When is harm done in the Courts?

Some confounding SCOTUS decisions which do not have logical backing and are more partisan than normal. There is no standing on either of these cases.

303 Creative LLC v. Elenis

This SCOTUS ruling is puzzling to me in that it brings up the question in my mind of when is harm done? “303” was not asked to make a cake. It did not refuse to make a cake. It assumed the law would be enforced upon them, if they refused to make a cake for a same-sex couple. We are talking about a hypothetical occurrence. The courts should have rejected the premise from the beginning as they suffered no harm.

Some points:

In 2008, Colorado amended the Colorado Anti-Discrimination Act (CADA) to expand its anti-discrimination protections to members of the LGBTQ community. In 2016, 303 Creative, a company that wants to offer wedding web design services, along with its owner, filed a pre-enforcement challenge to the law in federal court. They object to same-sex marriage and argue that CADA compels their speech in violation of the First Amendment by requiring the company to offer the same services to same-sex couples that it offers to different-sex couples.

The district court concluded that applying CADA to 303 Creative is constitutional. The Court of Appeals for the Tenth Circuit affirmed such also Then 303 Creative asked the U.S. Supreme Court to hear the case, and it agreed to do so.

Who is Elenis?

Unlike similar cases predating this one, there wasn’t a same-sex couple suing the business for discrimination. Elenis in the case is Aubrey Elenis, director of the Colorado Civil Rights Division, who was sued in her professional capacity and listed first.

Elenis had yet to refuse to make a cake for a same-sex couple. The circumstance has yet to be presented to Elenis. It is a hypothetical or a what-if?. There was no issue. And the courts took it up even when no harm was done to Elenis.

“There was no complaint. This wasn’t even somebody who had opened up a business. This was somebody who said, ‘Hey, I’m thinking I might open a business AND I’m thinking that I might want to discriminate against same-sex marriage couples.

Hypotheticals, which should have been laughed out of SCOTUS. Each year, there are pages of cases which SCOTUS does not take up and rejected at the end of each term. SCOTUS does take up eighty cases per year and settles ~100 cases yearly. And they took up Elenis?

Justice Gorsuch also took issue with Justice Sotomayor’s dissent claiming it is a distortion of the case at hand. Gorsuch argues Sotomayor’s dissent “spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment.” Speaking of which, Gorsuch presents the reasoning in his response as to why the case should never had been accepted at any court level. The Elenis case is all assumptions and hypotheticals.

Some reading:

Andrew Weissmann Baffled by Supreme Court’s Reasoning in Gay Rights Case, mediaite.com, Michael Luciano

Gorsuch rebukes Sotomayor for saying his ruling gives LGBT people ‘second-class status,’ The Gazette, Kaelan Deese

Then there is the issue of standing. Three times in the past, SCOTUS rejected cases coming from states in which there was no harm done to them. The most recent case of Student Loan Relief, SCOTUS ruled in favor of Nebraska based upon made up logic by Roberts and his Major Questions Doctrine. No harm came to any animals or Nebraska, Missouri, Texas, or any other state objecting to student loan relief.

“I refer to the doctrine as unfounded because the appeals to precedents, constitutional principles, and political theories that the Court or individual Justices have offered to defend the doctrine are not very
persuasive; unbounded because of the enormous uncertainty that the Court has created regarding
the reach of the doctrine; and confounded because of the perplexity the Court’s shifting
explanations have created.”

More Reading:

The Major Questions Doctrine: Unfounded, Unbounded, and Confounded; George Mason University, Ronald M. Levin