The Supremes

[washparkhorn 9939]

1 hour ago, TwiceHorn said:

This is just nonsense.  As I have said repeatedly, the DJ Act is often a friend of the civil libertarian.  It's not a flaw in the system.  You are again whinging about something you don't understand.

You're absolutely correct about the First Amendment things.  The government has no business telling people what to print or not print, no matter how benign the motive today, it's a tool of fascism tomorrow.

With all due respect given your experience in intellectual property law where declaratory judgment is common, you are gaslighting a little bit here. Your point is well taken, but does not address the concern over a Court gone awry.

State courts generally use wholesale sorting for preventative actions (e.g., declaratory judgment).t” The class of cases is well defined (e.g., an action to quiet title) and the trial court is afforded little discretion in accepting cases outside the identified groups.  

Access to Federal District Courts for preventative actions (outside of certain areas, including patent law) depends on retail sorting—with all the attendant problems including forum shopping.

In the present case regarding free speech, we see one the problems of retail sorting. A litigant, who never produced wedding websites, lied about a real person to allege he requested a marriage website. The case is built on a lie. It undermines the public’s trust in the judiciary. 

[TwiceHorn 31452]

24 minutes ago, washparkhorn said:

With all due respect given your experience in intellectual property law where declaratory judgment is common, you are gaslighting a little bit here. Your point is well taken, but does not address the concern over a Court gone awry.

State courts generally use wholesale sorting for preventative actions (e.g., declaratory judgment).t” The class of cases is well defined (e.g., an action to quiet title) and the trial court is afforded little discretion in accepting cases outside the identified groups.  

Access to Federal District Courts for preventative actions (outside of certain areas, including patent law) depends on retail sorting—with all the attendant problems including forum shopping.

In the present case regarding free speech, we see one the problems of retail sorting. A litigant, who never produced wedding websites, lied about a real person to allege he requested a marriage website. The case is built on a lie. It undermines the public’s trust in the judiciary. 

Come on, man.  The bolded is false. And any public perception to the contrary is just wrong and based on misunderstanding of how this all works.  THAT is the gaslighting.

The website request was never of "jurisdictional relevance" at any level.  The case at the district court was based on DJ jurisdiction, not the request.  Standing was evaluated at the 10th Circuit and Supreme Court without reference to the purportedly false request.

Moreover, if you want to take a strict view of case or controversy, the request alone does not suffice.  You''d have to have a) the request, b) the refusal of service, and c) prosecution by CDCR.  Items b) and c) are undisputedly missing here.

Read. The.  Cases.

What is gaslighting is that the alleged request was germane to the determination of standing or case or controversy.
 

You can certainly argue that the DJ Act opens federal court jurisdiction too wide.  I might actually agree with that.  But note that taking it away would be hard on civil libertarians, as well.  See Roe v. Wade and countless other civil liberties cases brought as "pre-enforcement challenges."

 

Edited July 5, 2023 by TwiceHorn

[FOXHOUND 1021]

It's high time that people come to grips with the fact that there is a significant portion of America that is still pissed about the passage of the second Civil Rights legislation of the 1960s (since the first one was struck down by the Supreme Court a hundred years earlier) and said "I'm good" on this country's attempt at integration and DEI, they've been playing the long game for 50 fucking years. They've elected people into office that reflect their worldview, and instead of the George Wallace Jim Crow type they've adopted a James Crow Esq. in a suit. 

This Federalist Society court will not just stop at Roe, Republicans will see the decision on Roe to go after contraceptives. It won't just stop at Affirmative Action, minority scholarships are in the crosshairs. It won't just stop at a certain point, they will keep going, it has happened before. I'm not taking anything for granted with these Federal Judges and SC, I could look up one day and we could be right back into pre-1960 America. 

[Pancho 44759]

Radical republicans are now going after minority scholarships because of the ruling. This is happening in Wisconsin and Missouri (so far).

[jimmyjazz 45903]

38 minutes ago, TwiceHorn said:

Not sure what you mean by further hamstrung on appeal.

Next time out, let's imagine the case is "I don't want to offer my design services to gay people".  The assumption is that CDCR punishes according to existing statute, as was the assumption for the current case.  Same results follow, it gets to SCOTUS, which rules that forcing a business owner to serve a gay customer violates their right of religious freedom.  Boom, now CDCR can't really go after any discrimination cases involving sexuality.

