The Supremes

[jimmyjazz 45546]

1 minute ago, TwiceHorn said:

I did. See the final paragraph.

Remember the moving goalpost of this argument.  

• Oh this decision sucks because it's bad for LGBTQ
• Oh, the plaintiff lied about a website request
• Even if it doesn't matter, the basis for jurisdiction here is flimsy, the Supreme Court is so full of shit
• Well, even if the district court and court of appeals found jurisdiction, and fixed the jurisdictional facts for the Supreme's, this DJ Act is a flaw in the justice system exploited by fascists
• Well, even if the DJ Act has been used for decades, including by the good guys, it's all wrong

I don't care if the arguments aren't particularly well-formed, people smell a rat and have a right to be outraged.  It's good to become more educated on the machinations and nuances of the courts and the law, but even the lawyers can't agree on the degree of fuckery that happened here.  (See, for instance, @'stache and you.)

[TwiceHorn 31262]

4 minutes ago, jimmyjazz said:

I don't care if the arguments aren't particularly well-formed, people smell a rat and have a right to be outraged.  It's good to become more educated on the machinations and nuances of the courts and the law, but even the lawyers can't agree on the degree of fuckery that happened here.  (See, for instance, @'stache and you.)

I'm not sure that stache really contends there was fuckery.

What he does contend is that modern interpretation of the DJ Act leads to too many cases being brought in federal court.  I might actually agree with that, but it is a topic waaaaaaaaaayyyyy beyond the scope of this discussion and I don't think 303 Creative is a really good avenue for exploring that.

['stache 21758]

8 minutes ago, TwiceHorn said:

I'm not sure that stache really contends there was fuckery.

What he does contend is that modern interpretation of the DJ Act leads to too many cases being brought in federal court.  I might actually agree with that, but it is a topic waaaaaaaaaayyyyy beyond the scope of this discussion and I don't think 303 Creative is a really good avenue for exploring that.

Oh I think there was fuckery here, not that the Declaratory Judgment Act exists, but in how it was applied, and made its way through both levels of appellate review. Only a political hack would have taken the remoteness of potential harm by a plaintiff who wasn't even participating in the business and find that it fits a traditional declaratory judgment claim and didn't cross the line into a prohibited advisory opinion. That the district court, appellate court, and majority of the Supreme Court were fine with it is a massive problem in my view and essentially does away with traditional limitations on declaratory judgments. It's purely politics now, not law. If the judge supports your political cause, it doesn't really matter, we'll get you to SCOTUS to issue a decision which we know will go our way regardless of how remote the potential injury might be. This is a huge divergence from the civil rights era. 

Edited July 5, 2023 by 'stache

[TwiceHorn 31262]

Just now, 'stache said:

Oh I think there was fuckery here, not that the Declaratory Judgment Act exists, but in how it was applied, and made its way through both levels of appellate review. Only a political hack would have taken the remoteness of potential harm by a plaintiff who wasn't even participating in the business and find that it fits a traditional declaratory judgment claim and didn't cross the line into a prohibited advisory opinion. That the district court, appellate court, and majority of the Supreme Court were fine with it is a massive problem in my view and essentially does away with traditional limitations on declaratory judgments. It's basically now, if the judge supports your political clause, it doesn't really matter, we'll get you to SCOTUS to issue a decision which we know will go our way. This is a huge divergence from the civil rights era. 

Well, you realize that you are accusing two courts that found the statute constitutional, what really matters, of fuckery geared toward  . . . sending it to the supreme court to have it found unconstitutional?

That don't make no sense.

[Brisketexan 104557]

1 minute ago, TwiceHorn said:

Well, you realize that you are accusing two courts that found the statute constitutional, what really matters, of fuckery geared toward  . . . sending it to the supreme court to have it found unconstitutional?

That don't make no sense.

And that really is an impediment to "the lower courts were engaged in fuckery" theory.  I mean, it's POSSIBLE that they concocted a ruling they don't agree with just to make sure the SCOTUS took it.....but that's getting a bit Q-anon conspiracy theory-ish.

[pacman 7324]

https://www.vox.com/scotus/2023/6/30/23779903/supreme-court-student-loan-biden-nebraska-john-roberts

Quote

Roberts’s opinion in Nebraska effectively overrules the decision of both elected branches of government. It overrides Congress’s unambiguous decision to give this power to the secretary of Education. And it overrules the executive branch’s judgment about how to exercise the authority that Congress gave it. As Kagan writes in dissent, “the Secretary did only what Congress had told him he could.”

