely embraced the message of the rainbow, rather than hijacking it.

        1. I have set my bow in the clouds, and it shall be a sign of the covenant between me and the earth… and the waters shall never again become a flood to destroy all flesh
          Classically, a rainbow stood for a path between known and unknown; an unreachable mystery perhaps with a pot of gold at the end. A sign of power, wonder, and awe.
          Please note that I do not agree with pavel on anything, but for sure it is true that the rainbow is not a symbol of “inclusive of differences”

          1. The Bible? Great sourcing. The history of symbolism of rainbows predates Christianity by, oh, a few thousand years. And they have been thought to symbolize many things over those millennia.

            but for sure it is true that the rainbow is not a symbol of “inclusive of differences”

            For sure it is obviously not true, for at least the past 50 years.

            “as long as I can remember”

            To be fair, being born in 1982, the adoption of the rainbow for the LGBT community does predate my existence. 😉

            1. Not only was the rainbow used as the LGBT Pride symbol (1978), it was also used by presidential candidate Jesse Jackson for his “Rainbow Coalition” in 1984.

              A quick internet search of rainbow symbolism brings up a wide variety of things hopeful, fearful, physical, and metaphysical.

              It takes a willful sort of ignorance to say it isn’t a symbol of inclusiveness given its current use the world over for exactly that.

              1. Someday they’ll find it, the rainbow connection, the lovers, the dreamers, and me.

        2. “Hijacked? The message of rainbows, as long as I can remember is “all the colors of the rainbow”, which has always been taken to mean “being inclusive of differences.”

          It’s originally a message from God “hey, remember that time I almost destroyed the world you live on by opening the vault of heaven, and releasing floodwaters upon the earth? I promise not to do that again. Next time it will be either fire or ice.”

          1. He even sent Jesus to us, to spread a message of “love thy neighbor”, to which some people have added a non-canonical “unless he’s a stinkin’ gay!”

      3. “Such an insult to rainbows, being the hijacked trademark of the queer. So sad.”

        Both rainbows, and the given name “Pavel”. Totally coopted by the gays.

    2. Isn’t your proposed balance exactly what Jack Phillips offered, and was fined for? As I understand it, he will sell anything he has on his shelves to anyone, but he will not decorate a custom cake that carries a message he has religious objections to.

      1. The cake request in question was a pink cake with blue frosting and no words or other pictures or symbols. He was 100% cool with making that cake until he found out it would be consumed at an event celebrating someone’s gender transition.

        Most cakes are made to order. “Give me a red velvet cake with blue icing” isn’t really a customization. “Give me a red velvet cake with blue icing in the shape of Ru Paul” is customization.

        1. This would be a great example, were it not an oversimplification which glosses over some key details.

          The reality is that the person who ordered that cake is just an asshole looking for fame or a payout.

          Who orders a cake from a shop with that controversial stench, and explicitly tells them that their birthday cake is, by the way, an expression and celebration of their trans-ness? An asshole.

          1. “The reality is that the person who ordered that cake is just an asshole looking for fame or a payout.”

            You got that from a CAKE ORDER? What are next week’s lottery numbers?

    3. To the extent that you have a “sensible bright line test”, the bakery didn’t violate it.

      The onwer told the customer: you want to buy anything off the shelf, have fun, I’m happy to sell it to you.

      “You want me to specifically make something for your same sex ceremony, or come to your ceremony and help serve my products? I’m not interested”

      So congratulations, you decided the case in favor of Jack Phillips

      1. Michael/Greg, the record was unclear on this point. According to some points in the record, Jack Phillips steadfastly refused to sell anything in his store (including anything off the shelf) when he was advised that it was going to be used at a same sex wedding.

        1. Not according to the testimony agreed upon by both sides in the first round of lawsuits.

        2. Toranth is correct. However, Phillips categorically refused to create any custom cake the moment he found out it would be used for a same-sex wedding without knowing what the customized request was.

          1. Which is Phillip’s right. Because it doesn’t matter what the custom thing is, what matters is that the person wants it for an event that Phillips doesn’t want to be part of.

            Because Phillip’s owns his time and his work, no one else

            1. By that logic, the limo driver can similarly refuse to service a same-sex marriage. I suggest you don’t waste your time or money litigating that one.

            2. “what matters is that the person wants it for an event that Phillips doesn’t want to be part of.”

              Simple solution… Philips should decline the invitation to attend the event.

            3. “Which is Phillip’s right. Because it doesn’t matter what the custom thing is, what matters is that the person wants it for an event that Phillips doesn’t want to be part of.”

              Having a cake he used to own served at a party he wasn’t invited to would be SUCH a violation of his religious principles, right?

  4. Is arranging flowers (the Ninth Circuit ruled against Arelene’s Flowers and SCOTUS denied cert) not clearly enough speech to have already establish a circuit split? Photography is clearly speech, but does a decision by a state supreme court establish a split (the New Mexico Supreme Court ruled against Elane’s Photography, again cert denied by SCOTUS)?

    1. I think this has a better shot because there are written words on a website, versus taking still photos where there may be some question about artistry. I am not saying that I buy that argument, but in lieu of an actual artist or musician refusing to perform, written words offer the least vehicle issues for SCOTUS.

    2. To further elaborate on my point, I think this case also presents an easier “vehicle” for another reason than what Prof. Volokh posted. Graphic design of a wedding website is not something that ideally requires a local vendor. Florists or wedding cakes there are issues in transportation including cost, keeping items fresh, having right vehicle, etc. That would cut more in favor of public accommodations laws being the most narrowly tailored means to prevent discrimination. Something that can be done anywhere for worldwide viewing (as opposed to localized viewing at a wedding) doesn’t pose that challenge.

      1. Yep, this is a great vehicle for these plaintiffs.

      2. Sure, who’d want a website designed by a native English speaker when you can get website glorious from Chna or India or Nigeria?

    3. “Photography is clearly speech”

      Clearly? So you think the monkey copyright case was decided wrongly? (the monkey picked up a camera, happened to capture an image that was striking, but the monkey isn’t entitled to a copyright by reason of not being a person under the law.)

      1. Yes, Clearly. What entitlement to copyright ownership has to do with the topic of whether something is speech is left as an exercise for the reader who doesn’t understand law.

        1. So why didn’t you answer it?

  5. Let me begin by saying presumably a business is in business to make money and it’s bad fiduciary policy to turn down income. That being said it should be any business owner’s right to accept or turn down business for any reason they see fit. You gotta have a right to be stupid.

    If for some reason a business chose to not prefer to do business with me for any reason whatsoever, or no reason at all I’d certainly not want to force them to if for no other reason I can be pretty sure I am not getting their best effort and I am certainly not getting my money’s worth.

    1. “You gotta have a right to be stupid.”

      That’s a great recipe to get more stupid. We already have enough stupid in the world, so we don’t need any more.

    1. They are celebrations of friendship. They will never be any more than that.

      1. At least they HAVE friends.

    2. Opposite sex weddings are totally gay too. Have you seen an Indian wedding? Speaking of, Bollywood is totally gay also. I mean, wow!

      I think everybody is gay, at least a little bit, sometimes.

      1. Looks like Vinni’s about ready to come out of the closet!

    3. Well, the male same-sex weddings sure are! But the female ones most certainly are not. They’re totally lesbian.

  6. Web site design can only be done by one company, it is known.

    1. It was possible to stay at a different, integrated or Black motel rather than the Heart of Atlanta Motel, too. Anti-discrimination law isn’t satisfied by having some business options available to you.

      1. I am with you, Dilan. I would scrap all anti-discrimination laws aimed at private entities.

        1. And then what happens if you need gas and the only available gas station decides they don’t want to serve you? Or if a hospital decides not to treat you in an emergency and you die?

          1. Oh, you mean like when your Uber driver kicks you out of his car because he finds out you’re a bunch of Republicans?

            Oh, let me guess. “That’s different”, because it’s happening to people you don’t like

            1. It’s different because political parties are 1) not a protected class, and much much more importantly 2) a personal choice and not an immutable trait.

              1. How about being kicked out by an Uber driver for being of the wrong religion?

                1. Because religion counts as a protected class?

              2. Engaging in a same sex “marriage” is a choice.

                Cross dressing is a choice

                Having a sex change operation is a choice.

                If those are “protected”, then my Constitutional free speech right to have political opinions different from yours is equally protected.

                And if it isn’t, then I couldn’t care less about any “right” you claim to have.

                1. Oh, you have a free speech right to your political opinions, and no one is claiming the contrary. Doesn’t mean those political opinions trump anti-discrimination laws. You can believe as fervently as you like that God wants racial segregation; you still have to serve blacks when they visit your establishment.

                  1. Any law in violation of the Constitution, defintionally in a Constitutional system, does not supersede the Constitution unless expressly allowed in said Constitution. If the anti-discrimination laws were instead amendments, you would have an argument. But seeing as how they are laws, they must comport with the 1A.

                    That we do not practice this is a mark of our inability to follow law, not a failure in the logic of how the law reads and thus should be applied.

                2. “I couldn’t care less about any “right” you claim to have.”

                  As if anyone cares!

            2. “Oh, let me guess. “That’s different”, because it’s happening to people you don’t like”

              More or less. Part of becoming a “protected class” is having a history of being discriminated against. Being a bunch of Republicans doesn’ qualify… they have a history of doing the discriminating.

              shorter version. It comes around.

              1. Yeah, GFY

                Honest version: “we on the Left have no principles, just a lust for power”

                1. If you’re mad at the left, go tell a leftist, and leave me out.

      2. So, just to be clear here:

        I want to post tweets on the Internet.

        The way I do that is post them on Twitter.

        Therefore Twitter can not refuse me service, or refuse to carry my message because they disagree with it.

        That’s what you’re saying, yes?

        1. No, because you’re not one of the special people who gets to press others into involuntary servitude. That privilege is for protected-class people and you are second class like me.

          1. We are all members in every protected classification, and also members in every unprotected classification.

            1. Except when us second-class Americans ask for our rights to be protected, the answer is no.

              And we have to deal with activists being complete assholes 24/7 but we are told we must avoid microaggressions (even accidental ones).

              1. When have you, or others like you, been treated as second-class Americans by being denied your statutory right of access to places of public accommodation?

                1. Bret Weinstein was hounded away from the university where he worked. Charles Murray was driven away from a university where he was invited to lecture. When New Black Panther Party members engaged in blatant voter intimidation, the federal DOJ dismissed the charges against them.

                  There very much is a second class in America today.

                  1. Brendan Eich.
                    Any non-leftist on Twitter or YouTube or Facebook.

                    There are whole web sites with daily content updates dedicated to the topic. Example for colleges: https://www.thecollegefix.com/

                  2. Weinstein, Murray and Eich were discriminated against because of their political views. There is no statutory right to be free of such discrimination (in most locales).

                    1. Not respecting someone’s political beliefs is a Constitutionally-protected right.

        2. “Therefore Twitter can not refuse me service, or refuse to carry my message because they disagree with it.

          That’s what you’re saying, yes?”

          I believe this is currently the Republican position on this matter.

      3. Discrimination could not survive the market without the lawyer written and enforced Jim Crow laws. I would love it if my competotor motel said, no blacks, excluding a third of the state’s population. I would have a flashing sign, “All are welcome. ” Take their business.

        1. Then you’d get a lesson in identity economics, as the racist assholes decided “if you serve THEM, you can’t serve US!” and you watched as a third of the state’s population (possibly more, depending on which state you happen to be operating in) all boycott your business.

      4. So, you agree the government can force artists to create works that they fundamentally disagree with?

        1. The word “artist” probably needs some defining there.

          1. Typically, when you commission an artist, you get to pick the message.

      5. “It was possible to stay at a different, integrated or Black motel rather than the Heart of Atlanta Motel, too.”

        Its not 1964 anymore. There are tens of thousands of functionally identical web designers to choose from, despite the majority stupidly thinking that one web designer is so good he or she cannot be replaced.

        Its the indignity of being turned away when you are tired or you are almost out of gas or can’t buy food that justified Heart of Atlanta Motel.

        1. “Its not 1964 anymore. There are tens of thousands of functionally identical web designers to choose from”

          Yeah, the supply of web designers has grown significantly since 1964.

    2. “Web site design can only be done by one company, it is known.”

      It can be done poorly by just about anyone.

  7. Why should the web designer be compelled to express the state of Colorado’s LGBTQ ideology?

    1. Because, according to 2 judges on the 10 Circuit Court of Appeals, that web designer sells a unique service, and protection of the LGBTQ requires that they can be able to buy any unique service that anyone else can buy.

