Fantastic read. Totally agree, and appreciate a deeper dive on this recent ruling.
Recently, friends were refused service at a cafe "because transphobic," according to the owner who ejected them soon after they ordered. A friend and I returned and enjoyed breakfast ourselves (no ejection) before asking to talk with the owner about what had happened ---not an argument, but still a productive consciousness raising conversation. :-) A server was wearing one of those "Protect Trans Kids" shirts that features a blade during our visit, and my companion and I found it all kinds of paradoxical and disturbing. But: I would defend that guy's right to display a wrong-headed message in a public space as vigorously as I assert our right freely to express various of our truths about pronouns, double mastectomies, informed consent, and gender industry doublespeak without losing our civil rights and protections. It feels good to be part of a people who can hold space for multiple views on a situation. I believe it's through exposure of and engagement with the most dangerous and least supportable views that we eventually move closer to more liberating and rational ones.
Thanks, Blue State Lawyer. It's great to know you're out there. I know it can be lonely, but you are not alone.
Wonderful argument! I agree with your points, and would add, "what's sauce for the goose is sauce for the gander", as my mother used to say. Free speech works both ways!
"When the media portrays opponents of youth sex changes as anti-science, I feel ostracized. " also perhaps betrayed and/or falsely accused? (I do--all that stuff about the truth...just performative, NYT?)
The next line is pure gold,
" And when I see the gay guys at work sneering at “cisgender girls” who want males out of their sports, I want to punch them in the – I mean, I feel sad."
-- this essay and the previous ones are all in that category, I think.
"I quit Democratic Socialists of America in part because pronoun rituals made my skin crawl..."
I felt this too at certain meditation meetings in Portland. Couldn't articulate at the time why it was so uncomfortable, it just was, even before getting flak for introducing myself by name only.
I am a (retired) attorney, lesbian, and Democrat in a bright blue area of a blue state. I had a recent series of exchanges with a friend about this decision and thought the below from those exchanges might be helpful as food for thought on the 330 Creative LLC decision. FYI, it is my view that the case is bad law, but it is also my view that we don’t need to rely on bad law to make our own case about the very serious, legitimate concerns we have related to gender identity, including the silencing of those of us who try to make our voices heard.
FIRST, the case was not ripe for controversy. Here are some observations from Sherrilyn Ifill, former head of the NAACP Legal Defense Fund (all quotes from her are tweets from June 30 forward; I’ve consolidated some for ease of reading):
“So let me understand this. There is now a category of standing called “she worries” standing which allows a potential plaintiff to file a case in federal court simply “to clarify her rights”? I’ve now heard it all. Standing requires an 1) Injury IN FACT, 2) fairly traceable to the defendant’s conduct & 3) capable of redress. So after #303Creative, is #1 no longer required? Is standing now also a “two-step” inquiry. Just recklessly trashing the rules of the road.”
SECOND, the decision may be based on fraudulent representations to the court:
Sherrilyn Ifill: “Folks let’s be clear. We (attorneys) are prohibited by ethical & procedural rules from making misrepresentations to the Court. If this story about “Stewart” was made by her lawyers in briefs, or at arguments, it’s a serious issue. This is not some fun story for a day. This is potential fraud on the Court. It warrants investigation, potential vacatur & disciplinary proceedings. It also should be seen as a consequence of the Court’s apparent zeal to hear this case which did not meet standing even w/o fraud.”
Also on the fraud issue, from David Dayen, in his excellent article, “Supreme Court Decides Fake Plaintiffs Are Good Plaintiffs”:
“On the same day that the Court violated standing rules to decide the fate of 43 million borrowers based on an unwilling (and apparently, unharmed) plaintiff, it also decided that a website designer had the First Amendment right to deny services to a gay couple based on an entirely fake solicitation for a wedding website, which that designer does not and has never made. We talk about the corruption of the judiciary based on its leading justices taking travel junkets with billionaires. But there is a subtler corruption, whereby the Court picks up whatever facts, whether true or untrue, and wields them as weapons to decide cases that fit their prior beliefs.”