[TwiceHorn 31452]

9 minutes ago, jimmyjazz said:

Next time out, let's imagine the case is "I don't want to offer my design services to gay people".  The assumption is that CDCR punishes according to existing statute, as was the assumption for the current case.  Same results follow, it gets to SCOTUS, which rules that forcing a business owner to serve a gay customer violates their right of religious freedom.  Boom, now CDCR can't really go after any discrimination cases involving sexuality.

Well, that's certainly a possibility and arguably already decided in Masterpiece Cake.  But, even the 303 court seems to concede if there's not an expressive element to the services provided and a religious freedom aspect to that expression, a state can lawfully ban refusal of service to LGBTQ and other "protected classes."

Edited July 5, 2023 by TwiceHorn

[Biff Tannen 45676]

1 hour ago, Pancho said:

Radical republicans are now going after minority scholarships because of the ruling. This is happening in Wisconsin and Missouri (so far).

link?

[Gatorubet 30219]

On 5/26/2023 at 10:57 AM, Nivek said:

At this point, I wouldn't be surprised if the court reversed the Emancipation Proclamation.  

“Let’s see The Founders thought….”

[jimmyjazz 45903]

25 minutes ago, TwiceHorn said:

Well, that's certainly a possibility and arguably already decided in Masterpiece Cake.  But, even the 303 court seems to concede if there's not an expressive element to the services provided and a religious freedom aspect to that expression, a state can lawfully ban refusal of service to LGBTQ and other "protected classes."

Now do mixed-race couples.

Once we're there, how far are we away from race discrimination?  I know you think that's a far-fetched idea, but those of us on the sidelines see these things eroding right in front of our eyes.  I generally loathe the "slippery slope" argument (see, for instance, a ban on certain currently-legal weapons), but in this case, I feel like it's valid.  We're clinging to Everest wearing flip flops.

[HonkeyVape 107]

Thanks for your patience and graciousness on this thread @TwiceHorn

[Captainant 27656]

2 minutes ago, HonkeyVape said:

Thanks for your patience and graciousness on this thread @TwiceHorn

Go eat a bag of dicks chrispy. You voted for this shit show. 

['stache 21805]

55 minutes ago, TwiceHorn said:

Come on, man.  The bolded is false. And any public perception to the contrary is just wrong and based on misunderstanding of how this all works.  THAT is the gaslighting.

The website request was never of "jurisdictional relevance" at any level.  The case at the district court was based on DJ jurisdiction, not the request.  Standing was evaluated at the 10th Circuit and Supreme Court without reference to the purportedly false request.

Moreover, if you want to take a strict view of case or controversy, the request alone does not suffice.  You''d have to have a) the request, b) the refusal of service, and c) prosecution by CDCR.  Items b) and c) are undisputedly missing here.

Read. The.  Cases.

What is gaslighting is that the alleged request was germane to the determination of standing or case or controversy.
 

You can certainly argue that the DJ Act opens federal court jurisdiction too wide.  I might actually agree with that.  But note that taking it away would be hard on civil libertarians, as well.  See Roe v. Wade and countless other civil liberties cases brought as "pre-enforcement challenges."

 

I get what you're saying about DJ vs traditional standing, but from the case itself, this still reeks of bullshit. She planned to do wedding websites but was afraid of an enforcement action if she were ever asked to design a wedding website for gays. Gorsuch himself says she hadn't actually started that business. 

A key part of every DJ Act is that they are discretionary. Court's reject weakly premised DJ petitions all the time. Even insurance disputes (which I work on often in DJ cases) get rejected with stronger premises. I have researched and worked on DJ cases often and the cases speak strongly of needing more than just possible legal liability, they often require quite a bit more. Here, if the Colorado civil rights agency had sent her a letter directly outlining how websites should treat content for gay clients, she might have had a little more to go off of. At a minimum, she should at least be actually conducting the business.