      IOW, because the web designer created individual speech, she must sell her speech to promote LGBTQ ideology.

      1. Which is….amazingly abusive.

        1. Amazingly dumb too. Web designers are a dime of dozen, and most produce more or less the same quality.

          1. But by defining each and every one as a “monopoly of one”, it opens up all sorts of antitrust laws to abuse.

            1. You can, of course, avoid being coopted into the chorus via the simple expedient of not opening a business in which you offer to perform singing in exchange for money. Then go home and sing whatever you like.

  8. These just keep coming up, and it makes sense. It seems we are in for a “my business is speech/expressive-conduct” wedding cases, and the courts will have to keep taking them one by one one.

    I am no expert here but have there been any that we’re denied? Caterer? Tailor, dressmaker, candlestick maker etc?

    1. *were

    2. *in for a bunch of “my business is speech”…

      Double typo! My bad.

    3. The fun part is that a creative person can invent a religious justification for violating just about any law of general application. For some people, “because religion!” is a good enough argument. But literally anything can have religious significance.
      Want to be freed from irritating statutory rape laws? There’s a religion for that. Just tell your sob story about how your religion requires you to marry children. Want to take psychedelic drugs? There’s a religion for that, too. Want to murder your enemies with an obsidian knife at daybreak? There’s a religion for that, too! Finding the balance between “the gov’t should not write laws that inhibit religious practice that was known when the law was passed” and “I should get to ignore laws by claiming I’m doing it (whatever “it” is) because of my religious belief” is difficult but that’s the line that should exist.

  9. Looks who is shoving the queer agenda down society’s throat? Maybe some folk just don’t want to be associated with such perversion. A right to hate. A right to ignore. A right to disassociate with alien behavior? After all, some presidents just don’t like broccoli.

    1. I shall interpret your answer to my question as “I don’t know”

      1. Pavel is asking a variation of the query I posed, namely, why should the web designer be compelled to express the state of Colorado’s LGBTQ ideology?

        The state has no interest in promulgating the joys of homosexuality or of forcing others to do the same.

        1. You stated it more eloquently than he 😉

          My question was not rhetorical. I am not up on all the “my wedding job is expressive conduct” litigation, and I was hoping some kind hearted commenter would enlighten me. Still waiting for my hero…

        2. It is impossible to have an ideology-free legal system. Even having laws against murder reflects the ideology that human life is sacred. And traffic laws reflect the ideology that accidents are bad. The idea that the law has no ideology is nonsense on stilts.

          So the question is whether LGBTQ ideology is an appropriate ideology for the state to adopt.

          Unlike many here, I am not opposed in principle to anti-discrimination laws because I think shutting entire groups of people out of the economy has negative consequences, not just for them but for society as a whole. And while it’s not true so much any more, at one time if you were the wrong race, gender or sexual orientation, you were in fact locked out of much of the economy.

          The problem with religious exemptions is that religion is responsible for most of the anti-gay prejudice out there, so you’re giving a free pass to the people who made the law necessary in the first place.

          1. Yes, it is impossible to have an ideology-free legal system. The proscription of murder does reflect the proposition that life is sacred. That proposition is rooted in the ideology of natural law, one tenet of which is the sanctity of human life.

            I agree that shutting entire groups of people out of the economy has negative consequences for society as a whole. Prohibiting economic freedom of association also has negative consequences for society as a whole as well.

            The question is whether anti-discrimination ideology should trump every single exercise of economic liberty by a privately-held enterprise with one owner in a competitive marketplace?

            Again, if the web design marketplace was limited to just a handful of providers, and all of those providers refused to create a web site celebrating same sex marriage, there would be a manifestation of shutting an entire group of consumers out of the web design economy. Such is not the case with the the 303 Creative, LLC.

            1. But no one is suggesting that anti-discrimination ideology should trump “every single exercise” of economic liberty. I don’t think, for example, that an organization whose core mission is to oppose gay marriage should be required to hire people who are in gay marriages.

              The thing is, there are two extremist positions. On the one hand, you’ve got people who say that there should be no anti-discrimination laws whatsoever, and on the other hand, you’ve got people who would say that the group opposing gay marriage shouldn’t even be allowed to exist, never mind discriminate against gay job applicants. In between those two extremist positions is a whole lot of nuance, and a hell of a lot of cases that don’t easily fit into whatever the rule ends up being.

              On the facts of this case, I’m inclined to agree that creating a Web site is sufficiently speech related that the company should probably win. But I don’t want to open the door to any claim of religious belief trumping anti-discrimination laws, because then anyone who wants to discriminate just says it’s their religion. Life is more complicated than the stark black and white positions I’m seeing on both sides.

            2. “Yes, it is impossible to have an ideology-free legal system. The proscription of murder does reflect the proposition that life is sacred.”

              Not necessarily. It reflects the fact that death is irreversible, and ending a life prematurely may be wasteful.

          2. Unlike many here, I am not opposed in principle to anti-discrimination laws because I think shutting entire groups of people out of the economy has negative consequences, not just for them but for society as a whole.

            Anti-discrimination laws aren’t inherently evil. Attempting to apply them to all things for all people of certain classes at all times and forever is evil. There was a time when public accommodation laws were, arguably, a necessary evil to undo the evil of discriminating laws passed in the first place. Government needed to be fixed, who woulda thunk it?

            Those laws should be limited though. I’m not going to propose a bright line, but certainly if you have 1 hotel/gas station/grocery store in your town, public accommodation laws were probably a necessity for some time, even into the period of time post-CRA. But, if you have 10 hotels/gas stations/grocery stores all within a 5 minute walk, 1 wants to discriminate, and the market doesn’t punish them out of existence, then who is harmed? Economically, one would expect that the odd business would see some uptick in business from people of similar ideology, some reduction in business from those appalled by said ideology, and no business from those refused, resulting in a likely decrease in profitability. Maybe it would be more popular in some areas, and different places might discriminate differently, catering to a target audience perhaps. Is that really so bad? It must not be that bad if “White only” spaces are BAD BAD BAD but “Black only” spaces are totes cool. (I think that both should be acceptable, within reason, so long as the market allows it).

            But, unless those businesses are doing more than just refusing service openly (actively spreading messages of “hate”, for instance) then I think that such public accommodation laws should be reserved only for narrowly tailored circumstances where there truly is no market based solely on group membership.

        3. “The state has no interest in promulgating the joys of homosexuality or of forcing others to do the same.”

          You seem to be introducing some details of your own, here.
          Nobody is forcing anybody to say anything at all about homosexuality. The people involved want a website that promotes the fact that they got married. You don’t have to get married to have sex, and you don’t have to have sex to get married.

        4. “The state has no interest in promulgating the joys of homosexuality or of forcing others to do the same.”

          Nor did they do that.What they did do is say that it is unlawful to discriminate against people for reasons of race, sex, religion, nation of origin, or sexual orientation

  10. Why not take the jobs and just create according to your religious convictions?
    I can imagine a wedding cake / web site / flower arrangement very tastefully presenting a variety of biblical passages relating to weddings (etc).

    1. Plenty of people do do this, and those are the types of places I prefer to do business. I think the issue here is what happens when you don’t want to do it. Do you have a right to refuse? I think the only reasonable answer in this case is “yes”. But we can all imagine examples where the line between “job” and “expressive conduct slash speech” is less clear.

      A lot of these were floated during Masterpiece Cakeshop (cuisine, flowers, dress, table setting, bartender, basically everything in a wedding) in briefs and at argument, and I am not up on the caselaw to know how many have actually made it before a court since then.

    2. Ah.

      So you’re saying that if someone wants a website for their same sex “marriage”, the designer should create a website that includes every single anti-homosexual behavior quote from the Bible?

      Maybe throw in a “God Hates Fag”?

      And when the customer complains, tell the customer to find someone else if he doesn’t like your design?

      I’m sure CO would have no problem with that /sarc

      1. “So you’re saying…”

        Why do you insist on using these words, and then following them with what YOU”RE saying instead of what THEY said?

      2. “So you’re saying that if someone wants a website for their same sex “marriage”, the designer should create a website that includes every single anti-homosexual behavior quote from the Bible?”

        A blank website isn’t very expressive

  11. This is getting absurd. Who thinks it is a good idea to force someone to create a product/service they don’t want to do.

    1. It’s kind of fact specific and this case probably falls on the compelled speech line, but I don’t think the mere fact of “creation” places something outside the scope of non-discrimination law. I mean you couldn’t say that you won’t sell artificial limbs to black patients who need them because you have to create a tailored limb to their body.

      1. Na, you missed the point I was trying to make. Many years ago I actually created web sites. This was back in the day when bandwidth was an issue and one of my subordinates created a great page with lots of flashing color and movement. Problem was with a 14.4 modem it put the page in bog mode and I had to get her to redo it.

        Specific to this case I could easily create a web page with neon colors and crazy moving graphics that would at least cause eye strain; not to mention subliminal messages. Going over budget and over delivery time are also options.

        If someone POs you there are endless ways to PO them back.

        1. This isn’t as clever as you think it is. Antidiscrimination law does not allow one to provide an inferior product/service to a customer in a protected class any more than it allows one to refuse to provide a product/service to a customer in a protected class.

      2. I’m curious, are you aggressively ignorant, or just dishonest?

        03 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will. Appellants do not yet offer wedding-related services but intend to do so in the future. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up.

        This isn’t about refusing to serve certain customers. it’s strictly abotu refusing to speak a message that the State of CO wants to force them to speak

        1. Um I clearly agree that this is compelled speech. I do not agree that creation is the test. You’re misreading me and accusing me of being dishonest when I agree with out on this case!

        2. “I’m curious, are you aggressively ignorant, or just dishonest?”

          Just because YOU are, doesn’t mean you should assume everyone else is.

    2. Who thinks it is a good idea to force someone to create a product/service they don’t want to do.

      Here’s the conclusion of a dissent from a 1959 Washington Supreme Court decision which found a massage salon guilty of “wrongful discrimination” for refusing to serve a black woman:

      Through what an arc the pendulum of Negro rights has swung since the extreme position of the Dred Scott decision! Those rights reached dead center when the thirteenth amendment to the United States constitution abolished the ancient wrong of Negro slavery. This court has now swung to the opposite extreme in its opinion subjecting white people to “involuntary servitude” to Negroes.

      1. Wow. Just wow.

    3. Leftists love bullying people for more or less any reason. This is just one of those.

      1. Leftists didn’t select the bully in chief to be the leader of their party.

        1. Leftists didn’t vote for Bernie?

          1. Your total lack of self awareness is breathtaking.

          2. “Leftists didn’t vote for Bernie?”

            If they did, there weren’t enough of them in the party.

            1. Biden beat him, too. Funny how you don’t hear the Berniebros whining about stolen elections and trying to overthrow the government. Almost like they’re capable of acting like adults.

    4. This is getting absurd. Who thinks it is a good idea to force someone to create a product/service they don’t want to do.

      People who miss slavery.

      1. No one is being forced to create a product. People agree to create the products when they apply for a business license. They agree to the terms and conditions that apply to running a business, among them public accommodation and anti-discrimination laws. A slave never had the option to decline work but a businessperson can certainly choose not to run a business and find other work elsewhere that is more amenable to their religious or political beliefs.

        In the case of this web designer (my belief this runs afoul of forced speech aside), she apparently doesn’t do wedding web pages at this time. Since she doesn’t offer that service, her obvious option is to never offer that service and thus maintain her convictions while staying within the law.

        Although, I wonder what she’d think of building a website for a same-sex family–maybe celebrating the co-adoption of their child?

    5. “This is getting absurd. Who thinks it is a good idea to force someone to create a product/service they don’t want to do.”

      Let’s not confuse “force” and “hire”. Lots of people don’t like the work they do, but they need a paycheck. This is just another example.

      1. Wrong.

        “Hire” is a mutually agreed on event. This is NOT a mutually agreed on contract.

        Therefore “forced” is the correct term

        1. You
          Are
          An
          Idiot.

    6. “Who thinks it is a good idea to force someone to create a product/service they don’t want to do.”

      Every shift manager working the drive-through window.

  12. Seems like compelled speech to me. I expect this will get a cert grant and be reversed.

    1. Agreed. This is a much more specific and creative practice than baking a cake.

      1. I actually was/am on the fence about the baker too in terms of compelled speech. This wedding area is really tricky. But so many people here think the entire concept of public accommodation is the same as slavery it’s absurd.

