Justice Alito Asks Questions in 303 Creative from Jewish Coalition for Religious Liberty Amicus Brief

Justice Kagan confirms that J-Date is in fact a Jewish dating site.

Today the Supreme Court heard oral argument in 303 Creative v. Elenis. I was pleased that Justice Alito found useful the amicus brief filed by the Jewish Coalition for Religious Liberty. Around the 1:07:02 mark, he referenced our brief, and posed a few hypothetical questions that we raised.

Here is the audio:

JUSTICE ALITO: Let me ask you a -a --and then I'll finish this line. Some hypotheticals in a brief submitted by Josh Blackman, okay? A --a Jewish man and a Jewish woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their upcoming --their nuptials. No problem. Okay? Another Jewish man and a Christian woman who are engaged to be married ask a Jewish website designer to build a website to celebrate their --their nuptials. Big problem. "Many Jews consider intermarriage an existential threat to the future of Judaism." Does that website have to accept the second couple?

MR. OLSON: Again, as we talked about before, if the Jewish website designer has, you know, very explicitly Jewish themes on the -the wedding, they don't need to --on the website, they don't need to take that down for the --the --the interreligious couple that comes. But they --if they offer a general service to the public, they need to offer that regardless of the customer's religion.

JUSTICE ALITO: So the fact that they offer this to --that this is a Jewish --that is offered mostly to Jews, that's enough to make it --or exclusively to Jews, that's enough to make it sufficiently selective to get them out from your -

MR. OLSON: No. I'm --I'm drawing a distinction between what the website designer chooses to put on the website and who the website designer sells the website to. The website designer can choose to put on their websites whatever they want, but they just can't refuse to sell --if they're a public accommodation, they can't refuse to sell that website to someone solely because of their -the customer's or the couple's religion.

JUSTICE ALITO: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It's a dating service, I gather, for Jewish people.

JUSTICE KAGAN: It is. (Laughter.)

JUSTICE ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention. So, next, a Jewish person asks a Jewish photographer to take a photograph for his ashleymadison.com dating profile. (Laughter.)

JUSTICE ALITO: I'm not suggesting that. I mean, she knows a lot of things.

I'm not suggesting --okay. Does he have to do it?

MR. OLSON: Well, again, it would -it would --what Colorado look --it depends. What Colorado looks to is what services the photographer makes available to the public. And if --if the photographer makes that service available to --to others, taking pictures, you know, for use on websites, then probably yes, but it depends on -

JUSTICE ALITO: Okay, Justice --then I really will stop.

And here are the hypos from our brief:

Consider another hypothetical closer to the facts in 303 Creative. A Jewish man and a Jewish woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. No problem. Mazal tov! Another Jewish man and a Christian woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. Big problem. Don't stomp the glass. Many Jews consider intermarriage an existential threat to the future of Judaism.[1] Under the 10th Circuit's ruling, the Jewish artisan would be compelled to voice support for an existential threat to the future of his faith.

Let's turn from marriage to adultery. An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile. Swipe right for the shidduch.[2] Next, a married Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile.[3] Swipe left for this shanda.[4] After all, adultery is a violation of the Seventh Commandment.[5]

In each of these examples, a Jewish artist would be compelled to betray his conscience. Yet, the Tenth Circuit would force the Jewish artisans to lend their voices to these breaches of faith.

[1] Rabbi Menachem Schneerson, What's Wrong With Intermarriage, Chabad.org, https://bit.ly/3wPo8fz (last visited May 30, 2022) (describing intermarriage as a "calamit[y]" that "concerns the whole Jewish people"), Rabbi Steven Weil, After Pew: What Will It Take to Save American Jewry, JewishAction.com, https://perma.cc/7ZN8-8UXW (last visited May 30, 2022) (noting that an "astoundingly high intermarriage rate" is one reason why "American Jewry is on a train speeding headlong into self-destruction").

[2] In Jewish circles, the word shidduch describes the dating process that (hopefully) leads to a Jewish marriage.

[3] Scott Cameron, The Infidelity App, NPR.org,  https://perma.cc/UNE9-6959 (Last visited May 30, 2022).

[4] Shanda is a Yiddish word to describe something shameful.

[5] The Ten Commandments, Chabad.org, https://bit.ly/3LQZteT (Last visited May 30, 2022).

Update: There was coverage of the brief in CNN and SCOTUSBlog.

From SCOTUSBlog:

The examples come from an amicus brief in support of Smith co-written by Blackman, a professor and frequent commentator about the court, for the Jewish Coalition for Religious Liberty.

"A Jewish man and a Jewish woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their [upcoming] nuptials. No problem." Alito says, adding only the bracketed word to the language from the brief, which added "Mazal tov!" to that example.

"Another Jewish man and a Christian woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. Big problem," Alito says, again quoting the brief. "Many Jews consider intermarriage an existential threat to the future of Judaism."

Does that website designer have to accept the second couple? he asks Olson. Yes, if they offer a general service to the public, they have to offer that regardless of religion, Olson says.

After some further back and forth, Alito is not done with the examples from the Jewish Coalition brief.

"An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile," Alito says, quoting the brief before adding his own observation that JDate "is a dating service, I gather, for Jewish people."

"It is," Kagan chimes in quickly, to laughter in the courtroom.

"All right," Alito continues, "maybe Justice Kagan will also be familiar with the next website I'm going to mention. 'Next, a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile.'"

Alito is leaning back in his chair, so his reference to AshleyMadison.com has a few people around the courtroom turning to their neighbor to apparently ask, first, "What did he say?" And some appear to be asking, "What's Ashley Madison?" And others just have wry smiles as another wave of laughs ripples through the courtroom about the Canada-based dating site marketing to married people or others already in relationships.

"I'm not suggesting that," Alito says. "I mean, she knows a lot of things, I'm not suggesting …" He just trails off.

The Jewish Coalition brief says of the Ashley Madison example, "Swipe left for shanda," with a footnote explaining the Yiddish word "to describe something shameful." (There are other Yiddish lessons in the brief.)

The reserved Josh Blackman I know is probably embarrassed a little by all this attention to his brief. Hah! Actually, within a half hour of Alito's questions — and before the argument is even over — Blackman has posted on The Volokh Conspiracy about it. "I was pleased that Justice Alito found useful the amicus brief" of the coalition, he writes.

From CNN:

At another point in arguments Alito was posing a set of hypotheticals and again engaged Kagan – his seat mate – as he searched for how the case at hand could impact other cases.

He was referring to a "friend-of-the-court" brief filed by lawyer Josh Blackman on behalf of the Jewish Coalition for Religious Liberty in support of Smith. The aim of the brief is to discuss problematic situations for Jewish artisans who object to speaking out about certain topics. A series of hypotheticals was included to show instances in which a Jewish artist would be compelled to betray his conscience.

"An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile," Alito began, referring to a hypothetical in the brief.

He paused. "It's a dating service, I gather, for Jewish people," Alito said.

Kagan, who is Jewish, chimed in to laughter, "It is."

Alito decided to plow awkwardly forward with another hypothetical from Blackman's brief .

"All right. Maybe Justice Kagan will also be familiar with the next website I'm going to mention," he said. "A Jewish person asks a Jewish photographer to take a photograph for his Ashleymadison.com dating profile."

The audience laughed as Ashleymadison.com appears to refer to an online dating service and social networking services marketed to people who are married or already in relationships.

It was another awkward moment with Alito adding: "I'm not suggesting that – she knows a lot of things. I'm not suggesting – okay … Does he have to do it?"

 

Comments

[Frank Drackman]

There's hope for Sammy "The Knife" Alito yet, maybe he'll convert.

[Estragon]

You mean Justice A-leako?

Still waiting, Josh…..

[Mr. Bumble]

Change screen name to Extragone.

[Estragon]

A far superior quip would have made use of “still waiting” and my screen name. 2/10, needs work.

[bernard11]

Hard to believe the investigation is still not concluded.

I suspect Roberts is sitting on the conclusion for some reason or other.

[Brett Bellmore]

Easy to believe the conclusion was "We have no idea who leaked."

The opinion would have been widely distributed, any of the Justices or their staff could have leaked it, and even a modicum of care would have made it impossible to trace back to them. Probably the only chance of finding out who leaked it was bragging/confession.

[CJColucci]

A refreshing burst of good sense.

[bernard11]

Could well be, but why have there not been other leaks?

[Brett Bellmore]

Maybe they leak like a sieve, and most of the time the media don't think the leaks are worth publishing?

[Dr. Ed 2]

What's not widely known is that Martin Luther's antisemitism came from his belief (legitimate in his mind) that the Jews would all become Protestants because (he thought) that their issue with Catholicism was all of the ideology and corruption that he sought to address.

[Jonathan Affleck]

Martin Luther was much more irritated by usurious loan rates that Jewish financiers were imposing on his allies and by Jewish merchant double-dealing in the religious conflict.

[SRG]

Martin Luther was most irritated by our failure to convert. His "On the Jews and their lies", one of the most appalling books ever written, is one of the founding texts of the Holocaust.

[Jonathan Affleck]

SRG shows terminal Jewish omphaloskepsis.

Do you have any sense of the barbarism that took place in Germany during the Wars of the Reformation?

Look up the Sack of Magdeburg sometime. It was after Martin Luther's time, but the horrors of the Wars of the Reformation started much earlier.

Jewish merchants were double-dealing and loan-sharking. It's not surprising Martin Luther was outraged.

[zztop8970]

Please take this virulent antisemitism to your own blog.

[SRG]

Certainly Jews were in the loan business - but as you are well aware, this was because Christians were not permitted to lend money with interest, while loaning was one of the few business open to Jews. Restrict what Jews can do and then blame them for it.

And enough with your revisioning Luther - the documentation of what he said is clear. The issue is why you feel compelled to lie about it.

