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Rebecca, Liz and Alison discuss the December 2022 oral arguments in the latest services for same sex wedding case, 303 Creative v. Elenis. This case involves a Christian website designer who would like to expand her business to create wedding websites, but would refuse to do that for same sex couples. The hosts discuss the craziness that was the oral argument and what this case means for religious liberty and gay rights.
Background
Rebecca Markert:
Hey listeners, this year you'll notice something different about We Dissent our co-host and friend Monica Miller is no longer with the American Humanist Association and therefore is no longer a co-host of our podcast. We've appreciated everything she did to help us get this project off the ground and wish her the best of luck in her future endeavors. Alison, Liz, and I will continue to be here to discuss our work, to maintain a wall of separation between church and state and to fight for true religious freedom for everyone. Thanks for listening. Now let's get to the show.
Welcome back to We Dissent the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep Religion and government separate. I'm Rebecca Markert, the legal director at the Freedom From Religion Foundation.
Alison Gill:
I'm Alison Gill, vice President for Legal and Policy with American Atheists.
Liz Cavell:
And I'm Liz Cavell, associate counsel at the Freedom From Religion Foundation.
And in this episode we are talking about a case being heard at the Supreme Court this term, it's the 303 Creative LLC versus Elenis case. And we may have referred to this case earlier in the fall, but this is a case that the court just heard oral arguments on in December, so about a month ago. As we're recording this, we all have some fresh thoughts on what we heard at oral arguments and we're gonna talk about what this case is about and what it could mean for the future of religious liberty and civil rights. I'm gonna give a little background on the case and we'll discuss the genesis of where this case came from.
This is one of the many cases that were crafted by the Alliance Defending Freedom to undermine anti-discrimination laws that protect LBGTQ people. So first we have to give a refresher to our listeners about who the Alliance Defending Freedom is.
ADF is their name and discriminating against gay people is their game. They are a Southern Poverty Law Center hate group because they focus very intently on rolling back freedoms for LBGTQ people, especially those pertaining to marriage equality. They have basically since 2016 been manufacturing one after another of these cases to put into the pipeline of our federal courts that have to do with wedding industry vendors and challenges to state anti-discrimination laws that vendors have to abide by.
So the case that many people are familiar with Masterpiece Cake Shop, which came down in 2018, was also one of ADF's cases. So I'm gonna tell you how ADF describes themselves. "ADF is the world's largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights and God's design for marriage and family." So that kind of tells you what they're about.
Rebecca Markert:
We also are very familiar with them at Freedom From Religion Foundation and I'm sure American Atheists is also very familiar with them. Absolutely. We have tussled with them so many times over the years. I was first introduced to this organization when I started at FFRF, largely in the context of the issue of legislative prayer. So prayer at government meetings. And they were very active in making sure that prayer before those meetings was going to be Christian and that councils would keep prayer at their government meetings.
We are not ignorant to their playbook and they have been very active in eroding the wall of separation between state and church. But then they also take on these other religious liberty adjacent issues like abortion, like same sex marriage and things like that to elevate the free exercise Clause of the First Amendment and really weaponize religious liberty.
Alison Gill:
I think it's kind of unfair frankly, to call them religious freedom or religious liberty adjacent. They're using religious liberty as a tactic to achieve conservative political ends, I think is a more fair way to frame it. Like they will use religious liberty as a framework to undermine non-discrimination laws, to prevent regulation, whatever they're trying to accomplish.
And you know, we see them all across the country having model bills in different states as well. So it's not just in the courts. They're very, very active in state legislatures as well. And uh, a lot of the, the really terrible bills that we're fighting each year are ADF bills, especially some of the more extreme ones cuz then they hope to get into court and, and push forward their idea about how the law should work.
Rebecca Markert:
You're a hundred percent right.
Liz Cavell:
Yeah. So to get back to their litigation and in masterpiece and in the case that we're talking about today, 303 Creative. So just another quick refresher is the Masterpiece Cake Shop case, which was I think put together around the same time even as this 303 Creative case, like they have just thrown a lot of these cases against the wall.
And what happened in Masterpiece Cake Shop involved a baker in Colorado who bakes and sells wedding cakes for opposite sex couples obviously and decided that he didn't want to bake and sell wedding cakes on those same terms to same-sex couples for their weddings. And this guy Jack Phillips, the Masterpiece cake shop owner, his business was investigated by the Colorado Commission on Human Rights because he was violating Colorado's anti-Discrimination Act in refusing to sell wedding cakes to same sex couples on the basis of their sexual orientation cuz that's against the law in Colorado.
After being found to have violated the anti-discrimination law, he sued in federal court and pushed his case all the way up to the Supreme Court, which agreed to hear it and then handed down an opinion in 2018. He made the argument then that Colorado enforcing an anti-discrimination law against his business violated his rights to free speech and to religious freedom.
And the opinion came down in his favor in 2018. But ultimately what the court did then was just say that the process that Colorado put him through was unduly hostile towards his religious beliefs and that that process violated his free exercise rights. But they did not answer the ultimate questions about whether enforcing this law against him violated his rights to either free speech or free exercise. So that question was left open.
Alison Gill:
I feel like this always gets left out and it's really, really important that he actually did discriminate against a same sex couple that was getting married and that's Charlie Craig and David Mullins. And so they didn't just investigate him on their own, they did it after those two filed a complaint because they were refused service to their faces by this cake shop owner. Which I think that's a really important element here cuz I mean everything about this case focused on the poor owner of the bakery and like, oh he faced so much hardship but like we're talking about actual people facing real discrimination from this person and I hate to say succeed.
Liz Cavell:
Right. And you're so right and the way that this case was, the narrative was constructed by ADF and then of course I think a lot of coverage of the Masterpiece Cake Shop case in the media, um, kind of bought into that framing by ADF, which was let's talk about this baker and what are his beliefs and what, what happened to him as a result of all this. And the reality is you're right, Alison like this whole case doesn't even come to be until one day, Craig and David, this couple walk into his bakery with one of the guy's moms cuz they're shopping for a cake for their Colorado wedding celebration.
And the owner, as he sort of figures out in those first couple of minutes of interacting with them that this is gonna be for their wedding, the same-sex couple, he informs them, I don't sell cakes for same-sex weddings and so just humiliated and you know, just totally dehumanized.
They just kind of walk out and then ultimately realize that what he did was breaking Colorado law and so they reported it to the administrative body that is supposed to enforce that law in Colorado. So yeah, you're right. I mean that's so important and something that unfortunately got very lost the same way that like the Dobbs opinion pretty much left out women.
And the same way that the Bremerton opinion pretty much left out students, I think the whole masterpiece cake shop opinion left out the actual gay couple that faced discrimination and indignity of being denied service and then obviously the broader LBGTQ population that is affected by these lawsuits that are trying to basically tear down these laws that are meant to protect them in the marketplace.
Rebecca Markert:
It's also artful storytelling by ADF
Liz Cavell:
Big time.
Rebecca Markert:
And it's one of the notable differences in the 303 Creative case because there is no same sex couple on the other side of this. This is only Lorie Smith, but there was no couple that had been discriminated yet, by Lorie Smith.