        1. It should depend on the service provided by the baker, IMO.
          Is it retail or individualized.

          I know the law is still working itself out in this area, but that’s where I hope it goes.

          The slavery wanking is part and parcel of white genocide. To take a page from RAK, they’re loud, but a small and shrinking number.

          1. The website designs that the designer would make are all individualized

            But 2 judges on the 10th Circuit Court of Appeals have decided that she must create individualized designs for customers.

            Above, you seemed to think this was a grand thing. Have you changed your mind?

            1. Above, I agree with LTG that ‘Seems like compelled speech to me. I expect this will get a cert grant and be reversed.’

              I disagree with your general attack on civil rights law and protected classes generally.

            2. “The website designs that the designer would make are all individualized”

              Highly unlikely.

  13. All PC is case. The scumbag lawyer profession must be crushed to save ourcountry. These judges should be visited by the mulletted Camaro guys. Drive these judges out of the state.

    1. Prof. Volokh submitted a well crafted Amicus Brief. How did not using the word, “fucktard” work out for him?

      There is no persuasion. There are feelings, biases, and temporary tantrums based on economic self interest, local culture, and the bad moods of the moment.

      All judges should be replaced by an algorithm written, updated, and owned by the legislature. It should be subject to product liability when its carelessness damages a defendant. Because punishment is involved, it qualifies for strict liability.

      1. Once again the lawyer is forcing a delusion on the nation. Gay marriage does not exist. Nothing can done to ever make it more than a friendship. Marriage and its privileges are to promote reproduction and family formation. That is the sole purpose of life, and deserve privilege and promotion.

        The aim of of this forced delusion is to save the Family Law business. It destroyed the American family, needs the work. Around the world, gays are avoiding this lawyer tral and shunning marriage. Gays are not stupid.

        1. Just for my own edification, a heterosexual couple can’t enter a marriage if there is no possibility of procreation (e.g. wife has gone through menopause or husband is impotent)? Is a heterosexual marriage where both spouses are able to have children but choose not to or have a number of miscarriages before the wife goes through menopause void at that point?

          1. The rule is simple. The marriage is void if even one asshole nutjob doesn’t like it.

            Wonder why this rule hasn’t ben adopted generally?

        2. “Once again the lawyer is forcing a delusion on the nation. Gay marriage does not exist. ”

          You may be misattributing the delusion. It seems to be originating with you.

  14. He problem with the decision is Hurley. The decision effectively purports to overrule Hurley by, in effect, saying that it wasn’t perceived as a compelling interest then but is now.

    But that’s not how either stare decisis or a lower court’s duty to obey the decisions of the Supreme Court until told otherwise works.

    The Supreme Court could easily rule lower courts can’t overrule Hurley, only we can, and we refuse to reconsider it until a case comes in where a lower court hasn’t attempted to do so.

    1. The court distinguished Hurley by holding the law “is narrowly tailored to Colorado’s interest in ensuring equal access to the commercial marketplace, such access not being at issue in Hurley.

      1. Given that “commercial” includes growing a potted plant on ones windowsill, that’s hardly much of a narrowing.

        1. You’re on thin ice. “interstate commerce” includes growing grain on your farm to feed to your livestock. That doesn’t extend to potted plants on the windowsill, unless there’s a commodities market somewhere for potted plants.

      2. I don’t see the distinction. The parade in Hurley closed entirely streets, disrupting traffic and substantially affecting interstate commerce. It’s clearly commercial activity under the current expansive interpretation of what constitutes interstate commerce. The federal government could regulate it directly if it wanted.

        1. So what if a parade disrupts commerce? That fact doesn’t lead us to conclude refusing the gay float denies gays equal access to the commercial marketplace.

          But even if I am wrong and one might read Hurley as precluding denying equal access to the marketplace as an interest that meets strict scrutiny, that is not at all clear. Lower courts are free to interpret Hurley otherwise.

          Having said all that, I am not persuaded that this application satisfies strict scrutiny. I am just pointing out the conclusion is not foreclosed by binding precedent.

  15. Masterpiece Cakeshop was compelled speech as well — though one wonders if compelled labor is OK with Eugene.

    Democrats are the party of slavery after all …

    1. Yes the civil rights act is slavery. This is a good opinion by normal people that know what slavery is.

      1. Lol. I am trying to be charitable and interpret DWB’s comment as a ham handed allusion to the cases involving discrimination and public accommodations laws. But perhaps I am being too charitable… ????

      2. Because pointing (government) guns at your neighbor and making him serve you is just so unlike slavery!

        1. It’s a damages remedy.

          1. And when you refuse to pay the “damages” and open your business the next day?

            1. You can keep your business open and you’ll just keep getting monetary judgements against you? Then no one will loan you money because your credit sucks?

              1. So threat of bankruptcy if you don’t do what the government orders.

                Next up, they just take it and imprison you because who is going to stand up to them.

                And then the next domino falls…

                1. “So threat of bankruptcy if you don’t do what the government orders.”

                  Bankruptcy is a benefit the government offers. Replaces the old system wherein people who couldn’t pay their debts were imprisoned.

            2. FWIW, from earlier comments it seems LTG and you likely agree that this case amounts to compelled speech and is likely unconstitutional as applied.

              But you are taking it further, arguing that any enforcement of antidiscrim laws as applied to commerce is tantamount to slavery? If so then that is just plain unreasonable.

              1. Unreasonable to whom????

                Become a doctor and as part of your professional licensing you agree to serve all: understandable.

                A black plastic surgeon is forced to provide skin bleaching treatments to black women despite his ethical beliefs? Intolerable.

                Who decides? You?

                1. Feminist lesbian gynecologist refuses to perform cliterectomy on Muslim man’s daughter…

                  1. “Feminist lesbian gynecologist refuses to perform cliterectomy on Muslim man’s daughter…”

                    Not a problem. Lack of informed consent.

                2. “Unreasonable to whom????”

                  People who can reason.

          2. No, dumb shit, it is a forced speech case.

            1. To be clear:

              If mediation fails, a hearing may be held before the Colorado Civil Rights Commission, a single Commissioner, or an administrative law judge. If a violation is found after a hearing, the Commission may issue a cease and desist order against the offending public accommodation.

              NOT a fine

              1. A fine is an alternate remedy.

                1. It’s a fine for not following the government’s orders. That’s not exactly what “liberty” historically meant.

                2. Yes, they CAN order a fine.

                  They can also issue a “cease and desist order against the offending public accommodation.”

                  Which is not a fine.

                  Which this decision will allow

                  1. Civil disobedience is always an option. Part of civil disobedience, however, is accepting the consequences. Ms. Smith wanted her non-compliance with the law to be consequence free.

                    1. The law is not valid. Ms Smith wants the unconstitutional law struck down

                      I love how you lefties are so eager to lie about the case. It’s always nice to see the other side agreeing that their side is total crap

                    2. “The law is not valid. Ms Smith wants the unconstitutional law struck down”

                      Ms. Smith (and you, Greg) are apparently incapable to telling what laws are unconstitutional.

                      “I love how you lefties are so eager to lie about the case.”

                      Are you self-identifying as a lefty? Seeing as how much lying you have been doing.

            2. Why are you calling me dumb when I agree with you on this case! What is wrong with you???

              1. Stupid is as stupid does. So, apparently, is dumb.

            3. I agree with you on this case, “dumb shit”
              I’m talking about civil rights statutes generally. Like title II.

        2. What about Colorado´s public accommodations statute contemplates gunplay? Please be specific.

            1. You need to be TOLD that gunplay is generally prohibited?

        3. Prior to the 13th amendment, cases of pointing government guns at the neighbor and making him serve was not how slavery worked. It is, a bit, like conscription into the armed services.

    2. You need not wonder. He wrote about the issue on this very blog. You may read it if you like, reproduced here on the U of Houston law website:

      https://www.law.uh.edu/assignments/fall2012/20449/TheVolokhConspiracy.htm

      1. You are saying what you want the law to be. But we are talking about what it says.

        Also I don’t think your doctor hypothetical is relevant to this. Medical practice is certainly not speech or expressive conduct. Nevertheless I think that particular decision would be regulated by the doctors state medical board.

        You are going to far afield from the case at hand, I’m having trouble following what you are getting at.

        1. A man owns his own labor — no one else. By requiring him to labor against his will, you are stealing his labor. How hard is this to understand?

          1. I assure you that no one here will deny you your right to strike.

            1. Your dodge, it was seen.

              So you are saying that my FIL, who runs a little t-shirt printing business and happens to live 20 miles from the northern HQ of the Klan, should be forced to print shirts for their local weeny roast and cross burning?

              1. Certainly not. And nothing I wrote above is inconsistent with that.

                I am tiring of this. So long.

              2. You inveigh against the reforms of the Civil Rights Era, a battle that was lost by your ilk long ago.

                You seem truly worried about the rights of the white majority, to the exclusion of all else.

                Call the other side racists and slavers all you want; but everyone knows the practical upshot of the world you advocate for. The question is whether you do, or if you’re just blind.

                1. FUCK OFF you racist piece of shit — the FIL that you would force to serve the klan is black, asshole.

                  Your pussy little ass would never hold the gun as you neighbor is forced into labor so STFU

                  1. Lots of racists in the 1960s were super angry about liberty during desegregation as well. Didn’t make them right. Doesn’t make you right.

                    By comparing blackness and homosexuality to membership in the Klan, you’re basing your argument against the Civil Rights Act on a fallacy, since immutable characteristics are not the same as membership in an ideological group.

                    And plenty of people did great things for civil rights without guns. So many here go straight to killings so quickly.

                    1. Bullshit, racist.

                      If your fucking Democrat friends had not spent 100 years persecuting those who disagreed with them we would not be here you racist POS.

                      Your Democrat friends shed blood for 100 years after emancipation and continue to systematically kill black children so SHUT THE FUCK UP.

                    2. “If your fucking Democrat friends had not spent 100 years persecuting those who disagreed with them we would not be here you racist POS.”

                      Nearly all of the Southern Democrats who supported racism for the last hundred years are Republicans now. The ones who aren’t dead, anyway.

          2. “A man owns his own labor — no one else. ”

            Isn’t this case about a woman?

            Anyways, holding people to their contracts isn’t slavery. Even if they’d rather not do the work they’ve contracted to do.

        2. “Medical practice is certainly not speech or expressive conduct.”

          How about cosmetic surgery? Seems expressive.

  16. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up

    Sorry, but if you think a State may ban that, you are insane

    1. In your opinion, then, people who can directly observe reality are “insane”?

  17. So if the Westboro Baptist Church asks someone to design a web site for them..

    1. If the refusal is because of an objection to specifically religious messages, then you have to serve them according to this ruling. However, if the refusal is an objection to a message, be it religiously or secularly motivated, then no you don’t because you haven’t discriminated on the basis of a protected classification(in most localities).

      1. How does that mesh with “A tax on wearing yarmulkes is a tax on Jews”?

        1. A tax on yarmulkes, but not other head coverings, is analogous to refusing to include the phrase “God Hates Fags” on a website while creating “Darwin Hates Fags,” and either the Constitution (the tax) or a statute (discrimination on the basis of religion) is violated. In contrast, refusing to create both phrases is analogous to a tax on all head coverings, and no law is broken.

          1. So if we pass a tax on Red hats with white lettering on them, that say “America isn’t great”, will that be allowable?

    2. “So if the Westboro Baptist Church asks someone to design a web site for them..”

      They seem unlikely to pay the invoices.

  18. So much for “we just want to get married like everyone else!!!!” huh….

    1. They won so are bayoneting the wounded.

      Thanks Tony.

  19. The difficulty here, lf course, is that if “dignity” interests are compelling, a differently composed Supreme Court (replacing the wise Latinas with wise Southerners) could hold that the 13th Amendment, like sensing abolitionist literature through the mails, affronts the dignity of Southerners and hence there’s a compelling interest in overriding it. Or, for that matter, that the Title of Nobility Clause affronts the dignity of nobles.

    It’s all a question of whose dignity one respects.

    Most of us think having to pay taxes affronts our dignity.

    1. Only very special people are allowed dignity.

      People like you will be treated badly. And you’ll be expected to be grateful it wasn’t even worse. (Worse is for your kids and grandkids.)

      1. I’m sorry, but “asshole” isn’t a protected class, so take your whining home with you.

    2. “Most of us think having to pay taxes affronts our dignity.”

      Most of who, exactly, are you referring to, you poor, poor dear.