Quote

But the most important thing to understand about the major questions doctrine is that it is completely made up.

 

[HonkeyVape 107]

24 minutes ago, TwiceHorn said:

I did. See the final paragraph.

Remember the moving goalpost of this argument.  

• Oh this decision sucks because it's bad for LGBTQ
• Oh, the plaintiff lied about a website request
• Even if it doesn't matter, the basis for jurisdiction here is flimsy, the Supreme Court is so full of shit
• Well, even if the district court and court of appeals found jurisdiction, and fixed the jurisdictional facts for the Supreme's, this DJ Act is a flaw in the justice system exploited by fascists
• Well, even if the DJ Act has been used for decades, including by the good guys, it's all wrong

Also, 303 was a website business, just not a wedding website business.  The rest is accurate.

And, at the time of filing of Roe v. Wade, which is actually the only legal time that matters, Roe had not had an abortion, so she was not in fact even subject to the prospect of prosecution.

Somehow narrowing down DJ jurisdiction to make this case closer to a live dispute would only have delayed (possibly indefinitely) the bringing of the case.

You can be assured that such narrowing would also delay (again possibly indefinitely) the bringing and resolution of actual worthwhile civil rights cases.

[HonkeyVape 107]

4 minutes ago, Brisketexan said:

And that really is an impediment to "the lower courts were engaged in fuckery" theory.  I mean, it's POSSIBLE that they concocted a ruling they don't agree with just to make sure the SCOTUS took it.....but that's getting a bit Q-anon conspiracy theory-ish.

This.

The literal only reason people are decrying the process and system is because they don't like the outcome. Had it gone the other way, the very same people would not have any problem with it and would be ridiculing anyone on that side who would take up literally the same arguments.

It's politics at it's finest in that the only thing that matters is that your personal desires win the day.

Edited July 5, 2023 by HonkeyVape

[TwiceHorn 31262]

6 minutes ago, Brisketexan said:

And that really is an impediment to "the lower courts were engaged in fuckery" theory.  I mean, it's POSSIBLE that they concocted a ruling they don't agree with just to make sure the SCOTUS took it.....but that's getting a bit Q-anon conspiracy theory-ish.

Right that's what's rubbed me wrong about the whole thing from jump. 

 

There's plenty to bitch about in 303 without making up conspiracy theories about collateral matters. 

Edited July 5, 2023 by TwiceHorn

['stache 21758]

8 minutes ago, TwiceHorn said:

Well, you realize that you are accusing two courts that found the statute constitutional, what really matters, of fuckery geared toward  . . . sending it to the supreme court to have it found unconstitutional?

That don't make no sense.

 

6 minutes ago, Brisketexan said:

And that really is an impediment to "the lower courts were engaged in fuckery" theory.  I mean, it's POSSIBLE that they concocted a ruling they don't agree with just to make sure the SCOTUS took it.....but that's getting a bit Q-anon conspiracy theory-ish.

I'm not sure what you think I'm arguing. "I might want to participate in X industry, but can't, because a gay person might ask me to do work, and if they do and I refuse, they might report me, and if they do, I might be punished, ergo, I need a declaratory judgment." That is literally how Gorsuch starts his opinion. That is as flimsy a premise for declaratory judgment as I've ever seen. If you're saying that the state defendants didn't raise the concern and it's therefore okay doesn't really pursuade me, it reeks of malpractice if anything. A court along the line should have shut it down and waited for a real imminent threat to support DJ standing. Doesn't the fact that Honkey is on your side raise a red flag? The outrage is justifiable, even if they aren't arguing it correctly (i.e., not knowing that the declaratory judgment act does provide a pathway to jurisdiction if the facts are right, which I'm saying here they were not). 

Edited July 5, 2023 by 'stache

[jimmyjazz 45546]

2 minutes ago, HonkeyVape said:

This.

The literal only reason people are decrying the process and system is because they don't like the outcome.

Oh, blow me.  I literally asserted the opposite.

