Tag Archives: supreme court

Colorado’s Civil Rights Commission gets schooled on the First Amendment in the wedding website case

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Remember the wedding website case that came out of Colorado and went all the way to the Supreme Court? It’s finally over, and it ended beautifully. Bigly beautifully.

I’ll let the district court describe the facts:

“Plaintiff Lorie Smith . . . offers a variety of creative services, including website design, to the public. Ms. Smith intends to expand the scope of [her] services to include the design, creation, and publication of wedding websites. However, [Smith] will decline any request to design, create, or promote content that promotes any conception of marriage other than marriage between one man and one woman. [Smith has] designed an addition to [her] website that includes a statement that [she] will not create websites “celebrating same sex marriages or any other marriage that contradicts God’s design for marriage.”

The Colorado Civil Rights Commission decided that Smith’s exercise of her First Amendment right to decline to perform services in violation of her religious beliefs, and that her words so stating, were, ironically, in violation of the First Amendment. The Commission said (1) Smith was required to design websites celebrating marriages other than between a man and a woman, and (2) she was prohibited from stating that she wouldn’t.

Smith sued the Commission in Federal Court. It was a smart move to go to Federal Court because state court would have ensnarled her for years in the swamp of the Democrat-controlled Colorado state judiciary – the one where the state supreme court tossed Donald Trump from the 2024 ballot only to be unanimously overturned by the Supreme Court last winter.

The district court dismissed her case on procedural grounds. She appealed to the federal appellate court. They overturned the dismissal on procedural grounds, but, worse, dismissed her case on substantive grounds.

She appealed to the Supreme Court. The Supreme Court held 6-3 last year that both dismissals were wrong. They held that the Commission’s insistence that she perform services in violation of her religious beliefs, and insistence that she refrain from stating that she wouldn’t, were in violation of her First Amendment rights.

In short, she won.

The case was then remanded back to the lower courts to work out the details. It came back to a different district court judge. (The first judge, a former bankruptcy judge, had taken “Senior” status while the case was on appeal. That’s a gravy train for federal judges where they get full pay, the same plush courtrooms and chambers, a full complement of law clerks to kiss the back of their robes, and invitations to the right (er, left) cocktail parties. But they work just part-time by taking on only the particular cases they want. No, this “job” is not available for you.)

The details remaining to be worked out on remand to the district court were the exact language of the court’s order, and the payment of attorney fees. The Commission wanted a cramped order with little precedential significance and minimal further embarrassment to them. Smith of course wanted a broader order protecting her against infringements on her First Amendment right to exercise and state her religious beliefs.

This week, the new judge sided with Smith. The court’s order states:

“ORDERED that the First Amendment’s Free Speech Clause prohibits Colorado from [compelling Smith] to create custom websites celebrating or depicting same-sex weddings or otherwise create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same sex marriage.”

Then there was the attorney fees issue. The civil rights laws provide for an award of attorney fees and costs to a prevailing plaintiff. Smith was the prevailing plaintiff, though she had to go all the way to the Supreme Court to become one.

The Commission argued that she was actually only a partially prevailing plaintiff because she didn’t win on every single claim she made. Accordingly, the Commission contended, attorney fees should be prorated.

The district court rejected the Commission’s argument, and instead correctly held that “prevailing” in this context simply means the side that basically won, even if they didn’t win on every single claim. Attorney’s typically throw in lots of claims of dubious merit in a lawsuit. The fact that some get thrown out along the way doesn’t mean their client isn’t the prevailing party at the end of the day when they are awarded the remedy they seek.

The judge concluded with an invitation to Smith’s attorneys to file a motion for their costs and attorney fees.

Those costs and fees are likely to be into seven figures, since they include the original district court proceedings, the appeal to the appellate court, the appeal to the Supreme Court, and the current remand to the district court.

That is all good news. Smith is now playing with the house’s money. The bad news is that the “house” is, at the end of the day, the taxpayers of the State of Colorado.

Mind you, my objection here is not to gays getting married. I’m OK with that, though it took me a few years to get there. My objection is to the government telling everyone that they’re required to think it’s OK. Many people have sincere religious or other beliefs objecting to gay marriage. It’s wrong — and a violation of the First Amendment — to force them to abandon their beliefs.

