CSotD: A Right in Search of a Wrong
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Dr. MacLeod takes advantage of the smoke from the Canadian wildfires to comment on the Supreme Court session just ended.
He may be overstating things a bit, since the court’s decisions weren’t universally awful. After all, they included the slapdown of the independent state legislative authority theory as well as turning away an example of gerrymandering that threatened to expand racial bias in elections and upholding native communities’ rights to control adoption of their children.
This seems to me far more than a “parts of it are excellent” defense of the session, but, to invoke the Curate’s Egg, it doesn’t take much for the rotten parts of an egg to negate the “excellent” portions.
Revoking Biden’s attempt to forgive student loans was understandable and defensible but deeply disappointing, while the affirmative action decision was outrageous enough to put a cloud over the entire session.
Speaking of the cloud literally for a moment, Joe Heller isn’t the only cartoonist to draw a smoldering maple leaf, but he could have skipped that caption. I’m pretty sure the Canadians aren’t torching their forests on purpose, and wildfire fighters from around the world have been up there trying to get things under control.
On the other hand, the interactive map shows that the smoke has reached my house, so it’s gone from a curiosity to a disaster.
Isn’t that how these things are measured?
Getting back to SCOTUS, I’m going against the flow, and against John Deering’s analysis, on 303 Creative LLC v Elenis, the case in which a web designer did not want to design custom wedding websites for same-sex couples.
It’s a horrible case that the Court should have turned away, because the purported victim hadn’t begun marketing custom wedding websites at all, much less been asked to design one for a same-sex couple, and the one alleged inquiry turns out to be a fake.
It feels very much like Phil Ochs’ wallflower, who’d “love to dance and prays that no one asks her,” and a case of a right desperately in search of a wrong over which to be outraged.
Adding to the unpleasant whiff factor is that her case was brought by the Alliance Defending Freedom, a group noted for throwing mud at the wall to see what will stick, and being lucky in this case that SCOTUS apparently wanted a second bite at the Masterpiece Cakes apple.
The Southern Poverty Law Center’s analysis of ADF says:
However, the pedigree is less important than the outcome, assuming it was proper for SCOTUS to rule on a case built entirely on hypothetical issues.
My problem being that I think the case stinks, but I agree with the ruling, which is a great deal more narrow than much of the outraged reaction suggests.
It does require that we assume this ADF puppet is going to actually produce custom wedding sites, but Gorsuch does make that distinction in his ruling.
We start with the obvious principle that a diner selling hamburgers can’t refuse service to people because they are Black or Jewish or gay. A hamburger is a hamburger, regardless of how you might dress it up.
And if she offered a choice among 20 set website designs, with a few options to make them distinctive, like different colors or borders, she wouldn’t be permitted to discriminate in her choice of clients.
But assuming she truly is offering custom sites, then she becomes an artist and not simply a provider.
Gorsuch cites an earlier dissent in the case, in which a judge discussed potential outcomes, should the designer be required to make custom websites for people with whom she had a fundamental religious disagreement.
If we’re going to rule on hypotheticals, consider the hypothetical he offered, of a Muslim filmmaker required to make a Zionist movie for a client, or an atheist artist required to make a mural celebrating Evangelism.
Or, he added, requiring “a gay website designer to create websites for a group advocating against same-sex marriage.”
When I was freelancing, I did brochures, and had someone from the Klan asked me to write a brochure promoting their organization, I’d have suggested they look elsewhere.
Sotomayor mounts a passionate dissent to the Court’s decision, but Gorsuch does, in fact, make a somewhat hair-splitting qualification to insist that the ruling is about artists, not about websites.
Or cakes.
As said, it feels like a right looking for a wrong, like someone seeking an argument where none had been offered. It’s one of those cases where you have to hold your nose while you read the decision.
But I’m not gonna write brochure copy for the Klan.
Elsewhere on the Docket
I disagree with Mike Lester (AMS) so often that it’s only fair to point out the rare occasions when we’re on the same page, and I got a laugh out of this reaction to the Court’s decision.
As noted here before, when you add up the legacies and the athletes, plus a few admissions of children of major donors, you find enough padding that most major universities need to be very, very quiet when talk turns to merit.
Which might not be an argument in favor of affirmative action. Maybe it’s an argument in favor of a major housecleaning.
But this Jack Ohman piece, combined with Lester’s, reminds me of a long-ago conversation I had with my grandfather, who had been plucked out of a mine shaft on the Upper Peninsula by the mine captain and the local superintendent of schools, who recognized the boy’s promise. They got him a scholarship to the University of Wisconsin and off he went on an American success story.
I asked him what his father, a Danish immigrant who worked the loading dock at the mines, thought of it, and he said he thought it was a waste of time, because, when he graduated, his father would not have any connections to help him take the next steps.
That would have been about 1920: He had to take some time off to go beat up the Kaiser before finishing his degree. So call it a century ago and tell me how much things have changed.
Just don’t repeat that nonsense about Fred Trump’s kid graduating with honors. Or making it on his own afterwards. Or watching his kids do the same.
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