[TwiceHorn 31262]

19 minutes ago, 'stache said:

 

I'm not sure what you think I'm arguing. "I might want to participate in X industry, but can't, because a gay person might ask me to do work, and if they do and I refuse, they might report me, and if they do, I might be punished, ergo, I need a declaratory judgment." That is literally how Gorsuch starts his opinion. That is as flimsy a premise for declaratory judgment as I've ever seen. If you're saying that the state defendants didn't raise the concern and it's therefore okay doesn't really pursuade me, it reeks of malpractice if anything. A court along the line should have shut it down and waited for a real imminent threat to support DJ standing. Doesn't the fact that Honkey is on your side raise a red flag? The outrage is justifiable, even if they aren't arguing it correctly (i.e., not knowing that the declaratory judgment act does provide a pathway to jurisdiction if the facts are right, which I'm saying here they were not). 

You make a fine argument there about dj jurisdiction. Although you never really make a point about any difference it makes whether the actual dispute is actually live or not. 

But you don't explain why it was fuckery for the lower courts to apply the same jurisdictional analysis en route to upholding the statute. 

Perhaps you mean fuckery unrelated to curtailing the rights of LGBTQ.  Other, miscellaneous fuckery. Mopery perhaps. 

Also your reliance on Loving is misplaced as it was appealed from the Supreme Court of Virginia and didn't involve declaratory judgment jurisdiction at all.  The Lovings might have avoided considerable unpleasantness and delay had they employed the DJ Act. 

Edited July 5, 2023 by TwiceHorn

[Brisketexan 104557]

13 minutes ago, 'stache said:

If you're saying that the state defendants didn't raise the concern and it's therefore okay doesn't really pursuade me, it reeks of malpractice if anything.

Well, then, you may have a complaint about how the State of Colorado handled it.  Because they stipulated to the scenario, they didn't contest it.  The district court did do its own standing/jurisdictional analysis anyway, though....based on the stipulations.

[TwiceHorn 31262]

12 minutes ago, Brisketexan said:

Well, then, you may have a complaint about how the State of Colorado handled it.  Because they stipulated to the scenario, they didn't contest it.  The district court did do its own standing/jurisdictional analysis anyway, though....based on the stipulations.

They did attempt to have it dismissed at the trial court level and kept on arguing about it at every level but not too terribly seriously because I don't think they could really credibly argue that a) they would not prosecute and b) that circumstances would be somehow different if they actually did. 

By the time it got to the supreme court they weren't very strenuously arguing lack of jurisdiction but more prudential, hey this is kind of a fake case and not a good vehicle for this. 

Edited July 5, 2023 by TwiceHorn

[Mole 4320]

5 hours ago, Brisketexan said:

The queers can … only buy off-the-rack clothes…

Forgive me for perpetuating a stereotype, but I suspect that the LGBTQ community is mostly unconcerned with the prospect of conservative Christians blocking their access to high fashion.

[Brisketexan 104557]

7 minutes ago, TwiceHorn said:

They did attempt to have it dismissed at the trial court level and kept on arguing about it at every level but not too terribly seriously because I don't think they could really credibly argue that a) they would not prosecute and b) that circumstances would be somehow different if they actually did. 

By the time it got to the supreme court they weren't very strenuously arguing lack of jurisdiction but more prudential, hey this is kind of a fake case and not a good vehicle for this. 

Sorry, sloppy language on my part.  Didn't mean to imply that the state didn't raise any jurisdictional argument -- my observation was that they stipulated to all of the jurisdictional facts on which the courts then conducted their jurisdictional analysis.  Although my quick read of the Dist court opinion (and it was quick, I confess) didn't lead me to conclude they made a "live or die" argument on there being a live controversy, particularly based on your a) and b) observations above.  Really, once they stipulated to the facts that the plaintiff was going to do/not do all those things with respect to her business, and that there was a real risk or prosecution in that case, then the die was cast.

[TwiceHorn 31262]

3 minutes ago, Brisketexan said:

Sorry, sloppy language on my part.  Didn't mean to imply that the state didn't raise any jurisdictional argument -- my observation was that they stipulated to all of the jurisdictional facts on which the courts then conducted their jurisdictional analysis.  Although my quick read of the Dist court opinion (and it was quick, I confess) didn't lead me to conclude they made a "live or die" argument on there being a live controversy, particularly based on your a) and b) observations above.  Really, once they stipulated to the facts that the plaintiff was going to do/not do all those things with respect to her business, and that there was a real risk or prosecution in that case, then the die was cast.