As a matter of strategy, I also think it’s a grave mistake for gays to force this issue. People tend to get entrenched when their religion is attacked. But very often, when the left can choose between effective persuasion and ineffective coercion, they choose the latter. Because, at heart, they want to boss people around. They’re totalitarians.

I wish there were a way to hold these totalitarian bureaucrats personally liable in cases like this. A million-dollar judgment against them personally, and a seizure or their residences, might make them think twice next time. How about an $83 million judgment and $92 million bond? Better yet, how about a $464 million judgment secured with a $175 million bond?

Glenn Beaton practiced law in the Federal Courts, including the Supreme Court.

Justice Ketanji Brown Jackson says some foolish things

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The Justices of the Supreme Court make their living with words. They read them, they write them, they speak them, they listen to them, and they rule with them. We currently have a Justice who uses words very poorly.

At her confirmation hearing before the Senate, Justice Jackson was asked to give a definition of “woman.” That’s a legitimate question, since many legal matters depend on whether a given person is a woman or a man.

Her answer was:

“I can’t. Not in this context. I’m not a biologist.”

Jackson was of course dodging the question. Fine, that’s what you do when you’re being cross examined by a hostile questioner. But the unartfulness of her dodge was striking. A person trained and working with the tool of words should have been able to craft an answer along the lines of:

We all know that words can mean different things in different settings. In the case of the word “woman,” there is of course a traditional definition in genetics which is ‘a person with two X chromosomes.’ We also know that there are people in the world without two X chromosomes who view themselves as women. I respect their views of themselves, just as I respect the views of geneticists. I can’t say without the particular facts of a case in front of me how those views should be weighed, if at all, in a court of law.”

Blah, blah, blah, right? Yes, but that’s the point of an artful dodge – don’t give the questioner a sound bite. Jackson didn’t seem to recognize that she’d handed her questioner – and her present and future critics – a sound bite that will live forever.

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Will we use reverse discrimination to “correct” the gender gap the way we disastrously “corrected” the racial gap?

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A persistent myth is that, for the same job, women in America are paid only 84 cents for every dollar that men are paid.

I explain below, first, why that myth is false and, second, why it’s dangerous.

There are the several reasons why it’s false. The figures use a category of “full time work” for their comparisons. That’s defined as any work over 35 hours per week. That means a man working 55 hours a week is compared to a woman working 36. So, a man making, say, $30/hour for those 55 hours for a total of $1650/week is deemed to be making $210 more for a “full time” job than a woman making $40/hour for 36 hours for a total of $1440/week for a “full time” job – even though in point of fact, the woman is making $5/hour more.

It’s not like this all balances out in the end because women and men overall work the same number of hours. They don’t. The high-hour work is mainly by men.

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The Colorado Secretary of State says she now trusts the people to make the decision she didn’t trust them to make four months ago

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The cabal that calls itself the Democratic Party of Colorado nearly pulled a coup last fall. Unburdened by any inconvenient process that might have been due, a Democrat state judge decided that Donald Trump was an insurrectionist. Therefore, under a clause of the 14th Amendment designed to prevent former Confederates from running for federal office, Trump was ineligible to run for president.

Never mind that Trump had never been convicted or even charged with the crime of insurrection.

On appeal, four of the seven Democrat-appointed justices on the Colorado Supreme Court agreed. The other three in their strident dissent all but wondered out loud what kind of Colorado-legal weed the majority was smoking.

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The Aloha Court just overruled the U.S. Supreme Court

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In 2008, the United States Supreme Court decided in the Heller case that the Second Amendment right to bear arms applies not just to militias, but also to individual people. While militias are mentioned in the Amendment, the noun to which the right is granted is the “people.”

Individuals are “people.”

After Heller, much teeth-gnashing and garment-rending ensued from the left. They had hoped that the Second Amendment applied only to militias. There being essentially no legal militias in the country anymore, that would mean the Second Amendment would apply to nobody.

And so, nobody could have guns. Well, nobody could have guns legally. Anyone with a gun would be in possession of it illegally. (You know where I’m going with this.) Such illegal possession of a gun would be outside the law. The possessor would be an outlaw. When guns are outlawed, only outlaws will have guns.

You gotta admit, that’s a pretty good line.

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Based on today’s oral arguments, it will probably be a decision for Trump

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As I expected and predicted, the Supreme Court will probably decide the Trump/Colorado case in favor of Trump.

