Thank you, sir. Some people are good at shaking babies and kissing hands to get elected, but I'm not one of them. I'll continue to yell and scream what I think is sensible and hope that you, and other like-minded readers, amplify my screeds through repetition of my arguments and sharing my pieces.
The thing that bugs me most is the DISHONESTY of their opinions. Look at the Bremerton Coach case that said he just "prayed silently on the sidelines" while the dissent posted a PICTURE of him in mid field in a huddle with the whole team. Look at Dobbs, going on about a definition of human life that is purely religious, and citing an actual WITCH HUNTER to support that. Look at the stupidity of accepting standing in the student loans case.
Most of all, look at creative 303. In fact the owner did not actually SAY she wanted to explicitly reject gays--or at least the court, in FN 5, denied they were basing their decision on such a statement. So they came up with a "holding" that the state cannot "force" someone to sell a product that disagrees with their religious belief. Thing is, that has been the law ALL ALONG. No one has EVER claimed that a custom hijab maker has to make yarmulkes. But in their reasoning they left the door open for interpretations that you CAN openly discriminate, and those interpretations will be rampant.
If she was legally able to sell the website version of a hijab maker, there was no imminent threat of administrative action to allow her standing as the 10th Circuit did. But the court just accepted that standing.
The justices didn't actually "lie" about their into to follow precedent. If you look at what they said, they dodged the question. The senate, including above all Susan Collins, just heard what they wanted to hear.
Sometimes precedent DOES need to be challenged--Plessy vs. Ferguson is an example. But there need to be damn good reasons. Citing a particular religious belief as your reason is damn bad.
I agree. Laws in a society that isn't theocratic, are to be interpreted so that a Muslim has no more influence on the way they are applied than a Hindu, Jew, Christian, Sikh and vice versa. Reactionary SCOTUS rulings, in my humble, rudimentary judiciary understanding, appear to employ a particular point of view in some instances, and then claim a cool neutrality in others, depending on the outcome they desire.
Susan, I noticed in your profile that you're trained as an attorney. I'm not, so your input here is valuable. Please help me understand the claim that the website designer's suit, when she had no design website at the time of her claim, which named a defendant, who said he didn't submit an order to her nonexistent site, had standing. I understood standing as a clearly demonstrated injury but if her situation is essentially a thought exercise, where does the injury exist? Thanks in advance; both for continuing to read my work and sharing your thoughts.
According to the 10th Circuit, (per the Extreme's opinion--haven't read the 10th C opinion) she had standing because if she went ahead she would face immediate agency action against her. But the problem is--she wouldn't. Not if she wasn't actually refusing to sell to gays. Which the Extremes claim in FN 5 wasn't a factor in this case.
So if she wasn't facing immediate agency action, no standing, since all the rest was just speculation about what she might want to do.
The 10th C may have found that standing because some idiot at the Colorado AG claimed that they WOULD sue her even if she didn't actually exclude gays. But that isn't the law, and Colorado was just being dumb if it said that.
The old saw is "bad facts make bad law." Bad lawyering also makes bad law. And absence of facts because she hasn't even TRIED to do what she wanted, whatever it was, makes even worse law: the whole thing is speculative about what the agency might do.
As I've said elsewhere, a lot, nothing prevents you from selling a religious product, and if someone from another religion is willing to buy it, and you let them, you are acting perfectly legally. She COULD have simply said "any site I design will reflect my religious beliefs about marriage." Gays would be free to accept or reject that. Most likely to reject, but that would be THEIR choice, not something she imposed. I can see a gay buying such a site as a joke that all reading his site would find funny.
Others have said "oh, but the buyer has to respect the religious intent." Bull. Nothing in the First Amendment requires someone to believe or respect the results of bona fide free speech. A Jew could buy the hijab and burn it, and the creator would have no right to object. Nor could Creative 303 object if someone bought her religious site design for satirical purposes.
Susan, thanks for this additional context. It helps to better understand how blatantly poor the reasoning behind the decisions is.
As for my assertion that the reactionaries lied, it sure felt to me that they did. It is possible I'm misremembering the hearings but I remember Senators, asking specifically about abortion. The response usually was to decline, make excuses about not ruling on a hypothetical, and declaring hesitance to make a broad determination without a specific case before them. As questioning moved to stare decisis and their view of it, in some cases even in regards to Roe, the response was that Roe was "settled law."
Doesn't settled law mean that the decision is considered sound and stands on fairly solid legal precedent? Not meaning to pick a fight, just wanting to understand better. Thanks in advance.
Settled law just means the courts have accepted it for a long time. Plessey, the “separate but equal” holding, was settled law. At one time in the Anglo Saxon legal tradition it was settled law that thieves had their hands cut off.