Wasn't trying to contradict, just elaborate a little.  I just don't find the jurisdictional analysis that troubling.

Yes, it is a couple of steps removed from actual prosecution, but so is every Declaratory Judgment.  Unless some real significance can be attached to those steps, as in, well if this happens x, if this other thing happens y, and neither thing has happened so we can't tell the true shape of this dispute, then I don't see the problem, at least in this particular context.  In the broader context I can see a potential problem.

[dcbc 14404]

5 hours ago, TwiceHorn said:

True enough.  It's an "exception" that swallows everything.

The slipperiest of slippery slopes.

[dcbc 14404]

21 minutes ago, TwiceHorn said:

strenuously arguing lack of jurisdiction

I know you all know this, but just for the sake of saying it.  When it comes to subject matter jurisdiction, it doesn't matter if it's been argued before or passed over by lower courts.  It doesn't matter if the parties agree.  It's one of those things that a court must determine, even sua sponte.  If it wasn't touched on by the SCOTUS and no rehearing is had, we kind of have to presume for practical purposes that it was considered and determined to exist, despite how many indications to the contrary.  That understandably is not easy for some of us, even with a good understanding of how cases get declaratory judgments.

[Captainant 27442]

39 minutes ago, Brisketexan said:

Well, then, you may have a complaint about how the State of Colorado handled it.  Because they stipulated to the scenario, they didn't contest it.  The district court did do its own standing/jurisdictional analysis anyway, though....based on the stipulations.

 

27 minutes ago, TwiceHorn said:

They did attempt to have it dismissed at the trial court level and kept on arguing about it at every level but not too terribly seriously because I don't think they could really credibly argue that a) they would not prosecute and b) that circumstances would be somehow different if they actually did. 

By the time it got to the supreme court they weren't very strenuously arguing lack of jurisdiction but more prudential, hey this is kind of a fake case and not a good vehicle for this. 

I think Colorado brought piss to a shit fight and didn't clue into the christofascist rights game until it was too late. By participating honestly, but not full of intent, they were at a disadvantage to play ball at all to enable the conditions to send the case to the supreme court. 

It's not some grand "every judge is in on it" thing, but the right person in the wrong place can make all the difference in the world. Get enough cases pushed the right way, and eventually one of them will be successful in achieving your desired political outcome. Rule of large numbers, but applied to a torrent of political culture war cases

Edited July 5, 2023 by Captainant

[Brisketexan 104557]

1 minute ago, Captainant said:

Get enough cases pushed the right way, and eventually one of them will be successful in achieving your desired political outcome. Rule of large numbers, but applied to a torrent of political culture war cases

Oh, that part is true for sure.  The right has embarked on a well-funded and relentless plan to litigate every civil rights issue they can while they have a favorable SCOTUS.  They WILL get cases to the finish line.  A lot of them.

If the SCOTUS cared about preserving its credibility as an institution (it doesn't, but if it did...), it would be more careful about taking up cases with false premises/facts.  The "coach leading team prayer" case was especially egregious as the Court flat-out lied about how those "prayers" actually went.  Which emphasizes how strategically wise it is for the christofascists to be teeing up every question imaginable while they can - this SCOTUS will bend over backwards to give them what they are asking for (more christofascism).

[TwiceHorn 31262]

52 minutes ago, jimmyjazz said:

Oh, blow me.  I literally asserted the opposite.

Also, for future reference, the "holding" of a case is it's basic outcome or determination.

Strictly speaking, the holding is that that Colorado statute is unconstitutional as violative of the First Amendment.  It might be said that the "rationale" for the holding is that free speech + religious freedom is more important than freedom from discrimination.

The basis for jurisdiction is not the holding.  It's I don't know exactly what you'd call it, a collateral matter.

[TwiceHorn 31262]

12 minutes ago, Captainant said:

 

I think Colorado brought piss to a shit fight and didn't clue into the christofascist rights game until it was too late. By participating honestly, but not full of intent, they were at a disadvantage to play ball at all to enable the conditions to send the case to the supreme court. 

It's not some grand "every judge is in on it" thing, but the right person in the wrong place can make all the difference in the world. Get enough cases pushed the right way, and eventually one of them will be successful in achieving your desired political outcome. Rule of large numbers, but applied to a torrent of political culture war cases

Agreed.  Good post.