From Sherrilyn Ifill: “Watch out for the slippery slope! The restaurant owner in Newman v Piggy Park (1968) who would not allow Black people to eat in his restaurant, b/c he believed that “race mixing is against the will of God,” but would serve Black people from a pick-up window out back?”
“For many years, the court stopped short of overruling Roe v. Wade, until it did in 2022. For many years, the court stopped short of declaring affirmative action unconstitutional, until it did this week. The same-sex marriage equality decision stands for now, but it should be added to the list of endangered precedents.”
Me: I think that is correct, but I also think that is exactly why Congress pushed through the Respect for Marriage Act (flawed though it is). Of course, this court could declare the Respect for Marriage Act unconstitutional, and I certainly wouldn’t put it past this court as currently constituted.
FOURTH, legal analysis related to the merits of the case, along with some of my own thoughts related to the analysis:
ME: See particularly the discussion about the Hurley case (about the Boston parade in which gay folks wanted to march under a banner and were refused). The Supreme Court upheld the right of the parade organizers to refuse the group, and the law review article, which seems to do a fair job of discussing the state of the law up to 1995 (to the extent I understand it) agrees with the Court. At the same time, what the law review article also demonstrates to me is what a slippery slope this balancing of rights test is, and how easily motivated reasoning can take over. (I think, in this regard, the law review article itself is engages in quite a bit of motivated reasoning.)
So, playing this out, back in the early 80s, when I attended some Gay Pride parades, I noticed one year, to my horror, a float for NAMBLA. This is a pedophiliac organization (North American Man/Boy Love Association). Had I been in charge of that year’s Gay Pride parade, I would not have allowed NAMBLA to have a float and march under that banner or even to signal in any way participation in NAMBLA. At the same time, I don’t think the Hurley case was correctly decided.
Here’s how I would distinguish: both are cases involving expression, in that any parade is expressive. Both are also public accommodation cases in the sense that, presumably, the parade is under a permit to use public streets. In the case of NAMBLA, while some individuals participating in the parade may support pedophilia, the message gay people fighting for their rights were wishing to convey in the early gay pride parades had nothing to do with being supportive of pedophiles, and the parade organizers should not be coerced by law into expressing such support, which is what the existence of a NAMBLA float and banner do. In contrast, in Hurley, gay Irish people wanted to be recognized as a contingent of Irish people who, like others in the parade, are proud of their heritage. Thus, their message is not at all inconsistent with the message of the parade, so they should have been allowed to participate under a banner.
I want to stress again that I don’t intend to be definitive here, but am only offering this as food for thought. I hope, in that spirit, this is helpful!
I echo others' positive comments about this piece, which was both informative and funny. As a gender critical person who is also religious, I really appreciate fellow GCs with different life experiences, like you. Thank you for empathizing with the religious person who brought the suit, even if she doesn't agree with your lifestyle. You still share her experience of being in a minority of "thought criminals," an experience I shared with both of you.
I recently read that some confuse “freedom of religion” with “freedom from religion”. A diverse society has to embrace the first, not to impose the second. Sotomayor’s argument seems to miss that difference ...
“And I empathize, because I hold taboo views myself: I believe gender ideology is a scam that targets gay youth, sex changes for minors should be banned, drag queens are cringe, and sports and prisons should be segregated by sex. When people assume I believe the opposite, because all good liberals do, I feel distressed. When the media portrays opponents of youth sex changes as anti-science, I feel ostracized. And when I see the gay guys at work sneering at “cisgender girls” who want males out of their sports, I want to punch them in the – I mean, I feel sad.”
Fantastic read. Totally agree, and appreciate a deeper dive on this recent ruling.