And because of that in the context of the 303 Creative case, we don't have to, or the media doesn't have to focus on the impact on same sex couples and the real implications that this case and decision has on people in the real world because there's no people to portray as victims really and it's awful and horrible. And that's why I think it was so important for organizations like ours and other groups to get in and remind the court and the American people really what's at stake here.
Liz Cavell:
Right? And so the 303 case that we wanna talk about today, here's the background. So Lorie Smith owns 303 Creative LLC and this is a graphic design business. It's based in Littleton, Colorado, which is Denver suburbs. Lorie Smith is a devout Christian. She believes that, you guessed it, marriage is only between one man and one woman. That's her deeply held religious belief.
What's weird about Lorie Smith is that her business right now does not actually offer wedding websites. That is not something that is part of her business and her graphic design business as this case was being taken, she claims that she wants to expand her business to include selling wedding websites. But she's being chilled from doing that because she does not want to design websites for same sex weddings because that violates her beliefs. And she also wants to post a message on her website that tells the public as much, right? I believe marriage is between a man and a woman and as such I don't offer or I don't sell websites for same sex weddings.
Rebecca Markert:
And I think it bears repeating because it's so important and was a big part of our amicus brief to the court. It's really important to note that in this case she has never designed a wedding website for anyone. Same-sex couples are otherwise she is not currently engaged in the business of designing wedding websites for anyone.
Alison Gill:
And she never refused to provide a service because she's never been asked to provide a service. It's all theoretical, it's all hypothetical, right? There is nothing here <laugh>. And yet we're in court, which is the problem we've talked about before. We're gonna have to talk about it again even more so
Liz Cavell:
And we're at the Supreme Court. So the Supreme Court took this case. This case has traveled the long road up to the Supreme Court despite the fact that like Alison said, it is a completely theoretical injury. You can't see my air quotes, but there is no injury here because unlike was the case in Masterpiece Cake Shop, the law, the Colorado Anti-Discrimination Act has not been enforced against Lorie Smith because she's never sold a wedding website to anyone or not sold a wedding website to anyone. So this is even more of a just bizarre framework for this issue to come before the court. But we'll talk more about the problems with that later.
I just wanna give kind of a quick, okay, how did this case get to the Supreme Court. So as we just mentioned, this is a case where the law has not been enforced against Laurie Smith. So, this is ADF again, Alliance Defending Freedom and Lorie Smith bringing this reinforcement suit, challenging the Colorado Anti-Discrimination Act as violating her free speech and free exercise rights under the First Amendment. So just like in the masterpiece case, except for this is before it's been enforced against her, she just wants to get into federal court and say these laws violate my First Amendment rights even though they haven't been enforced against me because I'm afraid that they will.
And so that is chilling my conduct. So the, the district court, the Federal District Court ruled in favor of Colorado, the 10th Circuit, which is the Court of Appeals for the state of Colorado, affirmed that. So Lorie Smith lost her claims in federal court and in the federal appellate court with regard to the free speech claim. The 10th Circuit Court of Appeals did recognize her wedding websites or her theoretical wedding websites as in implicating pure speech.
And they did find that CADA, the Colorado anti-discrimination law, therefore compels speech and therefore strict scrutiny applies. So that basically means that the court has to really evaluate the Colorado State action closely and that the law in question has to be narrowly tailored to a compelling state interest in order to be upheld.
But what the 10th Circuit found is that CADA does survive strict scrutiny because it is narrowly tailored to a compelling government interest. And that interest is the interest the government has in having anti-discrimination laws, which is equal access to publicly available goods and services for all of its citizens without regard to sexual orientation and other bases. And the 10th Circuit also rejected her free exercise claim basically under employment Division v. Smith, which we've talked about in the past. But the gist of it is CADA is a neutral law of general applicability.
So it's not specifically targeted at Lorie Smith or on the basis of her religion. It is just a neutral law that applies to all businesses open to the public. So there's no free exercise implications there.
Rebecca Markert:
I just wanna jump in here quickly because you mentioned Liz, that the 10th Circuit recognized her wedding websites and Alison and I were like, but she hasn't been doing this. She did provide mock-ups of what she would do if she was engaged in that sort of business. And so that's what the 10th circuit was looking at and exhibits were appended to the briefs at the Supreme Court.
So during oral argument you hear a lot of the justices referencing pages of websites that she theoretically would post if that's something that she was going to do, including her disclaimer that she is not going to do it for same sex couples.
Liz Cavell:
Right. And just why that's important that she wants to advertise on her website that she doesn't do that is that there's actually a separate section of CADA that says it is also illegal to publish or advertise that your goods or services will be refused on the basis of sexual orientation or that patronage is unwelcome. This is, I'm quoting the language of the law, unwelcome, objectionable, unacceptable or undesirable because of sexual orientation. So just advertising that you discriminate on that basis also violates the law in addition to actually doing the discriminating.
Alison Gill:
And that's pretty standard in non-discrimination laws. Like we saw that, especially cuz that was of course a major problem during segregation era where they'd have signs that say, you know, no blacks allowed or things like that. That would be very clear that the organization discriminates and that's part of the problem that they're trying to address with these types of non-discrimination laws. So they can't, specifically say that we don't serve certain types of patrons.
Liz Cavell:
Right. And obviously that makes sense cuz it's not enough just to say you can't discriminate once these people come in your doors. It's no answer to say, well we don't actually turn people away. They just don't come in because we have a <laugh> because we have a super intimidating sign on the door that says your business isn't welcome here. Obviously it's all part and parcel of the same thing, which is, uh, open access to goods and services on the basis of sexual orientation, race, Religion, and all these other protected classes, right?
You say all kinds of things in regards to refusal of service, like no shoes, no shirt, no service and that kind of thing. But you can't do that on these protected bases. And most states include race and religion and ethnicity and a great many states also would like to include sexual orientation and sex in those anti-discrimination laws. Colorado obviously is one of them.
Alison Gill:
In Colorado, these are called places of public accommodation. So you know, there's different aspects of non-discrimination laws. There's employment non-discrimination, there's housing non-discrimination. This is a place of public accommodation. So, and that's actually brings up another issue I wanted to address a little bit here because Colorado's place of public accommodation statue is really interesting. I mean, just looking at it, they define a place of public accommodation to meet any business, engage in sales to the public or offering services or any place offering services, facilities, privileges, advantages, accommodations to the public.
Now in the history of these places of public accommodation, you're first limited to transportation like buses and railroads and later hotels. But over many, many years most states have grown this to include restaurants and banks and some places even include schools and government offices. But it's sort of a concept that's evolved over time.
And if you look at Colorado's law, these are all actual places like barbershops. There's a whole list of things here that count. And yet 303 Creative is not a place, it's a fully online website. So one thing that I've always found interesting is why is this a public accommodation? Because I mean, Colorado said it is and it's their loss. They get to say that. But I always thought that was half the problem in this case, honestly, why is this a public accommodation? Because it wasn't public accommodation. We never get to all the problems here.
Liz Cavell:
Exactly.
Alison Gill:
I'll just didn't come back to that. It was just something that annoys me.