My sense of it after digging around in it, is Colorado, after Masterpiece Cake, was all BOHICA.  And, the truth of the matter is that sometimes the lawdogs in the state law departments just aren't the best.  That's not something I'd say across the board, as state agencies do stellar work all the time, but it's not all that uncommon for them to let us down.  See, for example, the State Bar of Texas.

[jimmyjazz 45546]

17 minutes ago, TwiceHorn said:

The basis for jurisdiction is not the holding.  It's I don't know exactly what you'd call it, a collateral matter.

Could the initial trial judge have thrown out the case if he deemed it to be without merit?

EDIT:  never mind, I see you basically said he could have done so above

Edited July 5, 2023 by jimmyjazz

[TwiceHorn 31262]

19 minutes ago, jimmyjazz said:

Could the initial trial judge have thrown out the case if he deemed it to be without merit?

It was a she.  "Without merit" covers a lot of territory.  

But answering what I think you're asking, yes, she could have declined to exercise jurisdiction on this on the ground that the actual dispute was too remote. But remoteness itself doesn't matter that much unless the real live dispute would be something somehow different from the remote dispute.  That is, for this case, is the dispute over denial of wedding site services to queers going to be different in real life from the remote presentation of the dispute.  If you are going to beat DJ jurisdiction, most of the time you have to argue that it is both a) too remote and b) if it becomes live it will be of a different character than it is  remote.

That decision could have been appealed to the 10th Circuit where it seems likely as not, given what happened, that they tell her she has to take it.

Edited July 5, 2023 by TwiceHorn

[jimmyjazz 45546]

2 minutes ago, TwiceHorn said:

It was a she.  "Without merit" covers a lot of territory.  

But answering what I think you're asking, yes, she could have declined to exercise jurisdiction on this on the ground that the actual dispute was too remote. But remoteness itself doesn't matter that much unless the real live dispute would be something somehow different from the remote dispute.

That decision could have been appealed to the 10th Circuit where it seems likely as not, given what happened, that they tell her she has to take it.

Thanks.  So on appeal the appellate court could have bumped it back down and said "try the case"?  

I appreciate the info on the nuts and bolts of how all this happens.

[TwiceHorn 31262]

1 minute ago, jimmyjazz said:

Thanks.  So on appeal the appellate court could have bumped it back down and said "try the case"?  

I appreciate the info on the nuts and bolts of how all this happens.

Yep. 

[chainsaw 9837]

I don't see how an act of congress can expand the jurisdiction of federal courts beyond actual controversies. I believe the precedent requires something along the lines of a "substantial controversy of sufficient immediacy" otherwise you can't get a declaration. I don't know what happens if plaintiff and defendant agree to treat a hypothetical controversy as a real one in service of obtaining judicial input.

[TwiceHorn 31262]

7 minutes ago, chainsaw said:

I don't see how an act of congress can expand the jurisdiction of federal courts beyond actual controversies. I believe the precedent requires something along the lines of a "substantial controversy of sufficient immediacy" otherwise you can't get a declaration. I don't know what happens if plaintiff and defendant agree to treat a hypothetical controversy as a real one in service of obtaining judicial input.

Decent discussion here. https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinions-and-declaratory-judgments

It occurs to me that when you're facing a statute that is enforced by a governmental entity, the party opposed to the statute largely has proof of injury knocked.  And it's very dangerous, if you wish to avoid DJ jurisdiction, for the government to stipulate to the plaintiff's intentions to violate the statute and the manner of violation.  If Colorado didn't stipulate to that, and they probably reasonably could have done so by saying, we have no idea wtf she's going to do or how she's going to do it and how and whether she does has a lot to do with how we prosecute it.  Voila DJ avoided.

Edited July 5, 2023 by TwiceHorn

[Bozo_Casanova 26277]

29 minutes ago, TwiceHorn said:

Decent discussion here. https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinions-and-declaratory-judgments

It occurs to me that when you're facing a statute that is enforced by a governmental entity, the party opposed to the statute largely has proof of injury knocked.  And it's very dangerous, if you wish to avoid DJ jurisdiction, for the government to stipulate to the plaintiff's intentions to violate the statute and the manner of violation.  If Colorado didn't stipulate to that, and they probably reasonably could have done so by saying, we have no idea wtf she's going to do or how she's going to do it and how and whether she does has a lot to do with how we prosecute it.  Voila DJ avoided.

legit interesting. But Why did/would Colorado stipulate to that?