  20. As religion and intolerance become increasingly less popular and less attractive in America, it seems self-preservation should cause conservatives to be reluctant to establish rules whose natural consequence would enable any employer to refuse to hire or business to refuse to transact with religious believers, right-wing bigots, creationists, and Republicans.

    1. Gross over-generalization. The facts/ issues-trends is NOT that LGBTQ are not being sold anything and everything in the business, inventory, catalog, or widget. In the flowershop case the business owner had sold flowers to the LGBTQ Plaintiff for 10 years and has sold all items on her shelf/ in her inventory. Same with Masterpiece Cake. It’s the demand to make or do something customers or that indicated endorsement that creates litigation.

      Do attorneys have to take every prospective client that walks through their door? Design, customization, personal service, and some individual skill being used in the area of marriage, is the Flashpoint. There is some line between a box of cereal on the shelf in a market and a custom crafted limited edition product or service that is specifically associated with same sex marriage.

      The courts will draw the line just as the courts have been drawing the line to define ” an undue burden ” in the constitutional interest to exercise their interest “at the point of viability “.

      It is highly debatable that intolerance is a right wing/ religion/ one race evil. Intolerance is wrong if you are overly religious or not religious. Some classification of identity (actual/ asserted/ transitory) doesn’t define how and what an individual thinks, believes, or acts. It is prima facia intolerance to assert and argue that all [ fill in the blank] think, act. believe, are good or bad.

      Intolerance towards religious beliefs and individuals is just as wrong/ unbeneficial/ divisive as religious beliefs being forced on others. You have the right to your opinion and beliefs about religion and people who are not as steeped in Democratic party activism. You don’t have the right to force, belittle, demean, and show intolerance to people ( of any race, religion, sex, national origin) that may differ from your beliefs, interests and opinions.

      1. “Gross over-generalization. The facts/ issues-trends is NOT that LGBTQ are not being sold anything and everything in the business, inventory, catalog, or widget. In the flowershop case the business owner had sold flowers to the LGBTQ Plaintiff for 10 years and has sold all items on her shelf/ in her inventory. Same with Masterpiece Cake. It’s the demand to make or do something customers or that indicated endorsement that creates litigation.”

        ^^^ bullshit

    2. The difficulty here is that religion is an enumerated constitutional category with specific protections passed on and ratified by the Framers. But slaveholding, however much progressive opinion thought those opposed to it reactionary clingers, was never identified as a protected class.

    3. I don’t think this tracks well.

      There is a constitutional amendment that directly protects religious belief and observance but no such amendment for sexual orientation. Conservatives have framed their homophobia in a “religious freedom” veneer and crafted laws that exempt them from anti-discrimination laws. But those same laws are less likely to be used against them because the 1A will protect them. They appear to have constructed a single-edged, legal sword.

      Mind you, the impact of these laws will be obvious and this will continue to erode the place religion in general, and Christianity in particular, holds in American culture. Nothing alienates our youth faster than being seen as pointlessly mean-spirited.

      1. “There is a constitutional amendment that directly protects religious belief and observance but no such amendment for sexual orientation.”

        When did they drop the tenth amendment?

  21. If the Cato Institute were actually a pro-freedom organization they might have mentioned the text of the 13th Amendment.

    1. Perhaps the Cato Institute have hired competent lawyers rather than Trumpkin kraken lawyers and they know that advancing arguments that are frivolous under existing law is not the way to win a case.

      You are free to think that antidiscrimination law runs afoul of the 13th amendment. But that argument will win in precisely no court anywhere in the United States of America, from traffic court up to the Supreme Court. So you would have to be incredibly stupid to make that argument to a judge.

      1. Just because courts have all decided to intentionally violate the constitution and ignore their oaths is no reason they can’t be reminded the constitution exists and what the words clearly say.

        Maybe some judges will develop a conscience someday if they are asked to.

        1. Just because you disagree with just about everyone else doesn’t mean that matters to anyone but you.

          1. I actually can read the words and I am honest about their plain, unambiguous meaning.

            I don’t think “just about everyone else” is as invested in bullying others as you and the other leftists are. Some might prefer honesty. And even if that’s not enough for them, they might additionally prefer not being bullies or not being victims of bullying.

            1. Other people read the words and have a different take.

              And just about everyone else isn’t as fixated on raging about gay equality as you are.

              1. Except I said exactly nothing about “gay equality” (whatever that means).

                1. Right. wink wink. You have no opinion on the subject. winkitty wink.

            2. “I actually can read the words and I am honest about their plain, unambiguous meaning.”

              Objection! Assumes facts not in evidence.

        2. Let’s suppose that baseball umpires don’t call strikes above the belt. If you’re a pitcher, should you:

          (a) throw pitches above the belt and throw a tantrum when they’re called balls, arguing that the rulebook says that those pitches should be strikes and that you’re trying to remind the umpires what the rulebook says; or
          (b) throw pitches where the umpires actually call strikes?

          I guess that depends whether you’re trying to win the baseball game or not.

          1. Let’s suppose that slavery is legal in the southern states. If you’re a slave, should you:

            (a) run away to the north, arguing that the rulebook says that the US Constitution says it is not legal and that you’re trying to remind the States what the rulebook says; or
            (b) just continue being a slave?

            I guess that depends whether you’re trying to perpetuate the unjust system or not.

            1. “…arguing that the rulebook says that the US Constitution says it is not legal…”

              should be:

              …arguing that the rulebook, the US Constitution, says it is not legal…

            2. If we follow David’s advice, I suppose we have no need for the entire justice system. SCotUS can be disbanded. Follow the rules, even if the “rules” are actually in direct opposition to the actual rules.

              1. Odd that you suggest that slaves should have run away from the South. Perhaps anti-gay web designers should run away from Colorado?

            3. Your attempted analogy isn’t.

              First, it’s confusing because you say “slavery is legal in the southern states,” but then you say that the U.S. constitution says that it’s not legal. If the latter is the case, then slavery isn’t legal in the southern states. But assuming you meant that it exists in the southern states notwithstanding the constitution, then your two proposed options make no sense.

              You should run away. What’s the dilemma?

              1. Can’t find “Real America” on a map.

  22. I think perhaps the earlier compelled-speech cases might have come out the other way if only the speech was more politically correct.

    Instead of the traditional Pledge of Allegiance, which schoolchildren *can’t* be required to say, establish an alternative pledge: “I pledge allegiance to the flag of the United States of America, and to the LGBTQ+ rights for which it stands.”

    And instead of “Live Free or Die,” the license-plate motto which drivers *can’t* be forced to display, substitute a motto like “Trans Women are Women.”

    1. How about we chip in and buy you a personalized license plate? Do they allow six letters or seven in your state?
      Never mind, “BUTTHEAD” is too many either way.

  23. Has anyone made a 13th amendment challenge to applying public accommodations laws to service businesses?

    1. The Heart of Atlanta Motel in the 1960s. Guess how well that worked?

      “We find no merit in the remainder of appellant’s contentions, including that of ‘involuntary servitude.’ As we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common-law innkeeper rule which long predated the Thirteenth Amendment. It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of ‘all the States’ prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way ‘akin to African slavery.'”

      https://www.law.cornell.edu/supremecourt/text/379/241

      Now, my understanding of the common-law innkeeper rule was that it protects peaceful travellers, who can afford lodging, from being arbitrarily ejected onto the highway at nighttime, at the mercy of the elements and highway robbers. Sort of like black travellers under Jim Crow.

      We’ve come a long way from innkeepers to “bake my cake,” but apparently we’re going to slide that slippery slope all the way to the bottom.

    2. Heart of Atlanta:

      The appellees counter […] the Thirteenth Amendment claim fails because it is entirely frivolous to say that an amendment directed to the abolition of human bondage and the removal of widespread disabilities associated with slavery places discrimination in public accommodations, beyond the reach of both federal and state law. […] We find no merit in the remainder of appellant’s contentions, including that of ‘involuntary servitude.’ As we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common-law innkeeper rule which long predated the Thirteenth Amendment. It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of ‘all the States’ prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way ‘akin to African slavery.’

      Justice Goldberg concurring:

      The motel’s argument that Title II violates the Thirteenth Amendment is so insubstantial that it requires no further discussion.

      1. Thanks. I was genuinely unaware whether or not there was actual case law on that.

        1. Hint: Lawyers in the past spent a great deal of time thinking up wild theories to press their cases, too.

  24. The case is 303 Creative LLC v. Elenis; the majority opinion is by Judge Mary Briscoe, joined by Judge Michael Murphy, with a dissent by Chief Judge Timothy Tymkovich.
    Thinking some more about this case, I’m beginning to wonder if the judge who wrote the opinion was doing it as a “false flag” operation. Now, both of the judges who voted for it are Clinton appointees, so they may just be this deranged.
    I understand that the Left is functionally insane, but this case is pretty much picture perfect to force SCOTUS to actually put up or shut up on religious freedom.
    Let’s sum up the case:

    303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will. Appellants do not yet offer wedding-related services but intend to do so in the future. Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages. Appellants’ objection is based on the message of the specific website; Appellants will not create a website celebrating same-sex marriage regardless of whether the customer is the same-sex couple themselves, a heterosexual friend of the couple, or even a disinterested wedding planner requesting a mock-up.
    Appellants brought a pre-enforcement challenge to CADA in the United States District Court for the District of Colorado.

    So, this is a case where a web designer wants to be guaranteed that the Colorado Board of Religious Indoctrination Colorado Civil Rights Division couldn’t go after her and try to force her to make web pages celebrating same sex “marriages”.
    Findings of the majority:

    • Reviewing the issue de novo, we conclude that Appellants have shown an injury in fact. Appellants have sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to CADA liability, and a credible threat that Colorado will prosecute them under that statute.
    • We do not decide whether Appellants’ (or any other businesses’) conscience- or message-based objections are a defense against CADA; we only hold that such objections are at least “arguably . . . proscribed by [the] statute.” SBA List, 573 U.S. at 162 (quoting Babbitt, 442 U.S. at 298) (alterations in original).
    • According to Colorado, Appellants’ fear of prosecution is not credible because it requires the court to speculate about the actions of Appellants’ would-be customers. We disagree. Appellants have a credible fear of prosecution because Appellants’ liability under CADA and Colorado’s enforcement of CADA are both “sufficiently imminent.” SBA List, 573 U.S. at 159. Appellants’ potential liability is inherent in the manner they intend to operate—excluding customers who celebrate same-sex marriages. Thus, Appellants are rightfully wary of offering wedding-related services and may challenge CADA as chilling their speech.
    • If Appellants violate CADA, it is also “sufficiently imminent” that Colorado will enforce that statute against Appellants. Indeed, Colorado’s strenuous assertion that it has a compelling interest in enforcing CADA indicates that enforcement is anything but speculative. See Colorado’s Br. at 67 (“That other website designers are willing to serve the LGBT community is of no moment”). Footnote 2 For similar reasons, Colorado’s reliance on the Supreme Court’s recent decision in California v. Texas is misplaced. 141 S. Ct. 2104 (2021). In that case, the Supreme Court found that plaintiffs lacked standing to challenge an Affordable Care Act provision that carried a penalty of $0, and thus had “no means of enforcement.” Id. at 2114. By contrast, CADA imposes a minimum penalty of $50. Colo. Rev. Stat. § 24-34-602(1)(a). Colorado provides no indication that those statutory penalties are unenforceable. Colorado’s repeated refutations of both actual and threatened enforcement are puzzling, to say the least.
    • Just as Appellants’ injury is traceable to Director Elenis and Attorney General Weiser, enjoining Director Elenis and Attorney General Weiser from enforcing CADA would redress Appellants’ fears that they may be subject to investigation, or face charges brought by the Attorney General. Accordingly, we conclude that Appellants have established Article III standing.
    • For the same reasons Appellants have established standing, we are satisfied that this case is ripe.
    • It is a “fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995); Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (recognizing the principle “that freedom of speech prohibits the government from telling people what they must say”).
    • a. Compelled Speech
      Appellants’ creation of wedding websites is pure speech. The websites Appellants intend to offer “celebrate and promote the couple’s wedding and unique love story” by combining custom text, graphics, and other media. Aplts.’ App. at 2-325 (¶¶ 81, 84). The websites consequently express approval and celebration of the couple’s marriage, which is itself often a particularly expressive event. … Appellants’ custom websites are similar to wedding videos and invitations, both of which have also been found to be speech.
    • Our analysis relies on the custom and unique nature of Appellants’ services, rather than their chosen medium.
    • Nor does a profit motive transform Appellants’ speech into “commercial conduct.” See Colorado’s Br. at 37. The First Amendment’s protections against compelled speech are “enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers.” Hurley, 515 U.S. at 574.
    • The Accommodation Clause also “compels” Appellants to create speech that celebrates same-sex marriages. Colorado asserts that the Accommodation Clause only regulates Appellants’ conduct in picking customers and does not regulate Appellants’ speech. See Colorado’s Br. at 40. Yet, this argument is foreclosed by Hurley. As with the Massachusetts public accommodations law in Hurley, CADA has the effect “of declaring the sponsors’ speech itself to be the public accommodation.” Hurley, 515 U.S. at 573. By compelling Appellants to serve customers they would otherwise refuse, Appellants are forced to create websites— and thus, speech—that they would otherwise refuse.
    • Because the Accommodation Clause compels speech in this case, it also works as a content-based restriction. … Appellants cannot create websites celebrating opposite-sex marriages, unless they also agree to serve customers who request websites celebrating same-sex marriages.
    • As the Supreme Court has repeatedly made clear, “[w]hile the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Hurley, 515 U.S. at 579; see also Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000) (“The state interests embodied in New Jersey’s public accommodations law [prohibiting expulsion of a LGBT scoutmaster] do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.”).