So you're not wrong that the underlying allegation of a specific request isn't necessary for DJ standing, but those pushing back that the standing argument here was weak have a valid point, and I think pretty convincing. If I filed a DJ act on such a weak premise, the odds are the court would reject it for too weak of a standing argument, and I'd advise the client in writing that the odds are long that the case can get past a motion to dismiss and they'd still need to pay my bill for the work.

https://www.dinsmore.com/publications/discretionary-dismissal-of-insurers-declaratory-judgment-action-on-coverage-upheld/

Edited July 5, 2023 by 'stache

[Brisketexan 105097]

41 minutes ago, TwiceHorn said:

But, even the 303 court seems to concede if there's not an expressive element to the services provided and a religious freedom aspect to that expression,

Yeah....so do you think it's MORE likely, or LESS likely, that this court will expand the everloving monkeyfuck out of the scope of "expressive element" to include a broad variety of providing goods and services?  Imagine every single business endeavor that has used the goofball adjective "artisanal" to describe its product in the past 20 years.  "Artisanal" = "expressive."  Want an artisanal craft cocktail?  An artisanal take on farm-to-table dining?  An artisanal hamburger?  A "bespoke" suit? (Let's not forget "bespoke," which is "artisanal's" douchey English cousin).

The queers can shop at Wal-Mart, eat fast food, and only buy off-the-rack clothes, and have those activities be legally protected from discrimination.  The rest depends on whether fundagelical "christians" end up running the enterprise or not.  Because "muh religion" is now the trump card that can functionally void most any non-discrimination law, because "expressive element" is going to be interpreted so broadly as to encompass everything but a handful of commercial activities selling what amounts to commodities.

[wildcat09 29349]

Pretty much any service could be argued to have an expressive element to it.

[TwiceHorn 31452]

21 minutes ago, jimmyjazz said:

Now do mixed-race couples.

Once we're there, how far are we away from race discrimination?  I know you think that's a far-fetched idea, but those of us on the sidelines see these things eroding right in front of our eyes.  I generally loathe the "slippery slope" argument (see, for instance, a ban on certain currently-legal weapons), but in this case, I feel like it's valid.  We're clinging to Everest wearing flip flops.

Oh I didn't say it was far-fetched.

I don't think it will erode the concept of "protected classes," per se.  But, at some point you diminish the protections so far that protected class has no meaning.

[HonkeyVape 107]

18 minutes ago, Captainant said:

Go eat a bag of dicks chrispy. You voted for this shit show. 

Regardless, not only are you wrong, you are egregiously wrong and borderline insulting to the smart people who are correct and patiently trying to explain it to you, with TwiceHorn being the most patient in trying to deal with a fool like you. Most people don't throw pearls at swine, but his interaction with you is very gracious.

[TwiceHorn 31452]

1 minute ago, wildcat09 said:

Pretty much any service could be argued to have an expressive element to it.

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

[jimmyjazz 45903]

Just now, TwiceHorn said:

Oh I didn't say it was far-fetched.

I don't think it will erode the concept of "protected classes," per se.  But, at some point you diminish the protections so far that protected class has no meaning.

Let me also clarify, in case anyone misunderstood my post:  I don't see the erosion of protection against race-based discrimination as "worse" than erosion of sexuality-based discrimination.  They're equal to me.  I'm concerned we're on the road to hacking away at all protection.

[washparkhorn 9939]

The billionaires are creaming over the Moore v. United States case they called up in next season’s Activist Supreme Court:

[CTC2 2796]

7 minutes ago, jimmyjazz said:

Let me also clarify, in case anyone misunderstood my post:  I don't see the erosion of protection against race-based discrimination as "worse" than erosion of sexuality-based discrimination.  They're equal to me.  I'm concerned we're on the road to hacking away at all protection.

That’s because we are. 

[hobbes2702 13032]

19 minutes ago, wildcat09 said:

Pretty much any service could be argued to have an expressive element to it.

Ding ding 

[CTC2 2796]

1 hour ago, FOXHOUND said:

It's high time that people come to grips with the fact that there is a significant portion of America that is still pissed about the passage of the second Civil Rights legislation of the 1960s (since the first one was struck down by the Supreme Court a hundred years earlier) and said "I'm good" on this country's attempt at integration and DEI, they've been playing the long game for 50 fucking years. They've elected people into office that reflect their worldview, and instead of the George Wallace Jim Crow type they've adopted a James Crow Esq. in a suit. 

This Federalist Society court will not just stop at Roe, Republicans will see the decision on Roe to go after contraceptives. It won't just stop at Affirmative Action, minority scholarships are in the crosshairs. It won't just stop at a certain point, they will keep going, it has happened before. I'm not taking anything for granted with these Federal Judges and SC, I could look up one day and we could be right back into pre-1960 America. 