[TwiceHorn 31262]

3 hours ago, Bozo_Casanova said:

legit interesting. But Why did/would Colorado stipulate to that?

Well, for one thing a mistake in retrospect.  For another, maybe they didn't want to hammer and tongs a whole litigation, but I think they could have postponed it for quite some time by not stipulating, so if cost/time was an issue, they probably save it by not stipulating, although it may have been postponing the inevitable.

And, maybe they just had PTSD from Masterpiece Cake.  If we're gonna get fucked, let's get it over with.  Also, one of the problems with Masterpiece Cake was that members of the Civil Rights Commission or the ALJs made some remarks during that actual prosecution that made it hard to contend that the decision was made in a content-neutral way, so maybe they thought it was a good idea to avoid that.

ETA:  Also kind of a final thing, sometimes there's "peer pressure" to stipulate to facts.  Meaning, if you don't, the other side may characterize you as an obstructionist and the judge may agree and you may find the whole case being harder than it has to be.  If you refuse to stipulate to facts, you need to be able to articulate to the opponent and to the judge if it comes up, why it's not just an asshole move or to secure a tactical advantage.  So you need to be able to say something like, "well yes the facts here seem straightforward enough, but this is several steps away from actual prosecution and how things actually happen could have substantial bearing on the course of this case if not the outcome, so we are not comfortable stipulating to these facts."

ETAA:  Doing constitutional cases on stipulated facts is not terribly uncommon.  For one thing, the legal/constitutional arguments are difficult and pesky facts get in the way sometimes.  Both sides don't want their grand arguments derailed by some pesky fact dispute.  And, if either or both sides hope for appellate review, especially the supreme court, dispensing with as much factual matter as possible helps the odds of a cert grant.

Edited July 6, 2023 by TwiceHorn

[Nivek 16851]

What their lizard-brains are too stupid to grasp is that is EXACTLY the outcome they are creating.  It's not difficult logic: pendulums swing.  The harder you push it to one side, then the harder the swing back to the other side is going to be.
For those of us who are no fans of extremes (read: most Americans who are actually paying attention), we've been shouting the warning from the highest mountaintop for years, to no avail.  Shit, it only makes them push down on the accelerator even harder.  This goes to ALL of the pet right wing causes.  Guns are a great example.  If you wanted to create an environment and set the table for an eventual repeal of the 2nd Amendment, and more draconian regulation of firearms than anyone active today can even imagine, they are doing everything you'd want to do to achieve that outcome.  Their response to our warning?  Bruen.  Functionally banning the regulation of firearms if the regulation wasn't in place in 1789 and begin with the words "With respect to ye olde musket...."  So. Fucking.  Stupid.  And a guarantee of pain today, AND pain in a future tomorrow.  I hate them so, so, so much.

Waiting for the leftwing extreme pushback. I think the party that embraces extremism pushes the other party to their direction, not in the opposite direction.

Health care, middle class, tax reform, voting reform/protections (not exclusionary tactics), infrastructure, environmental stewardship, responsibility, freedom of bodily domain and pursuit of happiness, are now left wing extremist ideas.

And the left is too afraid to push against this because the republican boogyman marketing rhetoric has crippled them.

[Nivek 16851]