    So, what did they do with all these findings?

    CADA only applies here because Appellants intend to sell their unique services to the public. The question then becomes whether Colorado’s interest in ensuring access to the marketplace generally still applies with the same force to Appellants’ case specifically—i.e., “whether [Colorado] has such an interest in denying an exception to [Appellants].” Fulton, 141 S. Ct. at 1881.
    Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere. As discussed above, our analysis emphasizes the custom and unique nature of Appellants’ services. For the same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.

    In short, because the web designer will be making something by her own individual effort, with her own personal thoughts and abilities, she must put those abilities to the service of the State of Colorado’s decision that everyone must value homosexuality the way the State of Colorado does.

    I’m sure Roberts will want to come up with some way to dodge the relevant questions here. But the Appeals Court did their best to take away all his dodges (standing, etc.).
    The only cute plaintiff here is the woman who just wants to make web pages, who will be harassed and abused by CO if she tries to follow her religious beliefs.
    If the Supreme Court can’t overturn this, it’s time for a revolution.

  25. Let’s be clear what this case is about:

    No one goes to a web designer who doesn’t support same sex “marriages”, in order to get a website made for their same sex “marriage”.

    They go there to bully the web designer into giving up her own religious beliefs, and bowing down before the LGBTQ belief system, instead.

    You can not support a free society, and support this decision, or the laws that underlay it.

    1. No one was denied service. This is a pre-enforcement challenge brought by someone seeking to vindicate a right to deny service.

      1. I understand all that

        But the order from this court is that she can’t go into the business of making websites celebrating marriages, unless she agrees to celebrate same sex “marriages”.

        1. I’m not seeing where the law is requiring the designer herself to celebrate anything. The question is whether, as part of a public accommodations law and anti-discrimination law, she should be required to offer the same services to all comers or whether she can just choose a particular religion, race, or sexual orientation for her services.

          1. 1: She makes websites to celebrate marriages. if you force her to make websites for same sex “marriages”, then you’re forcing her to celebrate those “marriages”.

            2: She IS offering the same service to all comers: she will make a website celebrating normal marriages.

            Are you a wedding coordinator who happens to be gay, who’s looking for a website to celebrate the heterosexual marriage you’re coordinating?

            She’ll be happy to sell you a website

            Are you a wedding coordinator who isn’t gay, who’s looking for a website to celebrate the same sex “marriage” you’re coordinating?

            Then she won’t sell you a website. Because that type of website is not part of her business model.

            If you can’t even honestly describe the situation, you clearly have a real problem justifying your POV

            1. “1: She makes websites to celebrate marriages. if you force her to make websites for same sex “marriages”, then you’re forcing her to celebrate those “marriages”.”

              She makes websites. Websites don’t celebrate anything. People celebrate. Or they don’t celebrate. If the person who takes the fries out of the fryer when the bell dings does their job, you get wonderful, crispy hot fries. Is the worker celebrating fries if you make them take the fries out of the frier?

              “If you can’t even honestly describe the situation, you clearly have a real problem justifying your POV”

              This doesn’t seem to bother you. You just keep going.

        2. “But the order from this court is that she can’t go into the business of making websites celebrating marriages, unless she agrees to celebrate same sex “marriages”.”

          Fun fact: people can have legal marriages even if their (or someone else’s) religion says they can’t have a religious marriage. So, for example, a Catholic unsatisfied with their marriage may seek a legal divorce, and then go marry someone else, even though the position of the Catholic church that marriage is forever. The state may (MUST) use only the actual law in deciding exactly who is “married” and who is not “married”. Things were easier (in some ways) when all you had to do to be married was tell people you were married, and have the person you wanted to be married to ALSO tell people you were married, and they were also more complicated (in some ways) before the state decided that all marriages had to be pre-approved and registered with the state.

    2. I keep on not commenting on this part of the opinion, which pretty much gives the game away:

      And we agree with the Dissent that a diversity of faiths and religious exercise, including Appellants’, “enriches” our society. Dissent at 44. Yet, a faith that enriches society in one way might also damage society in other, particularly when that faith would exclude others from unique goods or services.

      The Left has their religion, it is a State religion, and all must bow down before it,

      Because if a State is allowed to ban beliefs that “might also damage society”, and that’s what this decision does, then there is no freedom of belief

      1. A State is allowed to ban actions that “might also damage society.” It is not allowed to ban beliefs.

        LawTalkingGuy, me, Krycheck_2, we all agree this is wrongly decided.
        But so many here want more than that, and are working hard to extend this case beyond it’s facts to an attack on civil rights protections generally.

        1. “LawTalkingGuy, me, Krycheck_2, we all agree this is wrongly decided.”

          I’ve been skimming. I’ve (finally) seen that LawTalkingGuy has said that, and I’ll take this comment as you saying that.

          Where has Krycheck_2 said that?

        2. “But so many here want more than that, and are working hard to extend this case beyond it’s facts to an attack on civil rights protections generally.”

          What I’ve seen, repeatedly, is defenders of the decision “extend this case beyond its facts” to claim that the refusal to make a website celebrating a same sex “marriage” is the same thing as refusing to do business with gay individuals (esp I’ve seen this from Krycheck_2).

          Here’s my position:
          1: This decision is entirely illegitimate

          2: If the “logic” of civil rights laws demands this decision, then all civil rights laws are entirely illegitimate

          3: Defining “protected classes of people” who get special rights is functionally equivalent to granting a title of nobility, which is a direct violation of the US Constitution.

          4: There is no such thing as a “dignity right.” No individual is entitled to “respect” from his or her fellow humans. Otherwise the Rev needs be thrown in jail for his assaults on the dignity of “clingers”, as should anyone who violates the dignity of believing Christians who hold that homosexual activity is inherently sinful, wrong, and not to be supported.

          1. Krycheck saying this case is badly decided:
            https://reason.com/volokh/2021/07/26/2-1-decision-holds-web-site-designer-may-be-required-to-design-site-for-same-sex-weddings/#comment-9013197

            1. Wrongly decided, not illegitimate. You really disagreeing with something hard doesn’t make it illegitimate.

            2. The fact that the 3 of us who think civil rights law is a good thing think this case is wrongly decided should tell you that your if is not established.

            3. That’s the intent of the 14th, and also you don’t know what a title of nobility is, as originally understood.

            4. Dignity as one of the injuries caused by discrimination, and thus reachable by the 14A, is part of the logic of Brown v. Board. Not all attacks on dignity are actionable, of course, but treating your fellow citizens as human beings is a deep part of modern 14A jurisprudence. It doesn’t reach words, though.

            1. “On the facts of this case, I’m inclined to agree that creating a Web site is sufficiently speech related that the company should probably win. But I don’t want to open the door to any claim of religious belief trumping anti-discrimination laws, because then anyone who wants to discriminate just says it’s their religion. Life is more complicated than the stark black and white positions I’m seeing on both sides.”

              Everything after the “but” says “I’m very happy with this decision”

              1. “should probably win” is dispositive, chief.

                1. No, not when it’s followed by “but I’ll be really happy if it doesn’t win”

            2. 1. Wrongly decided, not illegitimate. You really disagreeing with something hard doesn’t make it illegitimate.

              They ruled that because website design is expressive individual speech, therefore the State of Colorado has the absolute right to force you to use your speech to advance their agenda.

              While that’s wrongly decide, it’s that way because it’s an utterly illegitimate ruling

              1. Greg J, do you disagree that ensuring equal access to goods and services in the commercial marketplace is a compelling state interest?

                1. do you disagree that ensuring equal access to goods and services in the commercial marketplace is a compelling state interest?

                  Legal / constitutional issues aside, I vehemently disagree that “ensuring equal access to goods and services” is a proper function of government.

                  1. ” I vehemently disagree that “ensuring equal access to goods and services” is a proper function of government.”

                    You might want to review the preamble to the Constitution. It describes the goals of creating our constitutional government.

                2. Greg J, do you disagree that ensuring equal access to goods and services in the commercial marketplace is a compelling state interest?”

                  Since social media companies are currently aggressively censoring conservatives to great cheers from the Democrats and the Left, I do not believe that anyone on the Left actually cares about “ensuring equal access”.

                  Do I believe that it’s a “compelling state interest” when the Left values the people losing out, and not one when the Left wants people to lose out?

                  No.

                  The only legitimate “protected class” is “American citizen”. I do not believe the State has any legitimate interest in “ensuring equal access” for any group smaller than that.

                  So no, I do not believe that the CO Civil Rights Commission is acting in a legitimate way, on, probably, anything

                  1. “The only legitimate “protected class” is “American citizen”. I do not believe the State has any legitimate interest in “ensuring equal access” for any group smaller than that.”

                    You are expressly supporting denying equal access for a group smaller than “American citizens.”

            3. “3. That’s the intent of the 14th, and also you don’t know what a title of nobility is, as originally understood.”

              1: No, it isn’t, and yes, I do. A “title of nobility” is a grant that puts you above the laws that regulate the little people

              2: Section 1 of the 14th:
              All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

              It takes a rather special mind to go from “every citizen must be treated equally” to “protected classes of people get special rights, over and above normal citizens”

              Would you care to explain how you made that jump?

              1. That’s not what a title of nobility was in the 1700s. Are you a living Constitutionalist?

                You also seem to be rejecting original intent of the 14th Amendment.

                1. “You also seem to be rejecting original intent of the 14th Amendment.”

                  Really? Do tell! Exactly how have you determined that “original intent”?

                  I remind you that there were multiple Northern States that ratified the 14th, who at that time had legal segregation based on skin color, and continued to do so after they ratified the 14th. So, please, tell me what their “original intent” was, and how you determined that.

                2. “That’s not what a title of nobility was in the 1700s”

                  Feel free to offer your definition of what it was, and why you believe that definition is more accurate than mine. I’m always happy to learn

                  1. “I’m always happy to learn”

                    Based on your comment history, why exactly would anyone believe this?

                3. Oh, and you’re rather behind the times if you’re worrying about “original intent”.

                  Because we’re realize for decades that that’s an Ouija board kind of game, and not actually relevant. What’s relevant is the original public understanding of what the law / Constitution meant.

                  Especially for those of us who think it’s the “we the people” who are sovereign

                  1. You’re one of those “originalists” who favor originalism as long as it supports what you’d like to do, and otherwise, have no use for it.

            4. “4. Dignity as one of the injuries caused by discrimination, and thus reachable by the 14A, is part of the logic of Brown v. Board. Not all attacks on dignity are actionable, of course, but treating your fellow citizens as human beings is a deep part of modern 14A jurisprudence. It doesn’t reach words, though.”

              1: The majority ruled that website design is pure speech, and that the State could regulate that pure speech. So yes, it most certainly extends to “words”

              2: I agree with Bork, Brown was a crappily “reasoned” decision that got to the correct request only by the sheerest luck. Everything about it is utter bullshit, other than the reality that “separate” is so routinely “not equal” that the burden of proof is on those claiming it is “equal” in a case, rather than those claiming it’s unequal and therefore unconstitutional.

              3: None of the discrimination cases being brought (Arlene’s Flowers, Masterpiece Cakeshop, 303 Creative) are about actual “denial of service”. No one actually wants their wedding catered by someone who doesn’t want anything to do with them.

              They’re entirely about words. They’re entirely about “you can’t say that my marriage isn’t a real marriage!”

