Gay cakes part two: Gay websites

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.

Refs

* Utopian Experimental Socialism

* Pointer back to Malthus, to help Google's increasingly unreliable search.

* Notes on "The Restrained Roberts Court" - Volokh