Here's part 1 of "On the Jews and their lies".

https://web.archive.org/web/20050113123449/http://jdstone.org/cr/files/martin_luther/onthejewsandtheirlies01.html

You will note that in this first section no mention is made of money, loaned or otherwise. But there is plenty of reference to our condition, descent, failure to convert, etc.

[Jonathan Affleck]

The historical nitwit continues his bigoted Jewish racist ranting.

It was a religious period. duh! Anger was expressed religiously.

Serious Jewish studies scholars have not believes the ridiculous apologetics that alleges Jews were restricted to moneylending for over 50 years.

Jews became moneylenders (loan sharks) because it was easy and lucrative.

An often quoted saying attributed to Rabbi Shalom (c. 1350 - c. 1413) of Wiener Neustadt reflects the way moneylending was viewed in circles of the intellectual elite: The fact that the Torah is more followed in Ashkenazi than other countries is because interest is extracted from non-Jews, and there is no need for any [other] occupation. Consequently we have the time and leisure to study the Torah."

[zztop8970]

When you plagiarize wholesale, at least take care to get your terminology straight - it is "Ashkenaz", when referring to a geographic region, not "Askenazi". Your unattributed source got it right. (https://www.google.com/books/edition/German_Jewish_History_in_Modern_Times_Tr/I3R5adgrm38C?hl=en&gbpv=1&dq=%22interest+is+extracted+from+non-Jews%22&pg=PA37&printsec=frontcover).

You might also want to note the sentence that precedes the part you plagiarized, which reads "The extensive restriction of Jews to monylending helped facilitate" (emphasis mine) - which kinda undermines your ridiculous assertion that "Serious Jewish studies scholars have not believes the ridiculous apologetics that alleges Jews were restricted to moneylending "

[Jonathan Affleck]

Just a typo — when a nitwit has nothing meaningful to add, he focuses on a typo. I also typed "believes" when I meant "believed".

The book bought into traditional racist Jewish apologetics, which Salo Baron, the preeminent Jewish studies scholar of the 20th century, disproved.

I soured Maristella Botticini on the subject when I explained

• that the Hellenistic Judaism of the Roman West was practiced solely by descendants of Greek and Phoenician converts, who belonged to the commercial class of the Roman Empire and
• that the community of Hellenistic Judaism and the community of Biblical Judaism of 90% agrarian Palestine had practically no overlap.

Yet, the book is correct when it points that there mostly were no restrictions on Jewish occupations during the pre-modern period.

It is unsupportable to claim Jews became loan sharks because their choices of occupation were restricted. Rabbi Shalom never made such a stupid assertion.

[zztop8970]

I see my last paragraph sailed over your head, plagiarizer:
The source you plagiarized from directly and explicitly contradicts your assertion.

[Jonathan Affleck]

But Rabbi Shalom made no such claim. The editor did. I read the primary sources. The editor and ignorant racist Jews are wrong. Salo Baron, Eckstein, and Botticini are correct.

Dumdum, see The Chosen Few.

[zztop8970]

Rabbi Shalom also didn't say "An often quoted saying attributed to Rabbi Shalom (c. 1350 – c. 1413) of Wiener Neustadt reflects the way moneylending was viewed in circles of the intellectual elite:" - that's from the source you plagiarized.
Presumably, you think that source is valid, otherwise, you would not have plagiarized it.
So if it is a valid source, it is also valid when it says there was "extensive restriction of Jews to moneylending" - you can't have it both ways.

[Jonathan Affleck]

And by the way ignorant racist clown, nothing in Rabbi Shalom's statement indicates he was unhappy to be a loan shark.

And do you know what? My mom's family was an important Jewish banking family during the pre-modern period. It was a nasty group, but to me it's just interesting history. Depraved racist European Jews try to rewrite the history because they don't want to admit that non-Jews might have had legitimate criticism of Jewish behavior.

[Jonathan Affleck]

I concentrated on Eastern European and Jewish Historical Political Economic when I was a student at Harvard. Rabbi Shalom's comment is commonly quoted, and he was a leading Jewish intellectual of the time period. His comment is the opinion of the leading Jewish intellectual of the area. If I remember correctly Rabbi Shalom was the teacher of Isaac of Tyrnau. Rabbi Shalom's whole family loansharked -- even his daughter, who loansharked prostitutes. Her activities are mentioned in at least one responsum -- do you know what a responsum is?

[zztop8970]

There is also nothing in the Rabbi Shalom quote that says there's were no restrictions on other Jewish economic activity. He may have been ok with his occupation as a moneylender, but others may not have been.
Botticini and Eckstein play a little fast and loose with their arguments, but even they concede that in the medieval period in Europe there were restrictions on Jewish land ownership which limited their ability to become farmers.

[David Nieporent]

I concentrated on Eastern European and Jewish Historical Political Economic when I was a student at Harvard.

Tell us about your time serving as an astronaut on the ISS; it would be more credible.

[Jonathan Affleck]

In areas where Jews were restricted from owning land, everyone was restricted from owning land — in those areas one often refers to a landed aristocracy that could own land. While Jews could not own land is such an area, a Jew could manage an estate. An estate manager in Polish is an arendar or arendator. The arendar managed peasants or serfs.

Why would anyone ever want to be a farmer, i.e., a peasant or serf, when he could be a loan shark or an arendar?

Face it. The racist Jewish spiel about poor and oppressed Jews before the modern period is nonsense that a racist Jew uses to convince himself that it’s okay to abuse and to exploit a non-Jew (to wit, as a depraved and evil racial supremacist murderous genocidal Zionist anti-Jew abuses a Palestinian).

If one is interested of disabusing himself of the vacuous and nonsensical Jewish Pogrom and Persecution Song and Dance (PPSD), I refer him to Esau’s Tears by Lindemann. It’s a good place to start to learn the truth that belies common wisdom about European Jews.

[zztop8970]

In areas where Jews were restricted from owning land, everyone was restricted from owning land
Nope. That's not what the book you claim to be relying on (but obviously never read) says. It says "Restrictions on Jewish landownership began appearing in some charters issued in the late medieval and early modern period" (emphasis is mine)

[Jonathan Affleck]

I hardly consider the clowns, who edited the book from which I took the Rabbi Shalom quote, to be serious historians. Primary and secondary sources, which relate to medieval Jewish history, mostly are not on line yet.

A book from these two clowns was online and translated Rabbi Shalom's comment.

I don't have to deal with the usual nitpicking from a racist Jew or Zionist anti-Jew about the accuracy of the translation.

[zztop8970]

You idiot- that quote comes from the book you recommended just a few posts ago - The Chosen Few (Chap. 2, p. 63) - further proving you never read it.

[Jonathan Affleck]

I don't rely on those two clowns for anything except for providing an English translation of Rabbi Shalom's comment.

In areas where Jews were restricted from owning land, everyone was restricted from owning land

Nope. That’s not what the book you claim to be relying on (but obviously never read) says. It says “Restrictions on Jewish landownership began appearing in some charters issued in the late medieval and early modern period” (emphasis is mine)

The two clowns did not research the context, or if they did, they suppressed the context. In Medieval law Jews were usually put in the category de facto or de jure untitled stratum of the 2nd Estate, which could own property. When some Jewish financiers began to speculate in land (such speculation was considered disruptive), the government clarified that Jews did not have all the rights of a titled member of the 2nd Estate.

But please. Keep lying and misrepresenting. It's time to explain to as many people as possible how tendentious and mendacious the racist Jewish spiel really is.

[zztop8970]

You idiot- that quote comes from the book you recommended just a few posts ago – The Chosen Few (Chap. 2, p. 63) – further proving you never read it.

[Jonathan Affleck]

I thought you referred to German-Jewish History in Modern Times: Tradition and enlightenment, 1600-1780, which has two editors-authors-ignorant clowns.

I read The Chosen Few when the publisher sent me a pre-publication copy over 10 years ago. I had problems with the book then and still do.

As I wrote,

I soured Maristella Botticini on the subject when I explained,

• that the Hellenistic Judaism of the Roman West was practiced solely by descendants of Greek and Phoenician converts, who belonged to the commercial class of the Roman Empire and
• that the community of Hellenistic Judaism and the community of Biblical Judaism of 90% agrarian Palestine had practically no overlap.

Yet, the book is correct when it points that there mostly were no restrictions on Jewish occupations during the pre-modern period.

It is unsupportable to claim Jews became loan sharks because their choices of occupation were restricted. Rabbi Shalom never made such a stupid assertion.

I met Maristella in person at Harvard. I am probably the reason for the absence of a 2nd volume. I explained that Eckstein was injecting Zionist propaganda into the book. She had no interest in assisting the dissemination of such propaganda.

Neither Bottincini nor Eckstein has my level of knowledge in the history of Judaism.

[zztop8970]

I'm sure they don't. Did you acquire that extensive knowledge in the history of Judaism before or after you perfected cold fusion?

[Frank Drackman]

My 1/2 Jewish sister did become Protestant ("Primitive" Baptist, can you get any more "Protestant" than that?) but it was only because she married a Goy Orthopedic Surgeon, little bit I-ronic (HT A. Morissette)
I was more upset she married an Inflictor of Surgery,

Frank

[SRG]

You will no doubt recall R. Yehudah’s line from Kiddushin 82.a, “the best of doctors are destined for hell”.

[Bob122]

What if a Christian web site designer said that they did not want to create a marriage site for Jews because they did not want to contribute to bringing non Christian children into the world who did not accept Jesus? That her religion comanded her to spread Christianity and not other religions.

What if the website designer had a deeply held religious belief that people of a certain race should not marry and explicitly discriminated based on race?

[BravoCharlieDelta]

Many Jews consider intermarriage an existential threat to the future of Judaism.

Why are Jews the only ones with this privilege? Why cant’ Whites share this? Or Christians? Or Normal people?

[Nige]

They do have this privelege. They just get rightly roasted for it.

[Dr. Ed 2]

And I think that Jews should be as well.