              Yes, we can

              1. 1. You keep wanting to litigate this case. Not many here think it was right, but many here take issue with your attack on civil rights generally.

                2. You and Bork, eh? Separate but equal is OK if you prove it’s actually equal? We’d still have segregated schools.

                3. If denial of service is all that matters, then you’re back to separate but equal.

                4. They’re entirely about “you can’t say that my marriage isn’t a real marriage!”
                No, providing service is an act.

                In the end, you seem to be all about separate but equal. You’re arguing for an era long gone, and rightfully consigned to the trash-heap of history. You don’t know what freedom means for anyone but white dudes.

                1. “Separate but equal is OK if you prove it’s actually equal?”

                  Since the 14th was passed by people who had legal segregation, and who didn’t get rid of their legal segregation right after passing the 14th, it’s pretty clear that the “original understanding” of the 14th allowed for “separate but equal”

                  If you want a different rule, feel free to propose a new Constitutional Amendment.

                  But don’t feel free to decide that you’re the one true possessor of The Truth, and therefore everything must make you happy

                  1. “Since the 14th was passed by people who had legal segregation, and who didn’t get rid of their legal segregation right after passing the 14th, it’s pretty clear that the “original understanding” of the 14th allowed for “separate but equal””

                    This is pretty blatant revisionism. Look up “Civil Rights Act of 1866”

                2. No Sarcastr0, the situation is that I’m not a racists or sexist pig.

                  So I don’t think people should be divided up into “white dudes” and “not white dudes”.

                  And I don’t thing that the law should be allowed to treat “white dudes” and “not white dudes” differently.

                  Since you all find it perfectly fine for “white dudes” to be discriminated against for having the wrong skin color (see “affirmative action”, university admission policies, etc), it’s very clear you’re not about “civil rights for everyone”, what you’re about is “let’s use the power of the State to bully those we don’t like.”

                  And my response to that is FOAD

                  What I am “about” is that there’s one set of rules for everyone. Equality under the law.

                  What you’re about is defining people who get more rights than the rest of us, then using the power of the State to bully the rest of us into bowing to the people you’ve anointed as our “betters”.

                  To that I say GFY

                  Whether or not civil rights laws were justified immediately after the end of Jim Crow, it’s been over 50 years since that ended. “Blacks” problems today are entirely of their own and/or the Left’s making. Claims of “systematic racism” are utter bullshit.

                  And until you’re ready to use the full power of the State and Federal governments to force every single left wing controlled company to treat right wingers, and “white dudes”, just as well as they treat the people they like, no one is entitled to getting the government to force some non-left-wing business to do business with them when they don’t want to

                  1. “What you’re about is defining people who get more rights than the rest of us, then using the power of the State to bully the rest of us into bowing to the people you’ve anointed as our “betters”.”

                    Your lack of self-awareness is tremendous. This is literally exactly what you are doing. You are asserting an authority to decide who is married and who is not.

                3. Oh, i note you’ve declined to try to provide your definition of what a “title of nobility” means. i guess that’s because you understand I’m actually right here

                4. “In the end, you seem to be all about separate but equal. You’re arguing for an era long gone, and rightfully consigned to the trash-heap of history.”

                  You mean, like having “minority resource centers”? Like having separate graduation ceremonies for “people of color”?

                  That kind of “separate but equal” segregation?

                  Yeah, it definitely belongs on the trash heap of history

                  But it’s not my side that’s pushing it

                  1. “But it’s not my side that’s pushing it”

                    No, you’re on “separate and not equal”.

          2. Doesn’t the First Amendment create a “special class of people” based on religious belief? And isn’t that the source of the lawsuit in the OP, that the designer is saying her religious beliefs exempt her from the anti-discrimination and public accommodation laws?

            1. Nope. The First Amendment protects all religious beliefs equally, including non-belief.

              The designer is correctly saying that the “anti-discrimination and public accommodation laws” are an assault on her first amendment rights to freedom of speech (not being forced to carry someone else’s message) as well as freedom of religion (you can’t force her to give up her religious beliefs just because you don’t like them).

              There’s no reason why the freedom of religion even needs to be invoked here, because I should have a freedom of speech right not to have the government hijack my speech, no matter what “compelling interest” they claim.

              That’s what “shall make no law” means.

              1. So you disagree with strict scrutiny analysis?

                1. Depends on what you mean by that question.

                  In general, I believe that when “judges” write about a “compelling government interest”, what they’re actually judging is how “compelling” that interest is to them, and how much they like or dislike the right being harmed by the “compelling government interest”. As demonstrated by this decision.

                  So my opinion on the subject is that our Constitutional rights are stated in the written US Constitution, that they should be understood based on the public understanding at the time that particular text was ratified, that all legitimate “updating” of the Constitution to conform to societal norms comes by way of Constitutional Amendments (not judicial rulings), and that if an explicitly declared right gets in the way of you running the gov’t the way you think it should be run, that’s just too damn bad for you.

                  That answer your question?

                  1. No. It dodges the question.

                    1. Then rephrase your question

                      Because it’s too open ended

                  2. “That answer your question?”

                    It does if the question was “how ignorant is that Greg fellow?”

              2. “Nope. The First Amendment protects all religious beliefs equally, including non-belief.”

                You’re focused on the wrong amendment. The first says absolutely nothing about what Colorado may do.

      2. Oh please, let’s hear your opinions on the impact of Islam in society?

      3. JFC, you ALSO can’t sacrifice children to Moloch, or throw them in the volcano for Pele, or cut people’s hearts out for Quetzalcoatl. Religious freedom is dead!

    3. “No one goes to a web designer who doesn’t support same sex “marriages”, in order to get a website made for their same sex “marriage”.
      They go there to bully the web designer into giving up her own religious beliefs, and bowing down before the LGBTQ belief system, instead.”

      How does doing one’s chosen field of work require one to give up their religious beliefs?

      1. If one’s religious beliefs preclude creating websites for other peoples’ marriages, then perhaps operating a business wherein one puports to create websites for people’s marriages is not an ideal business opportunity. In much the same way that if one’s religious beliefs preclude eating pork products, then perhaps operating a BBQ restaurant is unwise.

    4. ” this case is pretty much picture perfect to force SCOTUS to actually put up or shut up on religious freedom.”

      Or would be, if there were any religious freedom issues in this case.

  26. How is forcing a web designer to include speech that they choose not too different from a website (social media) choosing to exclude speech they disagree with? Seems like just opposite sides of the same question – With – in the current environment – one being acceptable and one not based on the viewpoints involved.

    1. No, it’s 10 times worse than what our dear friends on the Left are defending WRT Twitter / FB / etc.

      Because no one’s try to force social media companies to actively support the Right, just to not censor it.

      But you can’t expect our dear friends on the Left to have principles.

      1. You seem to be splitting hairs pretty hardon what counts as support, and what doesn’t.

        1. *ahem* I’d edit that if I could!

          1. Nah, even if you could, you shouldn’t.

            1. Shocker! Vinni’s a fan of the hardons.

              1. Yeah, you need to be able to get it up to use it.

                I don’t expect you to understand.

                1. No, I can’t begin to understand your yearning for the hardons.

                  I am heterosexual.

        2. splitting hairs

          Single celled organisms versus humans.
          Mountains versus mole hills.
          Right versus left.
          Up versus down.

          Sarcastr0: You seem to be splitting hairs.

          1. Putting a thing on your platform: not support.
            Providing a thing for someone’s website: support.

            I don’t see the distinguishing logic.

            1. Creating a half-decent web site involves a huge amount more attention to the message, and conscious effort to coordinate the content, than simply providing a place for people to post messages. As the decision indicates, this is about compelled speech by the website designer. Social media platforms are obviously not the speakers or creators of the content they convey, much as phone companies are not the speakers or creators of phone calls.

              1. “Creating a half-decent web site involves a huge amount more attention to the message, and conscious effort to coordinate the content”

                Creating a half-decent website involves a great deal of work and tiny amount of talent.

                ” this is about compelled speech by the website designer.”
                The exact nature of the compelled speech by the website designer is “here is a site by, for, and about these people who are not me” The designer is presumably free to attach a pseudonym for the “designed by” credit, the way Hollywood directors can do when the studio interferes with what they actually wanted the movie to be/say. Surely the various anti-gay folks can come up with an “Alan Smithee”-type name that effectively says “this is not something I would have done willingly.” That way, the other anti-gays will know not to blame the poor fellow for doing something that “supports the gays”.

            2. “Putting a thing on your platform: not support.
              Providing a thing for someone’s website: support.
              I don’t see the distinguishing logic.”

              That’s because you’re comparing to website hosting (which is not the issue here), rather than to website design (which IS the issue here).

              Seriously? you don’t know what “website design” is?

              1. ‘Providing a thing for someone’s website’ is web design.

                1. You are correct, somehow I misread what you wrote.

                  So, addressing what you wrote:
                  “Putting a thing on your platform: not support”
                  In PruneYard SCOTUS ruled that businesses do not have a constitutional right to exclude from their publicly accessible property speakers with viewpoints the owner doesn’t like.

                  Whether or not that’s a good ruling, the Left has been enjoying that ruling for decades. So no, you don’t get to nuke it now that it hurts you.

                  “Providing a thing for someone’s website: support.”

                  Not a valid description. Valid description: being forced to write words you disagree with for someone else to display.

                  And yes, I proudly state that I find that demand inexcusable and unjustifiable.

                  1. ” I proudly state that I find that demand inexcusable and unjustifiable.”

                    Which is YOUR problem to resolve.

          2. “Single celled organisms versus humans.”

            To some of the anti-abortion crowd, some single-celled organisms ARE humans.

        3. Let’s use Twitter as an example:

          Forcing Twitter not to censor users based on their political beliefs is not a violation of Twitters owner’s rights

          Forcing Twitter to highlight conservative speech WOULD be a violation of Twitters owner’s rights

          But, that’s because that highlighting is Twitters owner’s speech. As such, they should be sue-able / have no Section 230 protection, for anything that they chose to highlight.

          Allowing customers to force a website designer to include graphics or words that the designer objects to, is a violation of that designer’s rights

          If a website designer creates a site for you that purportedly celebrates an opposite sex marriage, and the contract you signed with the designers grants the copyright for that site and its elements to the designer, then you can not change the site to celebrate your same sex “marriage”, and the State must support that designer’s copyright just the same as it supports any other person’s copyright.

          I’d say those hairs are very thick, and easily split

          1. “Forcing Twitter not to censor users based on their political beliefs is not a violation of Twitters owner’s rights”

            You have a different understanding of “ownership” than most people, you Commie. When the government can tell you what to do (or not do) with your property, that sure as hell IS a violation of the owner’s rights.

            1. This from the guy who’s desperate for teh government to tell ms Smith what she has to do with her property AND with her mind

              1. The Commie keeps going!

              2. “This from the guy who’s desperate for teh government to tell ms Smith what she has to do with her property AND with her mind”

                More accurately, I’m the guy who says that teh government CAN do this. And anybody who objects is free to not be subject to that government’s jurisdiction. There are other states which choose not to include sexual orientation in their antidiscrimination law.

    2. Perhaps the distinction is the web designer has to create speech they disagree with while the social media platform just as host speech created by someone else. The analysis might be different if the website refused to offer do-it-yourself website creation for a same-sex wedding.

      1. Since one seems to be “allowed” to exclude speech one disagrees with if one is just hosting content…..does this mean that if one requires using their firm for hosting if they also created the content that they could then legally refuse the contract for design (on the basis that they would be unwilling to host it). That makes absolutely no sense. It actually seems even worse

        1. Refusing to design a website is likely protected by the First Amendment whether or not the creator requires that they host what they create. So, I don’t follow what you think doesn’t make sense.

          1. I think the Judges ruled that refusal to design the website is NOT protected ie the web designer was told he had to design the website

            1. You’re confused. Designing a website does invoke the first amendment, but not necessarily enough to prevail.

              1. Sometimes you have rights, but other people have more or better rights, the usual example is that your right to swing your arms however you want fails when your arm contacts someone else’s nose. It’s not that you don’ t still have the right to move your arms as you want, it’s that someone else’s right not to be smacked in the nose is a right that they have, and when these rights come into conflict, yours is the lesser right.

    3. Generally, a designer just designs a page but doesn’t own the website it is hosted on. So the difference between Twitter banning the Orange Maniac and this case is that Twitter owns the means of publication and the web designer does not. Twitter isn’t discriminating against the Donald the Menace because of any legally protected category; they’re doing it because he’s acting like a dick. Whereas, the web designer is discriminating against the potential customer because they are homosexual, which is against the law in that state.

