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Ed Whelan Profile picture
@EdWhelanEPPC
Jul 3 • 7 tweets • 2 min read Twitter logo Read on Twitter
Someone on Left is trying to nudge folks away from nutty argument against standing, but way too gentle to succeed.
@JimOleske Your response to Rubin is (understandably) limited to her mischaracterization of Sotomayor dissent. Have you offered your view of claim that Smith or her lawyers tried to mislead courts? Do you think that view is plausible?
@JimOleske Do you recognize that Tenth Circuit standing holding did not rest on suspect request? Have you said so?
@JimOleske It’s certainly true that any good criticisms you might have of 303 Creative ruling have been drowned out by crazy criticisms.
@JimOleske The posts you link to here are clear and direct. (Your response to Ifill does not seem similar, but maybe I'm missing a tweet.)
@JimOleske FWIW, this is the tweet of yours that was presented to me as a response to Ifill.
@JimOleske I have in mind that I then checked my emails to see whether I had received an email from you and didn’t find anything. But if I wronged you, I apologize.

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More from @EdWhelanEPPC

Ed Whelan Profile picture
Jul 5
Gee, what a surprise. The IP address on sham request to 303 Creative is located in San Francisco. 1/

To be sure, current location of IP address does not *prove* location on Sept. 21, 2016. And different geolocation products on that same site generate various results--most in San Francisco area, two in New Jersey. But none in Denver. 2/
Just curious, @melissagira, whether you looked up IP address on sham request and discovered that its location is San Francisco.

Read 5 tweets
Ed Whelan Profile picture
Jul 4
New Republic reporter @melissagira thought it particularly significant that sham request came "within 24 hours" of filing of lawsuit in 303 Creative. But she completely missed that request came within a few hours of this online **news article** on case. 1/ https://t.co/TJrb449Kksdenverpost.com/2016/09/21/col…
So @melissagira's apparent befuddlement at how and why request could have been submitted is answered by fact that there were lots of readers who would have had incentive to make mischief for 303 Creative. 2/
@melissagira How would Smith or her attorneys have had the detailed personal information (email address, phone number, website) about the individual named in the request? Why would they submit request in name of foe (longtime supporter of same-sex marriage) rather than secret ally? 3/
Read 5 tweets
Ed Whelan Profile picture
Jul 3
Okay, let's walk through this in baby steps. Smith filed a complaint for *declaratory relief*. She wanted to provide custom websites for male-female weddings and feared prosecution, so she sought declaration in advance of her First Amendment rights. 1/
nationalreview.com/bench-memos/fo…
A party seeking declaratory relief in federal court of course still needs to satisfy Article III jurisdictional requirements. Tenth Circuit panel spent 10 pages explaining that Smith met those requirements. Excerpts in link. 2/
nationalreview.com/bench-memos/fo…
Gorsuch recited Tenth Circuit holding on standing and noted that "no party challenges conclusion" on which holding rested. If he had any doubts on standing, he would have had to address them, and he would have. Sotomayor also didn't dispute standing. 3/ nationalreview.com/bench-memos/fo…
Read 14 tweets
Ed Whelan Profile picture
Jul 3
Here's Gorsuch passage summarizing standing analysis by Tenth Circuit panel (which ruled against 303 Creative on merits) and observing "no party challenges these conclusions."

Gorsuch of course knows that objections to standing can't be waived .... 1/
What he's saying is that CA10 analysis--which doesn't look to whether any request for SSM service has been received--is sound on its face and no one is challenging it, so no need to say another word about it.

Sotomayor doesn't disagree. 2/
So all nine justices accept CA10 ruling on standing, yet somehow the Left imagines there wasn't standing.

Issue of sham request is separate matter that has nothing to do with CA10 ruling on standing. Zero reason to think that Lorie Smith is responsible for sham request. 3/
Read 4 tweets
Ed Whelan Profile picture
Jul 2
Excellent point by @DavidLat: Any college making good-faith effort to comply with Harvard/UNC ruling should, for starters, decline to receive race data from Common App.

No legitimate reason to collect such data. 1/
@DavidLat If a college chooses to receive race data via Common App, that choice invites suspicion that it is trying to evade ban on race discrimination and ought to entitle plaintiff to wide-ranging discovery. 2/
@DavidLat Ditto if admissions office is compiling data on race of admitted applicants. No legitimate reason for it to do so. 3/
Read 6 tweets
Ed Whelan Profile picture
Jun 30
This New Republic article says "it looks like [Lorie] Smith and her attorneys have, perhaps unwittingly, invented a gay couple in need of a wedding website." That's quite a leap. 1/

newrepublic.com/article/173987…
Smith filed her complaint on Sept. 20, 2016. It got news coverage in Denver Post on morning of Sept. 21. Hours later, Smith received request from "Stewart." Plausible (I'm not saying more than that) to infer that article spurred request. 2/denverpost.com/2016/09/21/col…
As New Republic article shows, Smith's lawyers argued in Oct. 2016 that it was irrelevant whether Smith had received any requests. District court thought otherwise, but liberal Tenth Circuit panel and Supreme Court agree with Smith's lawyers. 3/
Read 9 tweets

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