[Nige]

Knock yourself out. But if you find yourself following a line of argument that ends with 'Maybe Hitler had the right idea' don't come crying to me.

[Noscitur a sociis]

Cue Dr. Ed defending Kanye in 3, 2….

[Dr. Ed 2]

There is a big difference between tolerating a mixed marriage and support of genocide. At least I think there is…

And if the couple have no children -- as an increasing number of couples do (by choice) -- where are the little Jewish babies???

[BravoCharlieDelta]

Not to the Jews, did you read his statement?

[Nige]

'There is a big difference between tolerating a mixed marriage and support of genocide.'

*a Great Replacement theorist cries*

[ScottK]

There is no such thing as a Jewish baby. All babies are atheists.

[David Nieporent]

I doubt babies have any views on the existence of god, so they can't be atheists. But even if they were, they would still, of course, be Jewish if born of a Jewish mother.

[ScottK]

Despite your use of the phrase “of course,” you seem to concede that babies lack a theism of their own.

[David Nieporent]

Sure. But you misunderstand the nature of Judaism. One's status as a Jew is not defined by the beliefs one holds.

[Noscitur a sociis]

Never would have expected an opinion like that from Dr. “The holocaust had some downsides, BUT…” Ed!

[Dr. Ed 2]

I've gone out into harm's way defending Jewish students and professors -- have you?

Have you?!?

[Brett Bellmore]

I'm moderately sure he means "roasted" in a "heavy criticism" sense.

[Dr. Ed 2]

On one occasion, I was prepared to use deadly force to preserve my own life. I am glad that I didn’t have to.

What I learned about the leftist thugs is that they aren't very brave when directly confronted. (They all scattered, leaving just their leader standing there, and what saved his life was the look of sheer terror on his face -- something inconsistent with one intent on killing me.)

When I say "harm's way", I do mean “harm’s way.”

[Nige]

That'll teach him to try to take away your privelege to roast Jews.

[Krayt]

Half the free speech issues in recent years on this blog orient around cancel culture going a little too far, pressing government power into its service.

[BravoCharlieDelta]

It's weird that diversity is a strength only for White people, no?

[Randal]

My org has diversity rules that would kick in for whites and men if they ever were to find themselves vastly outnumbered.

Based on current trends, I'm unlikely to see that ever happen in my lifetime.

How about saving your concern for white people until it's even remotely a possible problem in the foreseeable future?

[BravoCharlieDelta]

You need to update your source for trends, or you're really 99 years old.

[Nige]

It's a strength for everybody.

[Frank Drackman]

Because you weren't chosen (hey, I'm only 1/2 chosen(the good 1/2)

Frank

[Seamus]

Well, for one thing, because white people don't believe that they were chosen by God and set apart from the nations to honor him and glorify his name in a special way, or that he formed them by leading them out of bondage and giving them his law.

(I suppose maybe you could find some crazy white people who assert precisely that, in which case, if they could establish that theirs was a sincerely held religious belief and not one ginned up to qualify for a religious exemption, then I guess I'd have to give them the benefit of erring on the side of religious freedom.)

[BravoCharlieDelta]

I wonder if any Jews have heard of that fella named Jesus or the New Testament?

[Frank Drackman]

Only a few million
https://jewsforjesus.org/

[BravoCharlieDelta]

How many Jews aren’t for Jesus?

"Six million"?

[Frank Drackman]

Blood Libel Much? and don't want to ruin your whole world view, but Martin Luther was Catholic, and guess what Hey-Zeus was? (hint, not Catholic)
Frank

[Anonymous Coward]

Hell hath no fury like Santa scorned.

[BravoCharlieDelta]

lmao that's not what "blood libel" is.

Blood libel is what the ADL calls it when you point out Jews like to sacrifice goy children for their rituals to Moloch or Baal.

[Frank Drackman]

like I said, only 1/2 Jew, apparently the part that doesn't have a taste for children (of any group) unless properly par-boiled, of course.

[Nige]

'when you point out'

Do you... do that a lot?

[BravoCharlieDelta]

Condemn ritual sacrifice of children?

Yes, every chance I get. Do you?

[Nige]

Do chances come along frequently? Specifically in regards to Jewish people?

[BravoCharlieDelta]

Sadly all too often.

[Nige]

I bet Jewish ritual sacrifice of children is at an historical low thanks to your brave work.

[BravoCharlieDelta]

They're satisfying their bloodlust for children in other ways... e.g. late term and post term abortions, chopping off tits and dicks of children.

[Nige]

The Jews are behind all those very real things are they?

[Dr. Ed 2]

Frank, Jesus was an observant Jew. The last supper was a passover seder. And you point is???

[Frank Drackman]

that your "Saviour" was a Jewish Carpenter, when's the last time you saw that on a bumper sticker?

[Dr. Ed 2]

Seamus. read the writings of John Winthrop sometime -- that stuff about Boston being the Biblical "City on the Hill" and the rest.

[Krychek_2]

Ever hear of British Israelites? They believe that following the sack of Jerusalem in 70AD, the Jews disbursed and became the white nations of Europe. King Charles is the heir to King David and the English are the tribe of Ephraim, Denmark is the tribe of Dan, Norway is the tribe of Naphtali, Italy is the tribe of Issachar, etc. the white Europeans are the true Jews, and the people who claim to be Jews are imposters.

Not quite as stupid as Trump’s claim the election was stolen, but definitely in the same genus.

[Krychek_2]

Sorry, I had my cults mixed up, I just looked it up and the tribal stuff is for a different group.

The bottom line, though, is that BI’s believe they are the true heirs of Gods promises to Abraham as the English are descended from Abraham.

[Stephen Lathrop]

Krychek_2 — Don't they have a beautiful hymn, that was featured during the opening of the 2012 Olympics?

[Rev. Arthur L. Kirkland]

If intermarriage is a threat to something, does that something -- which apparently can't survive on merit -- deserve to be maintained?

[BravoCharlieDelta]

Look at Rev. Kanye over here!

[Frank Drackman]

no "Bitter" "Klinger" "Betters" "South Texas College of Laws"????
this isn't the "Reverend" the VC's come to bear like anal fungus, What have you done with "Reverend" Jerry!?!?!?!?!?!?

[bernard11]

Who says Whites can't have an opinion about interracial marriage?

You think it leads to "the mongrelization of the White race?" Fine. You and Bull Conner.

[BravoCharlieDelta]

Can Jews think interracial marriage lead to "the mongrelization of the Jews"?

[bernard11]

In the US Jews can think whatever we want, but the notion behind objections to interfaith marriage has nothing to do with "mongrelization," you fucking anti-semite.

[BravoCharlieDelta]

Can you explain the difference between the two beliefs in a meaningful way?

you fucking anti-semite.

lmao it's 2022, Goldstein, that shit don't work anymore.

[Nige]

People who think like that only ask permission as an exaggerated show of aggreivance that other people think they're awful.

[Bob122]

[Dr. Ed 2]

" an "astoundingly high intermarriage rate" is one reason why "American Jewry is on a train speeding headlong into self-destruction").

I don't think it is that as much as they have wandered away from Judaism itself -- as reflected, in part, by their support for left-wing antisemitic politicians, and often outright hatred of Israel.

What never ceases to amaze me is that American Protestants are far more supportive of Israel than American Jews....

[bernard11]

support for left-wing antisemitic politicians

Yeah. We should be backing Kanye's fans and Fuentes supporters.

[Dr. Ed 2]

No, who you do support is bad enough....

What part of "Kill The Jews" do American Jews not understand?!?

[Bob from Ohio]

Good hypos. A rare thing, a useful amicus brief.

[Anonymous Coward]

The J-Date language options include
* German
* English
* French
* Hebrew

...but no Yiddish or Ladino. Wouldn't those languages be required to be orthodox friendly?

[JJJSSS]

There are plenty of Orthodox Jews who speak German, English, French, or Hebrew, some of which would use JDate. It's conceivable that Arabic or Farsi would be helpful. Ladino (which is Judeo-Spanish, not Judeo-Arabic, and which has not been used as a primary language for any community in a long time) would not be particularly helpful. As for Yiddish- the vast majority of Jewish communities where Yiddish is a primary/first language a) don't approve of internet use other than maybe for business purposes and b) don't approve of individuals seeking out their own future spouses or even talking to the opposite gender without specific approval. For those communities (typically not Yiddish speaking) that are somewhat ok with internet usage but don't want people seeking out their own matches, there are websites with matchmaking services available.

[Jonathan Affleck]

I used to practice Ultra-Orthodox Judaism but do so no longer because I was outside the Mosque of Abraham in February 1994 when Baruch Goldstein celebrated Purim by spree-murdering 29 Palestinians and wounding many more.

I had an epiphany that caused me to realize that Zionism and the Zionist movement had murdered Judaism by transforming Judaism into a program of genocide.

I speak or read Yiddish, Dzhudezmo, and Judeo-Arabic. My mom speaks Judeo-Berber but never spoke it with me. There are Jewish gals,

• who like me abandoned the religion and
• who might chat online with me in one of these languages.

I can't believe it would be worthwhile for an online dating service to support these languages. People like me invariably speak English, French, Russian, or Fake Invader Hebrew.

[Frank Drackman]

it's Dr. Baruch Goldstein, and he was as much a "Spree Murderer" as Colonel Tibbets and the crew of the Enola Gay.

[Anonymous Coward]

Just out of curiosity, what would you think about an expulsion of all Arabs, from the river to the sea, who are unwilling to pledge loyalty to a Jewish state?

[Dr. Ed 2]

Bullbleep -- Hiroshima was a legitimate military target and the Japanese got what they deserved.

Pearl Harbor was a SNEAK attack during PEACETIME and hence a war crime. Hiroshima was where they were stockpiling troops and supplies for the defense of the home islands -- and if you decree that absolutely everyone in your society is a soldier, then...

Hiroshima saved JAPANESE lives. Look at Iwo Jima as to the Japanese carnage that would have been involved.