Liz Cavell:
And I mean, I think Alison, we'll call that the best case scenario for the SCOTUS decision on this because it's true that what the Supreme Court could say is that we don't view this as a place of public accommodation under the law. And so Colorado can't enforce this law against this particular business.
That certainly could be a resolution of this case. But we should say that obviously Colorado, the state's position is that this is a place of public accommodation and that they, they seek to hold a very broad view of what a place of public accommodation is, which is, it's a business that offers retail sales to the public. If you sell goods and services to the public, you're a place of public accommodation. And they view that as a really broad, broadly defined concept because obviously course the more broadly it's defined, the broader the protection is for citizens in the state of Colorado.
But Alison's right that that is one way to resolve this issue. And that certainly is a way that both under the federal civil rights law and other states that don't have quite as robust protections as Colorado, that is definitely a way in which these laws are narrowed in a lot of states and in the federal government.
Alison Gill:
I mean if this is extending to organizations that are online, there's no limit. Does this apply to Amazon? Does it apply to, I don't know, um, a little website design place in England? Does Colorado's laws get to define and govern the entire world? Like it's a little bit unclear how this works and what the nexus is.
And so that's one of the, one of the other issues I see with this. They have such a broad open definition of public accommodations. I just, I'm very skeptical of this whole thing. And if frankly if the Colorado just agreed that they're not a public accommodation, we couldn't avoid this whole mess. Anyway.
Liz Cavell:
Yeah, no you're so right. And I'm honestly like thinking about this for the first time from the perspective of like it's the online nature of the business that like raises the unique issue rather than this is an answer to just narrow your protections kind of a thing. You know what I mean? Because place of public accommodation could be defined anyway. It could be places that involve eat, drink, sleep or amusement and that's it. Kind of like federal CRA.
But you're saying actually there's a factual question here about what it means to be open to the public in Colorado, right? Like a business that was not a business registered in Colorado, but they obviously do online sales all over the world and it's not Amazon, like it's a little shop. You know, I order things from like little makers that I find online and they're not located in my state and it's just like, okay, well what types of laws are they bound by in terms of anti-discrimination, public accommodations laws?
And I think that's like a really good question that I hadn't considered sooner. I think it's safe to say that nobody is pushing that argument before the court and it probably does not seem to be what the Supreme Court is chomping at the bit to clarify for all of us. But I do think that's a really good point and that would apply uniquely to this website services type of thing, right? But it wouldn't resolve the billion other cases ADF is taking in this industry, which is a lot of photographers and wedding venue providers and florist and other things.
Alison Gill:
Sure. But those are also closer cases a lot of times. First of all, if they have like a storefront, they're actually in business as opposed to this person that's one and second. Like there's people actually walking in and accessing the businesses.
Liz Cavell:
Correct.
Alison Gill:
So it's easier to make a case that you're actually discriminating these people to their faces as opposed to this formless shapeless case we have
Rebecca Markert:
Here. It seems faceless, but she plans to put up a sign on her website that says, I'm going to discriminate against you based on who you are. I understand what you're saying about the public accommodations, but I think it doesn't get rid of the fact that this person wants to discriminate against someone. Do you know what I mean? And that is the ill that the court should be seeking to remedy.
Liz Cavell:
Yeah. But I do agree that it's like this thorny just like nerdy factual question. It's more just the factual question of like, I'm just thinking of, okay, well what if we had a court that was interested in this question, what would that look like if it was the case that Colorado law does apply to your online business, you don't have a storefront but you sell to customers in Colorado.
Is it like you can't do that if your homepage is gonna have this discrimination law on it. And so it's kind of like all those extra laws that you see on the shit you buy online for California where it's like, if you're in California, I guess we have to tell you about all these chemicals, you know, that kind of thing.
Alison Gill:
Right? <laugh>
Liz Cavell:
Like would it be that kind of a thing where it's, it's an online business you clearly sell to anyone who pops up onto your website, but maybe you're not allowed to do that in Colorado and how would that work?
Alison Gill:
Like no sex couples unless you happen to live in Colorado. Something like that <laugh>.
Liz Cavell:
Right, right. It just raises a just really weird thorny questions that have more to do with the future of like how we analyze laws in the online world that we live in. But it's definitely not something I've ever seen brought up in this case or any of these cases when it comes to how do we define a, a place of public accommodation.
And I think one of the big problems with this case and kind of just shifting us back to the case, the way it's being analyzed and litigated. One of the problems in this specific case because there is no real world injury or interaction that happened that gave rise to this. This is all in the theoretical. What the record consists of is a bunch of what we call stipulated facts in a case where both parties agree on what the facts are. But in this case the facts are largely hypothetical.
And I think that's a problem for the state of Colorado more in this case where they have had to or have felt that they should stipulate to a lot of the facts below. And that is what they're kind of stuck with on appeal. All the facts that both parties agreed on. And one of those facts likely is that this business is a place of public accommodation under Colorado law. They're kind of stuck with that.
Alison Gill:
Yeah. One issue also is that, you know, Colorado has higher stakes here. They have to actually enforce this law against other people. So they can't just stipulate facts in the record. You what I mean that are, they're making up on the spot.
They have to be consistent with how they're treating this in other cases. Whereas this organization, ADF and this plaintiff, their case is a lot more amorphous. Their beliefs can change as needed. There's facts they agree to or stipulate can change as needed. And we saw this so much in the oral arguments cuz this case is just completely malleable.
Rebecca Markert:
Well I think my refrain for this episode is this case should be dismissed, it's manufactured and it should not be before the court at all.
Liz Cavell:
Right. Right. This is not a ripe case or controversy, which is what our courts are supposed to be reserved for. Especially again, we say this all the time, thousands of petitions for cert review to this court every year they handpick the cases that they most want to hear. And this is one of those cases, right, where there's no case or controversy that's actually happening.
Rebecca Markert:
There's no injury.
Liz Cavell:
No injury, nothing has happened.
Rebecca Markert:
Nothing has happened. And our federal courts for our listeners are supposed to be hearing cases and controversies. They're not charged with giving advisory opinions. They're not supposed to be ruling on hypothetical situations like this.
Alison Gill:
Can I just add though, at the beginning of the arguments found, it really galling how the attorney for 303 Creative starts off by saying, oh for six years she has not been able to offer wedding services. This is all because she hasn't been able to do it. Oh no. It's a way to really flip around the whole scenario here when they just haven't proceeded.
Liz Cavell:
That's Kristen Waggoner an ADF lawyer, was representing the plaintiff at oral arguments in front of the Supreme Court and there's definitely a lot to say there.
So just to wrap up. Okay. They obviously lost in the district court lost at the 10th circuit Court of Appeals, the business 303 Creative and then they applied for cert before the Supreme Court. And unbelievably the Supreme Court agreed to hear this case, even though a case just like this masterpiece was decided, I guess it was four years ago.
But again, that was when Justice Kennedy and RBG were still on the court and Kennedy's opinion there just avoided the constitutional issues and rested on this weird hostility rationale to find in favor of the bakery.
Rebecca Markert:
We should also note that Breyer and Kagan were in the majority in masterpieces cake shop.