Demographic shifts are causing us to live in the era of the “White Man’s last gasp”. These fuckers don’t like where things are heading. They know that at some point minorities will take over and the younger generation is much more evolved and tolerant than their Boomer and Gen X parents and they want to delay the inevitable.  Church attendance is down and the only way to motivate their voters is to get more and more extreme in their fear mongering.  Think about how much time is spent on issues that only apply to 1% of the population. 
Their biggest fear is a Planet of the Apes situation where they get the ass end of everything just like they have been imposing on everyone else. 
I say all this as a rather privileged white guy myself who hears this exact sentiment from others similarly situated. 

Edited July 5, 2023 by CTC2

[HenryJames 66045]

2 minutes ago, CTC2 said:

Their biggest fear is a Planet of the Apes situation

[Brisketexan 105097]

27 minutes ago, wildcat09 said:

Pretty much any service could be argued to have an expressive element to it.

 

25 minutes ago, jimmyjazz said:

Let me also clarify, in case anyone misunderstood my post:  I don't see the erosion of protection against race-based discrimination as "worse" than erosion of sexuality-based discrimination.  They're equal to me.  I'm concerned we're on the road to hacking away at all protection.

 

17 minutes ago, CTC2 said:

That’s because we are. 

 

7 minutes ago, hobbes2702 said:

Ding ding 

All of y'all get it.  That's the game, it's being played, and the only way to stop it is to start playing as dirty as they do.

7 minutes ago, CTC2 said:

Demographic shifts are causing us to live in the era of the “White Man’s last gasp”. These fuckers don’t like where things are heading. They know that at some point minorities will take over and the younger generation is much more evolved and tolerant than their Boomer and Gen X parents and they want to delay the inevitable.  Church attendance is down and the only way to motivate their voters is to get more and more extreme in their fear mongering.  Think about how much time is spent on issues that only apply to 1% of the population. 
Their biggest fear is a Planet of the Apes situation where they get the ass end of everything just like they have been imposing on everyone else. 
I say all this as a rather privileged white guy myself who hears this exact sentiment from others similarly situated. 

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.

[Pancho 44759]

1 hour ago, Biff Tannen said:

link?

 

 

['stache 21805]

Nice. Oklahoma and Texas will announce this by the end of the week. Or for all I know the fuckheads in Oklahoma already, there have been so many outrageous nonsense coming from this state and our education superintendent that I can't keep track of each individual action.

[Neonmoon 38129]

50 minutes ago, wildcat09 said:

Pretty much any service could be argued to have an expressive element to it.

Question, if my religious views state that Christians are the devil, and I make artisanal cheeses, can I deny them service?

[Brisketexan 105097]

16 minutes ago, Neonmoon said:

Question, if my religious views state that Christians are the devil, and I make artisanal cheeses, can I deny them service?

By the logic of this SCOTUS decision, you definitely have a case to make.

But, by the reality that "religious freedom" is really only going to apply to fundagelical "christian" beliefs, no.  

[Js1 85313]

26 minutes ago, Neonmoon said:

Question, if my religious views state that Christians are the devil, and I make artisanal cheeses, can I deny them service?

Oh I so fucking knew the Antonellis were Satanists.

[HonkeyVape 107]

32 minutes ago, Neonmoon said:

Question, if my religious views state that Christians are the devil, and I make artisanal cheeses, can I deny them service?

I hope so!

[TwiceHorn 31452]

2 hours ago, 'stache said:

I get what you're saying about DJ vs traditional standing, but from the case itself, this still reeks of bullshit. She planned to do wedding websites but was afraid of an enforcement action if she were ever asked to design a wedding website for gays. Gorsuch himself says she hadn't actually started that business. 

A key part of every DJ Act is that they are discretionary. Court's reject weakly premised DJ petitions all the time. Even insurance disputes (which I work on often in DJ cases) get rejected with stronger premises. I have researched and worked on DJ cases often and the cases speak strongly of needing more than just possible legal liability, they often require quite a bit more. Here, if the Colorado civil rights agency had sent her a letter directly outlining how websites should treat content for gay clients, she might have had a little more to go off of. At a minimum, she should at least be actually conducting the business.

