The Supreme Court held Friday that the State of Colorado cannot force a website designer to create messages that support same-sex marriages against her religious beliefs, citing her rights under the First Amendment.
The case, 303 Creative v. Elenis et al., was decided by 6-3 majority, with all of the court’s Republican appointees siding with the website designer, and all three of the Democratic appointees opposing her suit.
Free speech advocates, such as civil libertarian and George Washington University law professor Jonathan Turley, hailed the ruling:
The majority opinion was written by Justice Neil Gorsuch, who issued the Hobby Lobby decision as an appellate judge and often writes for the court in religious liberty cases. The dissent was written by Justice Sonia Sotomayor.
The case picks up the argument over the First Amendment and same-sex marriage where the Court left off in the Masterpiece Cakeshop case of 2018, when the Court sided with a Christian baker who did not want to prepare a cake for a same-sex wedding. That decision was largely on procedural grounds, and the Court left open the question of whether the state could compel the baker’s participation.
The issue in 303 Creative is slightly different, because it involves the actual expression of words, and because the website designer was happy to work for same-sex couples — just not to create messages that conflicted with her own Christian faith.
Justice Gorsuch reviewed the history of the Court’s jurisprudence on freedom of expression and association. He then wrote (citations omitted):
[T]he First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided,” … and likely to cause “anguish” or “incalculable grief.” … Equally, the First Amendment protects acts of expressive association. …Generally, too, the government may not compel a person to speak its own preferred messages. …Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. … All that offends the First Amendment just the same.
…
Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected
trait.Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. …Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.
…
Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” … “misguided, or even hurtful.” …. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.
While laws against discrimination in places of public accommodation were important, Gorsuch wrote, they did not violate fundamental civil liberties enshrined in the Bill of Rights.
Gorsuch says that Sotomayor’s dissent appears to alter the facts of the case, so much so that “[t]t is difficult to read the dissent and conclude we are looking at the same case.” Sotomayor argues that the Court granted, for the first time, “a constitutional right to refuse to serve members of a protected class,” though the website designer explicitly stipulated that she would serve same-sex couples.
The case is 303 Creative v. Elenis et al., United States Supreme Court, No. 21–476.
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“The Hypocrisy is Stunning”: Biden’s Displays Stunning Denial Psychosis Over Student Loans
“The hypocrisy is stunning.” Those words from President Joe Biden after his student loan forgiveness program was found unconstitutional were . . . well . . . stunning. Indeed, they may stand as the greatest example of transference in history.
Ever since President Biden first announced that he would unilaterally forgive roughly half a trillion dollars in student debt, many of us have noted that he lacked that authority under the Constitution. We were not alone: we had Joe Biden himself.
During the 2020 presidential election, Biden admitted that he needed congressional approval for such a massive loan forgiveness. Likewise, as cited in the opinion by Chief Justice John Roberts, former Speaker Nancy Pelosi (D-Calif.) stated the obvious: “People think that the president of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”
The problem is that he could not get this measure through Congress and, despite his earlier acknowledgment of the obvious, Biden simply claimed that he could give away hundreds of billions of dollars without congressional authorization.
He is now crying hypocrisy when the Court said he was right all along.
Of course, denial is a common defense mechanism, the “unconscious forms of self-deception we use to avoid anxiety and emotional pain, or to ensure we are ‘acceptable’ to others.”
Transference is a common form of denial when a “fact is admitted to, but the person will deny their responsibility.”
However, in presidents, it is a costly habit.
From the outset, Biden’s use of the Higher Education Relief Opportunities for Students (HEROES) Act of 2003 was questioned by a wide array of observers given the clear intent before the Act. Congress passed this short piece of legislation to assist military personnel deployed abroad in combat zones. No one seriously argued that Congress ever intended or even contemplated such a massive debt forgiveness program under the Act.
However, necessity is the mother of invention and Biden knew that there was no way that he could get Congress to approve such an unprecedented give-away. Many Americans opposed the proposal. Many elected not to go to college but to get jobs. Others spent years paying off their debts.
Instead of turning to Congress, Biden turned to some of the same experts who have green lighted past unconstitutional programs. For example, the Biden Administration was found to have violated the Constitution in its imposition of a nationwide eviction moratorium through the Centers for Disease Control and Prevention (CDC). The President admitted that his White House counsel and most legal experts told him that the move was unconstitutional. However, at the urging of then Speaker Pelosi, he called Harvard University Professor Laurence Tribe who assured him that he had the authority to act alone. It was, of course, then quickly found to be unconstitutional.
When Biden faced the prospect of having to negotiate with Congress over raising the debt ceiling, some of the same experts surfaced to assure him that he did not. In other words, he could skip negotiating the raising of the debt limit and unilaterally borrow and spend billions. It was a position that would effectively gut the power of the purse and literally lacked a single supporting case as precedent. Yet, Tribe and others insisted that he could ignore Congress and just start spending hundreds of billions of dollars.
Yet, the President enablers in his denial psychosis. When Biden faced his past view against unilateral loan forgiveness as well as the view of others (including a prior DOJ memo), he again broke the glass for emergency legal support.
Tribe and others like University of Texas law professor Stephen Vladeck assured the president or the public that the authority was clear and obvious. It was not even a close interpretive question.
President Biden has now lost again 6-3 before the Court.
Despite his own stated view that this would violate the Constitution, he chose politics over principle. Even the Washington Post said that the move was presumptively unconstitutional, but hoped that standing questions would prevent the Court from striking down the program.
Now that the Court has found that he has again violated the Constitution by refusing to go to Congress, Biden responded by declaring that he would take a “new path.” That path, of course, does not lead to Congress. The problem with Congress is that it requires a democratic vote and the majority oppose this program.
So Biden is turning to Plan B and will try to do the same circumvention through the Higher Education Act of 1965. That was the law rejected earlier in favor of the HEROES Act by the Administration. The law would not support this broad loan forgiveness effort. Even if successful, it would excuse only some of these loans and would take a long time in the rulemaking process.
There is no Plan B under the Constitution. Congress controls the power of the purse and the President cannot govern alone. In the end, the President may want to take a sec with Stuart Smalley and understand that “denial is not just a river in Africa.” The fact is that he was once “good enough and smart enough” . . . to go to Congress.
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