IMO, the problem is the judges not the rules. The judiciary is now full of political hacks who apply, or not apply, the rules to whatever end they see fit. And to answer your question, only extreme limitations (like rescinding the Declaratory Judgment Act entirely) would likely have precluded civil rights cases, and even then, like I said before, most of those cases presented actual Article III standing. Those lawyers were very careful with standing and found real cases.
Using the Loving interracial marriage case again, the rough equivalent here would have been if a white person filed a suit under the declaratory judgment act saying that they are attracted to black people but are precluded from dating because anti-miscegenation laws would preclude them from ultimately getting married. It's a bridge too far for pretty much any court. The premise of 303 Creative is similarly flawed. She wasn't participating in the wedding website industry, wasn't asked to design a website for a gay wedding, and wasn't threatened with enforcement from the state civil rights agency. That's three steps away from an actual case or controversy. Judge's usually require a closer connection to a potential controversy to allow a claim for declaratory judgment.
And while declaratory judgments can be described as allowing a case to proceed prior to the conduct to avoid someone having to break a law or commit a wrong and face penalty before raising the issue in court, judge's often also take into account the real world severity of the potential punishment. Even if all of the prerequsite steps had occurred, i.e., she started the business, then was asked to do a gay website, then was reported, then had the agency send her an enforcement letter, the potential penalties under these statutes aren't jail or even severe usually. But even if they are severs, the premise here is just too remote under traditional declaratory judgment standards.
She should have been required to at least have started the business, and been asked to do a gay wedding website. She could then file for declaratory judgment saying that she wants to decline the work and needs a judicial determination if she can do so without violating the statute. Literally anyone can say "I want to do x or y but am afraid because of law z." If that's enough, the declaratory judgment act will have been perverted into an advisory opinion act. The fact that she didn't even start that business is in my view the biggest problem that skated through a bunch of political hacks to get the ruling they wanted. The civil rights cases were never that flimsy.  

What is the difference between porn and art?

[Brisketexan 104557]

10 minutes ago, Nivek said:

Waiting for the leftwing extreme pushback. I think the party that embraces extremism pushes the other party to their direction, not in the opposite direction.

Health care, middle class, tax reform, voting reform/protections (not exclusionary tactics), infrastructure, environmental stewardship, responsibility, freedom of bodily domain and pursuit of happiness, are now left wing extremist ideas.

And the left is too afraid to push against this because the republican boogyman marketing rhetoric has crippled them.

Today, you are absolutely correct.  And it's fucking infuriating.  Fighting by Marquess of Queensberry Rules when the other side is swinging a nail-studded 2X4.  Fucking stupid.  BUT...these things take time.  The current round of conservative absolute nuttery was nascent in the late 70s to early 80s.  It took a generation+ for it to really score some big wins.  Pay attention to the people who are in their 20s today.  That's the generation that's going to shove THEIR vision down society's throat in 20-30 years (and that vision involves massive gun law reform, universal healthcare, abortion rights....ALL the shit the fundagelicals are acting on today, and more).  And here's the thing....rational, relatively centrist folks are going to have some problems with that extreme reaction when it comes.  But we can't stop it.  It's inevitable.  

The shitty thing is how much pain, suffering, and loss we're going to endure as a society as we get there.

7 minutes ago, Nivek said:

What is the difference between porn and art?

The number of midgets.  Duh.

['stache 21758]

15 minutes ago, Nivek said:

What is the difference between porn and art?

I know it when I see it.

[Grade of D as in David 13253]

38 minutes ago, Nivek said:

What is the difference between porn and art?

The cumshot?

[DigglerontheHoof 21052]

1 minute ago, Grade of D as in David said:

The cumshot?

On the breasts?  Art.  Face?  Porn.

[chainsaw 9837]

16 hours ago, TwiceHorn said:

Decent discussion here. https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinions-and-declaratory-judgments

It occurs to me that when you're facing a statute that is enforced by a governmental entity, the party opposed to the statute largely has proof of injury knocked.  And it's very dangerous, if you wish to avoid DJ jurisdiction, for the government to stipulate to the plaintiff's intentions to violate the statute and the manner of violation.  If Colorado didn't stipulate to that, and they probably reasonably could have done so by saying, we have no idea wtf she's going to do or how she's going to do it and how and whether she does has a lot to do with how we prosecute it.  Voila DJ avoided.

So the injury is the expectation of compliance? Wouldn't that grant standing to anyone to challenge any law regardless of any actual intent to violate it?

[jimmyjazz 45546]

9 minutes ago, DigglerontheHoof said:

On the breasts?  Art.  Face?  Porn.

Man, I always get this backwards.

[Dahobbs 17437]

18 hours ago, TwiceHorn said:

Well, you realize that you are accusing two courts that found the statute constitutional, what really matters, of fuckery geared toward  . . . sending it to the supreme court to have it found unconstitutional?

That don't make no sense.

 

18 hours ago, Brisketexan said:

And that really is an impediment to "the lower courts were engaged in fuckery" theory.  I mean, it's POSSIBLE that they concocted a ruling they don't agree with just to make sure the SCOTUS took it.....but that's getting a bit Q-anon conspiracy theory-ish.

