“FREE SPEECH” SUPPORTS DISCRIMINATION HOW?

As Jonathan V. Last put it in his Bulwark column, “The hardest challenges aren’t right-versus-wrong. No, the tough stuff comes when you have two goods in tension with one another.”

The Supreme Court may have thrown “normal America” a few bones this term, proving that John Roberts knew the court’s, and his, reputation was down there in Elizabeth Holmes territory. But they waited to the end to again show their true colors. The colors we saw last year when they released the Dobbs decision.

In light of the Roberts Court’s cynical use of free speech to allow discrimination, we arrive at a result that asks: if a Colorado web designer can refuse to serve a same-sex couple, why can’t a business owner discriminate against Blacks, Muslims, and Jews?

And they got there by violating the most important rule of law: the appellant MUST have “standing.” In this case, they ruled in a case brought by an individual who has NOT CREATED A WEBSITE, HAS NOT DESIGNED any wedding memorial websites, and HAS NOT TURNED DOWN THE BUSINESS OF A GAY COUPLE in contravention of applicable Colorado law. No, this person WANTS to start a website, but claims she FEARS TO DO SO because she (rightly) believes that Colorado law enforcement will come down on her like a ton of bricks the first time she exercises her ignorant fundamentalist right to be a bigot and refuses to do business with a gay couple WHO DOES NOT EXIST at this time.

This. Appellant. Lacks. Standing.

If this was a normal Supreme Court, the case would never have been accepted and would have been stamped DENIED FOR LACK OF STANDING.

But as we have seen, the Far Right Scum masquerading as “judges” on this alleged “court” will never let actual PRINCIPLES OF ANYTHING get in the way of their war on the 20th Century.

Not “stare decisis,” not “standing,” NOT ANYTHING. This is an illegal court that has declared itself unconstitutional with its repeated violations of every part of what is commonly considered The Rule of Law as it has developed and been interpreted in legal systems since that created by Hammurabi 3,000 years ago. If there was any Actual Justice in existence, each one of the Scummy Six would be impeached and found guilty by the Senate.

In many ways, this ruling upholding the right to refuse to do business with a same-sex couple is the most insidious of the recent string of far-right decisions overturning protections for minorities.

Justice Neil Gorsuch, number three Scummiest of the Scummy Six after Thomas and Alito, framed the issue as being entirely about free speech—in this case the freedom of wannabe web designer Lorie Smith not to tacitly support same-sex marriage by doing business with actual gay people.

Gorsuch even admitted that his ruling flew in the face of the actual Rule of Law, admitting that Smith in fact HAS NOT YET EVEN OFFERED a service of any kind, but "she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman."

According to Gorsuch, "the 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.’"

Thus, the state of Colorado interest in protecting the rights of sexual minorities to have access to business services on a nondiscriminatory basis is unconstitutional! In other words, it is “unconstitutional” to require that all citizens be treated equally.

And we can be sure that, in similar cases, bullshit claims that religious or other personal principles permit discrimination will be declared constitutionally protected as a form of free speech.

Calling this mother of all slippery slopes is the greatest understatement I can think of.

Suppose my religious principles cause me to view Fundamentalists of all stripes as agents of Satan (which they actually do), with whom I just have no contact, or that serving Indian Americans in my restaurant or hotel or barbershop forces me to associate with people who make me uncomfortable?

Wacky, yes?

Not according to Neil Gorsuch. If my claim is rooted in my interpretation of what some imaginary sky guy, or his con artist otherwise-unemployable representative on earth, claims as True Doctrine - no matter how loony, no matter how detached from any discernible reality it might be - my desire to discriminate on ths basis of this belief is perfectly permissible and is constitutionally protected by the First Amendment.

What this allows is the use of “free-speech” claims to void the public-accommodation protections of the 1964 Civil Rights Act, a law that has been repeatedly held to be constitutional over the 58 years since it was signed into law.

The only reason LGBTQ people were not specifically included by name in that law was that back in 1964, the public and Congress did not view gays and lesbians as people with rights.

That Women were added as a named group was a cynical last minute act by opponents, as a way to sink it that backfired.

Since then, particularly in the past 20 years, large majorities of Americans - and the Supreme Court - have accepted same-sex marriage. And because of that widespread support, almost all states have legislated Colorado-style protections to explicitly protect the rights of LGBTQ people.

Justice Sotomayor’s dissent, spelled it out directly: "When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims. The concept of a public accommodation thus embodies a simple, but powerful, social contract: A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination."

This claim that the supposed denial of the "free speech" of someone who objects due to “religious belief” to serving a class of people trumps the rights of those people to receive the same services as everyone else is a “tortured construction” of free speech.

This Un-Supreme Court, and the Scummy Six - three of whom were placed on the court illegally - is now at the heart of the constitutional crisis that afflicts us.

As Michael Tomasky points out today at The New Republic:

“In future terms, this conservative majority is going to do damage on all kinds of fronts. Already on the docket for the 2023–2024 term are cases that will revisit the question of racial gerrymandering; will consider an important point of criminal due process; will determine whether the funding mechanism for the Consumer Financial Protection Bureau, or CFPB, is constitutional; and most important of all, will seek to strike down “Chevron deference,” which grants executive agencies broad authority to interpret and implement laws passed by Congress. (Striking down the deference, which the conservative majority is widely expected to do, will vastly constrict the federal government’s ability to enforce aggressive regulatory laws.)

“And we can be sure that right-wing activists are already filing the lawsuits they hope will work their way up to the Supremes—we may be saying goodbye, same-sex marriage. Adieu, right to contraception. Auf Wiedersehen, one person, one vote. This last one, which gets a lot less press than the others, will functionally destroy democracy by allowing state legislatures to draw—legally—districts that give rural people far more representation in legislatures than urban people.”

Clarence Thomas has taken every opportunity in the two court terms since the Scummy Six became the majority to point out to the Far Right what the issues are that this collection of scum will be happy to overturn. He has pointed at all of the issues Tomasky brings up. In the words of Maya Angelou, “When someone tells you who they are, believe them.”

Regardless of what these Enemies of America say, the struggle for justice will go on.

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