Recently, friends were refused service at a cafe "because transphobic," according to the owner who ejected them soon after they ordered. A friend and I returned and enjoyed breakfast ourselves (no ejection) before asking to talk with the owner about what had happened ---not an argument, but still a productive consciousness raising conversation. :-) A server was wearing one of those "Protect Trans Kids" shirts that features a blade during our visit, and my companion and I found it all kinds of paradoxical and disturbing. But: I would defend that guy's right to display a wrong-headed message in a public space as vigorously as I assert our right freely to express various of our truths about pronouns, double mastectomies, informed consent, and gender industry doublespeak without losing our civil rights and protections. It feels good to be part of a people who can hold space for multiple views on a situation. I believe it's through exposure of and engagement with the most dangerous and least supportable views that we eventually move closer to more liberating and rational ones.
Thanks, Blue State Lawyer. It's great to know you're out there. I know it can be lonely, but you are not alone.
I'm definitely stealing “my arguing habit”! Loved this piece
Wonderful argument! I agree with your points, and would add, "what's sauce for the goose is sauce for the gander", as my mother used to say. Free speech works both ways!
"When the media portrays opponents of youth sex changes as anti-science, I feel ostracized. " also perhaps betrayed and/or falsely accused? (I do--all that stuff about the truth...just performative, NYT?)
The next line is pure gold,
" And when I see the gay guys at work sneering at “cisgender girls” who want males out of their sports, I want to punch them in the – I mean, I feel sad."
-- this essay and the previous ones are all in that category, I think.
Thank you so much!
Thank you! You taught me some things.
"I quit Democratic Socialists of America in part because pronoun rituals made my skin crawl..."
I felt this too at certain meditation meetings in Portland. Couldn't articulate at the time why it was so uncomfortable, it just was, even before getting flak for introducing myself by name only.
I am a (retired) attorney, lesbian, and Democrat in a bright blue area of a blue state. I had a recent series of exchanges with a friend about this decision and thought the below from those exchanges might be helpful as food for thought on the 330 Creative LLC decision. FYI, it is my view that the case is bad law, but it is also my view that we don’t need to rely on bad law to make our own case about the very serious, legitimate concerns we have related to gender identity, including the silencing of those of us who try to make our voices heard.
FIRST, the case was not ripe for controversy. Here are some observations from Sherrilyn Ifill, former head of the NAACP Legal Defense Fund (all quotes from her are tweets from June 30 forward; I’ve consolidated some for ease of reading):
“So let me understand this. There is now a category of standing called “she worries” standing which allows a potential plaintiff to file a case in federal court simply “to clarify her rights”? I’ve now heard it all. Standing requires an 1) Injury IN FACT, 2) fairly traceable to the defendant’s conduct & 3) capable of redress. So after #303Creative, is #1 no longer required? Is standing now also a “two-step” inquiry. Just recklessly trashing the rules of the road.”
SECOND, the decision may be based on fraudulent representations to the court:
Sherrilyn Ifill: “Folks let’s be clear. We (attorneys) are prohibited by ethical & procedural rules from making misrepresentations to the Court. If this story about “Stewart” was made by her lawyers in briefs, or at arguments, it’s a serious issue. This is not some fun story for a day. This is potential fraud on the Court. It warrants investigation, potential vacatur & disciplinary proceedings. It also should be seen as a consequence of the Court’s apparent zeal to hear this case which did not meet standing even w/o fraud.”
Also on the fraud issue, from David Dayen, in his excellent article, “Supreme Court Decides Fake Plaintiffs Are Good Plaintiffs”:
“On the same day that the Court violated standing rules to decide the fate of 43 million borrowers based on an unwilling (and apparently, unharmed) plaintiff, it also decided that a website designer had the First Amendment right to deny services to a gay couple based on an entirely fake solicitation for a wedding website, which that designer does not and has never made. We talk about the corruption of the judiciary based on its leading justices taking travel junkets with billionaires. But there is a subtler corruption, whereby the Court picks up whatever facts, whether true or untrue, and wields them as weapons to decide cases that fit their prior beliefs.”
https://prospect.org/justice/2023-06-30-supreme-court-decides-fake-plaintiffs-good
THIRD, on the merits:
From Sherrilyn Ifill: “Watch out for the slippery slope! The restaurant owner in Newman v Piggy Park (1968) who would not allow Black people to eat in his restaurant, b/c he believed that “race mixing is against the will of God,” but would serve Black people from a pick-up window out back?”
