For right wing Conservatives, nothing is as complicated as it appears. Everything is black/white, right/wrong/, good/bad – everything is simple. For people like me, the opposite. Nothing is simple, everything is gray. Right and wrong? Good and bad? Yes, they really are (to a very great extent) relative terms.

I am thinking about this week’s Supreme Court case about wedding websites. I haven’t read the decision, and I am not burdened by precise knowledge of the facts (in fact, they now seem to be a bit murky at best). So we can speculate a bit.

Here is what I understand, factual or not. There is a web designer who says that designing a website for a same sex couple would violate her religious beliefs. Something like that. So, she won’t do it.

The District Court and Appellate Court disagreed with her, but the Supreme Court said that the creation of a website involves speech, that the First Amendment protects not only speech but the freedom not to say things that you don’t want to say, and that this right, at least in this case, trumps the prohibition against discrimination based on sexual preference. Or at least that’s what I think they did when they overturned the Court of Appeals decision.

Okay, that part seems clear. But there is another point that has been touched on, but not really discussed. American jurisprudence is based on a principle of “case or controversy”, that a court won’t rule on a case in the abstract, that there has to be an active case or controversy that needs to be addressed.

This may or may not be a good principle. “Case or controversy” is not a principle of jurisprudence in many countries, but it is here. And the question is: was there an active case or controversy here?

It appears there are two different facets of “case or controversy” in this particular matter. First, the designer assumed that refusing to design a website for same sex marriages would violate Colorado law, and she wanted to enjoin the State from enforcing that law against her. But that does not create a “case or controversy”, does it? And then there were apparently references in the filings (but not in any of the Supreme Court decisions?) about one particular individual having contacted her to have a wedding website designed for his same sex marriage. This would come a bit closer to a case or controversy, I would think.

But now it appears that no such request was ever made (or at least no request as it was described). Here, it gets complicated and I get confused. The individual cited in the filings as have inquired about a same sex wedding website now says the following: (1) he never asked about a same sex wedding website, (2) he is heterosexual and already married, (3) he himself is a web designer and wouldn’t need to hire a web designer, and (4) throughout this entire case, which apparently has been going on for six years, no one has ever contacted him, and he didn’t even known he was named in the filings until after the Supreme Court decided the case and someone from, I think the “New Republic”, contacted him.

So the question is: is there really a “case or controversy” here to be adjudicated?

Let’s move on. Now, the law in this country is obviously what the Supreme Court says it is, so let’s not argue about that here.

And what about the substance of the “case”?

If the Court had ruled the other way and said that the web designer could not discriminate against the same sex couple, irrespective of her personal beliefs, many would have celebrated. Not only members of the LGBT+ community, but civil rights advocates and liberals generally. But think about this a little more. If you were a web designer, and you I got a call from the American Nazi Party and said “No, I don’t want to design your website”, would the ACLU come after you? Or maybe it’s not the Nazis, but it’s a football team, and I think that football is a dangerous sport that should be banned? Or, to do something closer, let’s say you are a religious Jewish web designer and are asked to design the website for an Evangelical group that wanted to convert the Jews.

Yes, this is religion and not gender…..but is there a difference?

It is complicated, you see. Unless you are a right wing Conservative.