I’m going to give Justice Jackson the benefit of the doubt. Anyone, even a distinguished judge, can have a bad day and say something that just doesn’t come out right. Still, it must be said, her contribution to the many analogies and hypotheticals being tossed around in the Supreme Court during the oral argument of 303 Creative LLC v. Elenis, the case where a web designer claims that forcing her to create a wedding website for a same-sex couple violates her First Amendment Rights, was jaw-droppingly bad. Frightening, even.
Justice Neil Gorsuch had correctly noted that the objection at issue was not based on the status of the same-sex couple, but instead, the message that the business owner did not want to send. The question isn’t the “who” Gorsuch said, but the “what.” Exactly. And that’s why CNN’s headline on the case, “Supreme Court conservatives seem to side with website designer who doesn’t want to work with same-sex couples” is false and misleading. Lorie Smith has been very clear that she will work for anyone; she just won’t make same-sex wedding websites. It’s not “Who,” but “What.”
Now consider Justice Ketanji Brown Jackson’s rejoinder. Pay attention, please:
“I want to do video depictions of ‘It’s a Wonderful Life,’ and knowing that movie very well, I want to be authentic, and so only white children and families can be customers for that particular product. Everybody else can, I’ll give to everybody else I’ll sell them anything they want, just not the ‘It’s a Wonderful Life’ depictions. I‘m expressing something, right? For the purposes of that speech. I can say anti-discrimination laws can’t make me sell ‘It’s a Wonderful Life’ packages to non-white individuals.This business wants to express its own view of nostalgia about Christmases past by reproducing classic 1940’s and 1950’s Santa scenes, they do it in sepia tone and they are customizing each one.”
Huh?
This is gibberish. What’s a “video depiction” of that movie? What does authenticity have to do with who you sell the movie to? The movie wouldn’t change if it was only sold to Mongolian dwarfs. And no, who you sell a video to isn’t a message, and being forced to sell it to everyone isn’t compelled speech.
As for the sepia Santa hypothetical, I have no idea in Hell what Jackson is trying to say. Any theories?
Maybe she was desperately trying to argue for a position she knows she can’t support. Maybe she just got confused mid-argument: it happens. Maybe she was having a mini-stroke, or has early Christmas fever. I don’t know. But I sure hope today’s performance isn’t a true sample of what we can look forward to for the next thirty years or more.
Because that would be terrifying.
Ethics Alarms 
People who don’t have any strong religious convictions don’t understand that other people can hold strong religious convictions. It is the same kind of blindness I have seen in doctors or medical personnel who have never personally suffered from an allergic reaction. My mom who does have severe allergies was told by a cardiac nurse that there is no such thing as allergies.
Well, she’s consistent.
When everyone knows what a woman is, and she answers she’s not a biologist, I think you’ll see this kind of thing from her a lot.
I suspect she’ll get better at how she puts it together, but, when you’re beholden to a particular cause, not an honest interpretation….
Maybe, just maybe, she isn’t alls bright as we were led to believe.
jvb
This did occur to me.
Agree.
The frightening issue she will not improve over time because her beliefs, intelligence level, and teachings were already set before she became a supreme court justice.
Why is a raven like a writing desk?
Only Lewis Carroll knew for sure, but at least I know that a raven is more like a writing desk than a wedding website is like “It’s a Wonderful Life”….
Did she consult with Kamala before she uttered that gem? What a bizarre and garbled mess of what, I suppose, she meant to be some kind of analogy. Maye it sounded clear in her head.
Attempting to sort it out:
Is her imagined product something like a compilation of selected and manipulated clips from IAWL (designed with input from the customer?). Or maybe she means shooting vignettes using the customer’s family members? That would seem to make more sense regarding selling that product only to white customers if the producer’s concept of maintaining period authenticity involves filming only racially correct characters for period productions. It could make a difference if the filmmaker did other movies, and didn’t hold to her authentic race standard in those (Roots scenes with a white Kunta Kinte?) But if the producer were consistent, should customers be allowed to compel her artistic expression and force her to change that practice?
If that second scenario is what Jackson had in mind, maybe she might have had a bit of a point, consistent with her analogy. But her analogy is off the mark for this case. For one, this case also includes the question of making the artist act against her religious beliefs. Mainly, though, in her example, Jackson is combining the “who” and the “what” into an inseparable unit. In the real case, as Gorsuch rightly noted, only the unprotected “what” is at issue; the designer wouldn’t make a same-sex wedding website at the behest of a straight customer, either.