You’ve actually described what I meant by “walking around the issue.” A judge who said Roe was settled law was telling the truth --at the time he spoke it was settled law. None of them said “no, I would not vote to overturn Roe.” They mouthed pieties about precedent and in many decisions this term followed it. People just inferred from the combination of statements that they meant that they would respect Roe. . The “I won’t talk about a hypothetical case” crap should have been a clue.
So yes, they intended to mislead. But they didn’t commit perjury--all the direct statements they made were true at the time.
And that sneakiness continues in their dishonest statements. They TREATED. Mastercake as precedent in 303 creative. But the fact patterns were different--Mastercake involved a direct exclusionary statement. . And Mastercake was never decided. They punted it back to the commission where, as far as I can tell, it died. They didn’t SAY Mastercake was precedent but they used it as such when it wasn’t.
My background before law was all-but-dissertation in English Lit. That was the era of “close reading” of lit, particularly poetry. I found this incredibly useful in law school, which is why I did so well. And I tend to use this skill in analyzing opinions. And this courts opinions collapse in the face of it.
Susan, this is brilliantly broken down. Thank you!! I wish I could express clearer the depth of my gratitude for your explanation.
I suspected the dodge about hypotheticals but was rooked by the use of settled law and assumed that it means it remains so and only something incredible would change it. So, if I edit my piece to say they made a lie of omission, is that accurate or still thin ice? I can always change the wording to misled or something similar if that term is also problematic. I'm angry but I'd like to be as factual as I am irate. Thanks.
Yes, both lied by omissions, in the sense lied by refusing to answer a straight out question but just dancing around it, and by doing this purposely to mislead. I am willing to bet they were coached by the Federalist Society lawyers on how to do the dance. This is particularly true of Kavanaugh, who is the least bright of the newbie bunch. Gorsuch tends to follow standard legal reasoning a bit more closely.
Apart from Dobbs I hadn’t done a lot of close reading of other decisions. The standing issues caught my law-dorky eye. The Bremerton Coach case was so dishonest I didn’t have to unleash my magic wand. I live across the Sound from Bremerton and his behavior was news long before it was a case.
Thank you! Glad you enjoyed it. If the strategy makes sense, share it. Let's rally the sensible and get government to hear the voices of those who want to allow people to choose their own life course, not have it dictated by laws supported by a narrow few.
You should run for office.if I was still in NY I would without a doubt it's for ya.
You are so right.
Peace....T
Thank you, sir. Some people are good at shaking babies and kissing hands to get elected, but I'm not one of them. I'll continue to yell and scream what I think is sensible and hope that you, and other like-minded readers, amplify my screeds through repetition of my arguments and sharing my pieces.
Keep "shaking babies" and I can absolutely guaran-damn-tee you that you gonna be in a world of "ish" desperately reaching for the flusher.
Hey, that's why I said CANNOT run for office. I'm always unsure if I'll mix those things up.
Hahahahahahahaha! Hic.
The thing that bugs me most is the DISHONESTY of their opinions. Look at the Bremerton Coach case that said he just "prayed silently on the sidelines" while the dissent posted a PICTURE of him in mid field in a huddle with the whole team. Look at Dobbs, going on about a definition of human life that is purely religious, and citing an actual WITCH HUNTER to support that. Look at the stupidity of accepting standing in the student loans case.
Most of all, look at creative 303. In fact the owner did not actually SAY she wanted to explicitly reject gays--or at least the court, in FN 5, denied they were basing their decision on such a statement. So they came up with a "holding" that the state cannot "force" someone to sell a product that disagrees with their religious belief. Thing is, that has been the law ALL ALONG. No one has EVER claimed that a custom hijab maker has to make yarmulkes. But in their reasoning they left the door open for interpretations that you CAN openly discriminate, and those interpretations will be rampant.
If she was legally able to sell the website version of a hijab maker, there was no imminent threat of administrative action to allow her standing as the 10th Circuit did. But the court just accepted that standing.
The justices didn't actually "lie" about their into to follow precedent. If you look at what they said, they dodged the question. The senate, including above all Susan Collins, just heard what they wanted to hear.
Sometimes precedent DOES need to be challenged--Plessy vs. Ferguson is an example. But there need to be damn good reasons. Citing a particular religious belief as your reason is damn bad.
I agree. Laws in a society that isn't theocratic, are to be interpreted so that a Muslim has no more influence on the way they are applied than a Hindu, Jew, Christian, Sikh and vice versa. Reactionary SCOTUS rulings, in my humble, rudimentary judiciary understanding, appear to employ a particular point of view in some instances, and then claim a cool neutrality in others, depending on the outcome they desire.
Susan, I noticed in your profile that you're trained as an attorney. I'm not, so your input here is valuable. Please help me understand the claim that the website designer's suit, when she had no design website at the time of her claim, which named a defendant, who said he didn't submit an order to her nonexistent site, had standing. I understood standing as a clearly demonstrated injury but if her situation is essentially a thought exercise, where does the injury exist? Thanks in advance; both for continuing to read my work and sharing your thoughts.