So you're not wrong that the underlying allegation of a specific request isn't necessary for DJ standing, but those pushing back that the standing argument here was weak have a valid point, and I think pretty convincing. If I filed a DJ act on such a weak premise, the odds are the court would reject it for too weak of a standing argument, and I'd advise the client in writing that the odds are long that the case can get past a motion to dismiss and they'd still need to pay my bill for the work.

https://www.dinsmore.com/publications/discretionary-dismissal-of-insurers-declaratory-judgment-action-on-coverage-upheld/

Yes, and the trial court has that discretion and exercized it.  And neither the 10th Circuit nor the Supreme Court questioned it.

All three courts considered the standing issue and using the same standard DJ analysis, reached the same conclusion:  jurisdiction.  And they didn't consider the bogus request in doing so.

People aren't saying it's weak.  They're saying the whole case is bullshit because of this non-factor allegedly bogus request.  NB the ruling in the case is bullshit, but not because of jurisdictional defects.  That is among the very least of the problems here.

You can argue that it's weak, or that the DJ Act extends cases beyond Article III.  I might agree with those.  One thing I might point out in regard to insurance coverage and IP disputes is that they are between private parties where the inevitablity of litigation tends to be less certain than when a party faces enforcement of a statute by a governmental entity.  It's my sense of things that courts decline declaratory judgment jurisdiction in "pre-enforcement actions" with great regularity, previously most commonly involving striking down an offensive statute.

But that is not what people on this thread are saying.  At all.

Edited July 5, 2023 by TwiceHorn

['stache 21805]

13 minutes ago, TwiceHorn said:

Yes, and the trial court has that discretion and exercized it.  And neither the 10th Circuit nor the Supreme Court questioned it.

All three courts considered the standing issue and using the same standard DJ analysis, reached the same conclusion:  jurisdiction.  And they didn't consider the bogus request in doing so.

People aren't saying it's weak.  They're saying the whole case is bullshit.

You can argue that it's weak, or that the DJ Act extends cases beyond Article III.  I might agree with those.

But that is not what people on this thread are saying.  At all.

I argue that it's weak, and therefore bullshit. You're correct that people saying standing doesn't exist are technically wrong, but the basis of DJ jurisdiction here is bullshit, and the trial court should have rejected it, and while appellate courts have a higher standard, I would call it abuse of discretion. "I want to expand my business but can't because I'm afraid teh gays might ask me to do it and report me to the state civil rights department" is weak af, beyond weak, and utterly transparent. Gorsuch's intro I posted above is so fucking weak, I'd be embarrassed to write it, even as an advocate. It would've been laughed out of court a generation ago.

You made a comparison to test cases from the "left." Those cases very often presented Article III standing, they were "test cases" only insofar as the people asserting the claim were carefully sought and their claims brought based on the facts being perfect and often time the parties being likeable and/or having a compelling story (i.e., the Lovings from the interracial marriage case). It's very different than what is likely to have happened here, finding someone to just say "I want to do something but I cant because of teh gays." They're barely even trying at this point, and its working. Rage is the natural response. 

Edited July 5, 2023 by 'stache

[Brisketexan 105097]

I argue that it's weak, and therefore bullshit. You're correct that people saying standing doesn't exist are technically wrong, but the basis of DJ jurisdiction here is bullshit, and the trial court should have rejected it, and while appellate courts have a higher standard, I would call it abuse of discretion. "I want to expand my business but can't because I'm afraid teh gays might ask me to do it and report me to the state civil rights department" is weak af, beyond weak, and utterly transparent.
You made a comparison to test cases from the "left." Those cases very often presented Article III standing, they were "test cases" only insofar as the people asserting the claim were carefully sought and their claims brought based on the facts being perfect and often time the parties being likeable and/or having a compelling story (i.e., the Lovings from the interracial marriage case). It's very different than what is likely to have happened here, finding someone to just say "I want to do something but I cant because of teh gays." They're barely even trying at this point, and its working. Rage is the natural response. 

Don’t worry about it, this court’s going to get around to overruling Loving as well (and will DEFINITELY allow discrimination against mixed race couples by anyone claiming that race mixing is an abomination of god’s natural order (you know, the actual argument and position they used with respect to Loving)).

['stache 21805]

delete

Edited July 5, 2023 by 'stache

[TwiceHorn 31452]

10 minutes ago, 'stache said:

I argue that it's weak, and therefore bullshit. You're correct that people saying standing doesn't exist are technically wrong, but the basis of DJ jurisdiction here is bullshit, and the trial court should have rejected it, and while appellate courts have a higher standard, I would call it abuse of discretion. "I want to expand my business but can't because I'm afraid teh gays might ask me to do it and report me to the state civil rights department" is weak af, beyond weak, and utterly transparent.