Recreating scenes of another artist’s vision (Capra) is not a unique artistic expression which would rise to the level implying support. We could recreate scenes from virtually any movie, book, painting or other device created by another and none of the recreations would be a unique artistic expression no matter who is used unless the new version bastardizes the original in other ways.
Any recreated thing that is not an exact (within physical possibilities) copy, such as an unedited recording or print of the original film, is unique in some way. The hypothetical enterprise proposed here would depend on the customers viewing their inclusion, and perhaps other inconsequential adjustments that don’t conflict with what the artist considers integral parts of her concept, to not be fungible with any other. Otherwise, they would have no desire or use for it in preference to an “exact” copy of the original.
Yeah, that’s pretty bad. But as you said, everybody has off days. Scalia had some howlers back in the day, like when he had to be told that Jews don’t put crosses on their gravestones.
Jack asked, “As for the sepia Santa hypothetical, I have no idea in Hell what Jackson is trying to say. Any theories?”
My theory is that her brain farted and she confused the 1946 “It’s a Wonderful Life” with the 1947 “Miracle on 34th Street”. The way her brain farted out that nonsense, I’m surprised she didn’t reference “A Christmas Carol” too.
As for the entirety of her argument, I think this might be a signature significant argument foreshadowing things that are yet to come but I too will give her a break and sit back and listen for a while.
I wrote, “I think this might be a signature significant argument foreshadowing things that are yet to come”
On that note…
The language that the political left used to promote Judge Ketanji Brown Jackson’s nomination to the Supreme Court was right up there with the levels of propaganda that the political left has used to push other things. Judge Jackson and the political left parroted in unison the correct things to get her nomination approved but buyer beware! I have been saying for a while that “The political left has shown its pattern of propaganda lies within their narratives so many times since 2016 that it’s beyond me why anyone would blindly accept any narrative that the political left and their lapdog media actively push?” Yes I know full well that a broken clock can be correct twice a day, but I simply don’t trust a damn thing that the political left publicly promotes and that includes any trust that Justice Jackson won’t be a progressive activist hack on the bench. I honestly hope Justice Jackson proves me wrong.
Yes, I’m wearing my relatively new anti-Democratic Party bias on my shoulder for all to see. I know that that bias is there, I do try to look beyond it, but the political left’s actions support my bias at damn near every turn.
Maybe I’m being unfair, but I had given up on any kind of judicial integrity from KBJ when she argued that the 14th amendment did not preclude racial discrimination.
Junkmailfolder wrote, “Maybe I’m being unfair, but I had given up on any kind of judicial integrity from KBJ when she argued that the 14th amendment did not preclude racial discrimination.”
Oh but she was correct; the 14th Amendment does not actually stop Joe Citizen from engaging in racial discrimination, it just makes it unconstitutional. It’s like any other law, it doesn’t stop the actions it just make it a prosecutable and therefore a punishable offense.
Noted, but her argument was in the context of the Supreme Court deciding the constitutionality of voting laws.
In other words, her argument was that the 14th Amendment did not make laws that discriminate based on race unconstitutional.
Here is my best guess (and I don’t know much about the underlying case):
You have a website designer who designs all sorts of websites for all sorts of people. They also design websites for weddings, but only for traditional marriages (one male/one female).
The analogy she is making is that you have a photographer/videographer who will do all kinds of nostalgic Christmas products for everyone (sepia makes things look old and nostalgic, I guess). But, there is one product, It’s a Wonderful Life, that is only sold to white people. The issue is not the who (all people are served), but the what (It’s a Wonderful Life is only sold to white people).
The more I think about it, the more I think that is what she meant (though that could be a cognitive bias of mine reinforcing itself). But, if that is what she meant, the next question is whether that is a good analogy.
-Jut
I think she spoke the first line of the analogy, then realized she was talking about essentially a mini remake of a movie scene, which was obviously a situation where one is allowed to use whatever subjects one feels are best suited to the roles including on the basis of appearance, and thus she had answered her own question.
After that she started flailing, trying to twist things back into the territory of a thought experiment, but she’d already messed it up so it made no sense.
I will give her that this doesn’t necessarily suggest her eventual decision, the justices often try to challenge both sides with hypotheticals, even when they’re obviously playing devil’s advocate. I would gain a lot of respect for her if she replayed what she said in her mind and realized that she’d fallen directly into the argument the web designer was making.
Terrific explanation, Emily.
She was chosen because of her color, her gender, and to be a reliable vote on the left, nothing more.
Of course Justice Jackson is confused, “wokeness” does that. After all anyone that doesn’t know what a woman is goes through life in a state of debilitating confusion. Her selection to the SCOTUS has made a mockery of the court, but fortunately, the court can function with only eight justices.