The A Bomb saved the Japanese from Genocide.

[Frank Drackman]

Duh, and Dr. Goldstein was just doing the same thing, albeit on a smaller and less successful scale.

[zztop8970]

Sure you were. just like you were "practi[cing] Ultra-Orthodox Judaism " while calling the Cave of Machpelah the "Mosque of Abraham". Tell us another one.

[Jonathan Affleck]

I indirectly was working on an EU contract to improve the telecommunications infrastructure in the Occupied Territories.

The work must be considered to have been a success.

• Palestinians have more access to world media.
• An ever increasing number of the world population is becoming aware of the utter depravity and absolute evil of vicious bloodthirsty murderous genocidal racial supremacist Zionist colonial settler invaders, interlopers, thieves and impostors.
• Worldwide hatred, scorn, and loathing of Zionism, the Zionist movement, the Zionist colonial settler conglomeration, the Zionist state, and every Zionist on the planet is entering the exponential growth phase.

[zztop8970]

Here's a free tip - to be a successful propagandist, you have to keep your story straight. You can't pretend to be merely an anti-Zioinst railing against the "utter depravity" of the Zionist program, and at the same time repeat blatant antisemitic canards about Jews as duplicitous businessmen or loansharks who chose that profession because it was easy and lucrative during the Reformation , 500 years before the Zionist movement.
When you do the latter, the facade crumbles and you are exposed as the antisemite that you really are

[Jonathan Affleck]

Rabbinic Judaism is a domain specific religion, which is customized for commerce and finance in the pre-modern period when a businessman had to harsh in his business dealings.

This harshness may have some connection to the development of depraved and evil genocidal Zionist ideology, but I have to point out that except for a buffoonish ignorant bore like Rav Kook, the Jewish religious establishment to man rejected Zionism because it correctly considered Zionism to be complete blasphemy.

After committing genocide on Palestinians and stealing Palestine, the depraved and evil Zionist movement managed to enmesh a large part of the Jewish religion establishment in genocidal Zionist criminality.

Yet at Brisk, which is the Harvard of Jewish educational institutions, the entire faculty is either non-Zionist or anti-Zionist. These scholars don't publicize their stance. In retrospect, I consider the faculty hypocritical and cowardly.

[zztop8970]

again, if you want to pretend you are anti-Zionist, you need to drop the explicit antisemitism. The facade crumbles when you do it that way.

[Jonathan Affleck]

It is the purest antisemitism to conflate Jews like my immediate family and my haredi (Ulta-Orthodox) relatives with a depraved and evil racial supremacist murderously genocidal Zionist anti-Jew.

Every decent human being whether Jewish or non-Jews has an ethical obligation to hate, to scorn, and to loathe a Zionist anti-Jew without qualification.

My Mom’s Story — She is a Jewish Berber and Hates Zionists as the Whole World Should!

After the depraved and evil white racial supremacist European Zionist colonial settlers perpetrated genocide on the native Palestinian population from Dec 1947 through 1949, the disgusting Zionist leadership realized that it could not hold stolen Palestine without an influx of cannon fodder, bullet catchers, and mine finders. The villainous Zionist leadership contrived to destroy the communities of Jewish Arabs and Jewish Berbers to force the members of these communities to emigrate to stolen Palestine even though in the minds of the perverted Zionist leadership, Jewish Arabs and Jewish Berbers were considered genetically and racially inferior. The vile Zionist leadership hoped that Jewish Arabs and Jewish Berbers would die in the service of Zionism and would thereby remove themselves from the gene pool.

Mom was 16 when a white racial supremacist Zionist "snake oil salesman" ‬ (שליח) tricked her family into leaving their homes for the Zionist state. As soon as the family arrived, the vile white racist Zionist anti-Jews doused every member of the family in insecticide because to the sick and perverted Zionist anti-Jews, a Jewish Berber was dirty and primitive. My mom's father was a respected scholar and refused to allow his family to live in homes stolen from Palestinians. Zionist anti-Jews beat him almost to death. I suppose he was lucky. If he had been Palestinian, the Zionist anti-Jews would have murdered him. My grandfather had no desire to become an ersatz native collaborator in the service of white racial supremacist genocidal European Zionist colonial settler anti-Jews. He took the whole family out of the Zionist state as quickly as possible.

No Zionist anti-Jew can be allowed to roam freely on the planet.

Every Zionist anti-Jew must be arrested:

• to be tried for crimes of genocide,
• almost certainly to be convicted, and
• to be sentenced to quick jab in the arm or to a long prison term.

All Zionist assets must be seized. Every Zionist anti-Jew must die penniless and impoverished.

[zztop8970]

again, if you want to pretend you are anti-Zionist, you need to drop the explicit antisemitism. The facade crumbles when you do it that way.

[David Nieporent]

I used to practice Ultra-Orthodox Judaism

Sure you did. (Despite the fact that there isn't any such thing.) Was that before or after you invented the Internet?

[EscherEnigma]

I mean, the SCOTUS could always say that a website designer does not meet the definition of a public accommodation covered under non-discrimination in public accommodations laws.

They're the ones (in Elane Photography) that said these kinds of services were public accommodations.

[David Nieporent]

No, SCOTUS can't say that, because it's a question of state law.

[EscherEnigma]

C'mon dude, you know full well that only stops SCOTUS when it wants to be stopped.

[Zarniwoop]

That's difficult in this case, because of the factual stipulations the parties have made.

I think that it's a gray area, personally - there's a difference between cookie-cutter web sites and a never-before-seen bespoke look.

I also think it's highly questionable that a viewer will look at a wedding website and think "this stuff about X and Y getting married happily ever after is the web designer's speech." Who really thinks that?

[Stephen Lathrop]

Zarniwoop — Whatever the textual content—explicit, implied, or tacit—the graphical presentation used to convey the message is the web designer's speech. You do not want a skilled designer who opposes your message going to work on your implied and tacit messaging.

[David Nieporent]

Again, that's not the test for whether compelled speech is impermissible. If it were, then the Miami Herald could have been forced to print Tornillo's rebuttal as long as they were allowed to put a note: "This is not our speech."

And of course the Maynards could have been forced to drive a car with Live Free or Die on it; no rational viewer would have looked at that slogan — the state slogan, printed on millions of license plates — and think, "Oh, the Maynards must personally believe that."

[shawn_dude]

Colorado state law (as I understand it as a non-Colorado resident and non-lawyer) doesn't require a website designer to design a custom website for an LGBT or intermarried Jewish couple. Both the law and the state's representatives agree that forced speech is unconstitutional. That is not what brought this case to the US Supreme Court. No one was discriminated against, either, in this case. This is pre-emptory. Rather, state law says that if a designer designs something and then sells copies of it to straight people or Christians, it must also sell the same thing to gay people or Jews. If that thing says "heterosexuals are God's favorite" it must still be available for sale to anyone that wants to buy it--even gay people. So, if designer makes a generic wedding website design and offers that design to straight couples, any gay couple that wants to buy it--unmodified--is covered by public accommodation laws.

[Stephen Lathrop]

shawn_dude — What happens to bespoke designs?

[David Nieporent]

Colorado state law (as I understand it as a non-Colorado resident and non-lawyer) doesn’t require a website designer to design a custom website for an LGBT or intermarried Jewish couple. Both the law and the state’s representatives agree that forced speech is unconstitutional. That is not what brought this case to the US Supreme Court.

No, you misunderstand the case. It is not about Lorie Smith creating a generic wedding template and then selling it or not selling it to specific customers. It is indeed about requiring her to design a custom website for an LGBT or intermarried Jewish couple.

The law and the state's representatives do not agree that forced speech is unconstitutional — or, at least, they define "forced speech" in such a cramped way as to eviscerate that position.

[Josh R]

We don't know the contours of the law because Smith hasn't been forced to create a website for a same-sex marriage (it's a pre-enforcement challenge).

Some insights from today's oral arguments:

1) Smith conceded that she can be forced to serve a same-sex wedding using a template in which the customer filled out everything on their own. However for the very same template, if Smith fills in the names of the couple herself, that's compelled speech.

2) The state conceded that Smith may publish a denunciation of same-sex marriage on every website she creates even though Justice Alito insisted that had the practical effect of turning away same-sex couples.

3) No clear answer was given to Justice Kagan's hypothetical whether Colorado permits Smith to include "God blesses this union" only on opposite-sex marriage sites.

[David Nieporent]

I'm not buying #2, by the way. Ollie's BBQ couldn't get around the CRA by seating black and white customers but having the waiters scream racial slurs at the customers. The public accommodation right — if it exists — is a right to equal treatment, not merely a right to access the good or service. You can't create a hostile environment for patrons in a protected class. A wedding website that condemns the wedding in question is not going to pass muster.

[Josh R]

Alito was surprised, but it's Colorado's call. And there is a good argument this case isn't ripe until that call is definitively made based on a customer complaint.

[JJJSSS]

There are plenty of Orthodox Jews who speak German, English, French, or Hebrew, some of which would use JDate. It's conceivable that Arabic or Farsi would be helpful. Ladino (which is Judeo-Spanish, not Judeo-Arabic, and which has not been used as a primary language for any community in a long time) would not be particularly helpful. As for Yiddish- the vast majority of Jewish communities where Yiddish is a primary/first language a) don't approve of internet use other than maybe for business purposes and b) don't approve of individuals seeking out their own future spouses or even talking to the opposite gender without specific approval. For those communities (typically not Yiddish speaking) that are somewhat ok with internet usage but don't want people seeking out their own matches, there are websites with matchmaking services available.

[BravoCharlieDelta]

Website design is clearly a creative, expressive work. I thought all the pro-gay types would say no one would ever be compelled to make speech or other expressive works in support of the homo lifestyle.

[Nige]

No pro-gay or even gay types were consulted or involved in any of this.

[Charles Nichols - CRTC]

Over a decade ago when I was writing articles for the now-defunct Examiner, I asked if the kitchen for an orthodox Jewish hotel could be forced to make me a ham and cheese sandwich on a Friday night.