You made a comparison to test cases from the "left." Those cases very often presented Article III standing, they were "test cases" only insofar as the people asserting the claim were carefully sought and their claims brought based on the facts being perfect and often time the parties being likeable and/or having a compelling story (i.e., the Lovings from the interracial marriage case). It's very different than what is likely to have happened here, finding someone to just say "I want to do something but I cant because of teh gays." They're barely even trying at this point, and its working. Rage is the natural response. 

The other thing is, no one argued that the basis for jurisdiction was weak UNTIL the story broke about the bogus request.

And frankly, the request doesn't make it any stronger, so whether its bogus or not doesn't make it any more or less bullshit.

And, if the Court were really monkeying with jurisdiction to either take or refuse cases to pursue their agenda, they would have dismissed Moore v. Harper as moot and left that bullshit hanging out there.  Or left the latest US v. Texas in place, and etc.

 

[CTC2 2796]

31 minutes ago, TwiceHorn said:

The other thing is, no one argued that the basis for jurisdiction was weak UNTIL the story broke about the bogus request.

And frankly, the request doesn't make it any stronger, so whether its bogus or not doesn't make it any more or less bullshit.

And, if the Court were really monkeying with jurisdiction to either take or refuse cases to pursue their agenda, they would have dismissed Moore v. Harper as moot and left that bullshit hanging out there.  Or left the latest US v. Texas in place, and etc.

 

Look, I get that you are all into the law and such and you are certainly technically right about defending the DJA and the interpretation pdf standing but I think most are expressing essentially that it all just feels contrived and in actuality, it is.  To the lay person it just looks ridiculous. 
Rich GOP backers prop up these plaintiffs to get the issue before a court who is eager to take the bait and re-write the law to their personal liking. 

Edited July 5, 2023 by CTC2

[TwiceHorn 31452]

1 hour ago, 'stache said:

I argue that it's weak, and therefore bullshit. You're correct that people saying standing doesn't exist are technically wrong, but the basis of DJ jurisdiction here is bullshit, and the trial court should have rejected it, and while appellate courts have a higher standard, I would call it abuse of discretion. "I want to expand my business but can't because I'm afraid teh gays might ask me to do it and report me to the state civil rights department" is weak af, beyond weak, and utterly transparent. Gorsuch's intro I posted above is so fucking weak, I'd be embarrassed to write it, even as an advocate. It would've been laughed out of court a generation ago.

You made a comparison to test cases from the "left." Those cases very often presented Article III standing, they were "test cases" only insofar as the people asserting the claim were carefully sought and their claims brought based on the facts being perfect and often time the parties being likeable and/or having a compelling story (i.e., the Lovings from the interracial marriage case). It's very different than what is likely to have happened here, finding someone to just say "I want to do something but I cant because of teh gays." They're barely even trying at this point, and its working. Rage is the natural response. 

The other thing I'd want to point out is that I never compared this to test cases from the left in any sense that that makes this ok or justifies the strategy from the right.

My original proposition was that the right has taken a strategy developed to expand civil rights, and cynically, methodically, and just about every other way taken it to an extreme, as the right seems so very good at doing while the left stands around with its collective dick in its collective hand.

Subsidiary to that is that this whole declaratory jurisdiction, to which people object upon their discovery of it for the first time, has been a key and critical part of that expansion of civil rights by judicial review.  And to now call it a flaw in the system because it has arguably been employed against you, is the height of foolishness.  It's goddamn Trumpian is what it is.

Edited July 5, 2023 by TwiceHorn

[Captainant 27656]

18 minutes ago, TwiceHorn said:

And to now call it a flaw in the system because it has arguably been employed against you, is the height of foolishness.  It's goddamn Trumpian is what it is.

No, it's realizing that the incredibly powerful legal mechanism is missing key guardrails that would have otherwise prevented this sort of naked abuse.

You're just completely ignoring the base claim - that christians are unfairly persecuted for their beliefs - IS FUCKING SPECIOUS! The gains on civil rights were addressing past wrongs of GENERATIONS of discrimination on the basis of ones race.

To argue that the oppressors have equal right to use those tools to oppress is fucking wrong and evil. And fuck you for saying I'm trumpian for suggesting that the supreme court is cynically abusing their power.

