Gay cakes part two: Gay websites

curse But not Grindr or any of that stuff. No, this is the Supremes weighing in on whether people can be forced to make things they don't want to make. And the answer is no, which is the correct answer, and I think for the correct reasons, too. Read a more sober analysis at Supreme Court rules website designer can decline to create same-sex wedding websites.

First, a quibble: the standing of the litigants looks somewhat dubious to me and I think that in other circumstances the court might have ruled the case unripe, or whatever the correct legal terminology is: no-one had actually been sued. But let's ignore that quibble, since the court did.

This is yet another clash-of-rights question: how to balance people's "right" not to be discriminated against, against other people's rights not to do things they don't want to. At the top level, when one of the parties is Leviathan, then the answer is clear: the state may not discriminate and must treat all citizens on an equal basis. At the other end of the spectrum, on the individual level, citizens in their private lives are free to discriminate as they please in who they take for their friends and similar, without having to account for their choices.

But somewhere in the middle is the level of businesses, open to the public, providing services. One way to "solve" this might be to say that giant impersonal business may not discriminate, but small personal businesses may. That would be an unappealling solution, and lead to nasty fuzzy boundaries and have no clear principle. Happily, the Supremes managed something better: they made it turn on Freedom of Speech, which naturally implies no Compelled Speech; and so you can discriminate, if what you're selling amounts to "speech" defined broadly. This has the nice effect that supermarkets and other giant impersonal bizniz can't discriminate, because they aren't speaking. And unlike the original Gay Cakes, religious liberty doesn't come into it, which is correct: the court has no business elevating religious motives above others.

I won't bother analyse the reactions, because everyone said exactly what you'd expect them to.

Affirmative action

The other biggie was Supreme Court strikes down affirmative action programs in college admissions; this unkind Babylon Bee article may amuse. There is some (unreported, as far as I can see) tension with the previous, because having explicitly allowed discrimination there, they are explicitly forbidding it here. But then Harvard didn't claim any free speech defense, only a dubious "compelling" need to secure (racial) diversity. All of that seems like stale pies left over from our ancestors feasts, so I think it had to go.

On the other hand, all this Fourteenth Amendment to the United States Constitution stuff binds the govt, not private entities; I am unsure why Harvard is bound. Probably, there are laws on top of the constitution.

I should add: I'm somewhat baffled why Harvard et al. are so determined to do this stuff. Probably, because they've been captured by the bureaucracy. This should be a signal that starting something better is possible.

Update: law-is-custom and deference: I like to shoehorn all rulings into my law-is-custom framework. This one fits fairly well: while it does overturn older rulings, and it does go against current university practice and desires, it also fits with the "tenor of the times". Affirmative Action's Demise and Higher Education argues that academia has left itself open to being overridden by Law, by losing (or throwing away) its prestige. There is something to this claim; indeed, the verdict does explicitly reject the "just trust us" that the universities were offering.

Economic perspective

One Clifford Winston attempts to put all this into an economic perpective. I think he fails. The judgements are about balance-of-rights, not economic impact. The reality is that the overall economic impacts (in terms of, say, effect on GDP) are small-to-negligible-to-impossible-to-forecast. Were the economic impacts foreseeably large-to-huge (e.g., were the Supremes to consider forbidding fossil fuel use) you would see them considered, though possibly in a disguised fashion.



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Gator said...

The "no gay wedding" website case is more dubious than you make it out. It is not simply speech. It is about the customers and who they are - thus purely discrimination.

Imagine three couples asking for a wedding website. One couple is Mary and John, both white. Another is Steve and Dave. Another is Sue and Sam, one white, one black. Each is asking for a website that says "Let's celebrate X & Y getting married!"

360 design rejects the two of the three couples. They are asking for exactly the same speech. So why is the discrimination somehow categorized as freedom of speech?

William M. Connolley said...

> It is not simply speech. It is about the customers and who they are - thus purely discrimination.

You are wrong. It is about customers, and about free speech, thus not purely discimination. Why are people so reluctant to admit that different "rights" clash?

If they are asking for "exactly the same speech" - i.e., a pre-canned website - then the freedom of speech issue does not arise, and they must provide the service.

Gator said...

What is the speech in making a website for a client?
The website will not be 100% pre-canned - at the very least it would be customized by the clients' names and pictures. Would that be enough to claim "free speech" and allow for discrimination?
What if the client is directing the custom content - "Put this poem up" or "Put up these vows we wrote" - therefore the design company is not actually creating speech, just publishing - is that enough to allow for discrimination?

Gator said...

The case is already being used to argue that government officials can refuse service to people based on their supposed "free speech" rights.

William M. Connolley said...

> Would that be enough to claim "free speech" and allow for discrimination?

You continue to kick against the pricks. There are some websites that entail individual design and amount to speech; these are protected. There are some that are canned, and are not protected. Thus, a law that blanket-bans owner discrimination violates free speech, and the court has chosen, in my view correctly, to prioritise free speech. Somewhere in the middle sit cases that would be hard to resolve, but the court did not need to consider these and so did not.

> The case is already being used to

That is hardly susprising; but it will be surprising if it is successful. Govt may not discrinimate (I assert this is a basic principle and could probably justify it if forced to). Fortunately, because most govt employees are effectively speaking for the govt, they don't really have any free speech concerns. In the case you mention, there is no free speech concern, since the judge isn't forulating individual thought; this is, in the language of websites, very clearly a canned activity. If you choose to work for the govt, you are obliged to accept its instructions.