I doubt the decision will be unanimous. On the liberal side, Justice Sotomayor was outspoken in her questions to Trump’s lawyer (Jonathan Mitchell who was arguing his sixth Supreme Court case). Justice Kagan’s questions, too, suggest to me that she will come down against Trump.

Justice Brown Jackson was hard to read, with questions that seemed sympathetic to Mitchell’s point that the 14th Amendment bar fails to mention the presidency and also sympathetic to Trump’s due process argument – the argument that he was effectively convicted of the high crime of insurrection without ever being charged with it.  

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Trump’s brief to the Supreme Court is solid, well-written, persuasive, and underreported

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Maine Secretary of State Shenna Bellows

Six days ago, Donald Trump’s lawyers filed a 34-page brief in the Supreme Court. In legal-speak, their brief is called a “petition for certiorari.” It asks the U.S. Supreme Court to review the 4-3 decision by the Colorado Supreme Court banning Trump from the Colorado ballot. (The brief is available, in full, at the Supreme Court website.) 

This case presents one of the most important legal and political issues of this century: Whether a state can exclude a national candidate from the state’s ballot on the grounds that he committed a federal crime that he was never convicted of or even charged with.

But the media has largely ignored Trump’s brief. I have not seen a single news report about it. Reporters embarked on crazy endzone dancing when the Colorado decision came out last month, which has apparently left them too woozy and hungover to report on a particular salient fact – namely, that this play is almost certainly under review1 by the real Supreme Court. And initial indications point to the on-field ruling being overturned.

Trump’s brief cites and quotes extensively from the well-reasoned three-justice dissenting opinion in Colorado – another piece of news that was little-reported.

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Thank Joe Biden for pulling an egotistical Ruth Bader Ginsburg

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Ruth Bader Ginsburg was a Supreme Court Justice and a darling of the left. She was endearingly referred to as “Notorious RBG” for her strident opinions invariably siding with the Democrats on political issues.

But she grew old. She also grew feeble physically and, sadly, to some extent mentally as well. She started breaking Court tradition by giving television interviews, where she unfortunately spoke intemperately about political issues.

Shortly before the 2016 election, she told a reporter that Donald Trump was “a faker.”

And then she said something to the reporter that apparently came into her head at that moment because she really had an ego. She said Trump “says whatever comes into his head at the moment. He really has an ego.”

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Diversity czars are getting the ax

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You should pity czars. Things never end well for them.

The reign of diversity czars began a few years ago when a jury found that a violent drug-addled Black criminal was murdered by an idiotic white police officer ostensibly trying to subdue him.

This rarely happens, thankfully. In fact, more cops get murdered by Black criminals than the other way around. And when Black criminals do get murdered by cops, the cops are usually Black themselves (though the left would say cops are never Black even if their skin color is black because, after all, cops promote white justice and not Black Justice).

Anyway, the establishment decided they had to make a show of their opposition to Black people getting murdered by white cops, even if it hardly ever happens. This little minstrel show was called Black Lives Matter. Corporations gave millions to a few Black people to whom Black Lives Matter mattered a lot, moneywise. 

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Democrats will defy the Supreme Court’s upcoming decision outlawing racial discrimination in schools, just as they did in Brown v. Board of Education

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The Supreme Court in 1954 unanimously declared in Brown v. Board of Education that racial discrimination in schools is unconstitutional.

The reaction of Democrats was indignation and defiance. Democrat Arkansas Governor Orval Faubus called out the state National Guard to prevent Blacks from entering white schools.

Democrat Virginia Senator Harry Byrd organized the “Southern Manifesto” calling for Brown to be reversed and vowing never to implement it. It was signed by 99 Democrats but only two Republicans, including all but two of the Democrat senators from states in the former Confederacy. Democrats in Virginia passed the Stanley Plan, named after Democrat Virginia Governor Thomas Stanley, barring any state school receiving state funds from following the Brown ruling.

Democrat-controlled legislatures across the South closed many schools to avoid having to integrate them. The Democrat legislature of Florida passed a resolution declaring Brown “null and void.” A Democrat member of the Ku Klux Klan murdered a Black civil rights activist for daring to file a lawsuit to enforce Brown in Mississippi.

Democrat Alabama Governor George Wallace personally stood in the doorway to block Black enrollment at the University of Alabama.

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