Liz Cavell:
Yes. And that was a weird case with some weird concurrences and there was all this sort of weird speculating mostly by me and Rebecca about what horse trading was going on that year behind the scenes to get those votes on that case. Like that was the year I think of the Muslim ban case and other things. But all for not, cuz I think there were just a lot of wacky decisions and sometimes you can get a or a Breyer on board with your bunk religious liberty claims.
I think they were signing on to the idea that okay, he did get sort of unfairly treated during this process, which was total bull, but that's all they bought into. And they wrote separately to indicate that anti-discrimination laws in general do not violate the constitutional rights of the people who want to discriminate in violation of them. But nevertheless that was a different breakdown and a different court. Right. Because now the, this court is drastically different than the masterpiece court, which is saying something.
Rebecca Markert:
And that's what I was thinking about as we were preparing for this episode. I remember at that time when we were reviewing the opinion from Masterpiece, I went through because Kagan wasn't squarely on our side for a lot of these cases. She's kind of like 50/50. But the court has moved so far to the right now that I believe she'll squarely be in the dissent in this decision.
Alison Gill:
I mean they really punted on the issue that we're discussing here and that other case and unfortunately that had really negative consequences as well because the rule they have made out there was so ridiculous about, you know, there's no way that the Colorado Civil Rights Commission statements were actually disparaging of the religious beliefs of the cake shop owner. It's absurd.
Rebecca Markert:
It was hostile to him, but no hostility toward any of the Muslims during the Muslim ban. That was where we were at four years ago.
Alison Gill:
Exactly. So that's not a realistic legal theory. They were just trying to get it kicked. But I mean now we're seeing the consequences of that both ways. We saw the consequences Masterpiece come up again and again the way they decided that now we're seeing just back in the courts again.
Liz Cavell:
Right. And I mean that's the real failure of that case and obviously there probably weren't enough votes to go the other way then either. So it's not like Kagan and Breyer made the difference there. But I do think, you know, what they failed to do is put the kibosh on this litigation crusade that is still out there pushing, pushing, pushing with the ultimate goal of making it so that states cannot enforce anti-discrimination laws against people who want to discriminate against LBGTQ customers
Alison Gill:
Or anyone.
Liz Cavell:
Or anyone. Right. Of course cuz as we're gonna talk about this, there's no, there's no principled way to limit this to one protected class versus the others. This is an evisceration of civil rights laws, but public accommodation laws at the very least.
So it's important I think to point out as we're kind of zeroing in on what actually took place at oral arguments at SCOTUS is the issue that the court agreed to review because 303 Creative, Lorie Smith and ADF, they pursued this case just like the Masterpiece case, which is that this law and its enforcement against 303 Creative violates the business's free exercise rights and free speech rights.
And what the court agreed to hear was only the free speech question. So the issue before the Supreme Court as they went into oral arguments in December is whether the 303 Creative has a First amendment free speech, right to refuse to sell wedding websites for same sex couples and to advertise that on her website, while of course selling the same product for opposite sex couples as she so deeply burns to do, but has not yet done the court for whatever reason, only wants to address the free speech claim in this particular case. So that is what all the oral arguments were about.
We wanna just give a little recap of both parties arguments given that the Supreme Court has agreed to review this free speech question. Lorie Smith is making the argument that she's declining services based on the message that the website will convey, not based on the sexual orientation of the person who's requesting to buy it. So she's arguing that she will design any website for any gay patron, just not a wedding website.
I think the ability of ADF in these plaintiffs to muddy the waters in terms of just like the public discourse around these cases comes down to this sort of argument where you sort of tease out the status of the customer from the good or service being denied. And there's something about wedding goods and services and same sex weddings that I think requires a little bit more of a nuanced way of analyzing that the argument being made is that no, they're totally separate. I'm just not making same-sex wedding websites. It doesn't really matter who wants to buy one.
Alison Gill:
Yeah. They want to differentiate discrimination about same-sex marriage and weddings versus discrimination based LBGTQ status. So, you know, of course Colorado's argument was, well this is all status based discrimination. Right?
So it's part of the problem here and they're trying not to do it just here, but in all sorts of these different cases, basically hollowing out the same sex marriage provisions. The courts have said that every state has to allow same sex marriage, but if they can hollow that out, so basically that doesn't mean anything, it doesn't actually provide any protection then that's a way of sort of making it so the law does not actually protect LBGT people.
Rebecca Markert:
It's like the love the sinner but hate the sin argument that we always hear. And it's so frustrating because you can't make that make sense.
Liz Cavell:
Yeah. But in a way though, it tricks your brain for a second there. Like the idea that it's not the sexual orientation of the customer. In other words, I will design like a whatever, a business website or a charity website or anything to a gay–
Alison Gill:
A person's birthday party.
Liz Cavell:
Exactly. But I just don't, I just won't design this one website for this person. And then that sort of confuses your brain a little cuz you're like, oh, okay, maybe there is something to this argument. Like it's just one of those things where like factually you try to make it seem like the factual waters are muddied.
Rebecca Markert:
You also know that that's not true. Like she's not gonna, Lorie Smith isn't gonna go out and design the website for the Trevor Project. She's not gonna do that. Like <laugh>, come on.
Liz Cavell:
Yeah. Oh I know, totally. A hundred percent.
Alison Gill:
It's funny because in the oral arguments she says things like, well I wouldn't design a website for an opposite sex couple that says on it. We think same sex marriage is great, as well. But the difference is if they were to change that one message, they would go ahead and design it.
Now imagine if you had a same sex couple that had a marriage website and they said, well we're not a big fan of same sex marriage, we're just doing this for the tax things. We only think office of sex marriage is legitimate, but you know this, we're doing this, so here's our website. You know, she wouldn't do that. You know what I mean? So the identity does matter. It's all important here. It really is about status.
Liz Cavell:
But you tried it, you tried to distill it down to, I don't know how it became the devil's advocate in this conversation, but I'm going for it. Waggoner's doing this at oral arguments. You're trying to distill out of it the the like business transaction, right? It's like, well all this law says is that I have to sell my wares to people not based on sexual orientation.
So it's like, think about this father, the bride is the one paying for this website and he comes in and he's a gay man and he's like, I want this for my lesbian daughter's wedding. And she's like, no, I don't do that. And then straight dad comes in and she won't sell it to him either. So look how not <laugh> discriminatory she is, it's not the person that wants to do the paying, it's the thing that I'm selling.I just don't offer that thing. And that thing is a same sex wedding website, which is a different thing than a opposite sex wedding website.
And that's where the problem is. It's like, are those two services different? They're defining the service in a way that includes the status. And Colorado wants to define the service as no, you sell wedding websites, period. You don't get to say I don't sell gay wedding websites to anybody gay or straights just a different way of, of defining something. And Colorado is just desperately trying to say no, no, the, the service is defined as wedding website design.
Rebecca Markert:
Well and I guess what she was saying too is that she would sell a wedding website to a gay father of a heterosexual couple.
Liz Cavell:
Exactly. So right, as you can see, I don't discriminate based on sexual orientation
Alison Gill:
And Colorado and the government presented arguments and this has been well established in a law that this is not the case for everything. But like same-sex marriage is linked inextricably to sexual orientation and to same-sex couples. So that's not true for everything. But there's certain types of identities and services that are linked closely together. And that's important to understand here because that's what they're trying to contest is that sort of linkage separating out the two.