Of course, there are other examples. It could simply be a kosher deli that made sandwiches. The deli has kosher meat behind one counter and kosher cheese behind another. Can the deli be forced to make cheeseburgers?

[Seamus]

Well, if we let those kosher delis force their religious beliefs on the rest of us, next thing you know, we’ll be letting businesses refuse to pay for their employees’ abortions.

[Charles Nichols - CRTC]

The kosher deli is not forcing its religious beliefs upon anyone. Nor is the website designer in this case.

[Seamus]

Nor is the employer in the case I posited.

[Nige]

The kosher deli is declaring itself Jewish and isn't discriminating against anyone. The designer is declaring herself homophobic and mad that she hasn't had anyone to discriminate against yet.

[bernard11]

Dumb question.

Sort of like asking whether the Ford dealer can be forced to sell you a Chevrolet.

[gormadoc]

Why would they care about serving a non-Jew not kosher food?

[Brett Bellmore]

Complicity, it's not just about legal crimes.

[Charles Nichols - CRTC]

Lots of Jews eat food that isn't kosher.

[Zarniwoop]

The kosher deli can decline to serve a ham'n'cheeze sammich to any and all customers, regardless of religion, race, national origin, sex, orientation, or any other protected class.

Next easy hypo?

[Rossami]

Having conceded that the deli has the right to refuse to make a ham sandwich, on what basis is that right to refuse to make a ham sandwich for any and all customers legally different from the right to refuse to make a website celebrating gay marriage for any and all customers?

Why is the deli owner free to put her religious beliefs and prejudices in business practice but the website designer is not?

[Zarniwoop]

Can the deli owner make ham sandwiches for white folks, while refusing to serve black folks the same sandwiches?

[Ridgeway]

You are making his point. Regarding the website example, the designer would refuse to set it up for a gay customer, but would also refuse to set it up for a straight customer. It is the nature of the creation, not the nature of the customer, that is ultimately the issue.

[Zarniwoop]

I disagree with the way you're framing the analogy. It's oversimplistic and elides one of the basic Qs the Court is struggling with.

If the thing being designed is "a web site that celebrates the union of two people", it seems the website designer's only issue is with the identities of person A and person B.

In that framing, it's not the product; the designer wants to look at the characteristics of the people seeking to buy the product, and only serve some of them. The website designer will set up a wedding website for A (male) and B (female), but not A (male) and B (male).

As I said above, this is complicated by the fact that there's a probable difference between a cookie-cutter website (or a #3 roast beef, no substitutions, right off the menu) and a bespoke brand-new artsy-fartsy website design (or a custom triple decker club sammich with ham) ... and the website designer wants to preemptively refuse service to all same-sex customers because the latter might be viewed as the website deisgner's speech. Which I also find improbable, but that's the factual stipulations the Court has to work with.

It seems perilously close to a contrived advisory opinion, really. But the conservative majority wants to reach the Q, so they almost certainly will...

[Rossami]

When you say "If the thing being designed is 'a web site that celebrates the union of two people'", you are assuming your conclusion. The people involved (including both the website designer and the customers) do not start from that assumption. (At least, not based on what I could tell from their filed briefs.)

Note that I could equally reframe the deli's product as "a sandwich that includes bread, meat and other food products". That reframing is not sufficient to nullify your desire to keep kosher.

[shawn_dude]

I don't think this is meant to be a reframing but rather be taken literally. If the designer designed a standard website meant to convey celebration for a wedding (in much the same way wedding cards are meant to be generic) and offered that site to only straight customers, that would violate Colorado's law. But if the designer designed unique sites for each unique couple, then she could offer them only to heterosexual couples and it would not violate state law. The first site is your kosher sandwich that is sold to all comers, observant Jew or not. The second site is the artistic speech of the designer specifically for that one customer's purchase.

Consider site hosting companies that offer boilerplate designs. If one of those boilerplate designs was for a wedding, is it forced speech if you don't know the customer prior its design and sale?

I think the real question in this case is where during the product design and sales process does an artist's speech rights end? If it's entirely custom from start to finish, I'd think the artist's speech rights end at *resale.* If the artist designs it and sells copies of it, their speech ends the moment they turn it from a one-off design into a commodity product and offer it for sale. Colorado's anti-discrimination law doesn't cover the first case but does cover the second.

[David Nieporent]

Dude (shawn_dude), you're fighting the facts. Colorado says that its anti-discrimination law does cover the first case, and that's what this litigation is about.

[Nige]

Because they're not discriminating against anyone.

[Don Nico]

What in the world is a kosher deli doing with ham in the first place?

[Charles Nichols - CRTC]

Don Nico, consistent with the hypothetical, Colorado law requires hotels that cater to orthodox Jews, and Jewish delis, to serve ham and cheese sandwiches to anyone who asks, especially on Friday nights, so as not to offend those of us who are partial to ham and cheese sandwiches. And those sandwiches must be made by Jews and served to us by Jews because Shabbos goy made ham and cheese sandwiches are offensive.

[Don Nico]

Charles,
You posited no hypothetical. You asked a question.

[Charles Nichols - CRTC]

Don Nico, positing the question to my readers a decade ago was positing a hypothetical.

There are people who are too stupid to know that they are stupid and there are people who know they are stupid.

Thanks for letting us know that you belong to the former.

[Dr. Ed 2]

The Marriot Family are devout Mormons (LDS) -- and yet Marriot Hotels offer Porn on their Pay to View.

[Frank Drackman]

missed the part where you're forced to watch it

[shawn_dude]

As it relates to the case in the OP--the answer is it doesn't matter.

The law in question says that if the deli makes a kosher pastrami sandwich and sells it to Jews, they must also sell it to anyone else that requests it, including gay people. Other customers cannot expect the deli to customize it and make it non-kosher.

This isn't about forcing a company to make something they don't offer; it's about making the company sell what they offer to the general public.

The case before the court is asking for the right to deny LGBT customers the exact same product the vendor is selling to non-LGBT customers.

[Rossami]

You are assuming the conclusion - that the thing being made is the same. The web designer certainly doesn't see it that way. And based on their filed briefs, it doesn't look like the plaintiffs make that assumption either.

A closer analogy would be a deli that makes sandwiches to order. Despite being a "to-order" shop, I am not aware of anything that obligates them to have ham available as a choice of meat. Nor, I think, could you force them to put cheese on your meat-based sandwiches even if they had cheese available and would put it on a vegetarian sandwich. The deli owner will argue, quite correctly, that the thing being sold is a particular type of sandwich, not the mere generic.

[shawn_dude]

It's a website, something I have a great deal of professional experience with, and that means there are quite a few variables that could shift this example back and forth across the line between forced speech and generic product.

However, the primary fact of the case is that 303 Creative does not design wedding websites at this time. In the kosher deli analogy, the business suing doesn't sell kosher products today at all. The entire case is hypothetical and based entirely on assumptions to begin with.

303 Creative wants to sell wedding designs and is suing Colorado because she says it's non-discrimination law gets in her way. Colorado says if she makes them all custom, the Colorado law doesn't apply. The only way the law would apply is if she made them generic and sold exact copies of them to customers.

From my experience, a lot of website hosting companies offer boilerplate designs. These would certainly fall under Colorado's law. However, designers who work independently and do not host their own designs (some do) would have to do more work than just hand over a bunch of images and HTML/CSS/Javascript files. That's where things blur. If she needs to log in and set up the site, then I would say it's custom and immune to the anti-discrimination law. If she hands over a zip file that she designed once three years ago and sells repeatedly without modification, then no, it's not immune to the law because it's not forced speech. At that point, the only distinguishing factor is the sexual orientation of the customer and not the any uniqueness in the product.

[David Nieporent]

Colorado says if she makes them all custom, the Colorado law doesn’t apply.

Colorado. Does. Not. Say. That.

Where are you getting it from?

[Don Nico]

But shawn, it is not the SAME product.

[shawn_dude]

You're making an assumption here. You don't know that. No one knows that because she doesn't make wedding websites today. She aspires to and is suing in advance of actually starting.

If the product isn't the same, the Colorado law doesn't apply to her. So she's free and clear and the lawsuit is pointless.

If the product is the same--which is also common--then she is covered by the Colorado law and isn't threatened with forced speech.

Since the first case doesn't implicate the law she's suing against, she must be suing over the second case which is why I'm assuming she's selling exact copies. But that's just me trying to take this in good faith. She's represented by an anti-LGBT activist group, hasn't been sued by anyone for discrimination, doesn't sell the product, and her most likely business model exempts her from the law she's suing to change.

[Mr. Bumble]

So, do lawyers regularly refuse clients?

[Charles Nichols - CRTC]

In 1967, the California legislature banned the carrying of loaded rifles, shotguns, and handguns in public. In 1976, a three-judge panel of the California Court of appeals extended that ban to include residential property because the private property exemption said one could "have" a loaded firearm on his property which the panel said was not the same thing as "carrying."

The ban was racially motivated and is disproportionately enforced (see the US Supreme Court case Hunter v. Underwood, 471 U.S. 222 (1985)).

I have been challenging that ban for eleven years without a lawyer.

Another man, Mark Baird, filed a lawsuit in 2019, challenging the ban as it applies to handguns. He, like me, could not find a lawyer in the state to represent him. The only lawyer he could find was from New York.

Yes, lawyers regularly refuse clients.

[Dr. Ed 2]

"So, do lawyers regularly refuse clients?"

Yes.

Sadly, yes...

[Joe_dallas]

“So, do lawyers regularly refuse clients?”
"Yes.
Sadly, yes…"

Yes attorneys, accountants and other service providers regularly refuse clients. Both the ABA and AICPA and the various state professional societies actively discuss / advise against accepting certain types of clients .

[Mr. Bumble]

So what makes them different from a web designer? Seems their services are more important than a wedding web page.