[jimmyjazz 45903]

Riddle me this:  would "reasonable" guardrails against this kind of abuse actually have prevented those legitimate movements like the Civil Rights Act from gaining traction?  Because if they wouldn't have done so, then yeah, some kind of limitations seem in order.  Obviously I'm viewing this through a subjective lens, but I'm also on the right (left) side of this bullshit.

[TwiceHorn 31452]

9 minutes ago, jimmyjazz said:

Riddle me this:  would "reasonable" guardrails against this kind of abuse actually have prevented those legitimate movements like the Civil Rights Act from gaining traction?  Because if they wouldn't have done so, then yeah, some kind of limitations seem in order.  Obviously I'm viewing this through a subjective lens, but I'm also on the right (left) side of this bullshit.

First of all, its not abusive. It only seems that way because you've never heard of it before and the context in which you are hearing of it for the first time.

Its at very worst a kind of close question. Anything that falls short of a party actually violating a statute and actually having the statute enforced against them by the state runs a risk of being not a case or controversy.  And that would delay or in some cases deny entirely judicial review of a whole host of things.

And, while that might operate to deny ADF and 303 Creative their test case here, it is bound to injure some other more worthy causes seeking "pre-enforcment review."  Like, it would have made it even more difficult to impossible to obtain review of SB 8 or something like it.  It would have forced Norma McCorvey to have been arrested and convicted of the offense of abortion and possibly also jailed.:

Quote

Jane Roe, ^[4] a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue "on behalf of herself and all other women" similarly situated.

Sound familiar?

So any "guardrails" forcing declaratory judgment scenarios are extremely likely to have unintended consequences.

['stache 21805]

31 minutes ago, jimmyjazz said:

Riddle me this:  would "reasonable" guardrails against this kind of abuse actually have prevented those legitimate movements like the Civil Rights Act from gaining traction?  Because if they wouldn't have done so, then yeah, some kind of limitations seem in order.  Obviously I'm viewing this through a subjective lens, but I'm also on the right (left) side of this bullshit.

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.  

Edited July 5, 2023 by 'stache

[TwiceHorn 31452]

28 minutes ago, 'stache said:

IMO, the problem is the judge's not the rules. The judiciary is now full of political hacks who 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. Like I said before, 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 signs usually. But again, it's 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. 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.  

Would we even be having this discussion if the case had come out the other way?

Nope.

Nary a protest about declaratory judgment jurisdiction anywhere to be found if that were the case.

That said, I think you're right about the judges, but it goes beyond political hackery.  Sure, some of the right nutbags will take any case they can get their hands on.  But I'd say across the board that the notion that federal courts are courts of limited jurisdiction is becoming  somewhat lost.

The trial judge here, Marcia Krieger, was a 41 Shrub appointee.  She found jurisdiction but also found the statute constitutional.  Political hack or close question, or neither?

The 10th Circuit considered jurisdiction de novo and found it, again.  And also found the statute constitutional. The majority judges were both Clinton appointees.  Political hacks or close question, or neither?

Edited July 5, 2023 by TwiceHorn

[jimmyjazz 45903]

1 minute ago, TwiceHorn said:

Would we even be having this discussion if the case had come out the other way?

Nope.

Nary a protest about declaratory judgment jurisdiction anywhere to be found if that were the case.

Is it so odd that people might see the process as open to fuckery but (potentially) breathe a sigh of relief when it doesn't go sideways?

['stache 21805]

Just now, TwiceHorn said:

Would we even be having this discussion if the case had come out the other way?

Nope.

Nary a protest about declaratory judgment jurisdiction anywhere to be found if that were the case.

They would just find an a case that more closely fits a declaratory judgment action. What if she started the business and was never asked to do a gay website? What if she was asked, declined, and was not reported? What if she was reported by the state agency determined it wasn't going to prosecute? The fact that she was, from what I can tell, at least 4 steps away from an actual case or controversy, is where you find the traditional dividing line between declaratory judgment standing and prohibited advisory opinions. The judge's failed here by allowing such a flimsy premise to essentially issue an advisory opinion. Again, you're correct technically that the rules allow for declaratory judgment jurisdiction, but the problem here is that judges at all three levels failed to follow the rule as it is traditionally applied, and people are rightfully outraged.