And they've made it clear that those things are linked, especially for same-sex couples in these circumstances because nobody else gets same sex married besides gay couples. And there's other things like tattoo, I mean you could say like, well I offer any type of party for anything but I won't offer bar mitzvah. Right. Okay, well they only affect one group of people.
Rebecca Markert:
And that came up in the oral argument too. Justice Kagan talked about anti yamaka law, right? You're only discriminating then against one group of people.
Liz Cavell:
Right. I think one of the arguments that a lot of times ADF and these plaintiffs and and groups like almost can't shy away from is that they're asking the courts to feel a little bit differently about sexual orientation than they feel about some of these other status groups, right? There is this idea that is being promoted in these cases that somehow discrimination against LBGTQ people on that basis is not as bad as discrimination on the basis of race or religion or ethnicity.
You can't really get away from it. And I honestly think in some of these oral arguments, they don't really try to get away from that. I mean, when you're asked the question by a Supreme Court justice of how does your argument not apply to someone that wants to discriminate against black people, the answer is like, well you know, that's just different. Society feels differently about that. It's like this idea that the court went down this–
Alison Gill:
Now they do.
Yeah, exactly. Exactly. Exactly. Anyway, so back to the arguments of the parties, right? So under the free speech question 303 Creative is arguing that her case is analogous to this case called Hurley. That was a 1995 case at the Supreme Court where the Supreme Court ruled that Massachusetts could not compel the private organizers of the Boston St. Patrick's Day parade to allow an LBGTQ group to march, even though excluding them from the parade apparently violated Massachusetts public accommodation law.
So this was also a speech question where the court held that forcing them to include this group in their parade, this is a private parade, would violate First Amendment rights of these private parade organizers to choose the message that their parade conveyed. And I think it's really important, something the court said in that case was along the lines of, a parade is a really unusual context to see like a public accommodations law being enforced back to the conversation Alison was raising earlier. There is a major question as to whether or not a parade is a public accommodation in the way that most laws define a public accommodation offering goods and services.
Yeah, . And, and it creates bad law. Like when you do this and you create something that's not a public accommodation, you try to stick it in there in law, you get bad law and that's what Hurley is. It's a good example of something that should not exist. And anyway, and we're at that place again.
Liz Cavell:
Totally. So, Lorie Smith, the 303 Creative in this case is arguing that SCOTUS should analyze her case under that Hurley case and look at her business and the action she wants to take just like that Boston St. Patrick's Day parade. And so the analysis there is the good or service involved speech or conduct. And if so, is the speaker's message affected by the speech it's being required to accommodate or give.
She's arguing that the service at issue is her web design, which is pure speech and forcing her to offer that service to gay couples is compelling her speech. Right? That's a big question here that whose speech is it? And she's saying, it's my speech. You're making me speak by making me provide this web design service for gay couples in a way that violates my sincerely held religious beliefs. Colorado on the other hand is arguing that, no, this is not like Hurley at all.
Hurley was this unique context involving a parade and a purely private message this in Colorado, all that CADA is trying to require here is that Smith sells whatever products or services that she offers to anyone, to everyone without regard for sexual orientation. So their interest is compelling, right? They wanna protect marginalized people from the harm of being discriminated against in the marketplace. And it's narrowly tailored to achieve that goal. Meaning, the only thing it's saying that businesses can't do is offer basically a different menu to gay people than you offer to straight people. You can't offer wedding websites to straight people but not gay people.
So Colorado has another case that it likes to point to that Supreme Court should follow. Colorado argues that this is more like the Rumsfeld v. FAIR case and that was a 2006 decision holding that a federal law that withheld some federal funding from universities that restricted the access of military recruiters did not violate the first amendment.
So the court found that the law regulates conduct not speech because it affects what law schools must do, which was a afford equal access to military recruiters, not what they may or may not say. And Colorado is arguing that this is the analogous legal context, not the Hurley parade context.
Alison Gill:
Just to be clear about what happened in this case is these schools in essence wanted to boycott like the government having their recruiters at their events. And so they said, well us not having you there is our way of speaking out against what you're doing. Your discrimination, your don't health policy. And the court said, well it's not really speech though, you're just offering them a room or not. And there are speech elements involved like that goes on the advertising for the job fair or whatever and they have to tell students where the rooms are. So there's definitely speaking elements, but the court said those are incidental.
So what really matters here is that this is not really a speech issue. Speech issues are sort of ancillary. And at the time I think a lot of us were really upset by this decision and it's kind of strange being relied on here. But it is roughly analogous to what's happening in some ways,
Liz Cavell:
Right? So what the court was saying is, your speech is not being impinged because we're not telling you what to say or not say, we're just telling you what you have to do. And what you have to do is give these recruiters the same room as other recruiters on your university campuses. You don't have to approve of them, you don't have to say anything. You might have to engage in some communication like Alison was saying. But ultimately this involves conduct, this regulates your conduct university, it does not regulate your speech.
And so Colorado argued this is more like the situation here. We're telling businesses that they have to sell on equal terms. We are not telling them that they have to do anything more than that. They don't have to engage in speech, they don't have to convey any message, but they do have to conduct themselves in this anti-discrimination way when they're selling goods and services. Colorado distinguished the Hurley case, like we said earlier, as not involving sale of goods and services.
Like I said, the court in that case noted that the parade context was a really unusual application of public accommodation law. But a business selling to the public is the classic public accommodation. I mean, Alison raised some really interesting thorny questions about the online nature of the business. But the fact is that a business selling services is different completely from a privately organized parade in terms of speech and what is being done when you're regulating what the business can do, a parade is not normally subject to regulation on who's in the parade. How you have to conduct yourself as a business in terms of public accommodation laws is a classic way of applying those laws.
So that brings us to oral arguments.
Alison Gill:
Yeah, I'm excited to talk about oral arguments because these were wild. The first thing I just wanna say that struck me is how every single thing in oral arguments was a hypothetical and that often happens in Supreme Court, but because this case has zero facts and lots of made up information and made up hypos, we just had these abstract sort of reasoning nonsense. It just went on and on and on these, these sort of scenarios, it just got more and more complicated and ridiculous. It was just divorced from reality.
Rebecca Markert:
It as two hours too, wasn't it? It was a really long oral argument. And you're right Alison, it had so many hypotheticals. My head was literally spinning totally every time one of these hypotheticals came up I was thinking, wow, that's insane. But just wait because more insanity came.
Liz Cavell:
It got crazy.
Rebecca Markert:
There were so many crazy sound bites from this oral argument that I, I respect all of the people who could live tweet this because I was just like reeling most of the time when you know, somebody was like, here's my crazy hypothetical, here's my really inappropriate comment that I'm going to say and then everybody's gonna nervous laugh at. And people were keeping up with this and I was just like, this is the Supreme Court. I feel like it's insanity
Liz Cavell:
And I hope this tease is getting you interested enough listener to be like, I have to go Google this and listen to it because it's a Supreme Court oral argument, which sounds like it should be really boring, but it was a wild ride.
