CSotD: A Right in Search of a Wrong

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.

14 thoughts on “CSotD: A Right in Search of a Wrong

  1. Admit them by merit. OK, sounds good. Now, define “merit.”
    Grade point average? How do I know that kid with a 3.5 GPA didn’t work harder and learn more than the kid with a 4.0 from another school? And how do I compare GPAs from schools that allow GPAs higher than 4.0 for AP classes with those that don’t? Maybe the student with a 2.9 is really smart but is tired at school every day because he works nights and weekends so his family can afford food, while the parents of his classmate with the 3.9 hired tutors to boost his grades.
    SAT/ACT scores? Universities have begun to drop those scores because they are actually a poor way to judge student performance in college, and it only benefits kids from well-off families that can afford to hire test coaches to prepare.
    Use the written essay? With AI writing programs spreading far and wide now?
    Letters of recommendation? So, my kid’s chance of getting into Prestigious U is based on whether his social studies teacher can write a better letter than some other kid’s biology instructor? Not to mention this only benefits well-off people who have more influential contacts. Sucks to be you if your parents are not rich enough to be members of the local country club, where they are buddies with the local Congressman and can donate to his reelection campaign in exchange for a fulsome letter for their kid.
    At this point you’re looking at all sorts of other factors. Are they good athletes that can play on your school team? Can they play a musical instrument? What about charity work? Did they do any internships? Some of these also benefit wealthier families, such as those who can pay for their kid to attend that summer institute in DC instead of working, or who can afford that expensive sports equipment that some sports require, or to send their kid to the pricy private school with the equestrian team.
    Universities do look at all these types of factors, which is understandable. The admissions office gets a slew of applications, and they have to pick who to admit, and going only by test scores and GPA doesn’t guarantee anything except they’ll get a bunch of kids who are good at taking exams. The result is that they use a lot of measurements that may sometimes benefit a young person for reasons that have nothing to do with their intelligence, skills, or hard work, especially since they don’t all start from equal positions.
    Giving boosts to applicants who are from poorer families or who are first-generation college students helps somewhat. But in reality, the SC eliminated a single category that universities considered when deciding who to admit. It’s no surprise that the category they chose to eliminate was the one that specifically benefited non-whites.
    Righties will point out that many black parents (a plurality of 40-some percent in some polls) opposed using race. True. Because that know that white racists use “Affirmative Action” to attack the accomplishments of any POC. They know something that right-wingers refuse to admit. By “merit,” the righties mean “white” or, at the very least, “not that black kid!”

    1. Jennifer Rubin’s column is instructive on this point. She notes that the Court leaves open the option of writing about how race has impacted your life, which is an absurdly low bar unless someone wants to suggest that it hasn’t. In other words, their decision did nothing.

      Here it is, with no paywall. She’s a pip.

  2. I’ve enjoyed Jennifer Rubin’s evolution into a thoughtful and interesting writer.

    I’m mostly with you on the “303 Creative” decision: the whole case stinks like a dead monkfish but, as a freelancer myself, one of the great privileges of being self-employed is to pick and choose what I want to do. I can decline a job or client for any reason I want: they were slow to pay me on the last job, they’re unpleasant to deal with, the subject doesn’t interest me, or I’d rather lie in a hammock that day (if I had a hammock). “I just don’t feel like it” is a perfectly good reason to turn down work. Ms. 303’s mistake was being honest about her reason.

    The wafer-thin edge the Court had to walk, I think, is what constitutes a public accommodation. I’m a writer, and nobody should be able to make me write something I don’t want to. OTOH, if I owned a diner open to the public, well, then, I should serve any race, creed or color who walks in the door. Where someone contemplating a career in website design who hasn’t actually designed anything for a gay client who turns out to be straight falls on that spectrum is a mystery to me. It’s a wretched case. that should have never been heard. History will not be kind to this decision even if it’s somehow sort of sideways correct.

    My daughters attended college after California passed its own anti-affirmative action proposition, and said they actually got a lot out of being a minority for the first time in their lives. They’re white (mostly; we could quibble their genetics but they pass) and their student body was about 35% Asian, 25% White, 25% Hispanic. If a university’s objective is some sort of diversity for the purpose of expanding students’ horizons, they could do a lot worse than letting kids who are used to being the default feel what it’s like to be an outlier instead.