[David Nieporent]

Why do you think they're different from a web designer?

[bernard11]

I believe shidduch refers to the actual engagement, not the dating process that leads to it.

The obviously closely related word shadchan or shadchen means "matchmaker."

[ReaderY]

If King Henry VIII had had the good sense to have his Parliament style his various laws civil rights acts, would anybody today object to executing Sir Thomas More for hate-based animosity against his King?

After all, Sir Thomas More’s defense, as portrayed in Robert Bolt’s A Man for All Seasons, was exactly what was at issue here. More claimed that if he merely remained silent and said nothing, he could not be found guilty of treason. And the prosecution, as portrayed by Bolt’s Cromwell, portrayed precisely the other side here. More’s silence speaks volumes. If More was permitted to remain silent and couldn’t be forced to speak up in favor of the king’s marriage, the king would feel guilty about it, and that would mean that he would not feel free or fully master in his own house. But if More were found guilty and his head cut off, that would vindicate the King’s conscience and help him to sleep at night. As here.

[Jonathan Affleck]

Allowing a Jewish religious exception to the Colorado civil rights law is problematic.

Suppose a Jewish guy wanted to have a wedding-like party for a non-Jewish woman, whom he acquired as a concubine (פִּילֶגֶשׁ). There are Jewish legal opinions that permit both concubinage and also the party. The Jewish guy could even have a civil marriage with his concubine because civil marriage with a non-Jewish concubine has no meaning in Jewish law.

Suppose a Karaite Jewish wanted to marry a Rabbinite Jew. There is Rabbinic and Karaite Jewish law to permit such a marriage.

Suppose a Jew or Jewess wants to marry a mamzer (usually translated bastard but really a child of a married Jewish woman and a Jewish man to whom she is not married).

Suppose a Jewish man, who has given his Jewish wife a civil divorce but not a Jewish divorce, is marrying another Jewish woman.

Suppose a white Jew wishes to marry a black Ethiopian “Jew”. Rav Ovadia Yosef issued a legal opinion, which asserted that an Ethiopian “Jew” is a Jew. There are many authorities, who are more trustworthy and consider an Ethiopian “Jew” correctly — in my opinion — to be a Sabbatarian non-Jew.

In which case might Justice Alito consider the Colorado law to infringe free speech of a Jewish web designer if he were fined for refusing to create a website for the couple.

The federal judiciary would be stupid to get into the business of judging the validity of an alleged religious objection. If the alleged religious objection were not religiously valid, the web designer might be unjustifiably exempted from the law — something that could well be selective enforcement of the law.

[Seamus]

The federal judiciary would be stupid to get into the business of judging the validity of an alleged religious objection.

That's why the judicial inquiry should only be into whether the religious objection is sincerely held.

[Jonathan Affleck]

What if a white racist Christian restaurant owner sincerely believes his religion forbids white and blacks from dining together?

Suppose he even goes so far as to create a section for white dining and another for black dining.

It's Plessy territory.

What if the restaurant is involved in interstate commerce to put the issue within the purview of the CRA of 1964?

[Frank Drackman]

No good, only applies to separate Black College Dorms

[Stephen Lathrop]

Affleck — I will hand it to you for consistency. Your determination to ignore the 1A gets applied across the board.

[gormadoc]

Generally the courts stay out of doctrinal issues and assumes religious beliefs are individual.

[Brett Bellmore]

The easiest way to avoid judging the validity of religious objections would be to just stop forcing people to do other people's bidding in the first place.

[Jonathan Affleck]

Common carriage anti-discrimination law exists because discrimination in common carriage caused serious harm to society.

No one would ever have considered allowing a religious exemption to common carriage anti-discrimination law.

[Brett Bellmore]

Maybe we could realize that not every business is relevantly a "common carrier"? In fact, damn few are.

If you want to get from the mainland to a fair number of inhabited islands, like the one my cousin used to live on, typically your only choices will be one ferry operator, or your own boat. Now, there you've got a classic common carrier situation.

Or a pipeline constructed with aid of eminent domain. Another classic common carrier.

But, a web-page designer? Seriously? If you're going to call them a "common carrier", you've deprived the term of all of the meaning that originally implied the limitations they were subject to.

[Jonathan Affleck]

I was not arguing that a web page designer is a common carrier.

I was pointing out that exemptions to anti-discrimination law should be considered problematic by default.

Common carriage law is the root and origin of all anti-discrimination law.

Common carriage law is the model for sensible anti-discrimination law: simple with no exceptions.

[Brett Bellmore]

And I'm saying that anti-discrimination law should be considered problematic by default, particularly when applied to single proprietorships, where you're telling a particular person they must labor for another particular person, or else.

As I've said, the sin of slavery wasn't that the slaves didn't get a decent wage. It was that they didn't get a choice.

Taking people's choices away from them should always be a last resort move where nothing else will avert a serious problem. And not getting the web designer or wedding photographer you wanted is NOT a serious problem.

Anti-discrimination law had a lot of moral heft when the alternative was somebody sleeping under a bridge because the only hotel where their car broke down wouldn't let them have a room. It loses all that heft when the service isn't vital, and the provider doesn't remotely have a monopoly.

[Jonathan Affleck]

I have done web design in the past.

I am also a patent agent and an engineer.

I work on a contractual basis.

In Massachusetts a contractor is under no obligation to accept any client.

I’m not a retailer. I don’t maintain a place of public accommodation.

There are many potential problems with allowing discrimination by a retailer that maintains a place of public accommodation.

Is 311 Creative really a retailer, which has a place of public accommodation, under CADA? See the quotation below.

I don’t see how 303 Creative even has standing in this litigation.

(1) As used in this part 6, “place of public accommodation” means any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public; any place to eat, drink, sleep, or rest, or any combination thereof; any sporting or recreational area and facility; any public transportation facility; a barber shop, bathhouse, swimming pool, bath, steam or massage parlor, gymnasium, or other establishment conducted to serve the health, appearance, or physical condition of a person; a campsite or trailer camp; a dispensary, clinic, hospital, convalescent home, or other institution for the sick, ailing, aged, or infirm; a mortuary, undertaking parlor, or cemetery; an educational institution; or any public building, park, arena, theater, hall, auditorium, museum, library, exhibit, or public facility of any kind whether indoor or outdoor. “Place of public accommodation” shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes.

I am arguing in Martillo v. Twitter that a social medium platform comes under 42 U.S. Code § 2000a, but CADA’s definition of place of public accommodation and § 2000a’s definition thereof are vastly different from each other.

[Rev. Arthur L. Kirkland]

Prof. Blackman is back to commenting when Justice Alito is in the news! This must be a happy day in the clingerverse.

What hors d'oeuvres did the Jewish Coalition For Religious Liberty serve during its pre-argument dinner date with Justice Alito? Caviar? Shrimp cocktail? Crab Hoelzel? Foie gras?

(The crab would have been a natural, consequent to its history involving Pittsburgh Screw.)

[BravoCharlieDelta]

Original proposition:

Many Jews consider intermarriage an existential threat to the future of Judaism.

Rev. Arthur L. Kanye's response:

If intermarriage is a threat to something, does that something — which apparently can’t survive on merit — deserve to be maintained?

Nice. nice.

[Rev. Arthur L. Kirkland]

I think people should marry as they wish. Considerations of superstition, race, nationality, hair color, and the like -- imposed by others -- seem silly in that context. People who want to prop up sagging superstition with marriage restrictions, childhood indoctrination, legal preferences, and the like strike me as unpersuasive people with low-quality ideas.

Carry on, clingers. So far as better people -- and the marketplace of ideas -- permit, that is.

[Frank Drackman]

Sorry, Jerry, don't think NAMBLA's gonna get their platform passed anytime soon, but with "Sexual Reassignment" (nice way to describe Castration) the "Standard of Care" who knows??? Might want to get your commutation package into Stuttering John (D, PA) before he steps down from the Parole board...

[BravoCharlieDelta]

Even brothers and sisters?

Or mature gays and children?

Wow, VERY Democrat of you.

[shawn_dude]

Heard a phrase this weekend. It’s new to me, at least.

Rage Farm.

I immediately thought of Reason.com.

A rage farm’s primary goal is to manufacture outrage for the clicks and ad revenue, even at the expense of good reporting and the truth.

[Rev. Arthur L. Kirkland]

My sense is that professors tend to mention their academic affiliations in friend-of-court briefs. Why is South Texas College Of Law Houston not mentioned in this brief?

Is it because the school requested that it not be associated with the brief?

Because the school demanded that it not be associated with the brief?

Because the client or the lawyers concluded that South Texas College Of Law Houston's low ranking and sketchy reputation might hurt rather than help?

[Frank Drackman]

OK, I guess you are the "Real" "Reverend" Jerry S.
My bad,
Frank

[Rev. Arthur L. Kirkland]

The only wingnut who rises to defend Prof. Blackman is Frank Drackman?

Ouch.

Very ouch.

[ReaderY]

Imagine, in a case involving a kosher caterer forced to serve pork, Alito talks about a hypothetical where the caterer is forced to serve dog or horsemeat. Perhaps people in general society regard dog or horsemeat as more distasteful than pork and hence will be more sympathetic to the idea of not wanting to force a religious caterer to serve it . But from the carerer’a point of view, there isn’t really any difference between the hypothetical and the case he’s in.

[Frank Drackman]

Some of the best Texas BBQ I've ever had was in Haifa, would love to see what they'd do with some Carolina pulled pork...https://texasbbq.co.il/

Frank "100% Kosher 98% of the time, OK, 9.8%)

[Dr. Ed 2]

I argue that Lobsters are Kosher.

Prior to the development of the Diesel engine and hydraulic winches, it physically wasn't possible to go 30-40 miles offshore and to haul traps in 50 fathom (300 feet) of water.

