Sunday, July 2, 2023
Saturday's New York Times headlines include:
1) "Justices Say No to Student Debt Relief"
2) "Web Designer Wins Right to Turn Away Gay People"
Both headlines are grotesque distortions if not outright falsehoods. My question is what accounts for them? Are the Times' reporters (or headline writers) ignorant/incompetent? Or are they dishonest? (It's noteworthy that the mistakes, like bank errors, always go in a certain--in the case of the Times, a certain ideological--direction.)
As for 1) the Supreme Court did not "say no to student loan relief." What the justices said "no" to was plenary unilateral executive (i.e. presidential) action to forgive student loans. This is actually made clear to anybody who makes it to the sixth paragraph of the story, where the reporter (Adam Liptak) correctly characterizes the decision as "the latest in a series of rulings curbing presidential power in the absence of clear congressional authorization."
So, you see, this was not a ruling about whether the federal government could provide student loan relief; it was a ruling about whether congressional authorization was required for the President to act. The Court ruled, in effect, that something Nancy Pelosi (of all people) said some time back is correct (which, in truth, it is): student loan relief is a legislative matter on which the executive cannot act unilaterally (i.e., without legislative authorization). The President is not supposed to be legislating. He is supposed to be faithfully executing the laws enacted by the Congress. The very first word of the first sentence of the first Article in the Constitution is the word "all": "ALL legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Let me let you in on a little secret: By the word "all" the framers and ratifiers of the Constitution meant ... all. Not some. Not most. Not almost all. The legislative power is not shared between Congress and the President. The President doesn't get to legislate. If he wants a piece of legislation (or a whole legislative program) to be enacted, he's got to go to Congress and persuade the people's representatives to enact it.
How about 2)?
Here the misrepresentation is even more egregious (and difficult to explain without reference to ideological partisanship).
The Court in 303 Creative did not confer on the web designer whose First Amendment freedom of speech rights were upheld the right to refuse to do business with ... anyone. The justices in the 6-3 majority did not give her "the right to turn away gay people." What they upheld was her right--and everyone's right--not to be compelled to participate in the crafting or construction of messages that run contrary to one's conscientious beliefs.
Under the ruling (which concerned a devout Christian website designer), an orthodox Jewish calligrapher, doing business with the general public, could not, for example, refuse to do business with a "Jews for Jesus" messianic Jewish person who asked for a card for his friend that simply said "Happy Birthday Shmuley!" He couldn't say, in other words, "I don't agree with your religion, or your interpretation of Judaism, and therefore will not do business with you. Get out of my shop! I'm turning you away." What he could do, however, despite civil rights prohibitions of discrimination based on religion, is refuse the customer's request that he make a poster that says, "Jesus Christ is the messiah long promised to the Jewish people. He is the Son of the living God; the one and only way to salvation. Embrace him, Jewish brethren, or damnation awaits you!" Similarly, he could refuse to make a ketubah (written marriage contract) for a Jews for Jesus Christian-Jewish wedding purporting to be licit under Jewish religious law.
To repeat, the ruling forbids governments from forcing people to participate in the crafting of messages that contradict their conscientious convictions (like the calligrapher's orthodox Jewish religious beliefs). It is an anti-compelled speech case. Its roots are in the Supreme Court's 1943 decision in West Virginia v. Barnette striking down a law compelling Jehovah's Witnesses school children to salute the flag and say the Pledge of Allegiance in violation of their religious convictions. (The Witnesses felt that the ceremony amounted to bowing down before a graven image in defiance of the biblical prohibition of idol worship.)
I believe 303 Creative is an impeccably correct decision. But even if I'm wrong about that--even if the case should have come out the other way--it's not because it created "a right to turn away gay people" or to turn away anybody. It didn't. And, in truth, the website designer hadn't turned away, and doesn't turn, away anybody. In fact, her willingness to serve people irrespective of, among other things, sexual orientation was stipulated to by the parties.
As my friend Richard Doerflinger observes:
"Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is 'willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender' and 'will gladly create custom graphics and websites' for clients of any sexual orientation; she will not produce content that 'contradicts biblical truth' regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are 'expressive' and her 'original, customized' creations 'contribut[e] to the overall message' her business conveys “'through the websites' it creates; the wedding websites she plans to create 'will be expressive in nature', will be 'customized and tailored' through close collaboration with individual couples, and will 'express Ms. Smith’s and 303 Creative’s message celebrating and promoting' her view of marriage; viewers of Ms. Smith’s websites 'will know that the websites are her original artwork'; and '[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services'.”