And just to, just to kind of make the comparison, I think they budgeted 70 minutes for the argument, which was a long time anyway and it just ended up going on for like a full two hours because it's amazing how time flies when all you're doing is making up scenarios and saying, what about if that happened? Like it just, it just went wild.
Rebecca Markert:
I mean I guess it was like one of those things, it's just all of the justices were like, here we can sit here and just like throw out a bunch of hypotheticals. This is legal nerdiness to a T, but forgetting that there's actually real important–
Liz Cavell:
And so there was the kind of the factual hypotheticals that are not things that have actually happened, but things that the parties have stipulated. We mentioned earlier there are a bunch of mockups in the record. So what the plaintiff said that she would design as a website for a heterosexual couple if she would only be given the chance. There was a mockup of how she wanted to advertise her discriminatory policy on her website if she ever started sell wedding websites. You know, the whole case is a hypothetical, but there were some things that were grounded in the record.
But a lot of the questioning from the justices that generated a lot of hypos had to do with, if we give you what you're asking us, how would this situation be affected? And a lot of it had to do with some of the liberal justices trying to tease out where the line is. If the court announces a rule that anti-discrimination laws violate the free speech rights of the people that want to discriminate because they don't want to be forced to approve of same-sex marriage.
Okay, well how is that different from approving of interracial marriage or approving of just desegregation? You know what I mean? Like you could easily see there's no principle place to draw that line. And so some of these hypos were like, what about this situation?
Alison Gill:
They kept trying to pin it to race over and over and over again, you know, to show how it's going to impact other categories besides sexual orientation gender identity because of that feeling you alluded to earlier, saying, well this doesn't matter as much even that's ridiculous, but you know, let's talk about important discrimination as opposed to that.
And of course, and I'm sure they don't think that way cause they're trying to make the point that this affects other issues as well.
Liz Cavell:
Right. But while also trying to keep it very tied to the free speech context, because that's something that I think ADF really feels like they finally got right with this case is that it involves speech in a more classic way than their baker plaintiff or so they think and seems to be the conventional wisdom that like website design is more of a speech related endeavor than cake baking or arranging flowers. Like it's just a little bit more directly tied to speech.
And so I think a lot of the hypos end it that we're trying to get at how is race different got really wild. I mean you have to get really creative to think of something that's comparable to try and challenge the plaintiff to sort of answer the hard question, a big question that was being addressed by oral arguments or not addressed is that somehow race is different.
And a lot of the questions from the justices who seem poised to rule against the plaintiff were, we are alarmed at this argument you're making because it will eviscerate our anti-discrimination laws, including how they apply to race. Like this will be turning the clocks back to like before the civil rights era. And so we did, I think, see a lot of the oral arguments really focused on trying to make the, the plaintiff sort of confront that reality.
The only answer I really heard rise above all the chaos here was that race is different. I can't remember exactly what Wagoner said, but it was something like, well society has like decided that racist discrimination is bad and the subtext there is, we haven't decided that anti-gay discrimination is bad.
Alison Gill:
Or any other category. About disability or sex or any others, right?
Liz Cavell:
Oh, totally. Yeah.
Alison Gill:
Or Religion. You know, I have to say I was not impressed by Waggoner's performance and all this, well there are two situations I wanted to point to specifically. The first is that Justice Barrett set up this easy sort of differentiation for her about we're trying to distinguish the use versus message distinction.
And she's like, well what if it was a couple that wanted to stay on their website that we approve of same-sex marriage? You wouldn't represent them either, right? And, and I think she said something like, no, we would, you know what I mean? So it didn't like, I'm paraphrasing of course, but she she had to come back to it and be like, but you wouldn't really write wink wink. It was very, very leading the witness.
Rebecca Markert:
Waggoner totally misspoke there too. I don't think that she had heard the actual hypothetical.
Alison Gill:
Oh, you think so?
Rebecca Markert:
But Justice Barrett definitely did come back and save her from her answer. Because it was this admission like, yes, we want to discriminate based on sexual orientation and that is what my plaintiff wants. And Justice Barrett was like, no, that's actually not what you want. Right? Like, let me, let me rephrase it because I think you misspoke. And she was like, yeah, cool. You're right. I did.
Liz Cavell:
Right. Totally. It was so gross. I swear every time I listen to one of these oral arguments, it always kind of shocks me for a minute there, how just the conservative majority on this court is like actively trying to help like steer the oral arguments in a way that is favorable to the favored party.
Alison Gill:
I don't know. I'm skeptical. I mean they all do that to some extent. I hear you. I hear you.
Liz Cavell:
Do they?
Alison Gill:
Yeah, no, they do, they all try to portray their, their argument through the lawyers speaking in different ways. I mean I can see it maybe, but it's like, I wouldn't say it's all that much worse. Uh, honestly, I mean I, I think maybe there's a biased
Liz Cavell:
You're so generous
Alison Gill:
Well I dunno
Liz Cavell:
Obviously, we are biased towards certain justices, but I do think it's remarkable how much they are steering her through some of these hypos arguments that she herself is not making, but that they really want to hear.
Rebecca Markert:
I think Alison's right, they all do this. They all sort of give the easy questions, let me help you along counsel, because you know, it's nerve-wracking to be before the Supreme Court. And of course they're also political in that they want to get questions that are gonna be helpful for whatever opinion they're writing and things like that.
I think the difference now is there's six of them. That are acting as the, the helpers for ADF and Lorie Smith here. And so it was very evident in the oral arguments to me that there was so much assistance from the bench that they could avoid a lot of these uncomfortable questions. Like the hypothetical that Justice Jackson posed about the mall Santa photography business where they wanted to have the sort of, it's a wonderful life pictures that you could come in and do, but it was only white children because we're focusing on a specific era and there's a specific artistic expression that we want to put forth.
Bringing back all of these like good old day feelings back in the forties and fifties when everything was great and we had all these wonderful movies and Christmas was magical and all that kind of stuff. So Justice Jackson poses this hypothetical based on race saying, here is this expressive activity that says we want white children only, would you be okay with that? And the attorney doesn't really get to the answer because she's got these other justices that are like, oh wait, no, we're not gonna discuss that because we all agree here that race is different. And of course that would be horrible and you wouldn't allow that.
I mean, I feel like when I was listening to that, Justice Alito jumped in so quickly to divert, you know, she was kind of not answering it and she was trying to avoid it because nobody wants to get really into that, except for what Liz was saying here. Well, we all know that that's reprehensible, but then the other justices are just like, I'm not even gonna make you answer that because I'm gonna interject now. And have you answer a different question that's gonna be a lot easier for you to talk about.
Alison Gill:
The other issue is there's no moderates anymore. Right? So the problem is before like someone like Kennedy might actually hold them to the fire and be like, well I think that question is something we need to know to answer the case. Now we have the six and the three, so everyone's ideologically sort of locked and there's no one who could really from the other side sort of explore those issues, if that makes sense. So there's nobody to, to really probe in and who is actually invested in changing their mind, which is sad.
But I wanted to bring up one other thing that Wagoner did was her argument about what she was actually like laying out. You started this, discussion with Liz. Is there a speech? And if so, you know, she kept saying something like, does the action of the business involve speech? And her second thing she said is then we look at what is the object that the creator is affecting and would that actually be in the final product? And I spent half the oral arguments listen to her and be like, what the heck is she talking about that does that's gobbledy it doesn't make any sense.