The Med is (relatively) shallow (750 fathom) and in Biblical times, both human and animal feces washed into it every time it rained -- and any human fishing activity was close to shore. Hence lobsters not kosher because they resembled similar animals there. And I wouldn't eat lobsters caught close to shore today (amongst other things, they taste of mud).

But that far offshore, where the tide runs at 5-10 knots, there is so much water and so much circulation and it is SO far from any contamination that -- well -- I argue they are Kosher.

[Dr. Ed 2]

I'm reminded of the problem that arose when the drinking water somewhere was SO pure that it (a) didn't have to be chlorinated and then it was found that (b) microscopic lobster-like animals were living in it. This actually surprised a lot of biologists because these particular animals can only live in super-super-super clean water.

So was the municipal drinking water still kosher? (It was agreed that the organism did no harm to human health.)

The Rabbi ruled that the particular law was never intended to apply to an organism that people in Biblical times had no means to detect (i.e. no microscopes back then) and could only live in exceptionally clean water in the first place.

[David Nieporent]

But that far offshore, where the tide runs at 5-10 knots, there is so much water and so much circulation and it is SO far from any contamination that — well — I argue they are Kosher.

What the fuck does any of that have to do with them being kosher?

[zztop8970]

It doesn't, of course.

But in fairness, there is a certain school of thought that seeks to explain or rationalize the seemingly arbitrary and nonsensical religious laws - the pork was forbidden because it was supposedly an unclean animal with many parasites, shellfish were hard to keep fresh in the absence of refrigeration etc..

[David Nieporent]

Yeah, I certainly know of that. But even the most cafeteria (no pun intended) halachic reform jews don't claim that the laws of kashrut have changed; they just argue that Jews should decide for themselves whether to follow the laws.

[bernard11]

Why would a kosher caterer be forced to serve pork? That makes no more sense than a vegetable market being forced to sell beef.

That does not constitute discrimination against a class of customers. They'll sell tomatoes and onions to anyone.

Food service businesses are allowed to choose what products they will provide.

[EscherEnigma]

You're supposed to take for granted, in this analogy, that [insert service here] for a wedding of two men or two women is as different from the same [insert service here] for a wedding of a man and woman, as a cucumber is from a head of lettuce.

If you don't concede that point then the entire thing falls apart.

It's worth noting that this argument never gets to the SCOTUS. It's strictly an "on the steps of the courthouse" argument, and not an "in the courthouse" argument.

[OtisAH]

I’m not sure if my favorite part about this matter is that she doesn’t actually make wedding websites or that her deep religious views only appeared on her own website after she filed the original case.

[Rev. Arthur L. Kirkland]

The most important point is that she is a bigot.

She seems to be dumb (gullible) enough to think that superstition improves bigotry, or transforms bigotry into something other than bigotry.

[Ed Grinberg]

In my book, someone who refuses to participate in a gay wedding (a "bigot," as you put it) is less morally reprehensible than someone who wants to force them to do so.

[shawn_dude]

Then there's good news for her! No one wants her to participate in a gay wedding either and no one has asked her to. (And no one is forcing her to.)

[EscherEnigma]

That ADF couldn't find a real client, and had to manufacture one, is something we're all supposed to ignore.

[bernard11]

Could you provide more details, or a link?

[EscherEnigma]

What part of "we're all supposed to ignore" was unclear?

This was handled at the lower courts. That she and ADF entirely manufactured the case was ruled irrelevant, and that the courts would proceed as if she had actually been harmed.

[shawn_dude]

I think this one is pretty good at describing the claims.

Quick summary: 303 Creative doesn't design wedding websites. She's claiming she's prevented from doing so by the Colorado anti discrimination law because her faith defines marriage more narrowly to include only a man and woman. Colorado is claiming she isn't being limited or forced in her speech in what she designs; she just needs to sell her designs to the general public without regard for race, gender, sexual orientation, etc.

[Rev. Arthur L. Kirkland]

It likely was not difficult to find a gay-bashing bigot in the evangelical portions of Colorado.

[santamonica811]

"...Let's turn from marriage to adultery. An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile. Swipe right for the shidduch.[2] Next, a married Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile.[3] Swipe left for this shanda.[4] After all, adultery is a violation of the Seventh Commandment.[5] ... "

I'm not sure I get this hypo. I'm the photographer, and (per Josh's hypo) I'm adamantly opposed to adultery. So, in the past, I refused the business when an atheist woman came in for her AshleyMadison photos. And I refused when a Baptist would-be adulterer came in, and when a Pastafarian came in for the same reason. Isn't it obvious that in Josh's hypo, the photographer is discriminating, but only against those who want to commit adultery? (I'm pretty sure a business has the right to discriminate in this way, no?)

[I think it would have been a more interesting hypo if Josh had, instead, said, "The photographer was happy--or, at least, willing--to do these photographs for any non-Jews, under the theory, "My religion really only requires me to care about the survival of my fellow Jews...other belief-system-holders can do whatever they want with their marriages, so I'll take goyim business from adulterers.' " ]

[Jonathan Affleck]

From the standpoint of Jewish law, a Jewish man can only commit adultery if he copulates with a Jewish woman that is married to another Jewish man.

The above explains why a shiksa is for practice.

[santamonica811]

1. Interesting. Had never heard this. Is this view accepted by most types of Judaism? (I suspect that it's the more Conservative/Orthodox, but maybe I'm wrong about this.)
2. My question still remains...assuming I'd had to slightly modify my own hypo, to accommodate your new facts.

[zztop8970]

The reason you have never heard of this is that it is not true. The 7th commandment is simply "לא תנאף" - "Thou shalt not commit adultery."

JA is simply repeating, ad nauseum, various anti-semitic canards he's read somewhere, while pretending to be Jewish himself - a not uncommon phenomena - see https://en.wikipedia.org/wiki/Israel_Shamir.

As noted here by Josh Blackman a few days ago, Judaism doesn't have a Pope that defines "Jewish Law" for all adherents, and it is possible that some Rabbi somewhere held that adultery is not committed if the other woman is not Jewish, but that is not the mainstream position of any Jewish denomination. The mainstream position (e.g Rashi, Rambam) is that it is forbidden to have sexual relations with another man's wife.

[Jonathan Affleck]

I studied at Brisk and used to learn gemara with the Talner Rebbe.

Where did the ignorant racist clown zztop8970 learn anything about Judaism?

While there is no pope in Judaism, there are three Rabbinic Jewish codes of law. A religious Jew follows one of the three.

[zztop8970]

Sure you did. Was he the one who told you Jews are duplicitous businessmen?

[bernard11]

This is not true.

[Don Nico]

"The above explains why a shiksa is for practice."
Bravo!

[bernard11]

I was puzzled also.

It's not as if the prohibition on adultery is strictly a Jewish matter.

[Jonathan Affleck]

Different legal systems can have different definitions.

A religion, which like Islam or like Judaism permits polygyny, must define male adultery differently from female adultery.

[EscherEnigma]

A more relevant hypo would be a designer that wanted to make wedding sites, but didn't want to celebrate weddings for Jewish couples.

Presumably, they would argue something like "I'm not discriminating against Jewish people, just Jewish weddings, which are entirely different from non-Jewish weddings".

[Rossami]

The analogy is that the photographer is discriminating against married people (and only a subset of those - those who want to have sex with someone not their spouse) based solely on his own personal religious belief. The photographer is, in this hypothetical, perfectly willing to take a picture of the same married Jewish person for purposes other than a dating profile and is also willing to take pictures for dating profiles of other (that is, non-married) people.

[AtR]

10 points for citing the Lubavitcher Rebbe in a secular publication.

[Don Nico]

I was also amused at that.

[fafalone]

I don't know why everyone bothered spilling so much ink on this. A 2-word brief consisting of 'jesus sayz' would be sufficient for this court to rule in favor of the web designer. They've made it clear over and over that religious freedom supersedes all other rights, even the establishment clause-- they'd happily rule we can have a state-enforced official religion because to not allow that would violate the free exercise of the officials wanting to enact it, or the people wanting to enact it by referendum.

[shawn_dude]

A Jewish man and a Jewish woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. No problem. Mazal tov! Another Jewish man and a Christian woman, who are engaged to be married, ask a Jewish website designer to build a website to celebrate their nuptials. Big problem. Don’t stomp the glass. Many Jews consider intermarriage an existential threat to the future of Judaism.[1] Under the 10th Circuit’s ruling, the Jewish artisan would be compelled to voice support for an existential threat to the future of his faith.

This hypothetical doesn’t quite address the issue in the case with 303 Creative. It would need to be adjusted to read:

“So the Jewish web designer created a design for their wedding. Then, a Jewish/Christian couple approached the designer and asked to purchase the same design created for the Jewish couple without any customizations. Big Problem.”

If 303 Creative starts designing wedding sites (she doesn’t currently) and builds an amazing design for heterosexual weddings, Colorado law says she must also sell that exact same design to gay couples. This is similar to the wedding cake issue where a standard wedding cake with no writing isn’t compelled speech. If the gay couple wants to modify it themselves after-the-fact, that’s no speech on the part of the baker or the web designer.

I think people are trying to frame this in the sense of forced speech but Colorado agrees that making 303 Creative build a gay version of a website would be unconstitutional and not protected under the state law. 303 Creative does not make wedding sites currently and no gay couple sued 303 Creative for discrimination. Rather, she’s pre-emptively saying she wants to sell products to only straight people because her religion demands it of her and the state law prevents her from discriminating based on the sexual orientation of her customers.

What she could easily do to avoid the issue she’s suing over is just only offer custom design services where no two websites will ever use the same design. Then the First Amendment covers her and the Colorado law doesn’t apply. Why isn’t she doing that?

[The Margrave of Azilia]

"OK, we'd like to buy a version of that one-size-fits-all Jewish-wedding web site, but because we're religiously mixed, we want you to leave out the part where you say 'may your children continue your Jewish heritage under the loving attentions of a Jewish father and a Jewish mother.'"