  3. But you were always free to refuse work as a freelancer. No one can force you sign a contract: “I’m sorry, I’m overbooked already.”

    What this does is allow people who run “creative” businesses to advertise their bias – put “No queers” on their websites and on the front doors of their business. I don’t see any reason why “No atheists” or “No Muslims” or “No Democrats” won’t be next.

    The idea that someone building websites is protected as an “artist” is also bogus. Commercial speech is not constitutionally protected but even in common language, you don’t call someone who makes, say, wedding invitations an artist.

    Craft and art are different things.

    1. But the second a graphic designer turns down someone who wants to put cross or Jesus driving a Chevy in an ad, the right will howl about persecution and make a federal case about it.

      Beyond this ruling’s many legal failings, the so-called “designer” at it’s center violated at least 2 of the 10 Commandments, which also disqualifies her status as a “good christian.”

    2. First, the excuse “I’m booked” is no different than claiming an apartment has been rented because you don’t want to rent to a Black tenant. Ask Trump how that excuse works; it’s what he and his old man got busted for.

      Second, you may not feel a web designer is an artist, but that was at the core of the decision and Gorsuch was specific about it. My own opinion is that I’d like to see her artistic chops before pronouncing her an artist, but it’s certainly possible to bring creativity to a custom website, as I said and as Gorsuch specified.

      (It would admittedly be kind of fun to see an appeal based on a dozen critics testifying that her work was crap. But this was about the concept, not about her specific talent.)

  4. I saw a post the other day that perfectly captures the problem with the 303 ruling: being a Nazi or a KKK member is a *ideological choice* that does not have protected status.
    Gay people didn’t choose to be gay, anymore than a black person chose to be black. Refusing to provide service to them because you don’t “agree” with their “lifestyles” is founded on a false notion that they chose to live that way. It’s not the same thing as refusing to write a brochure for the KKK.

    1. Oh yes, and frankly I’m kind of shocked that you would make the false equivalence of claiming that being LGBT is really no different that being a KKK member. WTF? I really thought better of you than that.
      It’s like saying MAGAs should have protected status even though they can just take the hat off at any time. Gay people have no hat.

  5. One last thing, being religious is a choice too. For all that people whine about “deeply held” beliefs, they can stop at any time. Or even join a different religion. You can’t change your sexuality or race on a dime.

    1. First point is that I didn’t offer the equivalence. Read it again. It was Gorsuch referencing the 10th District judge who dissented from the decision being appealed. Your argument is not with a philosophical point but with a (perceived) point of law, and it’s the point being argued here, so you’re absolutely free to disagree.

      Dismissing the idea that artists are artists offers a different problem. As noted before, if she had a display of 20 websites from which to choose, she would be a commercial producer and not an artist. If she’s starting from scratch and doing something unlike any other website ever made, she’s an artist.

      We might doubt she could do it, but I don’t doubt that Van Gogh or Pollock could. And much of what Lautrec did was commercial, but most critics would still consider him an artist.

      Where we seriously part company is with your assumption that religious beliefs are not deeply held, that a person can simply choose to go from being a Mormon to being an Episcopalian to being a Unitarian. I don’t particularly admire a person who accepts the words of Leviticus about gay sex but, as in this case, has a tattoo, which is also forbidden in Leviticus.

      But there are all sorts of people whose religious beliefs I don’t particularly admire. And the problem here is that her beliefs about gay marriage are theoretically as deeply held as my beliefs about lynchings.

      As noted before, I’m not writing any brochures for the Klan. I’m glad the decision leaves me free to tell them “no,” but yes, I’d have been willing to go to jail over it. That’s how deeply held my beliefs are.

  6. >Second, you may not feel a web designer is an artist, but that was at the core of the decision and Gorsuch was specific about it. My own opinion is that I’d like to see her artistic chops before pronouncing her an artist,

    Oh I *specifically* meant her chops. When this ugly little case surfaced, I checked out her previous work — and it’s garbage. Harkening back to that pesky 10 Commandments, you could accuse her of violating “thou shalt not kill” because she murdered several basic design tenants.

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