C’mon man. If you don’t include “A Christmas Story” in the movies-for-analogy game, you ain’t…
The exchange above takes place on page 55 of the transcript. I think it is important to note that Jackson revisited this metaphor several times during the oral arguments, and presents it quite clearly earlier. For instance, on page 27, she expressed the scenario quite clearly.
So the garbled metaphor is the second instance, where she is referring to a prior metaphor, but not fully reexplaining it.
There are plenty of photos from that period of Santa with black children on his knee. She’s race obsessed, and Facts Don’t Matter.
The respondents attorney initially tried to argue the situations were dissimilar, but after Jackson pushed the issue
the respondant conceded that the constitution might protect such a contrived scenario, because it protects a lot of similar rehensible behavior.
The respondant should probably have argued Jackson’s hypothetical would be contingent on the specific facts of such a case, rather than allow such a concession.
It might be simpler to replace “same-sex wedding website” with “mixed-race wedding website” and then see how people feel about the analogy. The main difference I see is that far fewer humans these days are sympathetic to religious objections regarding mixed-race marriages. The concepts seem fundamentally similar, though: “I don’t want to make this website for the customer because it constitutes my personal endorsement that these two people can get married, which is something they can legally do but I don’t like it for some reason.” It does discriminate against the customer because it excludes some combinations of customers.
The question is what sorts of elements are ethically and legally acceptable for an artistic creator to refuse to depict, and whether there are different classes of creator with different rules that apply. Can an artist refuse to depict a rival sports team? An animal they don’t like, or just can’t draw well? Angry facial expressions? Certain articles or styles of clothing?
Then there’s the issue that certain activities do take on different connotations when you swap out the characteristics of the people involved. The age, gender, and ethnicity of the characters in a work of art can all affect the meaning of the activity they are depicted engaged in.
I don’t have any hard answers for this topic, but my current feeling is that we should all try to get on the same page about what activities are ethically acceptable, and then accept when people are not comfortable depicting activities that they don’t endorse or that they don’t think they could do justice to.
I thought “Grandma Helen’s Protestant Provisions” was probably the weakest hypothetical from Jackson, but I have to give the gold star to Alito for the “KKK kids wanting to sit on the knee of Black Santa”.
The Protestant Provisions hypo was awful because there is a difference between speech and conduct, there are entirely different standards and tests for each, and Jackson *really* should know that.
But I can’t get past KKK kids because belonging to the KKK isn’t a protected class. What the actual fuck was he trying to say there?
HT
There are no protected classes based on race, gender or sexual orientation. The same discrimination laws protecting blacks are to be equally applied to all other races. We keep losing sight of this fact because it appears that only non-whites can effectively claim race based discrimination because that is what they have been taught.
I had another comment but I was getting so twisted that I decided it was my ethics alarms going off saying “this is too nuanced and ridiculous, just delete it.” so it got sent to the dust bin. So maybe, if I take us on a detour, we can make forward progress.
It’s not fair (I’m using this word deliberately) for a person who is out shopping in the community to find a product or service and have it pulled away from them because of who they are. Market fairness is a trait important to well functioning commerce and to avoid public disturbances, disagreement, and hoodwinking. Consumers shouldn’t have the burden of prying your religious beliefs out of you in order to find out if your products or services are available to them.
To make it fair, if you have exceptions, you should have to put that front and center. If it’s important to you, it should be important for potential consumers to know in advance before they get trapped in an embarrassing or dehumanizing situation. Whether you call yourself “A Christian Bakery” or “A Christian Website Developer” I don’t care…but this reeks of the “Conscientious Objector” conundrum during wartime where people would claim such status only when it became an issue or would directly affect them. Sure, you might genuinely be a Conscientious Objector, but you had to prove your long held belief with tangible evidence. I’m not sure that is present in this web-developer case.
Actually, Tim the web developer is suing Colorado because she wanted to let people know what types of sites she would not do. The Colorado law proscribed any marketing literature that indicated discrimination based on a protected characteristic. The web developer is not denying sales of general websites to gay clients she simply states she will not create sites for gay weddings because she does not wish to be seen as endorsing them.
Just how broadly and specifically must one declare his religious beliefs in order to assert them at some future date? Conscientious Objector may not be all that equivalent in this case. A false CO claim could be made with the aim of obtaining a considerable personal benefit. It’s hard to see that the website designer or baker benefits at all (quite the opposite, actually, with what they have to endure in these cases) outside of adhering to what they believe their religion asks of them. What incentive would they have for a false claim?