      1. Wrong

        1: The web designer is saying “I don’t want to do these jobs”. The Court is saying “you’re not allowed to decide what job you will do.”

        2: You’ve got that entirely reversed. The difference between the two is that Twitter owns a site where people congregate and engage in their own speech (like the PruneYard), whereas the work of the web designer is clearly her speech.

        The former is not entitled to protect from rules forcing them to let others speak, whereas the latter does have a recognized constitutional right to control her own speech.

        BTW, what happened to “[IANAL. I don’t agree with this decision. I used to build web apps for a living. I’m gay. I’m liberal.]”?

        1. “1: The web designer is saying ‘I don’t want to do these jobs’. The Court is saying…”
          The court is saying “if you didn’t want to do this type of work, then the business you created to do this type of work was YOUR mistake.”

          Note that if she really, REALLY doesn’t want to do this type of work, she has the choice of closing down the business, and moving out of Colorado. Once she’s in Alabama or South Carolina, there’s literally nobody to tell her she has to serve the gay folks.

    4. “How is forcing a web designer to include speech that they choose not too different from a website (social media) choosing to exclude speech they disagree with?”

      Well, in one case you’re talking about the owner of something, and in the other you’re talking about an employee.

  27. I’d like to know more about what the web site design entails. Specifically, does it include providing content that expresses support for SSM?

    Suppose, hypothetically, what the designers provide is essentially a blank layout, with most content provided by the couple. Or maybe the designer provides stuff like a schedule, directions to the ceremony, etc, while the couple themselves provide photographs, biographical information, expressions of love, whatever.

    Where is the expressive conduct?

    1. To me that makes a big difference based on existing precedent. If it is basically a mad-libs style template where the “designer” just fills in the blanks on a stock layout, that weighs on the side as not the artistry of the “designer” and is insufficient to implicate the first amendment rights of the “designer.” On the other hand, if the “designer” is also creating the layout unique to each customer then that changes my thinking. However, there is more to the equation as well. It may be a stock template, but if the “designer” is styling up the work provided for by the couple (or whomever is coordinating website design for the couple) rather than just inserting a file created by someone else it could still be a stock template and still have first amendment implications. If you provide the canvas, but someone else does all of the art, you can’t raise a claim that you do not want to support how the canvas is used. I personally am very rigid that any customization whatsoever of the canvas on the part of the person providing the canvas is enough that we have to consider if the law survives strict scruitny. As I posted earlier, I am skeptical that a general accomodations law would survive for website design even if it may in other contexts.

    2. “I’d like to know more about what the web site design entails. Specifically, does it include providing content that expresses support for SSM?”

      The short answer to your question is “no”. The longer answer to your question is also “no” but with more reasons. Building a website is a lot like building an apartment building… you take pieces that you get from someone else and put them together into a functional whole. It requires specialized knowledge and some understanding of the fundamental engineering.

      “Suppose, hypothetically, what the designers provide is essentially a blank layout, with most content provided by the couple.”
      That’s not a hypothetical. That’s how it works.

      “Where is the expressive conduct?”
      The designer does things like define how the control works. Like, say, when the mouse moves over this image, the image changes to this other image, and then when someone clicks on the new image a new page loads. These controls are actually programmed by people who do programming for a living, and then the developer selects which elements to include in the web page design. There’s also a bit of expressive conduct in deciding that the text should be here, and then it should wrap around an image that goes here, and then a banner runs across the bottom with navigation tips. It’s expressive enough to copyright, but just barely.

      1. You are completely and entirely wrong.

        I take it you didn’t bother to read ANY of the opinion. So here, let me help you:

        Consistent with Ms. Smith’s religious beliefs, Appellants intend to offer wedding websites that celebrate opposite-sex marriages but intend to refuse to create similar websites that celebrate same-sex marriages.

        She will create a website, the website will says something like “Joyously designed by 303 Creative”, it will use 303 Creative’s design elements for which they have copyright.

        Which means the website will consist of design elements that identify the website as made by 303 Creative (since they show up on all their designs), plus design elements that were specifically created to celebrate that particular wedding.

        If this were not the case, then the website designer would not be providing a unique service that could only be obtained by doing business with her, and the Appeals Court decision would entirely fall apart.

        Is it really that hard to read the decision before you defend it?

        1. As a former web app developer: “303 Creative” could, you know, just choose not to place their advertisement on the page they create for the homosexual couple. The unique service has absolutely zero to do with the designer’s logo. Signing or not signing the work has no impact on any creativity involved or the uniqueness of the final product.

          1. 1: It’s still going to contain her design elements, most likely recognizable by anyone who’s bought a website from her, or seen her work.

            2: That would mean she’s not giving her gay customer her “full services”, which means she gets hauled before the Commission anyway.

            3: At what point do you stop trying to design the website for her, and just go get a different designer.

            So no, that’s not a valid solution

            1. “1: It’s still going to contain her design elements, most likely recognizable by anyone who’s bought a website from her, or seen her work.”

              You know as much about web design as you know about law. Which is to say, nothing at all in either case.

        2. “You are completely and entirely wrong.”

          coming from you, this firmly establishes that I am correct.

        3. “Which means the website will consist of design elements that identify the website as made by 303 Creative”

          Whose fault is that?

    3. Website design is pretty much the exact same thing as opening your favorite Adobe or other design software (for print, film, or screen) and creating a page with graphics, text, images, video, and music. It’s 100% creative and expressive in my opinion. If it was a pre-created template, you wouldn’t need a designer to use it. This isn’t at all like ordering a plain cake with pink and blue coloring; this requires creative, editorial judgment. Honestly, with today’s tools, it’s more “graphic designer” or “publisher” than anything else.

      And while it’s probably not germane here, it’s also a service you can get from anyone, anywhere in the world that provides this service. It isn’t location dependent like baked goods tend to be. A web designer in California or London could easily have accommodated this request. And if you have internet access to view the result, you have the access required to hire the designer halfway around the world.

      [IANAL. I don’t agree with this decision. I used to build web apps for a living. I’m gay. I’m liberal.]

      1. It’s work-for-hire, which means directed by someone else. In my younger days, I did print design, and the customer always had the authority to say “nope. start over.”

  28. I’m a little stunned by the logic here.

    So, the judges agreed…it’s compelled speech. That’s bad.

    But then they argued the website designer was an effective monopoly, because his product was unique. So, it was OK to overrule him, because services weren’t available elsewhere.

    Let’s really think about this….a one-person website design shop was a “monopoly”? Really? There’s no where else you could go to get services, because you’ve so narrowly defined the market (to the specific services of a single individual), that you’ve effectively eliminated monopoly law entirely. According to this, every single artist, creator, writer, publisher, etc….are their own individual monopolies.

    1. According to this decision, the US government can go to any provider of “creative” services, and demand a message from them that may violate their beliefs. And then use “monopoly” law to justify forcing them to do it, because “there is no other “unique” source like them which can do it.”

      1. Correct.

        And, just for fun, they ruled that “a faith that enriches society in one way might also damage society in other”, and that when that “damage” is something the Left doesn’t like, the State has the inherent power to forbid a member of that faith to follow her faith

      2. No, because 1) no statute was violated when the provider refused to provide service in your hypothetical and 2) denying the government access to the common marketplace likely isn’t a compelling state interest.

        1. Oh contraire…

          If there is only one supplier for an item the government needs, then it will be defined a compelling state interest. Refusal to deal with the government will be overruled.

          By defining an artist as a monopoly, they represent the entire market. By having an artist refuse to deal with the government, it is running afoul of antitrust laws, which will be illegal.

          1. The fact that an item may only come from one supplier isn’t the only reason the court held the state had a compelling interest. Additionally, the court held the interest derived from eliminating discrimination in access to the marketplace for named protected classifications that have experienced discrimination. I find it hard to believe that adding the protected classification of private-or-government customer is going to be accepted compelling, as if one or the other has suffered discrimination.

            The court did not hold that an artist is a monopoly in the sense of antitrust laws. They merely held that the artist may be the best in the marketplace, and thus denying access to her puts those denied at a disadvantage.

            1. A website designer is less like an artist and more like a building contractor.

              1. No, a website designer is a sign creator. Buildings don’t necessarily carry messages, websites and signs do.

                This is equivalent to ordering a sign maker to make any sign a potential customer wants, no matter how offensive that sign is to the creator.

                Oh, and the sign maker has to write “happily made by [their name]” on the sign

                1. “This is equivalent to ordering a sign maker to make any sign a potential customer wants, no matter how offensive that sign is to the creator.”

                  OK, and? One more time… if making signs offends you, then maybe opening a sign-making shop was not a wise choice.

                  “Oh, and the sign maker has to write “happily made by [their name]” on the sign”

                  You’re sticking with this bullshit, then? Why doesn’t the signmaker leave his or her name off the sign if they don’t want to be associated with the sign’s message?

            2. “The court did not hold that an artist is a monopoly in the sense of antitrust laws. They merely held that the artist may be the best in the marketplace, and thus denying access to her puts those denied at a disadvantage.”

              That’s not what the court said. Here’s what they said.

              “This case does not present a competitive market. Rather, due to the
              unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist. And, as amici apparently agree, monopolies present unique anti-discrimination concerns. See Br. of Law and Economics Scholars at 9 (“The only exception to this principle is a monopoly situation, in which consumers are faced with a sole supplier who could decide for all sorts of reasons, including invidious motives, to refuse to deal with a group of potential consumers.”

              Again, it’s redefining individual artists as a “Monopoly of one”.

              1. I have little doubt that this definition of “monopoly” (“of the same quality and nature”) does not apply to antitrust laws. For if it did, then every business everywhere is a monopoly for antitrust purposes.

                1. ” then every business everywhere is a monopoly ”

                  You start to see the problems and errors in the logic of the decision.

                  Now, I get it. You’d like there to be two “different” types of monopolies. One which applied to discrimination, and one which applied to antitrust. But that doesn’t make any sense at all, logically.

                  You have one type of “monopoly” which is, to use your words, “every business everywhere”. And a completely DIFFERENT type of monopoly, which uses the old antitrust rules? But you’re using the definition of the second type to reinforce the decision that ended up giving you the first type?

                  1. The court held there are two different types of monopolies. I wasn’t persuaded by the argument, but I don’t find it illogical because in English the same word can have different meanings in different applications.

                  2. “You’d like there to be two “different” types of monopolies. One which applied to discrimination, and one which applied to antitrust. But that doesn’t make any sense at all, logically.”

                    There’s two different types of monopolies in antitrust alone. Note that it isn’t a violation of antitrust to have a monopoly. It’s a violation of antitrust to use anticompetitive business practices to maintain a monopoly, however.

              2. “Again, it’s redefining individual artists as a ‘Monopoly of one’.”

                Not even, the opinion says it’s similar to a monopoly. In which edition of Black’s is “similar” defined as “exactly the same as”?

          2. “If there is only one supplier for an item the government needs, then it will be defined a compelling state interest. Refusal to deal with the government will be overruled.”

            This is why the government can buy F-15s for $10 each.

          3. “Oh contraire…”

            LANGUAGE PEDANT MODE

            You mean “Au contraire”

            This concludes the language pedant presentation.
            You may now move about the cabin.

  29. A less restrictive law could say, “You must either do the website _or_ find a sub-contractor to do the work”. Handling sub-contracting logistics is not an expressive activity. Then no customer is turned away, and no one is compelled to create speech they oppose.

    1. Unfortunately that does not resolve the issue. Take a look at the ACA cases on filling out a form in lieu of providing contraceptive coverage.

      1. Does “pull your head out of your ass and build the website, ya crank!” resolve the question adequately?

    2. Nope.

      I don’t owe you my mind. If you want a message that I don’t want to give, you have to go someplace else.

      Because my right to control my speech is as or more important than any right you have

      1. “I don’t owe you my mind.”

        If you had one.

        1. Wait, I can do better.

          1. “I don’t owe you my mind.”

            Good thing, because you have nothing to pay that debt with.

  30. “There’s also a religious freedom issue present as well”

    Which commandment is the “thou shalt not create websites for same-sex marriages” one? I can’t seem to find it.

    1. Gosh, as as you are the sole authority on every single person’s allowed religious beliefs, I guess that ends it!

      Thank you, one true omniscient and omnipotent being, for gracing us with your presence here to explain all the mysteries of the Universe!

      (Is the sarcasm clear here? This is, after all, the internet).

      Once you put aside your Godhead, you might try reading RFRA, passed by strong Democrat majorities in both Houses of Congress, and signed into law by Democrat President Clinton.