And then like the US attorney came in Fletcher and said in the first like three sentences, her argument in a more concise way that I've heard the entire time from her, which is basically like, is this speech and secondly, does serving a particular customer change the message of the business? So that's, I think she was trying to say poorly throughout the entire time. It was just a mess. And so I think there was some real problems with the way she was presenting it.
Liz Cavell:
Totally agree. She kind of tried to use that exact point to distinguish the Mall Santa situation. But you're right, Rebecca, there was a really uncomfortable exchange right after Justice Jackson asked that question because she, Justice Jackson pressed her to be like, no, no, no, don't change the subject. I really want to hear would that business have a right to only take that type of photo? And because the artistic message that they're trying to convey is this bygone era.
And it's not because they're racist, it's just because of their artistic choice. Is that fine? And one of the things that I think she first tried to say Waggoner, was the photograph itself, the message is not in the product. Like what you're saying Alison and what I'm saying,
Alison Gill:
Like what does that mean? The message is not in the product itself. I mean, we just, she in a few sentences before that, she said specifically that photography is speech. Like she said that, and then she said this later, it doesn't make any sense because
Liz Cavell:
She's saying the specific objection is not in the photograph. So I think what she's getting at is that in her case, in her client's case, the invitation itself is the speech, right? Because it says this wedding exists. Like one of the things that I hated so very much was that the framing she chose was that her client believes these marriages are false. She kept using that language false, her belief, that same-sex marriages are false because that's her client's belief. The speech is the invitation itself. It's like creating a thing, a wedding website that announces a wedding that she thinks is false is the speech itself.
So that allows her to distinguish all these other things as like, oh yeah, but the photo of the bygone scene is not the speech itself, the photo is not the thing, right? It, there's a scene in the photo and that scene is an artistic choice, but it's not the speech itself.
And of course nobody understands that argument. And in that little exchange, Rebecca alluded to Justice Jackson keeps pressing it. So Justice Jackson tried to follow her down that rabbit hole. And what she said was, if my hypothetical an invitation to join me in the fifties looking at Christmas in this bygone way, Waggoner keeps trying to say like, no, there's different lines to draw. Okay. And it may be the case that the court would protect the speech and they would have to draw the line in a different place. Just like the court has juxtaposed, Loving and Obergefell in terms of the beliefs.
And what's going on there is she's again saying there's something different about the belief that marriage is between a man and a woman. There's something more respectable about that belief. And the court has said so. And right then is when Alito jumps in to say, and I'm gonna quote here from the transcript, so I don't ended up cursing in Obergefell though,
"Did the court say that religious objections to same sex marriage are the same thing as religious or objections to people of color? Did the court say that? And the answer is no. Of course. Or in fact the court said decent and honorable people hold beliefs about marriage that are bigoted."
Alison Gill:
And so that's what we call dicta <laugh>. It has no legal effect.
Liz Cavell:
Oh my gosh. How they love that dicta from Obergefell. Nothing makes Alito happier on this planet than that dicta from the Obergefell decision that says, quote, "decent and honorable people in our society hold differing views on same-sex marriage." Oh my gosh. He brings that up like just so angrily and defensively. And that literally is the answer to how do you draw these lines between same-sex marriage and other protected classes like race? And his answer is, well, decent and honorable people hate gay people and decent, you can't say the same about, you know, racists. Now can you.
Alison Gill:
I mean it's possible we'll get the Supreme Court coming out that way, but I don't think that's, I don't think, I mean it's possible, right? But who knows, right? If that's really how they decided. I think they have easier ways to decide this case.
Liz Cavell:
Agreed, completely. But I think there is one or two justices who, for them that's enough. And that argument.
Alison Gill:
I mean, no, you're right.
Liz Cavell:
That argument got the, I the fact that we heard that argument at all is telling.
Rebecca Markert:
And it's probably just gonna draw another concurrence talking about how Obergefell should be overruled and was egregiously wrong from the start. I did really like the fact that Hamilton was discussed at the Supreme Court, and Liz is shaking her head because she's upset, but it's not Alexander Hamilton the founding father. It is Hamilton, the musical. And where this is one of those other moments where the Supreme Court, I don't even remember who brought it up. Was it Alito? Somebody brought it up.
Liz Cavell:
Probably. Or Gorsuch one of them.
Rebecca Markert:
One of them. And it was basically like, Hey, you know what? If we find against her, then we couldn't have Hamilton because Hamilton's the musical, the entire goal for that cast is to have this multiracial cast. And you know, if Smith doesn't win, then we don't get this wonderful musical that everybody in the world, especially you liberals, like.
Alison Gill:
Not a public accommodation.
Liz Cavell:
Again, I'm sorry. Exactly. <laugh>.
And I think Waggoner too, like this was in her pocket. Like she brought this up response to Justice Jackson. She brought up, well take the musical Hamilton, right? Because in Hamilton they're expressing a preference for who they're hiring in terms of race, right? Because it's known that Hamilton, the performance is meant to be this re-envisioning multiracial cast of the founding era.
And Justice Jackson got really impatient with that. You're going into a thousand like different analogies. And I think the answer to that is literally that is actual art. Like this, that's not a public accommodation, that's not analogous to what we're talking about here, but it's trying to make the point that like, you don't have a problem with that discrimination, you know?
Alison Gill:
Right, right. And it's about creating, I mean, creating the art is one thing. If they only let certain people into the theater, that would be something else. <laugh>.
Liz Cavell:
Exactly.
Alison Gill:
That is a difference here. Another, another issue that came up a little bit regarding the, the hypos was that there were a few that they tried to point out, especially to the government solicitor's general's office, Mr. Fletcher, regarding discrimination against something that might be involving religious beliefs.
So for example, I don't have the hypos in front of me, but a situation where basically they are excluding someone or someone's not getting service on the basis of their beliefs or really, not really their beliefs, but their message or what their actions are. And a few times they made the point, well, they're not being excluded because of their their beliefs, but because of the message that they're being asked to promote.
Like, would you make a cake, for example, that says, only straight marriage exists. There's no such thing as gay, same sex marriage. Okay, that might, that may be a good example, but there's nothing linking necessarily religious beliefs to that message. So they're different. They tried to make that point a few times, and I think it sort of resonated with the conservatives a little bit. But the fact is this is not really involve Religion as a category. Like people of all sorts of beliefs can believe in same-sex marriage or not. There's not no direct correlation.
Liz Cavell:
Right. One thing I'm thinking of right now is that what I said before, Alison, that you kind of push back against how it really strikes me how helpful they are to their favorite side. I think you're totally right that like, that phenomenon is not abnormal or new in oral arguments.
I think what I really was feeling and now is kind of just like working itself out as we're talking about it, is these moments in oral arguments as we were talking about the Hamilton thing, it kind of reminded me like, oh yeah, this is more what I'm feeling. You hear these really partisan talking points come out of the mouths of these justices where you're just like, whoa, that was way out there. And the one that I just have to bring up is the reeducation talking point.