From Lawrence Tribe:
https://www.bostonglobe.com/2023/06/30/opinion/supreme-court-lgbtq-equality/
“For many years, the court stopped short of overruling Roe v. Wade, until it did in 2022. For many years, the court stopped short of declaring affirmative action unconstitutional, until it did this week. The same-sex marriage equality decision stands for now, but it should be added to the list of endangered precedents.”
Me: I think that is correct, but I also think that is exactly why Congress pushed through the Respect for Marriage Act (flawed though it is). Of course, this court could declare the Respect for Marriage Act unconstitutional, and I certainly wouldn’t put it past this court as currently constituted.
FOURTH, legal analysis related to the merits of the case, along with some of my own thoughts related to the analysis:
FROM A LAW REVIEW ARTICLE: This law review article discusses at length a tension between first amendment rights and equal protection under the Civil Rights Act: https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-72-5-Rosenblum.pdf
ME: See particularly the discussion about the Hurley case (about the Boston parade in which gay folks wanted to march under a banner and were refused). The Supreme Court upheld the right of the parade organizers to refuse the group, and the law review article, which seems to do a fair job of discussing the state of the law up to 1995 (to the extent I understand it) agrees with the Court. At the same time, what the law review article also demonstrates to me is what a slippery slope this balancing of rights test is, and how easily motivated reasoning can take over. (I think, in this regard, the law review article itself is engages in quite a bit of motivated reasoning.)
So, playing this out, back in the early 80s, when I attended some Gay Pride parades, I noticed one year, to my horror, a float for NAMBLA. This is a pedophiliac organization (North American Man/Boy Love Association). Had I been in charge of that year’s Gay Pride parade, I would not have allowed NAMBLA to have a float and march under that banner or even to signal in any way participation in NAMBLA. At the same time, I don’t think the Hurley case was correctly decided.
Here’s how I would distinguish: both are cases involving expression, in that any parade is expressive. Both are also public accommodation cases in the sense that, presumably, the parade is under a permit to use public streets. In the case of NAMBLA, while some individuals participating in the parade may support pedophilia, the message gay people fighting for their rights were wishing to convey in the early gay pride parades had nothing to do with being supportive of pedophiles, and the parade organizers should not be coerced by law into expressing such support, which is what the existence of a NAMBLA float and banner do. In contrast, in Hurley, gay Irish people wanted to be recognized as a contingent of Irish people who, like others in the parade, are proud of their heritage. Thus, their message is not at all inconsistent with the message of the parade, so they should have been allowed to participate under a banner.
I want to stress again that I don’t intend to be definitive here, but am only offering this as food for thought. I hope, in that spirit, this is helpful!
I echo others' positive comments about this piece, which was both informative and funny. As a gender critical person who is also religious, I really appreciate fellow GCs with different life experiences, like you. Thank you for empathizing with the religious person who brought the suit, even if she doesn't agree with your lifestyle. You still share her experience of being in a minority of "thought criminals," an experience I shared with both of you.
I recently read that some confuse “freedom of religion” with “freedom from religion”. A diverse society has to embrace the first, not to impose the second. Sotomayor’s argument seems to miss that difference ...
Brilliant arguing and so clear.
You spoke to me throughout but especially here:
“And I empathize, because I hold taboo views myself: I believe gender ideology is a scam that targets gay youth, sex changes for minors should be banned, drag queens are cringe, and sports and prisons should be segregated by sex. When people assume I believe the opposite, because all good liberals do, I feel distressed. When the media portrays opponents of youth sex changes as anti-science, I feel ostracized. And when I see the gay guys at work sneering at “cisgender girls” who want males out of their sports, I want to punch them in the – I mean, I feel sad.”
More good thinking from gayfolks .. makes my day.