      See, the Members of Congress who wrote the law, not being quite as convinced of their personal Godhood as you are of yours, wrote the law to defend people’s “sincerely held beliefs”, and very explicitly denied the government the power to say “your belief makes no sense to us, therefore it’s not valid”.

      So the fact that your beliefs are not the same as their “sincerely held beliefs” is entirely irrelevant.

      1. “Gosh, as as you are the sole authority on every single person’s allowed religious beliefs, I guess that ends it!”

        Gosh. I owe you an apology! I had no idea you can’t read.

      2. “Gosh, as as you are the sole authority on every single person’s allowed religious beliefs, I guess that ends it!”

        You claimed upthread not to have one.

    2. Lifnei Iver.

      1. I don’t think that one’s quite on point.

  31. It seems to me, if there is no deprivation of services, then it’s probably about speech.

    Where a customer is able to get the product or service they want with virtually no inconvenience, and there is no widespread societal pattern of discrimination, what is the point of anti-discrimination law? It is simply to express certain societal values and punish those who act or speak contrary to those values.

    In Masterpiece Cakeshop, for example, assume there’s no issue with getting a cake. What’s the harm? It is dignitary harm. That harm may be real. But the very nature of the harm, which amounts to taking offense, is that it is caused by the expression of offensive viewpoints.

    But the foregoing is just one opinion and approach. The reality is, there is a vast range of possible policies with respect to anti-discrimination law and free speech/association in all of their details. Moreover, numerous such possibilities are well within the bounds of reasonableness, and even within the bounds of reasonably respectful of free speech. It is regrettable, then, that we must insist on a one-size-fits-all policy handed down by a few judges, which must be imposed on 330 million people in 50 different states. People are diverse in their preferences and opinions, and they ought to be able to have a decentralized self-government in which they can enact those preferences in their jurisdictions, while being tolerant of other jurisdictions. This would bring great peace and liberty, and goes to the fundamental problem with American politics and government today.

    1. “It seems to me, if there is no deprivation of services, then it’s probably about speech.”

      So we agree that this isn’t a case of speech, then?

      1. What I mean here is that nobody is being deprived of services, since there are thousands and maybe even millions of suppliers standing ready, willing, and able to provide the service.

        1. Nobody is being deprived of services, because the service-provider is required to provide the services.

      2. What a shame, that the majority decision says “Appellants’ creation of wedding websites is pure speech”.

        I guess this means you’re not writing about this case, but just wanking off about some case that only exists in your mind

        1. Stop fantasizing about other people wanking.

  32. Lots of talk about freedom in the preceeding 100+ comments.
    Swell.
    Your religion says being gay is wrong and bad? Fine, so you either shouldn’t be gay or shouldn’t be a member of that religion. You may choose freely from either option, or both.
    You think people shouldn’t join same-sex marriages? Fine, so don’t get married to a person of the same sex as you.
    Now here’s the big one… you think God doesn’t want any people to enter into same-sex marriages? OK, you might even be right about that (only God knows for sure, and if He had a strong opinion on the subject, he could have done one of those “pillar of smoke in the daylight, pillar of fire at night” things, or, since we’re really talking about California here, he could have done his talking with a wildfire that burned but did not consume anything. He has chosen to keep his own counsel on the subject. Different relgious groups have made determinations on the subject, not always to unanimous acclaim amongst the flock(s). Not my business. The state, however, needs a compelling purpose before it can say “here is a benefit for this group of people over here, but not for this group of people over there.” and “but people being gay gives me a really icky feeling in my tum-tum” is not really a compelling purpose. If thinking about people having gay sex makes you uncomfortable, stop thinking about it until the feeling goes away. If the gay people wanted to go down to the courthouse and have gay sex all over the place, that wouldn’t be cool, but what they actually are doing is going down to pay the fee for a marriage license, and then going back to turn in the paperwork. If that bothers you, GET OVER IT! There are plenty of people who shouldn’t be married in my opinion, yet at no time do I expect to have veto authority over anyone’s marriage for reasons other than incapacity, consanguinity, or being already married to some other person, all of which have both legal and logical precedent.

    1. ” You think people shouldn’t join same-sex marriages? Fine, so don’t get married to a person of the same sex as you.”

      Wrong.

      The answer is “fine, then we won’t try to involve you in any way in our same sex ‘marriages'”.

      No other position has even the slightest shred of legitimacy. because once you try to force people to participate, in any way, in a same sex “marriage”, then you’ve left the land of freedom and individual dignity, and entered the land of “you will bow down to my beliefs and discard your own.”

      To which the only proper answer is FOAD a$$hole

      1. “‘You think people shouldn’t join same-sex marriages? Fine, so don’t get married to a person of the same sex as you.’

        Wrong.

        OK, go ahead and get married to a person who IS the same sex as you.

        1. In a same-sex marriage or not in a same-sex marriage, either way not my business, is the point.

      2. ” the only proper answer is FOAD a$$hole”

        As you wish.

        FOAD a$$hole

    2. The state, however, needs a compelling purpose before it can say “here is a benefit for this group of people over here, but not for this group of people over there.”

      If people are wondering why other people are bringing up “slavery” here, posts like James’ are the reason why.

      James: my work is not a government provided “benefit”. it is my work.

      As a free, non slave, individual, I am the sole proper determiner of what work I will accept money to do.

      Not you. Not the government. Me.

      If it hurts your feelings that I don’t want to provide you with the service you want, that’s just too bad for you. it hurts my feelings that you want me to provide that service.

      If my feelings don’t matter, then neither do yours. If your feelings matter, so do mine.

      My work, my business, my mind, my body, my life, my choice.

      Not yours

      1. Wow glad you read through the word salad. You’re right. Its your work not the governments

        For example a white supremacist group asking a black web designer to design their page. Of course, it would never ever happen because these laws are only enforced in one direction but the warped logic of some thinks they should be forced.

        They won’t since double standards political agendas and hypocrisy abound in our justice system.

        1. It is true that you never see “a white supremacist group asking a black web designer to design their page.”

          Mostly because they are idiots, but also because they lack the deep pockets and activist lawyers needed to follow through with a suit if/when they are denied services.

          While I’d never pretend to be a white supremacist in order to approach a black person seeking services, because that would be offensive – after all they are all human beings deserving of common decency.

          Activist lawyers, on the other hand, those scum deserve it.

          1. Didn’t you see “Black Klansman?”

        2. “Wow glad you read through the word salad. You’re right. Its your work not the governments”

          Point to where I said anything about his work.

          Hint: keep looking, it’s just got to be in there somewhere!

          1. Stupid, or just dishonest?

            “You work” and “my work” here refer to the work of anyone who’s being forced by you scum bags to do work which that person has not freely agreed to do.

            1. “Stupid, or just dishonest?”

              You’re both!

              The text you object to is not even vaguely about “work”, yours or anybody else’s. It’s about the state recognizing marriages that you strongly wish they did not.

      2. We’re back to “sorry, I didn’t realize you can’t read” again.

        1. You mean, we’re back to “oh, my position is completely full of sh!t, and any answer I gave to this would reveal that”.

          1. We can agree that your position is completely full of shit. I didn’t think you were going to budge on that one, but I accept your apology.

      3. “James: my work is not a government provided “benefit”. it is my work.”

        Did someone tell you otherwise? If so, you should direct your complaint to that person instead of me.

        “If it hurts your feelings that I don’t want to provide you with the service you want, that’s just too bad for you.”

        As if you had some kind of useful service to offer.

  33. While I’m totally good with same sex weddings (or whatever variations any 2 or more people can come up with for that matter), got to say I don’t like the bullying here. Nor do I imagine they will do a very good job implementing the web page if coerced. A buggy (or at best unaesthetic) web page would presumably be the result, returning amusing and exciting http error codes like 451 (unavailable for legal reasons) or 501 (not implemented). I can’t see that trying to force work out of people who don’t want to do creative jobs for me would end well for anyone.

    1. It’s not about forcing work out of them

      It’s about forcing them to bow down and publicly abandon their beliefs

      1. This. Courts are ostensibly staffed by actual human beings. Well paid ones too. Surely they, at various times in their lives, have availed themselves of the services of all manner of skilled craftsmen or technicians. Choice of which was doubtless often made with careful consider of just exactly who would be trusted to enter into their lives/homes to properly complete the work. Especially so if the work was likely to entail or mature into a longstanding working relationship. It is doubtful that they would choose to work with such persons who they knew held beliefs or positions that could compromise the work.

        So when a plaintiff shows up insisting that a particular service must be provided by a particular business it does seem entirely reasonable for the court to at least question the true motives of the plaintiffs, and the true purpose of the suit, especially when other providers are available.

        That courts often do not tells me that they are not impartial arbiters, but instead are in on the game.

      2. “It’s about forcing them to bow down and publicly abandon their beliefs”

        It is, indeed, about forcing people to abandon the belief that they are above the law.

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  35. Forcing folks to do stuff is never a good idea. You would think the antithesis of libertarianism.

    But no it’s somewhat popular here. Let me fix it for you. It’s becoming popular amongst some to have “black only” this and that like graduation ceremonies, student unions, even private businesses charging white people more as some sort of reparation.

    You anti-liberty folks are of course not hypocrites right? Those folks should be forced to not discriminate right?

    1. Where are you seeing these “black-only” things? They don’t even have “black-only” historically-black colleges and universities any more.

  36. Here’s a crazy idea: How about it we all just assume that other peoples’ marriages are none of our business, unless that other person happens to be married to us at the time?

    Some people spend WAY too much time thinking about other peoples’ sex lives.

    1. ” How about it we all just assume that other peoples’ marriages are none of our business”

      That sounds like a great idea! In fact, that’s Ms Smith’s idea: same sex “marriages” are none of her business, and her business therefore won’t have anything to do with them.

      Here’s the deal: I don’t get a vote abotu any of your actions, where your action does not impose any costs or requirements on me

      I do get a vote on anything that DOES impose costs or requirements on me

      So, you stop trying to force us to participate in your “marriage”, and we won’t care about who you “marry”

      1. That’s a big fail on your part. Come back when you understand English.

        1. Tell you what.. when the gays try to get a law passed that says you have to get a same-sex marriage, then, in that case, I’ll be on your side.

          Until then, I can’t support your bigotry, hatred, and stupidity (not necessarily in that order, but probably)

          1. You are a complete and utter ass.

            Gays are trying to get the government to force people to participate in same-sex “marriages”.

            That’s what this whole thread is about, dumb sh!t: totalitarian a$$holes like you demanding that believing Christians be forced to be part of a same sex “wedding”.

            you cause the problem you get the hostility

            If you were such horrible anti-Christian bigots, you wouldn’t be doing this. So take your bigotry and FOAD

            1. If you weren’t such horrible anti-Christian bigots, you wouldn’t be doing this. So take your bigotry and FOAD

              1. “If you weren’t such horrible anti-Christian bigots, you wouldn’t be doing this. So take your bigotry and FOAD”

                Your real problem is shown to be that you’re offended by beliefs that aren’t what other people actually express to you, you’re offended by the ones you imagine they have. Get over that.

            2. “Gays are trying to get the government to force people to participate in same-sex “marriages”.”

              They are? When is yours scheduled?

              “you cause the problem you get the hostility”

              You seem to be incapable of applying this rule correctly.

              The problem being exhibited here is yours. All you. But you don’t want to own it, despite being the source, 100%.

              “If you were such horrible anti-Christian bigots, you wouldn’t be doing this. ”

              Why should you care? You claim to not be a Christian, remember?

    2. Right here is where you encapsulate why you’re getting such hostility on this.

      Because you and your fellow freaks are demanding that you make it our business.

      Homosexuality is not normal. Homosexuals are not normal people. If you can’t handle that reality, that’s your problem.

      Stop trying to make it ours.

      You want to have a “wedding”? Great! Knock yourself out with any consenting adult who wants to be part of your event.

      But leave the rest of us alone

  37. “Right here is where you encapsulate why you’re getting such hostility on this.”

    Because you are an asshole?
    But that’s not MY problem.

    “Homosexuality is not normal. Homosexuals are not normal people. If you can’t handle that reality, that’s your problem.”

    What it is is not my business. So that’s not MY problem, either.

    Seems like YOU’RE the one with the problem. How many words have you generated so far, whining about it?

    1. And how oppressive are all those gay people, continuing being gay even though it bothers you SO damn much!

      1. I mean, you know they’re all choosing to be gay just to piss you off, right?

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