Alison Gill:
Ohhh yeah.
Rebecca Markert:
I had that marked too, because I thought before we end this podcast, we have to talk about reeducation by Justice Gorsuch
Liz Cavell:
Right. So when Olson arguing for Colorado was being questioned by Justice Gorsuch and he was referencing the Masterpiece case in trying to draw this kind of what we were talking about earlier, the fact that like somehow status is not bound up in the actual service that's not being provided here. And so he's giving some hypos, like, tell me the difference between a speech writer who doesn't wanna say X and this web designer.
And then one of the things that he brought up is the, the way Colorado enforced the anti-discrimination law in the Masterpiece Cake shop case. And what he said Justice Gorsuch was, well, Mr. Phillips did go through a reeducation training program pursuant to Colorado law. Did he not Mr. Olson?
And Olson's trying to correctly characterize what happens when you violate anti-discrimination law and you're a business is you have to watch a little training video that says this is what the law is and this is how you abide by the law. Just like a sexual harassment training video or some other training video that you might watch when you get too many points on your license. And it tells you how to not drive like a maniac.
So Justice Gorsuch is framing this as a reeducation program, which is obviously like a trigger word for like Nazi stuff. And Mr. Olson for Colorado is saying flatly, it was not a reeducation program. And he really pushed back and then all of a sudden Justice Gorsuch, like the mask comes off and he's like, well, what do you call it? And he's like, it was a process to make sure he was familiar with Colorado Law and Justice Gorsuch says someone might be excused for calling that a reeducation program. And to his credit, Olson just leaves it as I strongly disagree with that Justice Gorsuch.
It was just this bizarre moment. And just that language, that framing that narrative and the fact that it was just sitting there in Justice Gorsuch's pocket, it just jumps out at you as like, what is this person Justice Gorsuch? What is he consuming and thinking about and reading as he is sitting supposedly impartially judging these cases that was just out there.
Rebecca Markert:
I think this all goes back to this narrative that comes from the right, that here are all these horrible liberal, progressive people trying to indoctrinate young children and all these bigoted people into the gay agenda. And we are just trying to make everything horrible. And that language that he uses at the court just plays into all of the awful things that are happening to the LBGTQ community right now too. I mean, I feel like it's just bolstering the discrimination that they're experiencing everywhere, not just in the courtroom or out in the world. Do you know what I mean?
Liz Cavell:
Oh yes, exactly. That's exactly what he means when he's throwing that terminology into the conversation. It's that there's this like liberal faction of the country that wants to reeducate all of us into their woke trans obsessed agenda. And this is the language that's used to support the anti-trans anti-gay agenda that is being pushed. And here it is getting a stage at the Supreme Court and coming outta the mouths of one of the Supreme Court justices.
Let's talk about predictions. Obviously we do not sound optimistic, so you can tell, we predict, I think a ruling in favor of 303 Creative, I am calling it six to three in favor of discrimination against LBGTQ people. What do you think?
Alison Gill:
Well, I would hopefully frame that differently. I mean, I think the best way they come out is say this is on a public accommodation. I don't think they're gonna do that. What I think they're gonna do is say that, okay, Colorado can prohibit discrimination based on status, but here they're trying to prevent discrimination based on message and therefore that's not allowable. And therefore it would carve a hole into non-discrimination law in that way, potentially. The question is how do they frame it and what's the extent of that hole?
Liz Cavell:
Right?
Rebecca Markert:
But with that being the outcome, how do you think the votes fall? Do you think it's still six three? Because it sounds like that argument could sway some of these liberal justices.
Alison Gill:
No, I don't think so. You don't think so? I think it's still six three. Yeah.
Liz Cavell:
Kagan is probably most vulnerable to that type of an argument. I do think in the oral arguments, she at least gave some lip service. There are some close questions or some close cases on the speech question, but she didn't seem very convinced that the speech in question in this case is the speech of the business. So I would be really surprised if even on a quote unquote narrow ruling like, like that. I mean, is that what we would call a narrow ruling Alison in this case? Like what?
Alison Gill:
It depends on how they frame it. It could be narrow or broad. It's pretty malleable, and the other side's gonna push to make it as broad as possible and apply everywhere they can. I think a narrower ruling would be like what I said around places of public accommodation.
Liz Cavell:
Yeah.
Alison Gill:
Or something like that, unfortunately. But it is possible, I guess they could say in these very extremely rare cases where, you know, there's speeches indicated this narrow way, but like as we were talking before, the argument Waggoner was making about how this is differe is so hard to understand. Arcane, I just don't see how that works.
Liz Cavell:
Right. Well, a note I made here, and I just wanna mention it in my mind, the most likely quote unquote narrow ruling that's realistic is the one that Alison's predicting, which is that somehow this web design service implicates speech in a way that most businesses and goods and service providers do not. And that's, and somehow they draw a line around that. I don't know what that looks like. And it's, the narrowness is obviously illusory no matter how they try to do it.
But I do wanna talk about what's also possible either in dicta or just in how they decide this case, which is what this court is really driving at, is this idea that states that want to give more expansive rights beyond what the federal constitutional minimums are or what federal law would do. This court does not have a lot of patience for states that want to give a more expansive view of civil rights.
This is the same way that they have treated states in the context of the Establishment Clause. You heard us talk in the main case about the disdain that the court is showing for the state of Maine wanting to give broader meaning to state church separation than the court believes the federal constitution requires. And they have no patience for that because that distance between federal minimum state church separation and what the state of Maine wants to do, that distance violates the free exercise rights of churches or religious schools.
And I think there's a similar kind of thing going on in this case where the state of Colorado wants to have this expansive definition of anti-discrimination law, and the court is stepping in to say, well, you know what, like the free speech rights of these favored Christian litigants, they are in that space between what the Constitution requires and what the state of Colorado wants to provide. And it basically is this further subordination of all of these other rights and elevation of the free exercise and free speech, in this case, rights of conservative Christians.
Alison Gill:
And ironically, it uses the Bill of Rights and the the federal Constitution not to expand rights, but to put a hard stop the state's expansion of rights. So it actually reverses the intent of the First Amendment to actually limit the rights that the states provide, which is kind of amazing, if you think about it.
Liz Cavell:
Yeah. Too cute by half. So that's like the kind of broader trend that is just driving me crazy because it'ss not satisfied to just make terrible federal law. Like it has to decide these individual First Amendment cases in a way that contracts the rights of everybody else in states that want to be more expansive than this court. And Sotomayor said something similar to that in the Carson case, in the main case that I referenced. And it's just really frustrating.
Alison Gill:
Court reform people. It's the only solution.
Liz Cavell:
Exactly.
Rebecca Markert:
The only solution. Well, it's definitely not end game. I mean, they weren't satisfied with Masterpiece. They won't be satisfied with a win here in 303 Creative either. There's so much more that ADF wants to do to privilege religious persons in our country and allow discrimination against marginalized communities.
Liz Cavell:
Yeah, that's a bleak but apt final thought.
Rebecca Markert:
So that's our show for today. I'm Rebecca Markert.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
And I'm Liz Cavell. Check us out on Facebook and Twitter and find us online we-dissent.org. Thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation, and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
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