"Pshaw, don't serve those people, serve *our* wedding, we want to use your one-size-fits all Jewish wedding Web site. We wouldn't change a word, because we're both Jewish. In fact, we're Black Hebrew Israelites. Black people are the *real* Jews, and you're just an imposter."

[shawn_dude]

In the case you posit, I agree, she cannot be forced to make any changes.

I 100% agree that custom web designs are artistic speech. I agree that 303 Creative is already able to make custom, heterosexual-only designs and sell them in Colorado. Colorado appears to agree as well.

So... why is she suing?

[The Margrave of Azilia]

The Supreme Court seems to think the case raises the following question:

“Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-476.html

[shawn_dude]

While I make an effort to assume good faith in the case of 303 Creative (though there's none in evidence), I make no such assumption for the current US Supreme Court.

[David Nieporent]

Because Colorado doesn't appear to agree.

[Bored Lawyer]

I suggest you review the Tenth Circuit opinion. You have both the facts and their holding wrong.

https://law.justia.com/cases/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.html

[shawn_dude]

Thanks for the link. I'm not happy with the whole "monopoly" argument the state makes. But I'm not a lawyer (bored or not) so I also recognize that there are terms of art I may not grasp the full meaning of.

If I read it correctly, she has standing to challenge the portion of the law that prevents her from saying, effectively ,"no gays" on her sales site.

I wasn't representing the 10th Circuit's findings but trying to make sense of why she'd sue in the first place if her intent was to build fully custom, one-off designs which, in my legal layperson opinion, are protected by the First Amendment. It looks like part of the issue was that she also wanted to communicate that she would not provide some services for LGBT customers up front. I have mixed feelings on that. I like to know who to avoid but I also think it's commercial speech related to generally illegal conduct.

[Don Nico]

"Why isn’t she doing that?
She wants to have a fight.

[Noscitur a sociis]

I think people are trying to frame this in the sense of forced speech but Colorado agrees that making 303 Creative build a gay version of a website would be unconstitutional and not protected under the state law.

Again, where are you getting this from? It’s to correct, but I’d be curious to learn whether there’s something you’re just misunderstanding, or if someone you’re relying on is just lying.

[Bored Lawyer]

I am unimpressed by either the amicus brief nor Alito's question. The issue before the Court is whether the state may compel speech by the web designer. The state and the 10th Circuit agreed that this was a compelled speech case, but said the state could compel it anyway. That's the issue.
The amicus hypothetical just conjurs up a supposedly more sympathetic fact pattern. Utterly irrelevant. The state should not be forcing people to engage in speech they disagree with. Whether we sympathize with the refusal or not. Compelling speech is what totalitarian governments do, not free societies.
Has there EVER been a case before this one where SCOTUS upheld compelled speech? I can't think of one.

[Rossami]

A few jump to mind. I'm sure there are more.
- Sales tax disclosures.
- Food nutrition labeling.
- Cigarette warning labels.
- Posting of employment rights.
- Mortgage disclosures.
- Pretty much everything about your insurance policy.

[Bored Lawyer]

Interesting list. All of those are (a) commercial speech involving (b) products or services which are not themselves speech and (c) involve avoidance of fraud or other misconduct by the provider.

None of which applies to this case. So, yes, if you sell a product or service, the government has a limited ability to compel you to disclose important facts about your product or service, especially ones that may mislead the consumers of said products or services.

That is a far cry from forcing someone to affirm a controversial political or cultural position.

[Jonathan Affleck]

The alleged Jewish authorities in the amicus brief are ridiculous.

[Josh R]

The state does not believe they are compelling speech (the 10th Circuit came to that conclusion and said it was justified).

[Bored Lawyer]

You are correct, that is the position they took in the merits briefing before SCOTUS -- that they are regulating conduct, not speech. Sounds like a losing argument to me, given the way cert. was granted.

[Brett Bellmore]

It certainly should be a losing argument, just as, "We're not regulating the press, just money spent to publish." was a losing argument in CU.

[Jonathan Affleck]

Isn't regulating conduct the argument, which has been used to overcome First Amendment objection to the CRA and to a labor-union-friendly federal statute?

[Jonathan Affleck]

I was thinking of Lincoln Union v. Northwestern Co., 335 U.S. 525, 69 S. Ct. 251 (1949).

I partially misrembered. In this opinion, SCOTUS seems among other things to attempt to strike a balance between union-friendly and union-unfriendly speech.

[BravoCharlieDelta]

https://www.virginiabusiness.com/article/richmond-restaurant-refuses-service-to-family-foundation/

A German-inspired restaurant in Richmond canceled a reservation for a conservative political organization’s private event last week, saying in a statement posted online Thursday night that the decision was made to protect their staff, many of whom are women and/or part of the LGBTQ community.

Where's the outrage police demanding we put a ban to evil discrimination????

[The Margrave of Azilia]

Many advanced jurisdictions ban political discrimination in places of public accommodation. Of course, the clingers in Virginia haven't reached that level of enlightenment, but others have.

Among the examples (as of 2018), there's this one: "Harford, Howard, and Prince George's Counties (Md.) ban discrimination in public accommodations and housing based on "political opinion," defined (with immaterial variation among the ordinances) as "the opinions of persons relating to government, or the conduct of government; or related to political parties authorized to participate in primary elections in the State.""

Professor Volokh, who wrote about these and many other laws, says: "Say, for instance, that a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations. A photographer would then have no First Amendment right to refuse to photograph a Nazi or Communist event in a jurisdiction with a ban on political discrimination by public accommodations."

https://reason.com/volokh/2021/10/18/bans-on-political-discrimination-in-places-of-public-accommodation-and-housing/

[BravoCharlieDelta]

It wasn't political it was religious. Apparently, you can ban someone because of their religion, but you can't ban someone because of your religion.

[Stephen Lathrop]

Chicken and egg problem. Is the legal reliance on precedent the cause of the kind of hypothetical festivals this thread examples? Or is it attraction to hypotheticals which powers legal reliance on precedent? In short, what is wrong with deciding cases, including cases which rely on precedent, without reference to hypotheticals? Why wouldn’t it be better to stick to the facts of the case in question, and cite them in relation to precedent without hypotheticals?

[David Nieporent]

Why wouldn’t it be better to stick to the facts of the case in question, and cite them in relation to precedent without hypotheticals?

Because SCOTUS decides issues, not just cases. Nobody except Lorie Smith cares about the fate of 303 Creative LLC. SCOTUS is going to be issuing a decision that lays down certain legal principles, and those principles are then going to be applied to tens of thousands of businesses of different types in different situations across the country.

So I guess, yeah, in a sense the legal reliance on precedent is the cause of this. If the application of a law of this nature to each business were newly decided on an ad hoc basis each time it arose, then it wouldn't matter about this decision. (But then, of course, SCOTUS would have had no reason to take it in the first place.)

[mydisplayname]

Joe A., a male, has been diagnosed with schizophrenia and from time to time believes he is the pope and as such issues bulls commanding a variety of things. Joe B., a male, has been diagnosed with gender dysphoria and from time to time wears dresses and issues statements commanding that he be called Joelle and be addressed using the pronouns she/her.

Does the fact that I heed the commandments of neither Joe A. or Joe B. mean that I am _discriminating_ against either Joe? Both have diagnosed mental disorders and I simply do not wish to become a player within their disorders: I am treating both disorderly Joes the exact same way.

Moving to embrace the public accommodation aspect, if I refuse to make ham sandwiches on Friday night, I am still treating Joe A. and Joe B. equally. If I refuse to make "Gay Pride" themed websites, I am still treating Joe A. and Joe B. equally. If I refuse to make websites showing two members of the same sex engaged in amorous behavior, I am still treating the Joes equally. If I refuse to make websites showing males wearing dresses, I am still treating Joes A & B equally.

Likewise, if I choose to make ham sandwiches on Friday nights and either Joe wants one, I must sell it to him (while calling both males "him"). If I choose to make websites showing males wearing dresses, I must make them available to every Joe with money.

Can the state force me to sell ham sandwiches on Friday night? No. Can the state force me to make websites showing males wearing dresses? No.

It is only by inappropriately broadening the definition of the service offered that the state has any argument at all; that is, if a person makes websites which "honor marriage" rather than websites which "honor the sacred & blessed union of a male with a female" -- or makes "food" rather than "food acceptable to orthodox Jewish law and tradition" -- the state _might_ have a role. But why needlessly broaden the scope? Isn't that broadening compressing my right to do what I believe -- and why is such broadening even necessary?

[Josh R]

Justice Kavanaugh gave props to Eugene and Dale.

[Rev. Arthur L. Kirkland]

Given the degree to which the Volokh Conspirators flatter and run interference for the clingers on the current Court, they deserve shout-outs.

[freedom121]

OK, let’s see where this deference to sincerely-held religious beliefs takes us.

J runs a restaurant. J is the owner, chef and manager. J has a deeply-held religious belief that black people should not exist. At least not in the United States. For this reason, interacting with them in any way, even acknowledging their continued presence, would be an affront to J’s religious principles. Hiring them is out of the question. Permitting them to patronize the restaurant is equally unacceptable. J considers the preparation and presentation of food to be a religious artistic expression. Can J be compelled, against their religion, to hire those they consider to be mud people? Can J be compelled, against their religion, to serve such people? Or is J free to invoke their religious beliefs and ignore all public accomodation laws?

[Josh R]

Religious freedom isn't at issue in this case. Instead, freedom from compelled speech is. Even though J considers food preparation artistic expression, he's going to lose that argument.

[freedom121]

I do not think it is that easy.

Many of hypotheticals concerned religious freedom. Alito asked whether someone can be compelled to "speak" against their religious convictions, by providing services to people that are contrary to the plaintiff's beliefs.

Website creation is artistic expression but serving food is not? What if the waiters sing songs composed by J as they present the food?
What if they wear costumes designed by J?
What if the presentation of the food itself is treated as artistic expression? Certainly some chefs will claim that it is.