[TwiceHorn 31452]

16 minutes ago, jimmyjazz said:

Is it so odd that people might see the process as open to fuckery but (potentially) breathe a sigh of relief when it doesn't go sideways?

No, it's not.  But this whole argument started because of an allegedly false request for a website, which, even under 'stache's analysis would not affect the jurisdictional analysis, because there was no refusal to provide services and no attempted or actual enforcement by CDCR.  I don't think any of that is necessary to provide adjudication of this dispute.

This whole thing is distracting from the fundamental problem with the case, its holding.

It's a red herring of false outrage.  There's plenty of real outrage in connection with this case, we don't need to invent more that is a different problem, if it is a problem at all, altogether.

Edited July 5, 2023 by TwiceHorn

[jimmyjazz 45903]

7 minutes ago, TwiceHorn said:

This whole thing is distracting from the fundamental problem with the case, its holding.

Explain that in lay terms.  Even if you already have.

['stache 21805]

5 minutes ago, TwiceHorn said:

No, it's not.  But this whole argument started because of an allegedly false request for a website, which, even under 'stache's analysis would not affect the jurisdictional analysis, because there was no refusal to provide services and no attempted or actual enforcement by CDCR.  I don't think any of that is necessary to provide adjudication of this dispute.

This whole thing is distracting from the fundamental problem with the case, its holding.

It's a red herring of false outrage.

Outrage over such a flimsy premise isn't false, it's fully justifiable. What is truly false outrage is cries from these people that the gays are gonna force them to do things they don't want to do. That didn't happen here, and yet, she got a ruling from the U.S. Supreme Court, which provides legitimacy to the false outrage. It's truly despicable. I think it's highly likely that (a) she would have never been asked to design a website for a gay wedding, (b) if she was and refused the couple would just find the next person who would do the work and it wouldn't be reported, and/or (c) if reported the agency might have agreed that this particular request from this particular industry didn't meet the standards to trigger the statute. That is why declaratory judgments are discretionary, judge's are supposed to find a real and compelling detriment the plaintiff is facing. It's a very real problem that deserves attention.

[TwiceHorn 31452]

1 minute ago, jimmyjazz said:

Explain that in lay terms.  Even if you already have.

This is a pretty straightforward application of declaratory judgment jurisdiction.  Look at the fact statement from Roe v. Wade, do you see the similarity?  Roe/McCorvey only alleged that she was pregnant, that she wanted an abortion, and that Henry Wade would prosecute her if she got one.  She was never actually prosecuted.  Although it was apparently true that she was pregnant and wanted and eventually obtained an abortion, those facts were never questioned as part of the jurisdictional analysis.

People are outraged because they'd never heard of DJ jurisdiction before, despite its having operated favorably in the civil rights and other contexts for nearly a century now (it was actually enacted in 1934, codified at 28 USC 2201 in 1948, which is why I thought 1948 originally).

They didn't make a reasoned critique of declaratory judgment jurisdiction, although stache is making one now, that has not been the form of argument that this has taken until this late date.

Anything that may be wrong with the assertion of jurisdiction by the trial court, the court of appeals and finally the Supreme Court pales in comparison with the Supreme Court's balancing of the right to be free of discrimination in commercial services against the right of commercial free speech that tangentially involves religious expression.

[jimmyjazz 45903]

I don't see that as particularly similar.  Roe was pregnant.  She wanted an abortion.  She feared Wade would prosecute were she to go through with it.

303 wasn't a website business, and had not been asked to build a gay wedding website for hire.  She hadn't refused such a request.  That LAST fact is where it crosses over to Roe V Wade . . . one step from prosecution.  In 303's case, there were two important (lack of) facts prior.

Regardless, can you define "holding" for us lay people?  That was what I was referring to, although your subsequent text probably fleshes it out.

Edited July 5, 2023 by jimmyjazz

[TwiceHorn 31452]

8 minutes ago, jimmyjazz said:

I don't see that as particularly similar.  Roe was pregnant.  She wanted an abortion.  She feared Wade would prosecute were she to go through with it.

303 wasn't a website business, and had not been asked to build a gay wedding website for hire.  She hadn't refused such a request.  That LAST fact is where it crosses over to Roe V Wade . . . one step from prosecution.  In 303's case, there were two important (lack of) facts prior.

Regardless, can you define "holding" for us lay persons?  That was what I was referring to, although your subsequent text probably fleshes it out.

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.

Edited July 5, 2023 by TwiceHorn