Tuesday, July 04, 2023

The unsupremes ruin everything

Friday evening is normally a relaxing time for me. Sometimes I get together with family for dinner, which is always nice, and then I settle in to watch some TV for the rest of the evening. But this past Friday, as I was beginning to wind down for bed, I got an alert on my iPad that the US “Supreme” Court had struck yet again dismantled more of the human rights of LGBT+ Americans. The ruling—yet another far-right ideologically-driven decision—is part of the Republican far-right majority’s agenda: Make America 1883 Again.

Like most people on the centre and left of US politics, I have zero respect for the far-right Republican majority of the court, precisely because they’ve worked so very hard to destroy the court’s reputation: Instead of standing up for justice and fairness and for ordinary people, and instead of ruling in accordance with the law and the US Constitution, the far-right Republicans are instead engaged in “comforting the comfortable and afflicting the afflicted,” as journalist Ian Millhiser put in the subtitle of his 2015 book Injustices

The Court’s latest ideologically-driven decision, 303 Creative LLC v. Elenis (21-476) [PDF of the decision], involved a fundamentalist “christian” web designer who thought one day she might like to create wedding websites, but her religious views compelled her to refuse to create a website for a same-gender couple, in the event she ever started providing such services, of course, and if a theoretical same-gender couple ever tried to hire her services. While the supposed “injury” to her was entirely hypothetical, she sued the State of Colorado, anyway—well, the ultra-far-right “Alliance Defending [sic] Freedom [lol]" sued on her behalf.

The extremist group has long shopped around for “victims” they can represent in their constant efforts to overturn all legal protections for LGBT+ people—and everyone else they don’t like. They have several suits at various stages of litigation at any given time, and it’s entirely likely that when the Court’s the far-right Republican majority inevitably strikes down Obgergefell v. Hodges, Lawrence v. Texas, Griswold v. Connecticut—and possibly even Loving v. Virginia—the A”D”F will be behind it one way or another.

What’s extraordinary about this decision, and two others just released, is that there was no one who had suffered actual legal “injury” that needed to be remedied. Instead, the Court decided to “afflict the afflicted” in order to “comfort the comfortable” by imposing their own ideological agenda onto everyone else. That could not possibly be more obvious than in this particular case.

When the plaintiff’s firm filed the lawsuit against Colorado, there was no possibility of harm because she wasn’t doing the sort of work she didn’t want to have to do for people she objected to. It’s clear that Colorado didn’t think she had legal standing to sue the state, and part way through the process it emerged that, allegedly, someone named “Stewart” had contacted her through her website’s contact form to try to hire her web services for his marriage to his “husband”. The problem was, the whole thing was faked by someone: He had been married to a woman for 15 years, and even if he was gay, he was actually a designer himself, so he wouldn’t need her services. He also had no idea his name and details had been used in a Supreme Court case.

The plaintiff's legal team claimed, “it’s undisputed that the request was received,” however, it appears that no proof of that has been made public. Still, assuming it really did happen—and, to be clear, it may have happened—it proves nothing whatsoever. The lawyer suggested it could have been a troll, which is possible, but that raises questions, like, who did it and what was their motivation? Mischief or malice? Was it done to strengthen the web designer’s case? We’ll never know because at no point did anyone ever check to see if it was a legitimate request, which is… odd. A legitimate request may have actually bolstered her case if she refused, but not even checking to find out if the request was legitimate just sounds… odd.

The lawyers claimed it wasn’t actually part of the case, anyway, which is technically true (at least, from their perspective), but the fact remains that the one thing that could have suggested real potential “injury” to the plaintiff was never vetted. Even so, the lawyers were happy to continue using the apparently faked contact, arguing after the ruling that “any claim that [the web designer] will never receive a request to create a custom website celebrating a same-sex ceremony is no longer legitimate because [the designer] has received such a request.” Did she, though? And if so, how do we know it wasn’t from a supporter trying to shore up her legally non-existent argument? This just sounds like spin. Obviously, either side in a political dispute like this may try to spin the results to their benefit, but that doesn’t make claims of relevancy valid. [See also: "Legitimacy of ‘customer’ in Supreme Court gay rights case raises ethical and legal flags" by Alanna Durkin Richer and Colleen Slevin, Associated Press]

This same thing—litigants who haven’t experienced any actual legal “injury” runs through two other recent decisions. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (20-1199) [PDF of the decision], which overturned affirmative action in university admissions, the driver was a long-time agitator against affirmative action, not a student. Similarly, in Biden v. Nebraska et al (22-506) [PDF of the decision], the decision that stopped President Biden from forgiving some student loan debt, the supposedly injured parties—six Republican-controlled states—were not actually injured (except for their feelings, perhaps). One state agency that handles student loans didn’t want to be part of the lawsuit (not the least because they stood to make more money if the debt relief plan had been permitted), but was forced into it, anyway, by Republican state officials who used their power to act on behalf of the plaintiff because it was a state agency. In all three of these cases, dubious—at best—speculative claims were accepted by the Court’s Republican far-right majority as legitimate and as good reasons to further erode the rights and freedom of ordinary people in order to, yet again, comfort the comfortable—and to advance a far-right Republican agenda.

For the web designer’s case, the whole rightwing argument was, as it has been in similar cases, about supposed “speech”: They argue that forcing a fundamentalist “christian” to “participate” in a same-gender wedding requires the creative professional to make “symbolic speech” in support of something they oppose on religious grounds. As someone who has worked in creative industries for decades, I think this argument is profoundly stupid: They’re hired to do a job, end of story.

The real issue here is that the rightwing wants their particular religious beliefs to always cancel out the human and civil rights of people they don’t “agree with”, which, of course, is code for, shall we say, “people they dislike very much”. I think that’s stupid, too, because it only ever works in one direction: If a graphic designer, photographer, cake baker, florist, or other creative professional refused to provide services to an opposite-gender fundamentalist “christian” couple because it would mean providing “symbolic speech” endorsing the couple’s religious views that ran counter to the creative professional’s, I feel certain that the current Supreme Court would never permit that objection. Turnabout is not fair play—it’d be prohibited.

The court’s far-right Republican majority is doing the one thing that Republicans have long pretended was an unpardonable sin: They’re legislating from the bench [See: “The Supreme Court’s conservatives are doing exactly what they claim to detest” by MSNBC Columnist Michael A. Cohen]. They’re doing this legislating from the bench in order to force a hard-core ideologically-driven agenda onto everyone. In so doing, the court’s far-right Republican majority is reversing decades of slow, often tortured and halting, progress toward more fairness, equity, and safety for ordinary people, and are instead working hard to raise elites above ordinary Americans—and ordinary people are very ones who  need the protection of the Constitution.

So, yet again, the Supreme Court’s Republican far-right majority has dismantled a bit more of the civil and human rights of LGBTQ+ people. This is far from the last time they’ll do that, and each attack will be just as ideologically driven. This is why defeating all Republicans everywhere is, for now, the only hope for saving democracy, the Constitution, and the rule of law. The Supreme Court’s Republican far-right majority has yet again reminded us: Elections have consequences.


Roger Owen Green said...

I could write something about this topic. or I could just link to Arthur. (Much easier)

Arthur Schenck said...

Easy is good!