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Chasing Ennui's avatar

As someone who is relatively moderate/centrist, but has maybe never voted for a Republican (I may have voted for Bloomberg once), I agree with you on all points. In particular, I agree with your take that, once they admitted the website in 303 was "expressive speech" the game was over - there is a decent argument that creative work for pay isn't expressive speech for Firag Amendment purposes, but they gave that up.

I was really disappointed in a lot of commentators, particularly Dahlia Lithwick, as they sought to portray these three ruling as a lawless SCOTUS rejecting precedent. There is probably room to disagree with SCOTUS on all three, but these decisions were not Dobbs or Janus, where the GOP appointees reversed establish precedent because they could. 303 was clearly SCOTUS defining the very edges of the boundary between Free Speech and anti-discrimination law, everyone knew that the legal justification for student loan forgiveness was tenuous (Biden said as much) and as you point out the Grutter precedent was that AA was only good for another 25 years. If you are telling me that these three decisions are radical departures from precedent, I now need to doubt you any time you make thet claim in the future.

The one caveat I'd make is that I'm a little concerned thst 303 might turn out to be a beach head from which a lot of anti-discrimination law gets overturned. 403 had really good (stipulated) facts, so I see why SCOTUS decided it the way it did. The question is how will that decision be applied the next time the 5th Circuit gets a case with less favorable facts. Are they going to hold that a car wash is expressive speech, and so the local car wash can reject all Subaru owners? But this is only a speculative fear at this point.

Good post.

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Benjamin, J's avatar

I've said this in other places, but it bares repeating: as a gay man I would not want someone who thinks my marriage is bunk (and I'm going to hell) to make my wedding website. I don't want that person putting the icing on my wedding cake and I don't want them managing the wedding. Why (WHY?!) would ANY gay couple insist on the right of having a bigot plan their wedding? This seems absolutely asinine to me.

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