I don't take @'stache to be going all in on the conspiratorial aspect, so these criticisms aren't well founded in my view.  For whatever reason, multiple courts glossed over the jurisdictional issue. Each may have done it for its own reason, but the result is the same. A flimsy case got to the Supreme Court based entirely on multiple hypotheticals. And, Gorsuch's opinion quite literally opens with a listing of those hypotheticals. It seems to me, despite any stipulations of the parties, when the Court's own opinion recognizes it is based upon layered hypotheticals, that there must be an independent duty to evaluate jurisdiction. 

[NotActuallyALonghorn 4968]

19 hours ago, Brisketexan said:

And that really is an impediment to "the lower courts were engaged in fuckery" theory.  I mean, it's POSSIBLE that they concocted a ruling they don't agree with just to make sure the SCOTUS took it.....but that's getting a bit Q-anon conspiracy theory-ish.

It's happened in the past before. But even better, the district judge ruled in favor of the defendant knowing that the defendant would have to go into hiding for being a snitch and would not pay a lawyer to argue the case in front of the Supreme Court, thereby almost guaranteeing the desired outcome. 

[hayden_horn 11360]

i mean, that's great and all yall, but seriously, this supposedly sacrosanct body of justices is actually openly bought and paid for. 

openly. 

obviously.

shamelessly. 

we need a change. at least in the "good old days" the cash in the apple pie was at least a pretense. 

[pacman 7324]

 

 

Real consequences 

['stache 21758]

20 hours ago, TwiceHorn said:

It was a she.  "Without merit" covers a lot of territory.  

But answering what I think you're asking, yes, she could have declined to exercise jurisdiction on this on the ground that the actual dispute was too remote. But remoteness itself doesn't matter that much unless the real live dispute would be something somehow different from the remote dispute.  That is, for this case, is the dispute over denial of wedding site services to queers going to be different in real life from the remote presentation of the dispute.  If you are going to beat DJ jurisdiction, most of the time you have to argue that it is both a) too remote and b) if it becomes live it will be of a different character than it is  remote.

That decision could have been appealed to the 10th Circuit where it seems likely as not, given what happened, that they tell her she has to take it.

This is where I just have to disagree. Remoteness is a defining distinction between a declaratory judgment and an advisory opinion. The article you posted agrees that, traditionally, courts have been skeptical of using the DJA to resolve high profile political issues unless there is something imminent that requires a resolution. Courts have particularly been suspicious when both sides try to stipulate to jurisdictional facts, it can be correctly viewed as both sides trying to avoid the legislature and let a judge sort out what a statute should mean. Courts are obligated to raise standing and jurisdiction sua sponte (on their own) if presented with a reason to abstain. Gorsuch's introduction is such a deviation from these traditional norms, and is yet another example of right wing hypocrisy. Their the ones who have called courts "activist" for delving into civil rights cases and usually say that the proper venue is the legislature. If the civil rights courts 50 years ago operated in the same manner, the NAACP and ACLU would have had a hell of a lot easier time getting their cases to the Supreme Court. Just make up a speculative grievance (I want to expand my business into weddings, but teh gays have me scared) and poof, standing. Today's conservatives don't even have to work anymore. That's the issue I have with Gorsuch's intro and the standing issue in general.   

Edited July 6, 2023 by 'stache

[tx 3 putt 76314]

[Nivek 16851]

1 hour ago, pacman said:

 

 

Real consequences 

What never came up with the overturning of Roe, was the reality of women getting injured and dying due to self-administered abortions or sketchy unlicensed providers offering them.    But since it wasn't corporate leaders or republican "thought" leaders, they don't matter.    And we mock Russia for it's callous treatment of life. 

[Neonmoon 38127]

26 minutes ago, tx 3 putt said:

There's a reason why race is a question on credit applications. It's so the government can penalize Wells Fargo when the data shows they are disproportionally denying non-whites. (plus, you don't have to answer the question if you don't want to)

[Horn Dog 9671]

4 hours ago, Nivek said:

What is the difference between porn and art?

Blurry margins-  art

no blurry margins-  porn

[Pescado_Rojo 19331]

5 minutes ago, Horn Dog said:

Blurry margins-  art

no blurry margins-  porn

What about pixelated genitals? 

[jimmyjazz 45546]

2 hours ago, pacman said:

 

 

Real consequences 

Lulz.  I was born at St. Luke's.