According to the 10th Circuit, (per the Extreme's opinion--haven't read the 10th C opinion) she had standing because if she went ahead she would face immediate agency action against her. But the problem is--she wouldn't. Not if she wasn't actually refusing to sell to gays. Which the Extremes claim in FN 5 wasn't a factor in this case.
So if she wasn't facing immediate agency action, no standing, since all the rest was just speculation about what she might want to do.
The 10th C may have found that standing because some idiot at the Colorado AG claimed that they WOULD sue her even if she didn't actually exclude gays. But that isn't the law, and Colorado was just being dumb if it said that.
The old saw is "bad facts make bad law." Bad lawyering also makes bad law. And absence of facts because she hasn't even TRIED to do what she wanted, whatever it was, makes even worse law: the whole thing is speculative about what the agency might do.
As I've said elsewhere, a lot, nothing prevents you from selling a religious product, and if someone from another religion is willing to buy it, and you let them, you are acting perfectly legally. She COULD have simply said "any site I design will reflect my religious beliefs about marriage." Gays would be free to accept or reject that. Most likely to reject, but that would be THEIR choice, not something she imposed. I can see a gay buying such a site as a joke that all reading his site would find funny.
Others have said "oh, but the buyer has to respect the religious intent." Bull. Nothing in the First Amendment requires someone to believe or respect the results of bona fide free speech. A Jew could buy the hijab and burn it, and the creator would have no right to object. Nor could Creative 303 object if someone bought her religious site design for satirical purposes.
Susan, thanks for this additional context. It helps to better understand how blatantly poor the reasoning behind the decisions is.
As for my assertion that the reactionaries lied, it sure felt to me that they did. It is possible I'm misremembering the hearings but I remember Senators, asking specifically about abortion. The response usually was to decline, make excuses about not ruling on a hypothetical, and declaring hesitance to make a broad determination without a specific case before them. As questioning moved to stare decisis and their view of it, in some cases even in regards to Roe, the response was that Roe was "settled law."
Doesn't settled law mean that the decision is considered sound and stands on fairly solid legal precedent? Not meaning to pick a fight, just wanting to understand better. Thanks in advance.
Settled law just means the courts have accepted it for a long time. Plessey, the “separate but equal” holding, was settled law. At one time in the Anglo Saxon legal tradition it was settled law that thieves had their hands cut off.
You’ve actually described what I meant by “walking around the issue.” A judge who said Roe was settled law was telling the truth --at the time he spoke it was settled law. None of them said “no, I would not vote to overturn Roe.” They mouthed pieties about precedent and in many decisions this term followed it. People just inferred from the combination of statements that they meant that they would respect Roe. . The “I won’t talk about a hypothetical case” crap should have been a clue.
So yes, they intended to mislead. But they didn’t commit perjury--all the direct statements they made were true at the time.
And that sneakiness continues in their dishonest statements. They TREATED. Mastercake as precedent in 303 creative. But the fact patterns were different--Mastercake involved a direct exclusionary statement. . And Mastercake was never decided. They punted it back to the commission where, as far as I can tell, it died. They didn’t SAY Mastercake was precedent but they used it as such when it wasn’t.
My background before law was all-but-dissertation in English Lit. That was the era of “close reading” of lit, particularly poetry. I found this incredibly useful in law school, which is why I did so well. And I tend to use this skill in analyzing opinions. And this courts opinions collapse in the face of it.
Susan, this is brilliantly broken down. Thank you!! I wish I could express clearer the depth of my gratitude for your explanation.
I suspected the dodge about hypotheticals but was rooked by the use of settled law and assumed that it means it remains so and only something incredible would change it. So, if I edit my piece to say they made a lie of omission, is that accurate or still thin ice? I can always change the wording to misled or something similar if that term is also problematic. I'm angry but I'd like to be as factual as I am irate. Thanks.
Yes, both lied by omissions, in the sense lied by refusing to answer a straight out question but just dancing around it, and by doing this purposely to mislead. I am willing to bet they were coached by the Federalist Society lawyers on how to do the dance. This is particularly true of Kavanaugh, who is the least bright of the newbie bunch. Gorsuch tends to follow standard legal reasoning a bit more closely.
Apart from Dobbs I hadn’t done a lot of close reading of other decisions. The standing issues caught my law-dorky eye. The Bremerton Coach case was so dishonest I didn’t have to unleash my magic wand. I live across the Sound from Bremerton and his behavior was news long before it was a case.
Bravo! CJ, that was magnificent.
Thank you! Glad you enjoyed it. If the strategy makes sense, share it. Let's rally the sensible and get government to hear the voices of those who want to allow people to choose their own life course, not have it dictated by laws supported by a narrow few.